278 Dual Citizenship: FAM09-42.32(A) - Notes Employment-Based FirstPreference Immigrants
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278 Dual Citizenship: FAM09-42.32(A) - Notes Employment-Based FirstPreference Immigrants
N1 Defining "Priority Workers" (TL:VISA-54; 2-28-92)
a. The statute designates the following aliens as "priority workers" who
may be entitled to status as employment-based first preference applicants:
(1) Aliens with extraordinary ability [see N1.1 below];
(2) Outstanding professors and researchers [see N1.2 below]; and
(3) Certain multinational executives and managers [see N1.3 below].
b. The Immigration and Naturalization Service must approve petitions in
all of the above categories. [See N2 below.]
N1.1 Aliens With Extraordinary Ability (TL:VISA-54; 2-28-92)
To be considered as an alien with extraordinary ability, the alien must
have sustained national or international acclaim. The alien's
accomplishments in the field of science, art, education, business or
athletics must be recognized in the form of extensive documentation. The
alien must be seeking to enter the United States to continue work in the
field, and the entry of such alien must substantially benefit
prospectively the United States.
N1.1-1 Defining "Extraordinary Ability" (TL:VISA-54; 2-28-92)
8 CFR section 204.5(h)(2) defines "extraordinary ability" as follows:
"Extraordinary ability means a level of expertise indicating that the
individual is one of that small percentage who have risen to the top of
the field of endeavor."
N1.1-2 Evidence of Extraordinary Ability (TL:VISA-54; 2-28-92)
a. The Immigration and Naturalization Service regulations (8 CFR
204.5(h)(3)) state the documentary evidence that is to be submitted along
with the petition. Such evidence shall include:
(1) Evidence of a one-time achievement (that is a major, internationally
recognized award) or
(2) At least three of the following:
(a) Evidence of receipt of a lesser nationally or internationally
recognized prize or award for excellence in the field of endeavor;
(b) Evidence of membership in associations which require outstanding
achievements of their members, as judged by recognized experts;
(c) Published material in professional or major trade publications or
major media about the alien's work;
(d) Evidence of participation on a panel, or individually, as a judge of
the work of others in the field;
(e) Evidence of original scientific, scholarly, artistic, or
business-related contributions of major significance;
(f) Evidence of authorship of scholarly articles in professional journals
or other major media;
(g) Evidence of the display of the alien's work in exhibitions or
showcases;
(h) Evidence that the alien has performed in a leading or critical role
for organizations or establishments having a distinguished reputation; and
(i) Evidence of high salary or high remuneration in relation to others in
the field; or
(j) Evidence of commercial successes in the performing arts, as shown by
box office receipts or record, cassette, compact disk or video sales.
b. If the above standards do not readily apply, the petitioner may submit
comparable evidence to establish eligibility.
N1.1-3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
Although no offer of employment (including a labor certification) is
required, the alien must include with the petition convincing evidence
that he or she is coming to continue work in the area of expertise.
Evidence may include letter(s) from prospective employer(s), evidence of
prearranged commitments, such as contracts, or a statement from the
beneficiary detailing plans for continuing work in the United States.
N1.2 Outstanding Professors and Researchers (TL:VISA-54; 2-28-92)
An alien may qualify as a priority worker outstanding professor or
researcher if the alien:
(1) Is recognized internationally as outstanding in a specific academic
area;
(2) Has at least 3 years of experience in teaching or research in the
academic area; and
(3) Has the required offer of employment. [See N1.2-3 below.]
N1.2-1 Evidence of Outstanding Achievement (TL:VISA-54; 2-28-92)
The Immigration and Naturalization Service regulations (8 CFR 204.5(h)(3))
indicate the evidence required in submitting a petition for classification
as an outstanding professor or researcher. Such evidence shall include
evidence of international recognition as outstanding in the specific
academic area. This evidence shall consist of at least two of the
following:
(1) Documentation of receipt of major international prizes or awards for
outstanding achievement in the academic area;
(2) Documentation of the alien's membership in associations in the
academic field, which require outstanding achievements of their members;
(3) Published material in professional publications written by others
about the alien's work;
(4) Evidence of participation on a panel, or individually, as the judge
of the work of others in the same, or an allied, academic field;
(5) Evidence of original scientific or scholarly research contributions;
or
(6) Evidence of authorship of scholarly books or articles (in scholarly
journals with international circulation) in the academic field.
