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Romancing the Brain: Immigration Strategies for Scientists and Researchers American Immigration Lawyers Association (AILA) Manual on Labor Certification 1996
This article concerns permanent residence strategies for academic researchers and scientists under procedures which will avoid the labor certification application process. As an initial introductory observation, immigration law is essential premised upon certain core values which constitute the bases for enabling a foreign national to immigrate permanently to the United States. Within the employment-based context, the essential value is that permanent residence requires the employer to show that its employment of a foreign national will not harm the U.S. labor market either through eliminating a job opportunity to a fully qualified U.S. worker or by depressing the wages of similarly employed workers. While the integrity of the labor certification process in meeting these objectives is certainly open to question, the core value of this process nevertheless remains a strong commitment to the protection of the U.S. labor market. However, there are certain instances in which this core value of labor market protection is overridden by an arguably more compelling national value, and it is the consideration of these countervailing values as specifically related to the academic and scientific communities which forms the central focus of this paper. Many foreign nationals and their employers can either avoid entirely or substantially mitigate the labor certification process through the following provisions: (1) Priority worker provisions as an alien of extraordinary ability (EB1-1); INA § 203(b)(1)(A) (2) Priority worker petition as an Outstanding Professor and Researcher (EB1-2); INS § 203(b)(1)(B). (3) Immigrant Visa petition filed National Interest Waiver criteria; INA § 203(b)(2)(B). (4) Immigrant Visa petition filed under a blanket labor certification application (Schedule A, Group II); 20 CFR § 656.22 (5) Special handling provisions for university teaching positions (which offers a limited exemption to the labor certification application process). 20 CFR §656.21a. The Labor certification application is a complex, time consuming, and highly challenging process which anecdotally is becoming even more difficult given a maddeningly high and perhaps unfair ideological bias as well as unprecedented slowdowns within the Department of Labor. Statistically, the labor certification approval rates have been dropping 1 and the period of time required for processing continues to lengthen 2. As a substantive observation, the two central issues of concern to this entire process are: 1) to establish that the alien's salary fulfills prevailing wage determinations as calculated by the Department of Labor under a system which is generally considered to be unjustifiably skewed toward the high end of the spectrum; and 2) to determine the unsuitability of U.S. applicants for the position. At least within the university context, these considerations become of marginally lesser concern for the following reasons: a) Solely within the university context, the Department of Labor has retreated somewhat from its Hathaway Doctrine 3 so as to authorize prevailing wages for university positions -whether research or teaching - to be calculated on the basis of salary structures within other universities, rather than based upon a wide spectrum of employers, including those in private industry 4. This limitation of the "test group" to other academic institutions represents a limited reinstitution of the principle originally established in the Tuskeegee University 5 case in which the unique characteristics of the employing institution played a vital and oftentimes dispositive role in calculating the prevailing wage. As such, many university employers now face a somewhat more attainable standard for prevailing wage purposes. b) Scientific and research positions are often quite specialized, involving high levels of education, training, and experience. As a practical matter, it is usually possible to construct a tightly knit set of item 14-15 requirements which, in their composite, legitimately establish the alien candidate as the only fully qualified applicant for the position. c) The availability of special handling provisions for university teaching positions and/or the utilization of recruitment reduction procedures can be particularly effective within a scientific/academic context in which a hiring decision is often preceded by an extensive advertising/recruitment effort. The special handling provisions is restricted to university teaching positions and creates both a more time-efficient filing procedure through the Department of Labor, as well as a lower standard which requires the employing institution to show that the foreign national is the best qualified as opposed to the only fully qualified applicant for the position 6. d) Somewhat related to the above is the reduction in recruitment procedures in which an employer's good faith, fully competitive previous recruitment efforts as conducted within the previous six month period of time can be utilized to fulfill the recruitment requirements 7. Given the alarming growth in the labor certification backlogs within the Department of Labor, many DOL Regions appear to be more receptive to favorably considering recruitment reduction