Judy J. Lee, Partner

Avalyn C. Langemeier, Partner

Preference Categories And Alternatives to Labor

Certification

*Labor Certification NOT Required (2-Step Process)

Permanent ResidenceEmployment-Based Preference Categories

Second

Third

First 1. Extraordinary Ability *

2. Outstanding Researcher *

3. Multi-national Executive/Manager *

2. Exceptional Ability – PERM, NIW & Schedule A, Group 2

1. Skilled Worker

2. Professional (job requires a Bachelors Degree)

1. Advanced Degree Professional – PERM & National Interest Waiver

1. Advanced Degree Professional – PERM & National Interest Waiver

May 2015 Visa Bulletin – Employment-Based

PreferenceAll Chargeability

Areas Except Those Listed

CHINA-

Mainland BornINDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01JUN12 15APR08 C C

3rd 01JAN15 01MAY11 15JAN04 01JAN15 01JUL07

Other Workers 01JAN15 15NOV05 15JAN04 01JAN15 01JUL07

4th C C C C C

Certain Religious Workers

C C C C C

5th Targeted Employment

Areas/Regional Centers

C 01MAY13 C C C

INA 203(b)(1)(c), 8 USC 1153(b)(1)(c); 8 CFR 204.5(j)

CRITERIA TO QUALIFY1. Qualifying relationship between U.S. employer and Foreign

employerA. Parent, subsidiary, affiliate, branch, joint ventureB. At least 50% ownership or controls the entity if less than 50%C. Doing business for at least 1 yearD. Documentation of relationship:

a. USCIS Draft RFE Template - AILA Doc. 15010742 (1/7/15)

b. Evidence required for a small business vs. publicly traded corporation

c. VIBE checks – register with Dun & Bradstreet

Multinational Executive or Manager Transferee – EB 1-3

Multinational Executive or Manager Transferee – EB 1-3

Qualifying RelationshipExample 1 Example 2

ACME S.A. (Mexico)(Foreign Employer)

1. Mr. Cruz – 50%2. Ms. Garcia – 25%3. Ms. Lopez – 25%

ACME Inc. (U.S.A.) (U.S. Employer)4. Mr. Cruz – 35%5. Ms. Garcia – 35%6. Ms. Lopez – 30%

ABC Ltd. (Foreign Employer)Owns 100% of

ABC Holding Co. Inc. (USA)Owns 51% of

ABC Widget USA Inc.Owns 51% of

ABC Gadgets Corp.(U.S. employer)

2. Foreign employment for one year in the past 3 years is Executive or Managerial; and

3. Proposed U.S. employment will be Executive or Managerial– Detailed job descriptions – percentage breakdown of duties &

responsibilities– Employment verification letter for foreign employment, etc.– List of employees supervised and their job duties, degrees, etc.– Functional Manager – must manage an “essential” function

Multinational Executive or Manager Transferee – EB 1-3

INA 203(b)(1)(A), 8 USC1153(b)(1)(A); 8 CFR 204.5(h)

“Sustained national or international acclaim; Small percentage at the top of the endeavor; will substantially benefit prospectively the U.S.”, and:• 1 major international award or at least 3 of 10

criteria• Fields of Endeavor: Sciences, Arts, Education,

Business or Athletics• Petitioner: Employer or Self• Priority Date: Established on the date the I-140

is filed• Visa Availability: EB-11 current for all countries

EB 11-Extraordinary Ability

INA 203(b)(1)(A), 8 USC 1153(b)(1)(A); 8 CFR 204.5(h)(3); and USCIS EB1-1 Draft RFE Template, AILA Doc. 10091470 (Posted 9/16/10)

Requirements: 1 major international honor or at least 3 of the following: • Receipt of lesser nationally or internationally recognized prizes or awards for

excellence;• Membership in associations in the field requiring outstanding achievement;• Published material about the alien in professional or major trade publications or

other major media;• Participation as a judge of the work of others, either individually or on a panel;• Original scientific, scholarly, artistic, athletic, or business-related contributions of

major significance to the field;• Authorship of scholarly articles in the field;• Work displayed at artistic exhibitions or showcases;• Performance of a leading or critical role in distinguished organizations;• High salary or other significantly high remuneration in relation to others in the field;

and • Commercial successes in the performing arts.

EB 11-Extraordinary Ability

INA 203(b)(1)(B), 8 USC 1153(b)(1)(B); 8 CFR 204.5(i)

“Recognized internationally as outstanding in the academic field”• At least 3 years experience

• And at least 2 of 6 criteria

• Fields of Endeavor: Academic fields

• Petitioner: Employer required; no self-petition option– Requires a permanent offer of employment – tenure, tenure track or term of

indefinite or unlimited duration (USCIS Memo - AILA Doc. 06060860; 6/8/06)

– Employer is a university or institution of higher learning or private employer with 3 full time researchers

• Priority Date: Established on the date the I-140 is filed

• Visa Availability: EB-12 current for all countries

EB 12-Outstanding Professor or Researcher

8 CFR 204.5(i)(3)(i)(A)-(F); Kazarian v. USCIS, 596 F.3d 115 (9th Cir. 2010)

Internationally recognized as outstanding in the academic field as shown by at least 2 of the following in the academic field:1. Receipt of major prizes or awards for outstanding achievements

