Extraordinary, Outstanding,
or Merely Exceptional:
The State of the Art for International Scholars
William A. Stock
Region VIII Regulatory Ombudsman
Klasko, Rulon, Stock & Seltzer, LLP
William A. Stock, Esq.
•
Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been
providing immigration assistance and solutions to leading universities, research
institutions, hospitals, multinational corporations, and individuals for over 15 years.
•
Bill is featured in the Chambers Global Guide, Best Lawyers in America, and other
guides to prominent attorneys. He is a leader in the American Immigration Lawyers
Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award,
given to the lawyer under age 35 who has made the most outstanding contributions
to the field of immigration law.
•
Bill is a graduate of the University of Minnesota Law School and is a frequent author
and lecturer on business-related immigration topics and currently is an Adjunct
Faculty Member at Villanova University School of Law.
Permanent Residency Options
• Employment Based Preferences
– First Preference (EB-1)
• Extraordinary Ability, Outstanding Researcher,
Multinational Executive
– Second Preference (EB-2)
• Nat’l Interest Waivers, Advanced Degreed Professionals,
Bachelors plus 5 years exp.
– Third Preference (EB-3)
• Skilled Worker (2+ years experience), Bachelor’s Degree
Permanent Residency Quotas
• Annual Limit on Permanent Residency
• Per Country Limit – 7%
• Allocated by:
– Priority Date – place in line
– Preference Category
Permanent Residency Quotas,
Where Are We Now?
Visa Bulletin for March 2010
All
Chargeability
Areas Except
Those Listed
CHINAmainland
born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
08JUL05
01FEB05
C
C
3rd
15DEC02
15DEC02
01JUL01
01JUL02
15DEC02
5th
C
C
C
C
C
Employment
Based
Permanent Residency Quotas,
Where are We Now?
• “Oversubscribed” versus “Available”
– Available if:
• Visa Bulletin indicates “C” = current
• Priority date earlier than posted date
– Best Case Scenario for FY2010
• EB-2
– China – October 2005
– India – February/March 2005
• EB-1 – expected to remain current
Employment Based (EB)
Permanent Residency
•
•
•
•
•
Employer-sponsored or self-sponsored
Extraordinary/National Interest/Exceptional
Multiple petitions
Multi-Step Process
Non-Immigrant Status?
Employment Based (EB)
Permanent Residency: Self-Petitions
Extraordinary Ability/EB-1 (I-140, filing fee $475)
– “One of a Few at the Top”
– Factors Considered in Initial Evaluation
•
•
•
•
•
•
1st authored articles/impact factors
Citations to 1st authored work
Conference Presentations
Peer Review/Manuscript Review Work
References from independent Experts
Documenting Regulatory Criteria
– Preparation/Processing Times
I-140 Self-Petitions
(cont’d)
National Interest Waiver/EB-2 (I-140, filing fee $475)
– Three Prong Test
• Field is of Substantial Intrinsic Merit
• National Impact of Your Contributions
• You Are “Substantially Better” Than Your Peers
– Preparation/Processing Times
Employment Based: Employer Sponsored
Outstanding Researcher/EB-1 (I-140, filing fee $475)
– Similar to Extraordinary Ability
– At least 3 Years experience
– Permanent job offer
– Qualified Employers:
• Academic Institutions
• Industry
– at least 3 FT researchers
– Recognition in field
Permanent Resident Status
Adjustment of Status (I-485)
• Timing
– Preference categories/quotas
– Priority dates
– Processing times
• Concurrent filing (I-140/I-485)
• I-485 filing fee $1010, includes:
– Employment authorization (I-765)
– Advance parole (I-131)
EB-1/NIW Misconceptions
1)
Every postdoc who thinks s/he has extraordinary ability
does. Every postdoc who thinks s/he doesn’t, doesn’t.
2)
A client who presents herself to you either is or isn’t
extraordinary.
3)
It is not necessary for an advisor to really understand the
field and what the alien does in order to prepare EB-1 or
national interest waiver.
EB-1/NIW Misconceptions
(cont’d)
4)
A biochemist must prove he is “one of a few at the top” of
his biochemistry peers.
5)
It is necessary to provide at least three categories of
documents in order to qualify for O-1 or EB-1 (alternative
myth: presenting three categories of documents is
sufficient to qualify for O-1 or EB-1).
6)
It is important to choose between extraordinary ability,
outstanding researcher and national interest waiver.
EB-1/NIW Misconceptions
(cont’d)
7)
There is no need for EB-1 because PERM is so quick/it is
always better to do EB-1 than to do PERM.
8)
It is critical to maximize the number
of reference letters.
9)
Reference letters should include lots
of information about the referee.
EB-1/NIW Misconceptions
(cont’d)
10)
It is important that the referee be intimately
familiar with the alien.
11)
The more detailed and technical the
reference letters, the better.
12)
USCIS adjudicators read everything in the filed package.
EB-1/NIW Misconceptions
(cont’d)
13)
Examiners do not read cover letters.
14)
It is necessary to have a reputation in the United States in
order to qualify for EB-1.
15)
EB-1s and O-1s have to be filed for aliens in professional
positions.
EB-1/NIW Misconceptions
(cont’d)
16)
An extraordinary ability alien must have an international
reputation; an outstanding researcher can have a purely
domestic reputation.
17)
A student, trainee, medical resident or postdoc cannot
qualify for EB-1.
18)
A postdoc must have a large number of publications to
qualify for EB-1 (opposite myth: sufficient publications
make reference letters much less important).
EB-1/NIW Misconceptions
(cont’d)
19)
An outstanding researcher must have at least three years
of post-degree experience.
20)
An alien’s field of expertise either
is or isn’t in the national interest.
EB-1/NIW Misconceptions
(cont’d)
21)
Good reference letters are sufficient for a national interest
waiver case; it is not necessary to produce independent
evidence of the national interest.
22)
A job must require a masters degree or a bachelor’s degree
plus five years experience in order for a labor certification
to qualify for EB-2.
23)
An alien must have a national or international reputation in
order to be “exceptional.”
Questions?
For Further Information
William A. Stock, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
E-mail:
wstock@klaskolaw.com
Telephone:
215-825-8600 (Philadelphia)
212-796-8840 (New York)
Websites:
www.klaskolaw.com
www.worsite-compliance.com
www.eb5immigration.com
Blog:
http://blog.klaskolaw.com