requests. While this procedure is available to all employers, it has particular applicability within the scientific community for the following two reasons: 1) a disproportionate number of such employers seem to have already conducted an extensive recruitment search by the time they hire a foreign scientist/researcher; and 2) given the focused sophistication involved in many scientific and/or research positions and the documented national shortage of professional research staff in many scientific disciplines, there is an underlying plausibility to an employer's assertion as to its inability to hire a fully qualified U.S. worker. However, even within the most favorable light, the labor certification application process represents a daunting and disruptive challenge to the practitioner, the individual alien client, and the employer. Particularly given certain new initiatives within immigration law to recognize either high individual merit and/or potential contributions to areas of national interest, it is in a large number of instances possible to avoid entirely the labor certification application process. Attorney's Role Brief mention should be made about the lawyer's role specifically as related to academic researchers and scientists. As a universal observation, the practitioner's role is to serve as a cultural bridge between the client and the adjudicating body (i.e., the INS). The various components of our highly complex society have their own concerns, lexicon, and orientation, and it is the practitioner's responsibility to translate the client's "world" into a digestible, understandable format to the Service. Conversely, it is critically important for the practitioner to be able to "legitimize" the immigration process to the client -i.e., convey the underlying rationale for taking certain highly unusual actions as required to fulfill immigration criteria. Within the scientific/research area, this oftentimes involves two particular challenges. First, the practitioner's normal approach is to forcefully and perhaps somewhat hyperbolically stress the merits of the case, particularly as relating to the alien's potential contributions to the national interest and/or the intrinsic scientific/academic capabilities of the individual. This approach contrasts very starkly to the scientific/academic mind which is highly deflationary in its thought pattern and generally refrains from making even marginally hyperbolic assertions unsupported by hard data. Second, by its nature, scientific and academic research is highly complex, involving a highly specialized lexicon which is all too often performed by individuals of limited ability or inclination to translate scientific concepts into a format digestible to the INS, meaning that the practitioner has a special role in understanding and communicating the facts of the case and then in linking it into approvable grounds for immigration purposes. II. Foreign Nationals of Extraordinary Ability Statutory Requirement The Priority Worker provisions for aliens of extraordinary ability are found at Section 203(b)(1)(A) of the Act. The underlying premise of these provisions is that certain aliens of acknowledged ability should be entitled to a streamlined pathway to permanent resident status absent the labor certification application process provided that their permanent residence will benefit substantially the United States on the basis of their professional skills. In short, there is a dual component of examining the intrinsic capabilities of the foreign national to establish extraordinary ability and an external component of linking this extraordinary ability to U.S. national interests. The essential requirements of the extraordinary ability provisions (EB1-1) consist of the following: 1. That the alien have demonstrated by sustained national and international acclaim that his/her achievements have been recognized in the field through extensive documentation a level of extraordinary ability in sciences, arts, education, business, or athletic; 2. That the alien seek to enter the United States in order to continue work in the area of extraordinary ability; 3. That the alien's entry into the United States will substantially benefit regularly prospectively in the United States 8; The extraordinary ability regulations essentially lay out certain threshold requirements for EB1-1 entitlement and provide the initial guidance on INS adjudication standards for Extraordinary ability aliens. Whereas the first three points as listed below set forth a basic structure for Service adjudication as well as its attitude toward EB 1-1 petitions (i.e., "small percentage"), the Regulations go on to list 10 stipulated categories which are recognized for Extraordinary ability purposes. This enumeration of criteria is a double-edged sword, in that it forms a quasi-measurable, predictable standard for determining the approvability of EB 1-1 petitions, but can also cut down somewhat on the creativity and range of factors which can be presented for entitlement to this classification. The regulatory provisions which form the basis for Extraordinary ability aliens include the following points:
