Costa & Riccio, LLP - Harvard University

Costa & Riccio, LLP
Attorneys at law
18 Tremont Street, Suite 601
Boston, Massachusetts 02108
www.costariccio.com
Richard M. Costa
Laurie B. Riccio
Ellen Davey-Fleming
Tel:(617)742-4444
Fax:(617)742-0805
Immigration Options after Practical Training
Harvard University
November 28, 2012
Nonimmigrant Visas (citizenship trumps place of birth). Additional Options for
Canada, Mexico, Australia, Chile, Singapore
H-1B Visas For “Specialty” (“Professional”) Occupations
• The Bachelors Degree (or equivalent) requirement
• The Job Offer Requirement
• Applicant Ownership/The Small Corporation Model
• The Wage Requirement
• The Attestation Requirement (no advertising required)
• The “quota number” Requirement: 65,000 + 20,000 for Masters Degree
applicants)
• The Singapore and Chile Quota
• Previously counted applicants
• The one year abroad rule
• Exempt Petitioners
• Working for an Exempt Petitioner
• Working at an Exempt Petitioner
• Working for an Employer “affiliated with” an Exempt Petitioner
• Concurrent Employment with a Private Employer
• The six year limit on stay
• Exceptions to the six year limit
• Time in H-4 Status
• LCA Process
• Petition Process
• Premium Processing Available
• Change of Status or Consular Process
• Visa Required for Reentry (Except Canadians)

TN Visa Status
• Citizen (not resident) of Canada or Mexico
• The List of Jobs
• The Degree Requirement (usually)
• The Time Period (Increased from one to three years)
• The Process
o Apply at Port of Entry (Canada)
o Apply at American Consulate (Mexico)
• The Foreign Residence Requirement
L-1 Visa Status
• One Year Employment Abroad
• With The Same or Affiliated Company
• Large or Small Doesn’t Matter
• Manager/Executive or Specialized Knowledge
• Dual Intent
• Work Permission for Spouse
E-1 and E-2 Visa Status
• The Treaty Requirement
• E-1 Treaty Trader
• Substantial Trade Principally Between US and Treat Country
• Employee or Owner
• E-2 Treaty Investor
• Substantial Investment
• Employee or Owner
• Local Business OK
• Both: Apply at American Consulate (Usually)
E-3 Visa Status
• Australian National
• Requires Job Offer
• Position offered must qualify as “Specialty Occupation”
• Bachelor’s Degree (or equivalent) Required
• License/Official Permission (if required for job)
• LCA Requirement
• Apply at American Consulate
• 10,500 Visas per Fiscal Year
• Work Authorization for Spouse

O-1 Visa Status
• Alien of Extraordinary Ability
• Requires Job Offer/Petitioner or Agent
• Arts/Sciences/Business OK
• Petition Required
• Special Requirements for Entertainers
• Petition Process
• Change of Status or Consular Process
• Premium Processing Available
• Visa Required for Reentry (Except Canadians)
Immigrant Visas (Lawful Permanent Resident [LPR] Status)
Place of Birth Trumps Citizenship
• The Quota System/Visa Bulletin
• With Job Offer/Petitioner)
Employment Based
o Labor Certification Requirement
Advertise/Recruit/Establish Lack of Able, Willing, Qualified US
Worker at PW
Advanced Degree (EB-2) vs. Bachelors or Two Years Experience (EB-3)
vs. EW (“unskilled worker”)
o Outstanding Professors/Researchers (EB-1B)
Qualified Petitioner
Three Years Experience
International Recognition
o International Managers/Executives (EB-1C)
Multinational Employer
One Year Employment Abroad
Manager/Executive Only, Not Specialized Knowledge
o Exceptional Ability/Schedule A, Group II (EB-2)
Qualified Petitioner
One Year Prior Experience (The Past Year)
“Widespread Acclaim”
Prevailing Wage and Posting Requirement
• Without Job Offer/Petitioner
o Extraordinary Ability (E1)
The Very Top of One’s Profession
No Degree Requirement
Without a Job, Requires Proof of Future Plans
o National Interest Waiver (E2)

