Judy J. Lee, Partner Avalyn C. Langemeier, Partner Preference Categories And Alternatives to Labor Certification

*Labor Certification NOT Required (2-Step Process) Permanent Residence Employment-Based Preference Categories Second Third First 1. Extraordinary Ability * 2. Outstanding Researcher * 3. Multi-national Executive/Manager * 2. Exceptional Ability – PERM, NIW & Schedule A, Group 2 1. Skilled Worker 2. Professional (job requires a Bachelors Degree) 1. Advanced Degree Professional – PERM & National Interest Waiver

May 2015 Visa Bulletin – Employment-Based Preference All Chargeability Areas Except Those Listed CHINA- Mainland Born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01JUN1215APR08CC 3 rd 01JAN1501MAY1115JAN0401JAN1501JUL07 Other Workers01JAN1515NOV0515JAN0401JAN1501JUL07 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers C01MAY13CCC

INA 203(b)(1)(c), 8 USC 1153(b)(1)(c); 8 CFR 204.5(j) CRITERIA TO QUALIFY 1.Qualifying relationship between U.S. employer and Foreign employer A.Parent, subsidiary, affiliate, branch, joint venture B.At least 50% ownership or controls the entity if less than 50% C.Doing business for at least 1 year D.Documentation of relationship: a.USCIS Draft RFE Template - AILA Doc (1/7/15) b.Evidence required for a small business vs. publicly traded corporation c.VIBE checks – register with Dun & Bradstreet Multinational Executive or Manager Transferee – EB 1-3

Qualifying Relationship Example 1Example 2 ACME S.A. (Mexico) (Foreign Employer) 1.Mr. Cruz – 50% 2.Ms. Garcia – 25% 3.Ms. Lopez – 25% ACME Inc. (U.S.A.) (U.S. Employer) 1.Mr. Cruz – 35% 2.Ms. Garcia – 35% 3.Ms. Lopez – 30% ABC Ltd. (Foreign Employer) Owns 100% of ABC Holding Co. Inc. (USA) Owns 51% of ABC Widget USA Inc. Owns 51% of ABC Gadgets Corp. (U.S. employer)

2.Foreign employment for one year in the past 3 years is Executive or Managerial; and 3.Proposed U.S. employment will be Executive or Managerial – Detailed job descriptions – percentage breakdown of duties & responsibilities – Employment verification letter for foreign employment, etc. – List of employees supervised and their job duties, degrees, etc. – Functional Manager – must manage an “essential” function Multinational Executive or Manager Transferee – EB 1-3

INA 203(b)(1)(A), 8 USC1153(b)(1)(A); 8 CFR 204.5(h) “Sustained national or international acclaim; Small percentage at the top of the endeavor; will substantially benefit prospectively the U.S.”, and: 1 major international award or at least 3 of 10 criteria Fields of Endeavor: Sciences, Arts, Education, Business or Athletics Petitioner: Employer or Self Priority Date: Established on the date the I-140 is filed Visa Availability: EB-11 current for all countries EB 11-Extraordinary Ability

INA 203(b)(1)(A), 8 USC 1153(b)(1)(A); 8 CFR 204.5(h)(3); and USCIS EB1-1 Draft RFE Template, AILA Doc (Posted 9/16/10) Requirements: 1 major international honor or at least 3 of the following: Receipt of lesser nationally or internationally recognized prizes or awards for excellence; Membership in associations in the field requiring outstanding achievement; Published material about the alien in professional or major trade publications or other major media; Participation as a judge of the work of others, either individually or on a panel; Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field; Authorship of scholarly articles in the field; Work displayed at artistic exhibitions or showcases; Performance of a leading or critical role in distinguished organizations; High salary or other significantly high remuneration in relation to others in the field; and Commercial successes in the performing arts. EB 11-Extraordinary Ability

INA 203(b)(1)(B), 8 USC 1153(b)(1)(B); 8 CFR 204.5(i) “Recognized internationally as outstanding in the academic field” At least 3 years experience And at least 2 of 6 criteria Fields of Endeavor: Academic fields Petitioner: Employer required; no self-petition option – Requires a permanent offer of employment – tenure, tenure track or term of indefinite or unlimited duration (USCIS Memo - AILA Doc ; 6/8/06) – Employer is a university or institution of higher learning or private employer with 3 full time researchers Priority Date: Established on the date the I-140 is filed Visa Availability: EB-12 current for all countries EB 12-Outstanding Professor or Researcher