a. the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; b. the alien's membership in associations in which membership is granted in recognition of outstanding achievement; c. published material about the alien in professional or major trade publications as relating to the alien's work in the field under which the claim is made to extraordinary ability; d. the alien's participation on as a judge of the work of other professional colleagues; e. the alien's original scientific or scholarly contributions of "major significance" in the field; f. the alien's authorship of scholarly articles in the field; g. the display of the alien's work in artistic exhibitions or showcases; h. the alien performance in a leading or critical role for organizations or establishments that have a distinguished reputation; i. the alien's having commanded a high salary or high remuneration in relation to others in the field; j. the alien's having demonstrated commercial success in the performing arts. In the alternative, extraordinary ability can be established merely through the receipt of one achievement, such as an award of national / international stature. While the Nobel Prize is normally cited as the prime example of an award of national / international significance, there are many other examples of such qualifying awards which are nationally / internationally recognized, although the establishment of this stature may require the practitioner's own research and careful documentation in the presentation of the case. However, it has been this author's experience that any recipient of major national / international awards has usually accumulated indicia of extraordinary ability per the above listed criteria so as to easily satisfy at least three if not more of the ten listed criteria for extraordinary ability. Discussion Points 1. Overall Analytic Model In some respects, there is an overlap between the EB1-1 provisions for aliens of extraordinary ability and the strategies listed below, particularly the EB1-2 provisions for outstanding professors and researchers and the EB-2 national interest waiver procedures. The article titled :"Take Two National Interest Waivers at Bedtime and Call me in the Morning" describes EB-2 provisions C. One screening element in choosing the appropriate strategy would the presence or absence of an employer since both the EB1-1 and the national interest provisions enable an alien to self-petition whereas the Outstanding Professor/Researcher provisions require the employer to submit the immigrant visa petition. Furthermore, as addressed below, the Outstanding Professor and Researcher provisions contain certain restrictions on the nature of the petitioning institution (i.e., university or private employer with three or more full time researchers and established track record of achievement) which are limiting factors not present for Extraordinary ability cases. Another factor influencing strategy preference between an EB1-1 action and a national interest waiver might be the existing or anticipated backlogs in the preference system since the Second Employment-Based Preference category recurrently experiences backlogs which differ in severity depending on country of birth and time of the year (i.e., backlogs tend to appear late in the INS fiscal year) whereas the Priority Worker allotment of 40,000 has historically not been exhausted on either a worldwide or country basis. At least as a starting analytic point, the practitioner is well advised to consider the following factors in determining possible EB1-1 eligibility entitlement: a. Whether the employing institution possesses a level of national/international renown so as to create a legitimate need for and an established employment pattern of individuals of extraordinary abilities; b. Whether the alien beneficiary intrinsically possesses a series of documented achievements which not only directly address at least three of the ten enumerated regulatory stipulations, as referred to above, but which provide a background starting point for constructing an overall profile of the applicant as an individual possessing extraordinary abilities in the area of chosen endeavor. In this regard, it is very important to inventory the strength of the written evidence which can be assembled, including letters of support addressing the alien's merits, the caliber of the employing institution, and the national interest benefits from the alien's permanent residence; c. Whether the institution has made a particular commitment to the research and/or scientific endeavors of the alien applicant so as to allow his/her work to proceed to its maximum benefit; d. Whether the specific focus of the alien's prospective work can be established as being an area of national interest i.e., whether it will prospectively benefit the United States. It is a matter of some importance that the statutory language specifically includes a national interest component, whereas the regulatory provisions focus exclusively on the alien's own qualifications and omit reference entirely to the prospective benefit to U.S. national interests. This would seem to suggest that the possession of extraordinary abilities is, by its very nature, a matter benefiting U.S. national interests. While practice standards certainly differ, it has been this practitioner's practice to include a statement on the alien's contributions to national interest as a part of the EB1-1 submission, whereas other practitioners do not address this as a separate issue based upon their reliance on the regulatory (as opposed to the statutory) language and the inherent fact that there is a matter of national interest for