N1.2-2 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
Aliens coming to the United States as outstanding researchers or
professors do not require labor certification. However, such aliens must
have a letter from a(n):
(1) U. S. university or institution of higher learning offering the alien
a tenured or tenure-track teaching or research position in the academic
field; or
(2) Department, division, or institute of a private or non-profit
employer offering the alien a comparable research position in the academic
field. The department must demonstrate that it employs at least three
persons full-time in research positions, and that it has achieved
documented accomplishments in the academic field.
N1.3 Certain Multinational Executives and Managers (TL:VISA-54;2-28-92)
An alien may qualify as a priority worker multinational executive or
manager if:
(1) During the 3 year period preceding the time of the alien's
application for classification and admission into the United States, the
alien has been employed for at least 1 year by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof; and
(2) The alien seeks to enter the United States in order to continue to
render services to the same employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or executive.
N1.3-1 Defining "Affiliate" (TL:VISA-54; 2-28-92)
The term "affiliate" as used in this section means:
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual.
(2) One of two legal entities entirely owned and controlled by the same
group of individuals, each individual owning and controlling approximately
the same share or proportion of each entity; or
(3) In the case of a partnership that is organized in the United States
to provide accounting services, along with managerial and/or consulting
services, and markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating
organization that is owned and controlled by the member accounting firms,
a partnership (or similar organization) that is organized outside the
United States to provide accounting services shall be considered to be an
affiliate of the U. S. partnership if it markets its accounting services
under the same internationally recognized name under the agreement with
the worldwide coordinating organization of which the U. S. partnership is
also a member.
N1.3-2 Defining "Doing Business" (TL:VISA-54; 2-28-92)
"Doing business" means the regular, systematic, and continuous provision
of goods and/or services by a firm, corporation, or other entity and does
not include the mere presence of an agent or office.
N1.3-3 Defining "Executive Capacity" (TL:VISA-54; 2-28-92)
The term "executive capacity" as defined in INA 101(a)(44)(B) of the
Immigration and Nationality Act, means 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 higher level
executives, the board of directors, or stockholders of the organization.
N1.3-4 Defining "Managerial Capacity" (TL:VISA-54; 2-28-92)
a. "Managerial capacity" as defined in INA 101(a)(44)(A) means an
assignment within an organization 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) If another employee or other employees are directly supervised, has
the authority to hire and fire or recommend those as well as other
personnel actions (such as promotion and leave authorization) or, if no
other employee is directly supervised, functions at a senior level within
the organization 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.
b. A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of supervisory responsibilities unless the
employees supervised are professional.
N1.3-5 Defining "Multinational" (TL:VISA-54; 2-28-92)
"Multinational" means that the qualifying entity, or its affiliate or
subsidiary conducts business in two or more countries, one of which is the
United States.
N1.3-6 Defining "Subsidiary" (TL:VISA-54; 2-28-92)
"Subsidiary" is defined as a firm, corporation, or other legal entity of
which a parent owns, directly or indirectly, 50 percent of a 50-50 joint
venture and has equal control and veto power over the entity; or owns,
directly or indirectly, less than half of the entity, but in fact controls
the entity.
N1.3-6 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
No labor certification is required for aliens in this classification.
However, the prospective U.S. employer must furnish a job offer in the
form of a statement which indicates that the alien will be employed in the
United States in a managerial or executive capacity. The letter must
clearly describe the duties to be performed.
N2 Petitions (TL:VISA-54; 2-28-92)
Aliens of extraordinary ability may file petitions with the Immigration
and Naturalization Service on their own behalf. Other employer-sponsored
immigrants must be beneficiaries of approved petitions filed by the
employer.
N3 Spouse and Children (TL:VISA-54; 2-28-92)
The spouse, or the child of a marriage which existed at the time of the
principal alien's admission into the United States, is entitled to
derivative status and may accompany or follow to join the principal
applicant. A spouse or child acquired subsequent to the principal alien's
admission is not entitled to derivative status.
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