Immigration Without Labor Certification: When And Why To File An EB-1 Or NIW Petition

by Cletus M. Weber

Introduction

For employment-based immigration, the labor certification application is by far the most common path taken, as the outcome of the process is relatively predictable. Unfortunately, the labor certification process also has tremendous drawbacks. The most significant disadvantages are the permanent “job offer,” prevailing wage, and recruitment requirements, as well as some unbearable processing times. The alternatives to labor certification are not panaceas, but in appropriate cases, they offer substantial advantages over the labor certification process.

This advanced-topic paper discusses four of the most common employment‑based alternatives for obtaining permanent residency without going through the labor certification process.[1] Specifically, the paper:

§      Introduces the basic legal requirements of the three employment-based, first-preference (EB-1) categories, including Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers (EB-1B), and Multinational Executives and Managers (EB-1C). The requirements for the employment-based, second-preference (EB‑2) category of National Interest Waivers (NIW) are also described.[2]

§      Identifies the primary factors that distinguish these alternatives from each other and from the labor certification process.

§      Provides general guidance on deciding which alternative(s) to use if trying to bypass the labor certification process is deemed to be in the client’s best interests.

§      Assesses options for re-filing or appealing if the Service denies your client’s alternative-based I-140 petition.[3]

What are the BASIC Requirements of the COMMON Alternatives to Labor Certification?

Because this is a practice-focused, advanced-topic paper, it focuses on how to use the alternatives to labor certification in practice instead of merely explaining what they are. Practitioners already familiar with these basic requirements can safely bypass this preliminary discussion and go directly to the next major heading. For those less familiar with these alternatives, this preliminary section provides a brief introduction to the basic legal requirements for each of the alternatives discussed in this paper.

Filing procedures

Procedurally, all four of the alternatives to labor certification mentioned in this paper are filed on Form I-140 at the CIS Service Center having jurisdiction over the proposed place of employment.  For National Interest Waiver petitions, the petitioner must also include two signed originals of Form ETA-750 Part B describing the beneficiary’s educational and employment background.

Aliens of Extraordinary Ability (EB‑1A)

The EB-1A category is available for aliens of “extraordinary ability.”[4]  The category is limited to “one of that small percentage who have risen to the very top of the field of endeavor.”[5]  For most (but not all) cases, the applicable criteria for the EB‑1A category are generally similar to the requirements for the O‑1 nonimmigrant visa.[6]

EB-1A cases require evidence that the alien has achieved “sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.”  This evidence may include a significant internationally recognized award (such as the Nobel Prize or an Oscar).  Otherwise, the individual must meet at least three of the following ten alternative criteria, shown here in abbreviated form:

§         Lesser nationally or internationally recognized prizes or awards;

§         Membership in associations that require outstanding achievement (as judged by recognized experts);

§         Significant published material (written by others) about the beneficiary and his or her work;

§         Service as a judge of the work of others in the beneficiary’s field;

§         Major contributions to the field;

§         Scholarly articles or publications;

§         Artistic exhibitions or showcases;

§         Leading or critical role for distinguished organizations;

§         High salary or remuneration (compared with others in the field); or

§         Commercial success in performing arts.

The regulations also allow for the use of “comparable evidence” to establish the beneficiary’s eligibility if the above standards do not readily apply to the beneficiary’s occupation.[7]

EB-1A cases do not require a permanent job offer, so beneficiaries may self-petition. If self-petitioning, the beneficiary must provide clear evidence that he or she is coming to the United States to continue to work in the area of expertise.  This evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans to continue his or her work in the United States. 

Although the regulations state that the alien’s entry into the United States must “substantially benefit prospectively the United States,” this seems to have become a dead issue in practice since the publication of the Service’s response to an attorney inquiry.[8]

Outstanding Professors or Researchers (EB‑1B)

The “outstanding professors or researchers” (EB‑1B) category is limited to professors or researchers who are recognized internationally as outstanding in their academic field.[9]  The threshold requirements for beneficiaries in the EB-1B category are twofold:

§         The beneficiary must hold a tenure‑track faculty position or have a permanent job offer; and

§         The beneficiary must have at least three years of prior teaching or research experience.[10]

The core requirements for an EB-1B petition are that the beneficiary must meet at least two of the following six alternative criteria (shown here in abbreviated form):

§         Receipt of major prizes or awards for outstanding achievement;

§         Membership in associations that require outstanding achievement;

§         Published material (written by others) about the beneficiary’s research;

§         Service as the judge (either independently or as a part of a group of reviewers) of the work of others in the field;

§         Original contributions to the field; and

§         Authorship of scholarly articles or publications in internationally distributed journals.