an extraordinary ability alien to remain in this country. The above listed criteria for preliminary determining an extraordinary ability alien case is certainly not an all inclusive model, particularly given the right of the alien to self-petition which in many instances will mean that the alien cannot draw upon the stature of a specific employer in establishing his/her extraordinary ability or national interest contributions. However, the important point of note is that the Extraordinary ability provisions require a dual consideration of both the alien's own intrinsic substantive capabilities which need to be at an extraordinary level and the benefits from the alien's focused professional skills on the national interest. It is precisely because of this two-tiered consideration between the alien's internal capabilities and his/her external benefits to national interest which makes the extraordinary ability provisions a powerful strategy tool to the practitioner. Empirically, it has been possible to effectively matrix these two considerations so as to either enable the acknowledged extraordinary ability of the alien to compensate somewhat for a marginal claim to national interest benefit (which is sometimes particularly useful in self-petition cases) or to utilize the caliber of the employing institution, the inherent complexity of the professional area of endeavor, and/or the benefits to the national interest to "bootstrap" the alien into the realm of extraordinary ability. 2. Up and Coming Scientists Although the above stated model certainly has its limitations, it is sometimes relevant for the up and coming scientist who may not have completely developed his/her acclaim in the field of endeavor. At least under the current statutory provisions, such cases in many instances will be handled under the national interest waiver provisions, although the proposed regulations would create a three year period of prior employment experience which, if enacted, could significantly reduce the relevance of the national interest waiver provisions to aliens of limited experience. Certainly, the EB1-1 provisions envision that the alien beneficiary will have established a claim to extraordinary ability on the basis of proven experience. However, this value of proven experience does not appear in quantifiable terms. Rather, the regulatory language is simply not time specific or rigid (i.e., "sustained. . . acclaim", "extensive documentation", "substantially benefit prospectively,) so as to provide the adjudicator fairly wide discretion in determining whether the underlying values of the EB1-1 classification have been met (i.e., the alien's intrinsic extraordinary ability and the external feature of benefit to the national interest). It is precisely in this light that the employer's recognized achievements and established employment patterns of scientists and researchers of extraordinary merit can become the determining factor for highly talented although seemingly junior research/scientific personnel. 3. Self Petition versus Employer Petition While pattern and practice differ, it is this practitioner's opinion that an EB1-1 case is normally more effective when presented on the basis of an employer's rather than an self petition. This view is principally offered in light of the analytical framework as presented above, which very definitely tries to tie in the alien's own caliber of achievement with the reputation and contributions of the employing institution. However, there are certainly a great many instances in which the employing institution will simply put too many constraints on the petition so as to deflate the ability to qualify the beneficiary under the EB1-1 standards. For example, many institutions decline from thoroughly and aggressively supporting the claim to "extraordinary ability"; many academic figures feel more comfortable providing background attestations to the alien's abilities in their own right rather than on behalf of the institution; the instability of ongoing funding sources leads many institutions to decline to petition for an alien scientist or researcher despite the fact that the past funding commitments and the expectation for future funding easily meets the standard for permanent employment in the immigration context; in some instances, the alien may hold multiple appointments which undercuts an ability within one institution to show full time employment. Again, it is generally preferable to present a case on the basis of an employer's petition. In any case, whether on the basis of a self petition or an employer's petition, there needs to be some synergy, trust, and mutual commitment between the institution and the individual. It is only when there are internal institutional considerations which would compromise the ability to establish the necessary components of the alien or the beneficial impact of the alien on the national interest that the case should generally be presented as a self- petition. 