Maryland Bar Bulletin
Publications : Bar Bulletin : February 2011

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BAR BULLETIN FOCUS: IMMIGRATION LAW

In today's politically charged climate, immigration is too often viewed only as a "problem". It is important to recognize the benefits of immigration to the U.S and to Maryland. One-third of all scientists working in Maryland are foreign-born. Many of the scientists in Maryland are highly accomplished and may qualify (or have qualified for) legal permanent residence in an employment-based category that does not require sponsorship of an employer.

Most commonly, employment-based immigration starts with a labor certification. Many lawyers, even those who have only a nodding acquaintance with immigration law, may have some familiarity with the labor certification process. In this convoluted process, an employer must prove that there is no U.S. worker qualified, ready, willing and available to fill a particular position. Only then can the employer seek to sponsor a foreign national for a green card. However, there are several classifications that do not require labor certification, or even a job offer, if the foreign national can establish that he or she is: at the very top of his or her field;  an individual of international repute in his or her field or an individual whose work is in the national interest of the U.S.

  • Extraordinary Ability. An individual can seek to immigrate based on his or her extraordinary ability in the sciences, arts, education, business or athletics. As no job offer is required, the individual "self-sponsors". In order to establish extraordinary ability, the person must submit evidence demonstrating "sustained national or international acclaim" through evidence of an achievement, like winning the Nobel Prize. If the applicant is not the recipient of such an award then he or she must submit comparable evidence.
  • Outstanding Professor or Researcher. To seek classification as an outstanding professor or researcher, the foreign national must present evidence that demonstrates that he or she: possesses at least three years of experience in teaching or research; is seeking permanent residence to remain in the United States to work for a college or university or a research organization that normally employs at least three persons full time in research activities; has an offer of a "permanent" position; and is recognized internationally as outstanding in his or her area of expertise. Permanent means a tenured or tenure track position or a position of indefinite or unlimited duration and in which the employee would ordinarily have an expectation of continued employment unless there is good cause for termination. 
  • National Interest Waiver. Professionals holding an advanced degree and working in an occupation that is traditionally regarded as a profession and whose work would substantially benefit the national interests of the U.S. are exempted from the labor certification requirement. Individuals of exceptional ability may also seek to qualify for the national interest waiver. The adjudicatory standard for a national interest waiver was established by the case In re: New York State Department of Transportation (NYSDOT). This case established that three elements must be met in order to establish national interest. It must be shown that:
    • The individual seeks employment in an area of substantial intrinsic merit;
    • The proposed benefit will be national in scope; and
    • The national interest would be adversely affected if a labor certification were required.

As the labor certification process exists to protect the jobs of U.S. workers, the foreign national (or employer) must show that he or she will serve the national interest to a substantially greater degree than would a U.S. worker with the same minimum qualifications. Establishing that an individual satisfies the first two elements is generally straightforward for research scientists. The third element, however, requires submission of considerable evidence of substantial impact on a particular field of endeavor. 

Unfortunately, the USCIS is applying increasingly restrictive adjudicatory standards to these petitions. It would seem that it believes that allowing highly-educated scientists to immigrate too easily presents a problem rather than a benefit.

Mary E. Ryan is a member of the law firm of Taylor & Ryan. Her practice is limited to immigration law.

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Publications : Bar Bulletin: February 2011

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