Extraordinary ability is defined as a level of expertise indicating that the individual is one of a small percentage of persons who have risen to the very top of their field of endeavor.
Per the appropriate regulations, extraordinary ability can be proven by evidencing sustained national or international acclaim and proof that the achievements have been recognized by others in the field. In order to satisfy these requirements, a person may provide proof of having received a highly recognized international award such as a Nobel Prize, or alternatively, by exhibiting at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. 8 CFR §204.5(H)(3).
Note that evidence comparable to these above listed may also be submitted with a petition of this nature.
Outstanding Professors and Researchers
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 three years of experience in teaching or research in the academic area; and
(3) Has the required offer of employment. (9 FAM 42.32).
In preparing such a petition, evidence of the outstanding nature of the professor or researcher 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. (9 FAM 42.32).
In addition to the above referenced evidence, such persons must have also 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. (9 FAM 42.32)
Multinational Executives and Managers
As per regulation 9 FAM 42.32, an alien may qualify as a priority worker multinational executive or manager if, during the three year period preceding the time of the alien’s application for classification and admission into the United States:
(1) 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; or
(2) The alien has been an employee of INTELSAT or any successor or separated entity of INTELSAT and has maintained lawful nonimmigrant status as a G-4 for at least one year; and
(3) 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.
As also discussed under the L-1 section, INA 101(a)(44)(B), defines “executive capacity” as a position that 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.
INA 101(a)(44)(A) defines the term “managerial capacity” as 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.
This type of employment based visa petition is especially applicable to persons who have entered the U.S. on L-1 visas as executive or managers. |