The offer of employment need not be with a U.S. university or academic institution. The employer may also be a private company.  Private companies, however, must show that the company or the applicable subdivision employs at least three full-time researchers.  The company must also show that it has achieved “documented accomplishments” in the academic field.

In the past, the Service rarely disputed the “at least three researchers” or the “documented accomplishments” issues, but in recent years has begun to request evidence on them. Suggestions for how to meet the “documented accomplishments” issue include such things as patents (approved, pending, or prepared) or significant breakthroughs in technologies or processes. In applicable cases, such as start-up companies, one might also point to the prominent reputation and major awards of other researchers in the company as proof that the group, as a whole, has achieved “documented accomplishments,” even though the company itself may not have.

National Interest Waivers (NIW)

The legal requirements for National Interest Waivers are the most cryptic of the four alternatives to labor certification. Because National Interest Waivers fall within the EB-2 category, the threshold requirement is either an advanced degree or “exceptional ability” in one’s field.[11] Beyond that, the statute states only that the Attorney General (i.e., the Service) may approve an EB-2 petition without an approved labor certification when the Attorney General deems it to be in the “national interest” to do so.[12] The Service regulations provide little additional guidance on determining whether approval would be in the national interest in a given petition.  The preamble to the regulations merely state that the test for National Interest Waivers should remain “flexible” with decisions made on a “case by case” basis.[13]

In 1998, after nearly eight years of wandering adjudications at the Service Centers, the Service’s Acting Commissioner for Programs formally designated as a “precedent” decision the opinion of the Administrative Appeals Office (“AAO”) in New York State Department of Transportation (“NYSDOT”), 22 I&N Dec. 215 (Comm. 1998).

The NYSDOT opinion remains the only precedent decision related to National Interest Waiver petitions.

It sets forth a three-prong test, all of which must be met:

§      The beneficiary’s work must be of “substantial intrinsic merit;”

§      The proposed benefits of the beneficiary’s work must be “national in scope” (as opposed to being purely “local”); and

§      The beneficiary’s past record of achievement must demonstrate that he or she will prospectively benefit the national interest to a “substantially greater degree than would an available U.S. worker having the same minimum qualifications.”[14]

Although post-NYSDOT AAO opinions very consistently state the third prong as shown above, CIS Service Centers regularly rewrite the third prong to require proof that the denial of the National Interest Waiver petition would “adversely affect” the national interest.[15]  An in-depth analysis of this distinction (and its adverse affect on NIW petitioners) is beyond the scope of this paper.  It is, however, safe to say that the Service Centers’ inability or unwillingness to follow the AAO on NYSDOT’s third prong causes tremendous confusion for Service adjudicators and private practitioners alike and ultimately makes the adjudication of NIW petitions much more unpredictable than necessary.[16]

Multinational Executives & Managers (EB‑1C)

Certain multinational executives or managers with permanent job offers can obtain permanent residency without labor certification. To qualify, the petitioning company in the United States must meet these general requirements (shown in abbreviated form):

§      The U.S. petitioner is a parent, subsidiary, or affiliate of a company in another country;

§      During the three-year period immediately preceding the beneficiary’s entry to the United States, the beneficiary must have worked at least one year overseas with the parent, subsidiary, or affiliated company of the U.S. petitioner;

§      The position at the parent, subsidiary, or affiliate company was as an “executive”[17] or “manager,”[18] and not as a “first-line supervisor;” [19] and

§      The alien has a permanent job offer from the U.S. company to work in an executive or a managerial position. 

The Multinational Executives or Managers category for employment‑based immigration closely resembles the L‑1A visa category. Therefore, many people who qualify for an L‑1A visa as an Executive or a Manager would also qualify for permanent residency in the United States, without a labor certification application.  It is important to keep in mind, however, that prior L-1A status is not a requirement for eligibility for EB-1C.  A beneficiary might adjust status from some other nonimmigrant status (e.g., H‑1B or J-1), or might even directly immigrate to the United States under an approved I-140 with consular processing, without having ever been in L-1A status. Also, even though the L-1A and EB-1C regulations are similar, current L-1A status does not, in practice, guarantee the approval of an EB-1C for the same beneficiary.

L‑1B employees with “specialized knowledge” are not eligible for bypassing labor certification, unless the petitioner can show that the beneficiary served as an executive or a manager for the company abroad and that the position offered in the United States is “executive” or “managerial.”  In other words, an L-1B beneficiary qualifies for EB-1C only if it can be shown that in addition to meeting the “specialized knowledge” criteria, the beneficiary also meets the EB-1C requirements.