4. Required Documentation The regulations stipulate that an alien needs to meet three out of ten requirements, which form the threshold considerations for EB1-1 consideration. The more complex issue concerns the overall burden of proof in order to sustain a priority worker petition for an extraordinary ability alien - i.e., whether simply meeting any three requirements is sufficient for approval or whether there is a further qualitative requirement to conclusively and exhaustively meet the stipulated points. The INS has been somewhat ambiguous in its response by asserting that the mere establishment of three of the criteria would generally demonstrate a beneficiary's extraordinary abilities, although there are exceptions to this three criteria rule 10. Rather, the INS reserves the right to weight the evidence presented and to draw its own conclusions as to the existence of extraordinary abilities. In any case, meeting three of the ten criteria is not conclusive nor does it even short the burden from the petitioner to the INS rather, the three out of ten rule is simply a starting port in order to determine the existence of extraordinary abilities for EB1-1 purposes. It is precisely against this background that the practitioner should, when possible, seek to document as many of the ten stipulated criteria as possible and, most certainly, link the alien's prospective duties to both national interest consideration and to the integrity of the employing institution. At least in practice, the INS appears to use a somewhat sliding scale of looking not only at the intrinsic abilities of the alien but also to broader issues concerning the established employment standards of the institution and the ultimate benefits of the alien's permanent residence to national interest. III. OUTSTANDING PROFESSORS AND RESEARCHERS A. Statutory Provisions The statutory provisions for priority worker petitions for outstanding professors and researchers appear at Section 203(b)(1)(B) of the Act. As an initial threshold determination, these provisions require that: the alien has been recognized internationally as outstanding in a specific academic area; B. Regulatory Provisions The outstanding professor and researcher regulations appear at 8 CFR 204.5(i). In a manner somewhat analogous to the EB1-1 provisions, the regulations set forth certain stipulated criteria and then require that the alien beneficiary meet a minimum of two of the stipulated six criteria and then require that the alien meet a minimum of two of the stipulated six criteria. The criteria utilized for outstanding professor and researcher purposes are:
C. Discussion Points 1. University Contacts versus Private Sector The EB1-2 provisions clearly envision that the paradigm situation will involve a university employer either for university teaching or research activity. Yet, there is a growing movement toward the "privatization" of research and scientific activity, as witnessed by a major growth in privately funded research institutions, which is becoming particularly more pronounced given overall U.S. government cutbacks in research grant allocations. Under the regulations, a private employer for EB1-2 purposes must employ at least three persons in full time research positions and must have achieved documented accomplishments in the academic field in which the alien will work. The obvious intent is to show that private institution has achieved some measure of validity and acclaim for its own research work. There are several sub issues which have not been fully clarified. First, many startup research ventures are spin offs from university programs which engage in privately funded research work prior to the commercialization of a given product. Today, many of the leading research universities in the United States have spawned a series of startup, privately funded companies which have been established precisely in order to further develop and commercialize research initially accomplished in university laboratories. Given the fact that many of the research staff in such companies hold joint positions with the university, the question arises as to whether and under what circumstances the company would achieve standing to serve as an EB1-2 petitioner. The regulations specifically stipulate that the entity must employ at least three persons full time, though it would seem logical to enable fulfillment of this requirement through various part time researchers who, in the aggregate, would have equivalence to three full time researchers (i.e., six researchers working half time capacity.) The law, though, is not completely clear on this point and a literal reading of the statute would seem to disallow this type of employer from submitting the Priority Worker petition. A second issue concerns the level of renown required of the private institution. For example, it is quite common for the initial ground breaking research to have occurred within the university, but that the subsequent exploitation of the technology will have occurred within the private company. It is somewhat unclear as to whether this situation would meet the requirement that this facility have "achieved documented accomplishments in an academic field". While the private research entity may well possess the patents and/or technology of major interest, their initial development and formulation is usually performed within the university's laboratories. The open issue, therefore, becomes whether the private company can serve as a successor in interest to the original accomplishments of the university laboratory, at least in order to meet the requirement of documented accomplishments in the academic field. A final institutional identity issue arises with public, non-university employers under state, local or federal operation. The statute and regulations specify that an employer to have standing