Key Role in Activity National in Scope With Strong Support
Without a Job, Requires Proof of Future Plans
• Marriage-Based Applications
o Marriage to US Citizen
o Marriage to LPR
o Marriage to LPR Applicant
• Other Relatives
o Parent, Child, Sibling
o Quota Restrictions
Family Based
H-1B Visa Status
The Job Offer Requirement: H-1B status is driven by the employer; a foreign national
seeking H-1B status must have a U.S. employer willing to sponsor an applicant who will
enter into an employer/employee relationship with the Petitioner. The foreign national is
authorized to work only for that employer in the position described in the Petition unless
he/she arranges for another employer sponsor –this is often referred to as an H-1B
“transfer.”
Specialty Occupations: H-1B status is limited to "specialty occupations". This is similar to the
concept of "professional occupation" under prior law. The occupation must typically require the
attainment of at least a Bachelors Degree in a particular field, or its equivalent. Examples of jobs
which easily qualify as "specialty occupations" include the following: architects, engineers (civil,
electrical, software, etc.), accountants, teachers, and scientists. Jobs in the business sector in
such fields as marketing, management, or finance may qualify but such petitions will be carefully
reviewed on a case-by-case basis to determine whether a formal academic degree is generally
an actual prerequisite for the position.
65,000 Limit Per Year: H-1B visas are now limited to an annual "cap" of 65,000 per fiscal year.
An additional 20,000 H-1B visas are available for applicants who possess at least a Masters
Degree from a U.S. University (even if the job does not require a Masters Degree).
For Fiscal Year 2013 which begins on October 1, 2012 and ends on September 30, 2013,
the entire quota of 65,000 plus 20,000 numbers has already been exhausted. However, it is
still possible to obtain H-1B status immediately in the following situations:
• Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner
• “New” employees who currently maintain H-1B status with another employer, OR who have
previously been in H-1B status in the past six years and have not subsequently been absent
from the U.S. for more than one year [note: if the prior H-1B employer was an exempt
employer as described below, the new petition does require a number under the cap and can
only be filed when H-1B visa numbers are available].
Beginning on April 1, 2013, it will be possible to file a new H-1B Petition seeking a start
date of October 1, 2013.
Exempt Petitioners: the following organizations are exempt from the “cap” and may obtain H-1B
status for new employees at any time:
• institutions of higher education

• a nonprofit organization related to or affiliated with an institution of higher education
• a nonprofit research organization or governmental research organization
(These exempt classes are often referred to informally as “educational H-1B” cases, though this
label is somewhat misleading.)
Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an
institution of higher education
Return Transportation Liability: the law now provides that the employer is liable for the return
transportation abroad of the alien if he/she is dismissed from employment prior to the expiration
of his/her authorized stay. Under prior law, the employer was required only to notify CIS of the
termination of employment.
This requirement is triggered only if the alien is dismissed from employment prior to the expiration
of the authorized stay. The employer has no such responsibility for aliens who quit the job, work
until the expiration of their authorized stay, or obtain LPR ("green card") status in the interim.
"Abroad" means the alien's last place of foreign residence. This is to be a complaint-driven
process. If the alien beneficiary believes the employer has failed to comply with this requirement,
he/she may so notify the CIS Service Center which approved the H-1B Petition.
Labor Condition Application: by far the most significant change is the imposition of a
requirement for the filing of a Labor Condition Application (LCA) with the Regional Certifying
Officer of the Department of Labor. The LCA must be filed and approved before an H-1B Petition
can be filed with CIS. A detailed discussion of the LCA requirements is set forth below.
Filing the H-1B Petition: The employer must then file an H-1B Petition (Form I-129) with the
Regional CIS Service Center having jurisdiction over the geographic area where the alien will be
employed. The Petition must be accompanied by a statement from the employer detailing the
professional nature of the position offered, supporting documents which prove the alien's
educational qualifications and employment history, and a copy of the LCA. Processing times may
vary from a few weeks to a few months, depending on which CIS Service Center is involved, and
current CIS workload issues.
Note: applicants who are presently in the U.S. must continue to maintain a valid visa status at
least until the time the H-1B petition (Form I-129) is filed with the CIS Service Center. For
example, an applicant in H-1B status with another employer must not terminate employment with
his current employer until the new petition is filed. The filing of the Labor Condition Application
with the Department of Labor is a preliminary procedure and it is not acceptable for the applicant
to cease employment at this point in the process. Continued employment must be documented
with pay stubs or other similar evidence.
Applicants who are deemed "out of status" or whose valid status expires before the H-1B petition
is filed with CIS, must generally return to their home country, obtain an H-1B entry visa at an
American Consulate, and renter the U.S. in H-1B status before commencing employment.
Portability of H-1B Status: the law now provides that certain aliens who are in, or were
previously in, H-1B status, may commence employment with a new employer upon the filing of a
new H-1B petition, without waiting for it’s approval. This can be a considerable advantage, but
there are many nuances that must be considered. Please contact us for further information about
portability.
Post-Approval Procedures: If the alien is waiting overseas, the CIS will forward notice of
approval of the Petition by cable to the designated U.S. Consulate overseas, where the alien will
apply for his H-1B visa to enter the U.S. Notice of approval of the Petition (Form I-797) is also
sent to the employer and to the attorney of record, if any. If the alien is already in the U.S. in a
different nonimmigrant category, he may seek a change of status in the U.S. by checking the
appropriate box on the Petition. Upon approval, he may commence employment. However, if the
alien later travels abroad for any reason, he must obtain an H-1B entry visa at a U.S.
Consulate overseas before returning to the U.S. An alien currently employed in H-1B status
with another employer may seek an extension of stay by checking the appropriate box on the