2. Membership in associations which require outstanding achievements

3. Published material in professional publications written by others about the beneficiary’s work

4. Participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field

5. Original scientific or scholarly research contributions to the academic field

6. Authorship of scholarly books or articles in scholarly journals with international circulation

EB 12-Outstanding Professor or Researcher Criteria

• USCIS Policy Memo dated December 22, 2010 – 24 pages• Provides guidance to USCIS officers regarding analysis they should use

when reviewing Extraordinary Ability and Outstanding Researcher immigrant visa (Form I-140) petitions

• Establishes a 2 part adjudicative approach to evaluating evidence (in agreement with the Kazarian v. USCIS case)

1. Evaluate each type of evidence submitted to determine if it meets the parameters specified in the regulations (“regulatory criteria”)

2. Consider all the evidence in totality in making a “final merits determination” regarding the high level of expertise for the immigrant classification

• Memo contains helpful charts that detail each criteria and provide examples of what type of evidence might be acceptable

http://www.uscis.gov/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-1.pdf

USCIS Guidance Memo on EB11 & EB12

INA 203 (b)(2), 8 USC 1153(b)(2); 20 CFR 656.15(d)1. “Exceptional Ability” – defined as widespread acclaim and international

recognition from experts in the field2. Sciences or Arts field – any field of study offered at a college or university3. Study at a college or university is not required; degree is not required4. Beneficiary practiced the Science or Art during the year before filing the

application and intends to practice same in the U.S. & Beneficiary’s work requires exceptional ability.

5. Requires a long term offer of U.S. employment and certain PERM elements:1. Prevailing Wage Determination from Department of Labor2. PERM Notice of Filing 3. However, no Recruitment of U.S. workers

6. Documentation of “Exceptional Ability” – at least 2 of 7 criteria7. File Form I-140, PERM ETA 9089, PERM Notice of Filing & supporting evidence

directly with USCIS8. Premium Processing is available

Exceptional Ability in Sciences or Arts – Schedule A, Group II

20 CFR 656.12(d)(1)(i)–(vii)

Documentation of “Exceptional Ability” – Evidence of at least 2 of the following 7 criteria

a) Receipt of internationally recognized prizes or awards for excellence b) Membership in associations which require outstanding achievements c) Published material in professional publications written by others about your

work d) Participation as the judge of the work of others in the same fielde) Original scientific or scholarly research contributions of major significance the

fieldf) Authorship of published scientific or scholarly articles in journals with

international circulationg) Evidence of display of work at artistic exhibitions in more than one country

NOTE: Criteria are similar to EB11 and EB12 but standard applied by USCIS in adjudication is lower.

Exceptional Ability in Sciences or Arts – Schedule A, Group II

INA 203(b)(2)(B)(i); Mississippi Phosphate, EAC-92-091-50126 (AAU July 21, 1992); NYSDOT, 22 I & N Dec. 215 (1988).

• Advantages: Can self-petition and waives PERM Labor Certification. • Disadvantage: More subjective review than some other types of

applications. • Requirements:

Must be a member of the professions holding an advanced degree or have exceptional ability in the arts, sciences or business, and

work is in the national interest.

• File: Form I-140, PERM ETA 9089 (Employee section only), and supporting documents, directly with USCIS

• No Premium Processing Available for NIW

EB-2 National Interest Waiver (NIW)(Non-Physicians)

INA 203(b)(2), 8USC 1153(b)(2), 8 CFR 204.5(k)

• Member of a profession as listed in INA 101(a)(32), as well as any occupation for which a US baccalaureate degree or foreign equivalent is the minimum requirement for entry into the occupation

• Have an advanced degree – Master’s, PhD, M.D., J.D., etc.

• Master’s Degree equivalence can be a Bachelor’s Degree with 5 years progressively responsible post bachelor’s degree experience

• Degree can be in a related field

EB-2 Professionals with Advanced Degrees

8 CFR 204.5(k)(2); 8 CFR 204.5(k)(3)(ii)(A)-(F)

Exceptional Ability: a degree of expertise significantly above that ordinarily encountered. Requires 3 or more of the following:• An official academic record showing the alien has a degree, diploma, certificate or

similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;

• Letters documenting at least ten years of full-time experience in the occupation being sought;

• A license to practice the profession or certification for a particular profession or occupation;

• Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;

• Membership in professional associations;• Recognition for achievements and significant contributions to the industry or field

by peers, government entities, professional or business organizations.

EB-2 Exceptional Ability in the Sciences, Arts, or Business

Mississippi Phosphate test:

1. Improving the U.S. economy;

2. Improving wages/working conditions of U.S. workers;

3. Improving education and training programs for U.S. children and under qualified workers;

4. Improving health care;

5. Providing more affordable housing for young and/or older, poorer U.S. residents;

6. Improving the U.S. environment and making more productive use of natural resources;

7. A request from an interested U.S. governmental agency.

“National Interest” Test

NYSDOT test: 1. Employment sought is in an area of substantial intrinsic merit2. Proposed benefit must be national in scope; 3. U.S. national interest adversely affected if labor certification were required

“National Interest” Test

Questions

Judy J. LeePartner

713.335.3971

jlee@fosterglobal.comBoard Certified - Immigration and Nationality Law

Texas Board of Legal Specialization

Avalyn C. LangemeierPartner

713.625.9232

alangemeier@fosterglobal.comBoard Certified - Immigration and Nationality Law

Texas Board of Legal Specialization