FOR PERSONS OF EXTRAORDINARY ABILITY
by Jeffrey Ehrenpreis
Most foreign nationals who are outstanding in their profession obtain an O-1 visa in order to engage in temporary employment in the United States as a person of extraordinary ability. They frequently overlook the possibility of qualifying for permanent residence (a "Green Card") by virtue of their extraordinary ability. This option is not only beneficial for persons who want to stay in the U.S. permanently, but also for persons who do not have a current sponsoring employer or a contract for a specific project, and who would therefore not qualify for O-1 status. A person who qualifies as sufficiently extraordinary may obtain a Green Card in an expedited manner, since it is not necessary to first obtain a Labor Certification, which is a finding by the Department of Labor that there is a shortage of qualified American workers. With the Green Card, the person is permitted to work wherever he or she chooses, and to live indefinitely in the U.S.
Qualifying for a Green Card as an extraordinary person is a two step process. The first application, the Form I-140, is to establish that the individual is sufficiently extraordinary. This classification is available to a person in the arts, sciences, education, business or athletics. The government defines extraordinary ability as a person who has risen to the top of his or her field of endeavor and has a recognized history of achievement. The evidence necessary to prove extraordinary ability includes such items as: receipt of awards; membership in associations that require outstanding achievements of their members; published material about the individual; participation as a judge of the work of others; original scientific, scholarly, artistic, athletic, or business-related contributions; authorship of scholarly articles in the field; participation in artistic exhibitions or showcases; performances in a leading or critical role for organizations that have a distinguished reputation; receipt of a high salary; and commercial successes in the performing arts. Even with such a list of accomplishments to establish that a person has risen to the top of his or her field, and even if the person already has an O-1, the standard by which the government determines if a person is sufficiently extraordinary is a subjective one. Therefore, the manner in which the case is presented often determines the success of the application.
The second and final step of the Green Card application can be filed either: (1) in the U.S. if the individual is here on a valid temporary status other than a visa waiver; or (2) outside the U.S. through a U.S. Consulate abroad. The decision of where to file this second step is often based on the individual's work and/or travel schedule. If the individual files the second step of the process in the U.S., he or she can obtain temporary work and travel permission while waiting for the issuance of the Green Card. The work permit allows the individual to work wherever he or she chooses.
In summary, a Green Card as an extraordinary person may be applied for at a time when the individual has no U.S. sponsoring employer or contract of employment. Moreover, once the Green Card is on file, an individual can often obtain work and travel permits in a few months, and the Green Card shortly thereafter.
With the Green Card, the person is permitted to work wherever he or she chooses and to live indefinitely in the United States.
For additional information on obtaining a Green Card as a person of extraordinary ability, please contact the undersigned.
Ehrenpreis Immigration Law
1880 Century Park East, Suite 550
Los Angeles, CA 90067
Phone: (310) 553-6600
This newsletter is intended for informational purposes only and should not be considered legal advice or to have created an attorney-client relationship. For legal advice, please contact our office directly.