Petition. He may commence employment with the new employer as soon as the new Petition is
approved. In some cases, even if the alien is already in the U.S. it may be necessary or
desirable for the alien to travel abroad, obtain an H-1B visa at a U.S. Consulate, and reenter the
U.S. before starting work. This would be necessary if the alien has overstayed his authorized
stay in the U.S., or has been employed without CIS permission.
Canadian Citizens: are exempted from having to obtain a visa at a U.S. Consulate in order to
seek entry to the U.S. in H-1B status. A Canadian citizen who is the beneficiary of an approved
H-1B Visa Petition may seek admission at a U.S. port of entry by presenting the original CIS
approval notice, together with a Canadian passport. (note: Canadian citizens may also wish to
consider "TN" status pursuant to the North American Free Trade Agreement (NAFTA)).
Family Members: The spouse or child of an H-1B alien is eligible for H-4 visa status as a
dependent. Such persons may enter and remain in the U.S. as long as the principal alien
maintains H-1B status. They cannot be employed, but may attend school without the need to
obtain student visas. An H-4 spouse may independently seek H-1B status if a suitable job offer is
secured.
Basic Labor Condition Application Obligations
The first step in seeking H-1B visa status is the filing of a Labor Condition Application ("LCA")
with the Department of Labor. In order to file an LCA, an employer must be willing to make the
following representations:
• That he is offering to pay the alien beneficiary 100% of the Prevailing Wage, or the Actual
Wage at the place of employment (as long as the Actual Wage is equal or higher than the
Prevailing Wage). The Prevailing Wage is the average rate of wages for those similarly
employed within normal commuting distance in the area of intended employment listed on the
Application. The Actual Wage is the wage rate paid by the petitioning employer to other
workers with similar experience and qualifications who are performing the specific
employment in question at the same worksite.
• That he is offering benefits and eligibility for benefits provided as compensation for services
on the same basis and in accordance with the same criteria as the employer offers such
benefits to U.S. workers (under certain conditions the H-1B worker may be offered “home
country” benefits which may differ from the benefits offered to U.S. workers).
• That he is offering working conditions to the H-1B nonimmigrant worker that will not adversely
affect the working conditions of workers similarly employed in the area of intended
employment;
• That there is no strike or lockout in the course of a labor dispute in the occupational
classification at the place of employment;
• That the employer has provided notice of filing of the LCA at the worksite by one of the
required methods.
• That the employer will provide a copy of the LCA to the H-1B worker on or before the date he
commences employment.
Posting Requirements
Before returning the signed LCA to our office, the employer must comply with the notice
requirements of the LCA. If the position is covered by a collective bargaining agreement, notice
must be provided to the collective bargaining representative in lieu of posting. If the position is
not covered by a collective bargaining agreement, notice may be provided as follows:
• By posting a hard copy of the LCA (all four pages) notice in two conspicuous places at the
place of employment, for example, on an employee bulletin board, where they must remain
for a total of 10 consecutive business days; or

