Chapter 17 Other Paths to Achieving Permanent Residency: Extraordinary Ability, International Recognition, Non-Physician National Interest Waivers, and Immigrant Investors

• Jurisdiction: United States

While PERM and Physician National Interest Waivers (PNIWs) are, by far, the most common ways physicians pursue permanent residency, there are other options that occasionally are used by physicians. They include the EB-1 extraordinary ability and outstanding professor/researcher categories, regular National Interest Waivers (NIWs) not based on work in medically underserved areas, and EB-5 investor visas. Because most physicians will not qualify for these categories, this chapter provides only a brief overview of each, and readers are advised to contact legal counsel to discuss the specifics for applying for them.

Who is included in the EB-1 immigrant visa category?

The first employment-based immigration preference category covers “priority workers.” The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment-based preference categories (special immigrants and immigrant investors). This category offers more visas than are ordinarily used, so there never have been visa issuance backlogs in in this category.

The EB-1 category covers three groups:

• Immigrants of Extraordinary Ability in the sciences, arts, education, business, or athletics (EB-1A);

• Outstanding Professors and Researchers (EB-1B); and

• International Managers and Executives (EB-1C).

Clinical physicians typically will consider the extraordinary ability category. Physicians in academia or working in research positions outside of a university also may consider the outstanding professor and researcher category. Either may be good choices for experienced physicians trained outside the United States who do not want to go through re-training in the United States or would otherwise encounter problems getting a medical license. Research and teaching positions do not require a medical license unless the position involves treating patients.

EB-1A—Extraordinary Ability

What must be proven to qualify for the EB-1A extraordinary ability category?

The EB-1A category is available to individuals with extraordinary ability in the sciences, arts, education, business, or athletics that can be demonstrated through sustained national or international acclaim. The U.S. Congress intended the category for individuals who can demonstrate they have reached the top of their field of endeavor. Furthermore, while the regulations do not specifically mention it, an applicant should attempt to demonstrate that his or her work will prospectively benefit the United States.

Is an employment offer required?

No offer of employment is needed in the EB-1A category. That also means, of course, that a labor certification is not needed in this category. However, applicants should still demonstrate that they have work lined up in their fields even if they will be self-employed.

What evidence must be provided to demonstrate “extraordinary ability”?

Like the O-1 nonimmigrant category, applicants in the EB-1A category must submit evidence in at least three of 10 categories or show a one-time achievement of enormous significance (such as a Nobel Prize). Obviously, the vast majority of applicants in this category are not filing based on a one-time achievement.

The evidence categories are the following:

1. Evidence of receipt of nationally or internationally recognized prizes or awards for excellence.

2. Evidence of membership in associations in the field that demand outstanding achievement of their members as judged by national or international experts.

3. Evidence of published material about the physician in professional or major trade publications or other major media.

4. Evidence that the physician has been asked to judge the work of others, either individually or on a panel.

5. Evidence of the physician’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.

6. Evidence of authorship of scholarly articles in professional or major trade publications or other major media.

7. Evidence of performance of a leading or critical role in distinguished organizations.

8. Evidence that the physician commands a high salary or other significantly high remuneration in relation to others in the field.

Evidence that does not fit in these categories but still shows extraordinary ability also can be submitted.

Note that a U.S. Court of Appeals for the Ninth Circuit decision, Kazarian v. USCIS,[1] has been adopted by U.S. Citizenship and Immigration Services (USCIS), which allowed the agency to add a “final merits determination” to a case where an examiner can agree that the minimum three categories of evidence are demonstrated but the applicant still has not demonstrated that he or she is at the top of his or her field and has sustained acclaim.

Does having an O-1 visa mean you automatically qualify for an EB-1A?

No. While the two categories appear highly similar, USCIS’s standards are higher for EB-1A petitions than for O-1. And USCIS is not bound to approve an EB-1A petition just because an applicant has an O-1. On the other hand, having O-1 status potentially will be an intangible factor that will help improve the applicant’s standing with an individual examiner.

How tough is it to meet the standards of evidence?

While there are, of course, examples where people with relatively weak credentials successfully applied for EB-1 green cards, more often USCIS denies cases for deserving applicants. In many instances, USCIS will discount the evidence presented, which forces applicants to present evidence in many more categories than just the minimum three in order to be successful.

A safe assumption to make is that USCIS will not take any assertions by the applicant at face value and every accomplishment cited should be backed up with evidence.

Furthermore, USCIS will assume that publications are not prestigious, associations do not require outstanding accomplishments of their members, awards are not highly important in the field, etc. In short, it is not enough to present evidence in at least three categories, but also to document why each one of those forms of evidence independently suggests one has extraordinary ability in the field.

Also, support letters are often the most important form of evidence, so particular attention should be paid to them. Get as many as possible—many lawyers recommend at least 10—and make sure the letters are from people who know your work...