Volume XXXIX - January 2022

EMPLOYMENT-BASED IMMIGRATION WITHOUT AN EMPLOYER-SPONSOR OR A LABOR CERTIFICATION

By: Patricio Garcia

Yvette Rodriguez Brown

A foreign national can self-petition their immigrant visa or green card without the sponsorship of an employer or the need of a PERM labor certification issued by the Department of Labor under the following classifications: 1) Extraordinary Ability (EB-1A), which is the first preference employment-based visa that is reserved for those that possess an extraordinary ability and can prove that they are in the top percentile in their field; or 2) National Interest Waiver (NIW) classification under the EB-2, which is the second preference employment-based category under their prior accomplishments and the benefit of their work to the national interests of the United States.

This first preference classification (EB-1A) makes immigrant visas available to those foreign nationals who can demonstrate their extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in their field. Visas available to immigrants with extraordinary ability require that: (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the alien's entry into the United States will substantially benefit prospectively the United States.

The term "extraordinary ability" refers only to those individuals in "that small percentage who have risen to the very top of the field of endeavor." The implementing regulation sets forth a multi-part analysis. First, the Self-Petitioner can demonstrate sustained acclaim and the recognition of his or her achievements in the field through a one-time achievement (that is, a major, internationally recognized award). If that petitioner does not submit this evidence, then he or she must provide sufficient qualifying documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media, and scholarly articles). Where a Self-Petitioner meets these initial evidence requirements, the United Sates Citizenship and Immigration Service (USCIS) then considers the totality of the material provided in a final merits determination and assess whether the record shows sustained national or international acclaim and demonstrates that the individual is among the small percentage at the very top of the field of endeavor. (USCIS has long held that even athletes performing at the major league level do not automatically meet the "extraordinary ability" standard.) 

Because only an extremely limited number of immigrants are at the very top of their field, the EB-2 NIW second preference employment-based petition is for foreign nationals who are holders of an advanced degree (Master's or Ph.D. Degree), or its equivalent (Bachelor's Degree and 5 years of experience); or have demonstrated exceptional ability in in the fields of art, science, or business. The EB-2’s job offer requirement and Perm Labor Certification are waived if the foreign national can prove that his permanent residence in the U.S. would be of “national interest” and would benefit the country.

The Administrative Appeals Office (AAO) established a three (3) prong test for National Interest Waivers: 1) the proposed work has both substantial merit and national importance; 2) the applicant is  well-positioned to advance his or her proposed work; and 3) when balancing all the factors, it would be in the national interest of the U.S. to grant the applicant a waiver of the normal job and labor certification requirements.

Neither the EB-1A or EB-2 NIW require the filing of a PERM Labor Certification with the U.S. Department of Labor (DOL), which can be quite intricate and time-consuming. The DOL’s role is to prevent employers from abusing the green card process to displace similarly qualified U.S. workers. Accordingly, sponsoring-employers must navigate a recruiting process for the job of the foreign individual to ensure that no qualified U.S. workers are available for the position. In certain situations, the petitioner can get audited by the DOL, and even if the PERM is approved, it could delay the process for several years.

If you are a business owner or an individual needing assistance, make sure to speak with an immigration practitioner. 

Patricio Garcia is an Attorney who devotes his practice primarily to all aspects of Immigration and Nationality Law. He is fully bilingual in English and Spanish, with solid comprehension of French.

Yvette Rodriguez Brown is a Partner and has been with DSK Law for 25 years. She is fully bilingual in English and Spanish.

This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article.  Further, this information is subject to change due to the rapidly changing legal, political and business environment.

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