• By posting electronically on the employer’s intranet or electronic bulletin board, provided all
employees in the same occupation have ready access to the information, for 10 consecutive
business days; or
• By a one-time e-mail message to all affected employees in the same occupation.
In most cases, the LCA must be posted at any site where the H-1B worker performs services.
There are numerous, detailed, and complicated exceptions to this general rule. If the H-1B
worker will work at locations other than the address listed on the LCA, please consult with
us about additional posting requirements before proceeding.
Compiling the “Public Access File”
In order to comply with the documentary requirements of the LCA procedure, certain documents
must be made available to any interested party, upon request, within one working day.
Therefore, the employer must compile and maintain a separate Public Access folder for this LCA
which contains the following documents:
• a copy of the certified Labor Condition Application and a copy of this four-page LCA
Obligations document.
• a statement of the wage to be paid to the H-1B worker.
• an Actual Wage memorandum which briefly states how the actual wage was computed and
states the wages paid to the H-1B worker. The employer must determine the Actual Wage by
examining the wages paid to other individuals with similar experience and qualifications who
are performing the specific employment in question. This involves three steps:
Defining the specific employment in question: the employer need not include all workers in
the same profession if they are not filling the same type of position, but neither should the
employer make distinctions based on small variations in job duties. If questioned by DOL, the
employer must be able to show that a good faith effort was made to define the group of
similarly employed workers.
Identifying from among this group of workers only those with similar experience and
qualifications to the H- I B worker.
Identifying the differentiating factors that are used to set the individual wages within the
selected set of workers. These factors might include length of experience, education,
particular expertise, competitive factors, value of client contacts, etc.
If the employer has an established pay schedule or system covering the position in question,
this should be included with the memorandum. The Actual Wage Memorandum need not
include the mathematical calculations used to arrive at the H-1B worker's salary; instead, a
narrative explanation of the process is expected.
• a copy of the Prevailing Wage determination.
• a statement which identifies the two posting locations and the dates of posting, or a
statement documenting that electronic posting or notification was provided.
• a statement which confirms that a copy of the approved LCA was provided to the H-1B
worker (no later than the date he reports to work).
• a summary of the benefits offered to U.S. workers and H-1B nonimmigrants alike, including
an explanation of how employees are differentiated, if at all. If the H-1B worker will receive
“home country” benefits, this should be explained.
• If the employer undergoes a change in corporate structure: then in lieu of filing a new LCA,
the employer may update the Public Access file to include a sworn statement by a
responsible official of the new employing entity that it accepts all obligations, liabilities and
undertakings under the LCAs filed by the predecessor employing entity, together with a list of