In what circumstances SHOULD AlternativeS to labor certification BE PURSUED?

There are several major factors – and myriad minor ones – to consider in choosing between a labor certification application and an alternative. In some cases, your client may want you to pursue multiple paths at the same time.

Some of the major factors to consider in determining which route to take include:

§      Is a permanent “job offer” available?

§      How long does it take the government to make a decision?

§      How strong a case could be made under labor certification (if applicable) or under one or more of the alternatives?

§      How predictable is the outcome (even if the case is “strong”)?

§      How long does it take to prepare the case?

§      Does the beneficiary need protection from the six-year limit on H and L visas?

§      Does the beneficiary need protection from potential layoffs, or plan to change jobs in the foreseeable future?

§      Is it particularly important for the beneficiary’s spouse or other family members to obtain advance parole or work authorization?

§      In which jurisdiction will the beneficiary be working?

§      What is most important to the client(s)?

Is a permanent “job offer” available?

Labor certification is not the only category that requires a permanent offer of employment in the United States. The categories of Outstanding Professors or Researchers (EB-1B) and Multinational Executives and Managers (EB-1C) also require a permanent job. If the beneficiary has no permanent job offer, then the only available alternatives are the Aliens of Extraordinary Ability (EB-1A) or National Interest Waivers (NIW) categories.

How long does it take the government to make a decision?

Speed of adjudication is a major advantage of alternatives to labor certification, although this may change if the PERM regulation is finally implemented and works as planned.[20] According to relatively recent government processing times, all four of the alternatives to labor certification are decided in less than two years, with some petitions approved in as little as two months. By comparison, the time it takes for a labor certification application to be certified ranges from 3 months (for RIR LCs filed in Montana and Wyoming) to almost 7 years (for “regular” LCs filed in the Dallas DOL region). In the Dallas DOL region, all of the State Workforce Agencies (SWAs) are still processing applications filed in April of 2001, and the Dallas DOL regional office is processing cases received at that DOL office in March of 2000.

The following tables show relatively recent processing time estimates for the applicable SWA, Department of Labor (DOL) Regional Office, and CIS Service Center.

Alternatives take roughly 2 to 20 months.

As of February 20, 2004, processing times for relevant I-140 petitions at the applicable CIS Service Centers were as follows:

California Service Center I-140 Petitions

As of:   02/20/2004

Nebraska Service Center I-140 Petitions

As of:   02/20/2004

Texas Service Center I-140 Petitions

As of:   02/20/2004

Vermont Service Center I-140 Petitions

As of:   02/20/2004

Although these figures represent the “official” processing times, actual processing times can vary dramatically in either direction.

Labor certifications take between 3 months and 7 years.

As of February 12, 2004, processing times for labor certifications were significantly longer than for the alternative petitions. The following tables show the number of days needed to process both regular and RIR labor certification applications in nine selected cities.[21]  As these numbers show, the processing times vary widely by region and type of labor certification application filed.  An RIR application takes only 10 months to process for a beneficiary in Chicago, but almost 3 years for a beneficiary in New York.  Regular processing varies from a relatively “speedy” 9 months in Boston to almost 7 years in Dallas.

Labor Certification Processing Times for Selected Cities

As of:   2/12/2004

Total difference between “alternatives” path and labor certification path: 7 to 20 months versus 20 to 94 months

In analyzing the difference in processing times of labor certification applications as compared to those of the alternatives, one must also account for the fact that the DOL certification of the labor certification application puts the beneficiary only at the beginning of the CIS processing step. That is, after the labor certification application is certified by the DOL, the petitioner still must process the I-140 and the I-485 for the beneficiary.

To put the overall time comparison on equal footing, the following table shows the total processing time between the filing of the labor certification application and the date the person actually receives I-140 approval (i.e., SWA time + DOL time + I-140 time), as compared to filing the I-140 directly through one of the alternatives to labor certification.

To exemplify the difference in timing, the table seeks to answer the question, “What is the expected difference in overall waiting time to obtain an approved I-140 if a particular person was the named “alien” under a labor certification application filed with the applicable SWA today and was also the named “beneficiary” in a national interest waiver-based I-140 also filed today with the applicable CIS Service Center (assuming that the application and petitions will be approvable as initially filed)?”[22] As a means of providing sample answers from various cities nationwide, the tables provide data for each of the nine cities that happen to have DOL Regional Office or Sub-Office involved in labor certification processing.

Comparing Processing Times for EB-2 I-140 Petition either via Approved Labor Certification or via a Request for a National Interest Waiver in Nine Sample U.S. Cities

DOL Data as of: 02/12/2004; CIS Data as of 02/20/2004