for EB1-2 purposes must be either a university or institution of higher learning or a private company with at least a three person research staff and possessing documented accomplishments. Apparently, a government run research facility would not qualify in order to qualify an alien under these provisions. Certainly, it could file an immigrant visa petition under the national interest waiver provisions, and the fact that the employment relationship is taking place within a governmental institution would in and of itself be one piece of probative evidence that the alien will indeed serve the national interest for EB2 purposes. However, irrespective of the outstanding research capabilities of any such alien, the public and non-university/non-higher education nature of the employer would eliminate the ability to qualify under the EB1-2 provisions. 2. Specific Academic Areas One of the key concepts is to show that the alien beneficiary is recognized internationally as outstanding in a specific academic area. Please note that this is a more focused requirement than the three year teaching/research experience requirement which could be performed in an unspecified academic area. In short, there are two time sensitive requirements: first, a general three year requirement of teaching and research experience; and second, a requirement that the alien have gained recognition internationally in the field of specific endeavor. It has therefore become a major responsibility of the practitioner to define precisely the "specific academic area". For example, the medical investigator involved in gene mutation research of relevance to immunodeficiency diseases may have very little international recognition within the overall geneticist or a microbiologist communities, but may have considerable standing within a very focused community of similar immunodeficiency gene mutation scientists. It therefore should be possible to fulfill the international recognition requirement in the specific academic area through the support letters and other attestations from highly specialized professional societies and other researchers in the alien's area of focused endeavor - i.e., genetic researchers in immunodeficiency diseases. It is precisely the practitioner's role to define and then validate this specific universe of the alien's specific academic area. 3. Role of the Program/Laboratory As opposed to the EB1-1 classification, a filing for an outstanding professor and researcher needs to be on the basis of the employer's petition. As such, it is not possible for the alien to file a self petition for EB1-2 purposes. Within this context, it is an extremely important practice pointer to carefully establish the reputation of the employing entity and its demonstrated, acknowledged role as a quality research institution. The purpose is to show that the employer has an established record and legitimate need for hiring outstanding faculty and researchers which, by implication, would be highly suggestive of the alien's own claim to being an outstanding professor or researcher. A very compelling evidentially point is to show that the specific laboratory and/or department holds significant research grant funding from federal, state, and private philanthropic sources since this can be used as probative evidence as to the high caliber of the petitioning employer. It should also be noted that although the outstanding professor and researcher provisions do not contain a national interest component, the INS has seemingly been receptive to documentation regarding the alien's potential contributions to the national interest. 4. Three Year Experience Requirement Outstanding professor and researcher provisions also require that the alien have gained three years experience within the academic field. First, as noted above, this three year experience is not restricted to the specific academic field, nor does the alien's previous service need to be at a level of international acclaim. Rather, it is sufficient simply for the alien to have gauged three years experience within the general academic discipline of which the specific research endeavor is a subset. Second, in many instances, the alien's three year experience requirement is performed while undertaking degree studies, normally within the context of a Ph.D. program. The regulations stipulate that such teaching or research while working on an advanced degree will be acceptable only if 1) the alien has indeed acquired the degree and 2) if either he/she had full responsibility for the teaching duties or if the research conducted toward the degree has been recognized within the academic field as outstanding. As a practical matter, the Ph.D. thesis will oftentimes be the most critical single document in order to establish the international acclaim of the alien in the specific field of endeavor. While such thesis work rarely in and of itself results in widespread academic recognition, the thesis and its precedent research oftentimes has been extensively reviewed, discussed, and critiqued within a specific academic circle which can then be legitimately used to fulfill the international acclaim requirement. For a discussion of National Interest Waivers, an additional option for scientists and researchers, see Take Two National Interest Waivers Before Bedtime and Call Me in the Morning. 1996 by Robert D. Aronson Endnotes |
Aronson & Associates, P.A. |