each affected LCA and its date of certification and a description of the actual wage system
and EIN of the new employing entity.
In addition to making the Public Access file available to anyone upon request, the employer must
make other documents available to the Department of Labor, if requested. Payroll records may be
called for to substantiate the rate of pay to employees in comparable occupations. You must also
be prepared to establish that the working conditions of the H-1B worker, and any other
employees in the same occupational classification, are similar to working conditions existing in
like business establishments in the local area of employment.
Penalties may be imposed by the DOL if after complaint and investigation the employer has been
found in violation of any LCA requirements. The Department of Labor may impose the following
penalties:
• the assessment of back-pay for the H-1B worker if the employer has failed to pay required
wages;
• the payment of civil money penalties of up to $1,500 per violation;
• the disqualification of the employer from filing any temporary or permanent
employment-based immigration petitions for a period of at least one year.
The H-1B Limitation on Stay
An individual alien is entitled to H status for only six years (in most situations). When hiring an
alien already in H status, it is important to determine how much more time he has available.
There are some exceptions.
Premium Processing
CIS now offers “Premium Processing” for an optional, additional filing fee of $1225. This
guarantees review of a case within 15 days of filing. Prudent employers should carefully assess
whether the circumstances of the case dictate that payment of the additional fee is warranted.
TN Visa Status for Canadian Citizens
The North American Free Trade Agreement ("NAFTA") provides a unique, temporary
working visa status for Canadian citizens referred to as "TN" status. Some of the
characteristics of this status are the following:
· valid in increments of three years.
· renewable without any particular limitation or "cap".
· may be obtained at port of entry without any advance processing.
· minimal filing fee.
The basic requirements for TN status are the following:
· an offer of employment in one of the specific occupations listed in the appendix to
NAFTA
· possession of at least a U.S. Bachelor's Degree (or a Canadian three year
baccalaureate degree)in a related field (there are a few exceptions to the degree
requirement).

Some of the more useful occupations designated on the approved list are the following
(note: consult Appendix 1603.D.1 of NAFTA for a complete listing of approved
occupations):
Accountant, Architect, Computer Systems Analyst (Bachelor's Degree or two years Post-
Secondary Diploma plus three years experience), Engineer, Management Consultant
(requires Bachelor's Degree or five years experience), Mathematician, Research
Assistant (in educational institution), Scientific Technician, Medical/Allied Professionals,
including Dentists, Nurses, Pharmacists, Physical Therapists, Veterinarians, and others),
Medical Doctors (teaching or research only), Scientists, Teachers (college or above
only)
Procedure
An application for entry to the U.S. in TN status is generally made at a U.S. port of entry.
In most cases no appointment or prior screening is required. Evidence of Canadian
citizenship, proof of a qualifying job offer in the form of a detailed letter, and evidence of
academic qualifications is required.
For applicants already in the U.S. in another status, it may be possible to seek a change
of status through INS without leaving the country.
''E'' Visas For Treaty Traders And Treaty Investors
Section 101(a)(15)(E) of the Immigration and Nationality Act provides nonimmigrant status for a
national of any of the countries with which an appropriate treaty of commerce and navigation
exists, who is coming to the U.S. to carry on substantial trade, principally between the U.S. and
his own country, or to develop and direct the operations of an enterprise in which he has
invested, or is actively in the process of investing, a substantial amount of capital.
Treaties which provide for trade and investment (E-1 and E-2 status) exist with the following
countries:
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Canada,
Chile, China (Taiwan only), Colombia, Costa Rica, Croatia, Estonia, Ethiopia,
Finland, France, Germany, Honduras, Iran, Ireland, Italy, Japan, Jordan, Korea
(South), Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway,
Oman, Pakistan, Paraguay, Philippines, Poland, Singapore, Slovenia, Spain,
Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom,
Yugoslavia.
Treaties which provide only E-1 treaty-trader status exist with the following countries:
Brunei, Denmark, Greece, Israel.
Treaties which provide only E-2 treaty-investor status exist in the following countries:
Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo
(Brazzaville), Congo (Kinshasa), Czech Republic, Ecuador, Egypt, Georgia,
Grenada, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia,
Morocco, Panama, Romania, Senegal, Slovak Republic, Sri Lanka, Trinidad &
Tobago, Tunisia, Ukraine.
Bilateral investment treaties conferring E-2 status have been signed but have not yet entered into force:
Belarus, El Salvador, Haiti, Mozambique, Nicaragua, Russia, Uzbekistan.
Insofar as treaty traders (E-1) are concerned, the requirements are that:

