IMMIGRATION TALK: FOREIGN STUDENTS WHO MAY NOT REALIZE THEY ARE ALIENS OF EXTRAORDINARY ABILITY

Each year hundreds of foreign students enter the United States to take advantage of the exceptional educational opportunities available to them.

The F-1 Visa is a nonimmigrant student category that allows foreigners to pursue their education in the United States.

Optical Practical Training (OPT) is a period during which the foreign student who holds a valid F-1 status is granted permission to be employed in a field directly related to their study.  To be eligible for OPT status, the foreign student must have completed or be pursuing a degree and maintained status for a minimum of nine months.  Prior to employment, the student must file for an Employment Authorization Document.  OPT status is typically granted for twelve (12) months.  In fields of study that involve Science, Technology, Engineering or Mathematics (STEM), the student becomes eligible for an extension of seventeen (17) months.

Upon completion of their education, many foreign students look for options available to them to remain in the United States and secure employment.  The H1B is a nonimmigrant visa category available for specialty workers.  This type of visa allows a foreign student to work temporarily in the United States and perform the services they have been qualified and/or trained for.  The position they hold must be in their field of specialty and a Bachelor’s Degree is required.

The United States has an annual limit of 65,000 H1B visas available each year starting in April.  Unfortunately, many students will find themselves shut out of the process due to this limited availability.   However, not all hope is lost.

While extensions may be filed, many of the students who choose to study in the United States are unaware that they may qualify for a specific type of immediately available visa, the EB-1.

The Employment-Based Immigration: EB-1, is a first preference visa available to foreign students who have extraordinary ability, are an outstanding professor or researcher, or are multinational executives or managers.  Each occupational category has certain requirements.  Physicians and nurses may find that they easily qualify as aliens of extraordinary ability.

This EB-1 first preference visa not only grants the foreign student the ability to accept employment, it allows the foreign student to apply concurrently for an adjustment of status and seek residency in the United States.  The foreign student may also concurrently file for an Employment Authorization Document.   Many OPT students who may not qualify for the extension available to STEM students, may apply for adjustment of status under this preference.

While the qualifications for each category may seem cumbersome, only three of the ten requirements are necessary for foreign students to seek EB-1 status, and most students are unaware that the work and research that they have put in while they pursued their careers qualifies them.  The requirements are as follows:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of your membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about you in professional or major trade publications or other major media
• Evidence that you have been asked to judge the work of others, either individually or on a panel
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
• Evidence that your work has been displayed at artistic exhibitions or showcases
• Evidence of your performance of a leading or critical role in distinguished organizations
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of your commercial successes in the performing arts

Examples of Documentary Evidence That a Person is an Outstanding Professor or Researcher:

• Evidence of receipt of major prizes or awards for outstanding achievement
• Evidence of membership in associations that require their members to demonstrate outstanding achievement
• Evidence of published material in professional publications written by others about the alien’s work in the academic field
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
• Evidence of original scientific or scholarly research contributions in the field
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Chiumento Law, PLLC assists many nurses, physicians, professors, researchers and other qualified individuals pursue their dream of living and working in the United States each year.   Please call us for a free consultation.