When dealing with immigration petitions for professionals, it is commonly known that the hardest thing is to find a sponsor; that is, an American employer willing to sponsor the employment-based petition for the benefit of the foreign professional.

When it comes to immigrant petitions (those which, upon approval, grant the immigrant and his or her qualifying beneficiaries legal permanent residence or green cards), professionals have two ways of self-petitioning without having to make a qualifying investment.  One way is through the EB-1 Petition for Extraordinary Ability. The other way is by filing an EB-2 Petition either for Advanced Degree or Exceptional Ability and requesting the National Interest Waiver.

To have an EB-1 petition approved, the immigrant must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This can be done by either providing evidence of a one-time achievement of a major internationally-recognized award (such as a Pulitzer, Nobel, Oscar, World Cup, or Olympic Medal) or by meeting at least 3 of the following criteria:

1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
2. Evidence of membership in associations in the field which demand outstanding achievement of their members
3. Evidence of published material about the immigrant in professional or major trade publications or other major media
4. Evidence that the immigrant has been asked to judge the work of others, either individually or on a panel
5. Evidence of the immigrant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
6. Evidence of the immigrant’s authorship of scholarly articles in professional or major trade publications or other major media
7. Evidence that the immigrant’s work has been displayed at artistic exhibitions or showcases
8. Evidence of the immigrant’s performance of a leading or critical role in distinguished organizations
9. Evidence that the immigrant commands a high salary or other significantly high remuneration in relation to others in the field
10. Evidence of the immigrant’s commercial successes in the performing arts
11. Other comparable evidence

In addition, the immigrant must provide evidence showing that he or she will continue to work in the area of expertise.

As for the EB-2, this visa, in general, allows professionals with an advanced degree (such as a master’s or doctorate) or exceptional ability to apply for a permanent residence or green card. Although the general rule is that the EB-2 visa requires that an American employer sponsor the immigrant, that requirement is waived in cases in which the alien’s immigration will be in the national interest of the United States. This is where the acronym NIW (National Interest Waiver) is derived.

If the alien does not have an advanced degree, he or she will need to prove exceptional abilities. To demonstrate exceptional ability, the professional must be able to show that he or she meets at least 3 of the following criteria:

1. University degree in the area of ​​specialization
2. Employment verification letters showing at least 10 years of work experience in the area;
3. License or certification in the area;
4. Evidence of remuneration for services that demonstrates exceptionality;
5. Membership in professional associations;
6. Recognition of significant contributions and achievements in the field by government entities, professional organizations, and colleagues (awards, teaching, articles about the immigrant or written by the immigrant, honorary positions in the area, letters of recommendation from colleagues, supervisors, clients or authorities, etc.);
7. Other comparable tests.

Regardless of whether you qualify for the EB-2 though an advanced degree or through exceptional abilities, you must also demonstrate that a waiver in the national interest of the U.S. is warranted. The 3 criteria to demonstrate this are established in the famous Matter of Dhanasar case and are the following:

• The proposed endeavor has both substantial merit and national importance.
• The professional is well positioned to advance the proposed endeavor.
• On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

If you are interested in obtaining more information, you can contact us at info@vialexlaw.com or follow us on social media where we will be publishing more information about the different visas and answering some of your questions.