(1) The trading firm and the visa applicant be nationals of the Treaty Country;
(2) The international trade be ''substantial'' in the sense that there is a sizeable volume;
(3) The trade be principally between the U.S. and his own country, which is defined to mean
that more than 50% of the trade involved must be between the U.S. and the country of the
applicant's nationality; and
(4) The visa applicant be employed in a supervisory or executive capacity or have unique skills
which make his services essential to the efficient operation of the firm.
With respect to treaty investors (E-2), the requirements are that:
(1) The enterprise and the applicant be nationals of the Treaty Country;
(2) The applicant must have invested or be actively in the process of investing a substantial
amount of capital;
(3) The commercial undertaking a real, operating enterprise;
(4) The investment be more than a marginal one solely for earning a living;
(5) The investor be in a position to develop and direct the enterprise;
(6) If the applicant is an employee of an investor, he must individually qualify as a manager or
be specifically qualified with unique skills essential to the operation of the enterprise.
Applicants should understand that neither treaty nor investor status can be considered as a
substitute for an immigrant visa. The ''E'' visa is not permanent, and its validity depends on
continuing with governing law and regulation.
Information About O-1 Visas for Individuals of Extraordinary Ability
O-1 visas, which are temporary (“non-immigrant”) visas, valid initially for up to three years and
renewable thereafter, are available to applicants who have extraordinary ability in the sciences,
arts, education, business, or athletics which has been demonstrated by sustained national or
international acclaim and who are coming temporarily to the United States to continue work in
the area of extraordinary ability.
Extraordinary ability means a level of expertise indicating that the individual is one of that
small percentage who have risen to the very top of his or her field of endeavor. In order to
qualify the applicant must furnish evidence to show that he or she has sustained national or
international acclaim and that his or her achievements have been recognized in the field of
expertise.
Extraordinary Ability may be demonstrated either by evidence of a one-time achievement (such
as a major, internationally recognized award), or evidence of at least three of the following:
• receipt of lesser nationally or internationally recognized prizes or awards for excellence
• membership in associations which require outstanding achievement of their members
• published material about the applicant relating to the applicant's work in the field for which
classification is sought
• participation on a panel, or individually, as a judge of the work of other in the field of

specialization
• original scientific, scholarly, artistic, athletic or business-related contributions of major
significance in the field
• authorship of articles in scholarly publications or major trade publications in your field
• evidence that the applicant has commanded a high salary or other significantly high
remuneration for services in relation to others in the field
• evidence that the applicant has performed in a leading or critical role for organizations or
establishments that have a distinguished reputation
A significant advantage of the O-1 visa is that a J-1 Exchange Visitor who is subject to the two
year foreign residence requirement can obtain an O-1 visa before complying with the requirement
or obtaining a waiver. However, he or she must depart from the U.S. to obtain the visa at a U.S.
Consulate. He or she cannot change status from J-1 to O-1 in the U.S. in this situation.
Employment (Qualification-Based) Immigration Without a Labor
Certification
Extraordinary Ability Aliens (EB-1A)
Must be one of the top people in your field in the world. No particular degree or education
required. Can self-petition i.e. does not require employer sponsorship.
Outstanding Professors or Researchers (EB-1B)
Requires “international recognition for outstanding work.” At least 3 years teaching or research
experience. Must be petitioned for a permanent job by an academic or research institution, or
private employer with demonstrated achievement in an academic area that employs at least 3 fulltime
researchers.
Multinational Managers/Executives (EB-1C)
Must have been employed abroad for more than one year as manager/executive with
multinational company, sought by affiliated U.S. entity of same company for full-time, permanent
managerial/executive position. Can be a small company with limited number of employees both
here and abroad.
Exceptional Ability (EB-2) Schedule A, Group II
Must have widespread acclaim and recognition for outstanding achievements. Minimum one
year experience in the field. Unlike EB-1B need not be purely research position. Must be
petitioned for by U.S. employer for permanent full-time position. Must meet Prevailing Wage
requirement. Requires 10 day posting notice on premises and 30 day wait period before filing.
National Interest Waiver (EB-2)
Must be performing or will perform work in the “national interest.” Not narrowly defined but
would include medical/scientific research, significant business accomplishments/potential,
defense/military or national security related activities. Can self-petition i.e. does not require
employer sponsorship.

