IMMLAW—The National Consortium of Immigration Law Firms

IMMLAW—The National Consortium of Immigration Law Firms

First Preference, including Extraordinary Ability Aliens, Outstanding Researchers and Professors and Multinational Managers and Executives

The first preference category includes: (1) aliens with extraordinary ability; (2) outstanding professors and researchers; and (3) certain multinational executives and managers.  8 USC § 1153 (b) (1).

Aliens Of Extraordinary Ability

Aliens with extraordinary ability are defined as those who can demonstrate that they have "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."  8 USC §1153(b)(1)(A)(I).  The phrase "extraordinary ability" is defined as 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." 8 CFR §204.5(h)(2).

An alien seeking to qualify as an immigrant worker under the "extraordinary ability" classification does not need a job offer or an approved alien labor certification.  8 CFR §204.5(h)(5).

The petitioner for an extraordinary ability alien must submit extensive documentation that the alien has sustained national or international acclaim and that the alien's achievements have been recognized in the field of expertise.  8 CFR §204.5(h)3.  The documentation must include evidence of a one-time achievement that is a major internationally recognized award, such as a Nobel Prize,or three other types of evidence, including: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence;  (2) membership in associations in the field which require outstanding achievements of their members;  (3) published material about the alien in professional or major trade publications;  (4) evidence that the alien is a judge of the work of others;  (5) evidence of the alien's original contributions of major significance in the field;  (6) evidence of the alien's authorship of scholarly articles in the field;  (7) display of the alien's work in the field at artistic exhibitions or showcases;  (8) evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;  (9) evidence that the alien has commanded a high salary in relation to others in the field;  (10) evidence of commercial success in the performing arts; or  (11) comparable evidence to establish eligibility if the above standards do not readily apply to the alien's field of endeavor.  8 USC §204.5(h)(3) & (4), 8 CFR §204.5(h)(3)(I)-(x).

CIS adopts the position that the above evidentiary lists were designed to provide for easier compliance by the petitioner and easier adjudication by the examiner and that an alien may establish that he or she is an extraordinary alien by meeting three of the referenced criteria.  Memorandum dated July 30, 1992, from Lawrence J. Weinig, Acting Assistant Commissioner, and addressed to James M. Bailey, then Director of the CIS Northern Service Center (emphasis added).  A copy of this letter appears in the 69 Interpreter Releases 1052-53 (August 24, 1992).  CIS further recognizes that there is no need to satisfy more than three criteria provided the substance of the evidence provided is sufficient.  However, the CIS examiner must evaluate the evidence presented and not simply count pieces of paper.  Weinig memorandum, supra (emphasis added).

Mr. Weinig's memorandum also explains the type of qualitative evidentiary distinctions considered by CIS.  Mr. Weinig stated as follows:

“Generally, we maintain that a book by the alien published in ‘vanity’ press, a footnoted reference to the alien's work without evaluation, an unevaluated listing in a subject matter index, or a negative or neutral review of the alien's work would be of little or no value.  On the other hand, peer-reviewed presentations at academic symposia or 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 cite the alien's work as authoritative in the field, or participation by the alien as a reviewer for a peer-reviewed scholarly journal would more than likely be solid pieces of evidence.  We are also inclined to believe that thesis direction (particularly of a Ph.D. thesis) would demonstrate an alien's outstanding ability as a judge of the works of others.  To repeat we expect the examiner to evaluate the evidence, not simply count it.”

The position set forth in Mr. Weinig's memorandum was recently supported by a May 20, 1993, opinion letter from Edward H. Skerrett, Chief, Immigrant Branch, Adjudications, and addressed to Mary E. Ryan.  70 Interpreter Releases 764-66 (June 7, 1993).

The statute additionally requires a showing that the extraordinary ability alien's admission will substantially benefit the United States.  The regulations do not define substantial benefit.

It must also be documented that the alien is coming to the United States to continue work in the area of expertise.  This evidence can be in the form of support letters or affidavits from the prospective employer, evidence of prearranged commitments, such as employment contracts, or statements from the alien setting forth intentions to continue the work in the United States.  8 CFR §204.5(h)5.

Outstanding Professors And Researchers

An alien seeking to qualify as an outstanding professor or researcher must be internationally recognized as outstanding in a specific academic area.  Evidence that the alien professor or researcher has been recognized internationally as outstanding must include at least two of the following:  1) receipt of major prizes or awards for outstanding achievements in the field; 2) membership in associations in the field which require outstanding achievements for its members;  3) published material in professional publications written by others about the alien's work in the field;  4) evidence of the alien's participation as a judge of the work of others in the same field;  5) evidence of the alien's original scientific or scholarly research contributions to the field; or  6) evidence of the alien's scholarly books or articles in journals with international circulation in the field.  8 CFR §204.5(I)(3)(I)(4)(F).

The alien must also have a minimum of three years experience teaching or researching in that specific academic area and be entering the U.S. for a tenured or tenure-track teaching position or comparable research position at a university or institution of higher learning. 8 USC §1153(b)(1)(B)(ii) and (iii).

The employer may also be a private company if the employer has at least three full-time research employees and has achieved documented accomplishments in the academic field in which the position is offered.  8 USC §1153(b)(1)(B)(iii)(111).

NOTE:  Nothing in the statute or regulations requires the researcher or professor to possess a doctorate degree.

Unlike extraordinary ability aliens, outstanding researchers and professors require an offer of employment from a prospective U.S. employer.  8 CFR §204.5(I)(3)(iii).  A labor certification is not required for this classification.  8 CFR §204.5(I)(3)(iii)

Certain Multinational Executives And Managers 

An alien seeking priority worker classification as a multinational executive or manager must document that he or she has been employed outside the United States in an executive or managerial capacity for a minimum of one of the three years immediately previous to seeking such classification, or, if the alien is already in the United States, one of the three years preceding entry to the U.S. as a Nonimmigrant.  The regulations require that the previous employment must have actually been outside the United States.  8 CFR §204.5(j)(3)(B).

The past employment must have been with the same employer, a subsidiary, or affiliate thereof and the alien must be entering the United States to work as an executive or manager for a U.S. employer which is an affiliate, subsidiary, or the same employer as the firm, corporation or other legal entity which employed the alien abroad.  8 USC§1153(b)(1)(e).

The U.S. petitioner must have been doing business for at least one year.  8 CFR §204.5(j)(3)(I)(b).  "Doing business" is defined as the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity which has employees requiring more than the mere presence of an agent or office.  8 CFR §204.5(j)(2).  An offer of employment from a prospective United States employer is required, but there is no labor certification requirement.

Executive Or Managerial

"Executive capacity" is defined as an assignment within an organization in which the employee primarily: (1) directs the management of the organization or a major component or function of the organization; (2) establishes the goals and policies of the organization, component, or function; (3)exercises wide latitude in discretionary decision making; and (4) receives only general supervision or direction from high level executives, the board of directors, or stockholders of the organization.  8CFR §204.5(j)(2).

"Managerial capacity" is defined as an assignment within a qualifying entity in which the employee primarily: (1) manages the organization or a department, subdivision, function, or component of the organization; (2) supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization, or a department or subdivision of the organization; (3) has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if other employees are directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (4) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.  8 CFR §204.5(j)(2).

Disclaimer: Nothing on these pages should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, please contact an IMMLAW attorney.

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