Outstanding Professors or Researchers
The Immigration Act of 1990 created a new immigrant category for "outstanding professors and
researchers". To qualify in this category, an applicant must submit a petition that establishes the
following:
• that he or she is offered a tenured or tenure-track teaching position at a U.S. college or
university, or a permanent research position at a research institution ("permanent" in this
context means that the employee has an expectation of continued employment unless
there is good cause for termination);
• that the U.S. employer normally employs at least three people full time in research, and
has achieved documented accomplishments in an academic area;
• that he or she has more than three years teaching and/or research experience (ordinarily
accrued after obtaining a doctoral degree, although no particular degree is specifically
required!);
• that he or she is recognized internationally as outstanding in the particular academic
field.
Evidence that the alien is recognized internationally as outstanding must consist of at least two of
the following:
(a)
(b)
(c)
(d)
(e)
(f)
Documentation of the alien's receipt of major prizes or awards for outstanding
achievement in the academic field;
Documentation of the alien's membership in associations in the academic field which
require outstanding achievements of their members;
Published material in professional publications written by others about the alien's work
in the academic field. Such material shall include the title, date, and author of the
material;
Evidence of the alien's participation, either individually or on a panel, as the judge of the
work of others in the same or an allied academic field;
Evidence of the alien's original scientific or scholarly research contributions to the
academic field; or
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals
with international circulation) in the academic field.
U.S. Citizenship and Immigration Services (formerly INS) has identified the following items as
generally of little or no value: a book published by a "vanity press"; a footnoted reference to the
alien's work without evaluation; an unevaluated listing in a subject matter index; a negative or
neutral review of the alien's work.
On the other hand, the following items are considered solid pieces of evidence: peer-reviewed
presentations at academic symposia; peer-reviewed articles in scholarly journals; testimony from
other scholars on how the alien has contributed to the academic field; entries, particularly a
"goodly number", in a citation index which cites the alien's work as authoritative; participation by
the alien as a reviewer for a peer-review scholarly journal; evidence that the alien has provided
thesis direction at the Ph.D. level.
Please note that a petition to be classified as an “outstanding professor or researcher” is not
an application for a green card. Approval of this petition will, however, allow you and your
family to submit applications for green cards without going through the lengthy Labor

Certification process. Your application for a green card may be processed in the United States—
in which case it is called an Adjustment of Status—or through the U.S. Consulate in your home
country.
Aliens of Extraordinary Ability
The Immigration Act of 1990 created a new immigrant category for aliens of "extraordinary
ability" in the sciences, arts, education, business, or athletics. This category does not require a
Labor Certification and sidesteps completely the issue of availability of U.S. workers. Moreover,
unlike virtually all other employment-based immigration options, a specific job offer from a U.S.
employer is not required.
Extraordinary ability means a level of expertise indicating that the individual is one of that
small percentage who have risen to the very top of the field of endeavor. In order to qualify
the applicant must furnish evidence to show that he has sustained national or international
acclaim and that his achievements have been recognized in the field of expertise.
Extraordinary Ability may be demonstrated either by evidence of a one-time achievement (such
as a major, internationally recognized award), or evidence of at least three of the following:
• receipt of lesser nationally or internationally recognized prizes or awards for excellence
• membership in associations which require outstanding achievement of their members
• published material about the applicant relating to the applicant's work in the field for which
classification is sought
• participation on a panel, or individually, as a judge of the work of other in the field of
specialization
• original scientific, scholarly, artistic, athletic or business-related contributions of major
significance in the field
• authorship of scholarly articles in the field
• evidence that the applicant has commanded a high salary or other significantly high
remuneration for services in relation to others in the field
• evidence that the applicant has performed in a leading or critical role for organizations or
establishments that have a distinguished reputation
(note: CIS regulations provide additional criteria which are unique for artists or performers:
evidence of display of the applicant’s work in the field at artistic exhibitions or showcases).
If the above standards do not readily apply to the applicant's occupation, the petitioner may
submit comparable evidence to establish eligibility.
Please note that a petition to be classified as an “alien of extraordinary ability” is not an
application for a green card. Approval of this petition will, however, allow you to submit an
application for a green card without going through the lengthy Labor Certification process. Your
application for a green card may be processed in the United States—in which case it is called an
Adjustment of Status—or through the U.S. Consulate in your home country.