8 CFR 204.5(i)(3)(i)(A)-(F); Kazarian v. USCIS, 596 F.3d 115 (9 th Cir. 2010) Internationally recognized as outstanding in the academic field as shown by at least 2 of the following in the academic field: 1.Receipt of major prizes or awards for outstanding achievements 2.Membership in associations which require outstanding achievements 3.Published material in professional publications written by others about the beneficiary’s work 4.Participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field 5.Original scientific or scholarly research contributions to the academic field 6.Authorship of scholarly books or articles in scholarly journals with international circulation EB 12-Outstanding Professor or Researcher Criteria

USCIS Policy Memo dated December 22, 2010 – 24 pages Provides guidance to USCIS officers regarding analysis they should use when reviewing Extraordinary Ability and Outstanding Researcher immigrant visa (Form I-140) petitions Establishes a 2 part adjudicative approach to evaluating evidence (in agreement with the Kazarian v. USCIS case) 1.Evaluate each type of evidence submitted to determine if it meets the parameters specified in the regulations (“regulatory criteria”) 2.Consider all the evidence in totality in making a “final merits determination” regarding the high level of expertise for the immigrant classification Memo contains helpful charts that detail each criteria and provide examples of what type of evidence might be acceptable USCIS Guidance Memo on EB11 & EB12

INA 203 (b)(2), 8 USC 1153(b)(2); 20 CFR (d) 1.“Exceptional Ability” – defined as widespread acclaim and international recognition from experts in the field 2.Sciences or Arts field – any field of study offered at a college or university 3.Study at a college or university is not required; degree is not required 4.Beneficiary practiced the Science or Art during the year before filing the application and intends to practice same in the U.S. & Beneficiary’s work requires exceptional ability. 5.Requires a long term offer of U.S. employment and certain PERM elements: 1.Prevailing Wage Determination from Department of Labor 2.PERM Notice of Filing 3.However, no Recruitment of U.S. workers 6.Documentation of “Exceptional Ability” – at least 2 of 7 criteria 7.File Form I-140, PERM ETA 9089, PERM Notice of Filing & supporting evidence directly with USCIS 8.Premium Processing is available Exceptional Ability in Sciences or Arts – Schedule A, Group II

20 CFR (d)(1)(i)–(vii) Documentation of “Exceptional Ability” – Evidence of at least 2 of the following 7 criteria a)Receipt of internationally recognized prizes or awards for excellence b)Membership in associations which require outstanding achievements c)Published material in professional publications written by others about your work d)Participation as the judge of the work of others in the same field e)Original scientific or scholarly research contributions of major significance the field f)Authorship of published scientific or scholarly articles in journals with international circulation g)Evidence of display of work at artistic exhibitions in more than one country NOTE: Criteria are similar to EB11 and EB12 but standard applied by USCIS in adjudication is lower. Exceptional Ability in Sciences or Arts – Schedule A, Group II

INA 203(b)(2)(B)(i); Mississippi Phosphate, EAC (AAU July 21, 1992); NYSDOT, 22 I & N Dec. 215 (1988). Advantages: Can self-petition and waives PERM Labor Certification. Disadvantage: More subjective review than some other types of applications. Requirements: Must be a member of the professions holding an advanced degree or have exceptional ability in the arts, sciences or business, and work is in the national interest. File: Form I-140, PERM ETA 9089 (Employee section only), and supporting documents, directly with USCIS No Premium Processing Available for NIW EB-2 National Interest Waiver (NIW) (Non-Physicians)

INA 203(b)(2), 8USC 1153(b)(2), 8 CFR 204.5(k) Member of a profession as listed in INA 101(a)(32), as well as any occupation for which a US baccalaureate degree or foreign equivalent is the minimum requirement for entry into the occupation Have an advanced degree – Master’s, PhD, M.D., J.D., etc. Master’s Degree equivalence can be a Bachelor’s Degree with 5 years progressively responsible post bachelor’s degree experience Degree can be in a related field EB-2 Professionals with Advanced Degrees

8 CFR 204.5(k)(2); 8 CFR 204.5(k)(3)(ii)(A)-(F) Exceptional Ability: a degree of expertise significantly above that ordinarily encountered. Requires 3 or more of the following: An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability; Letters documenting at least ten years of full-time experience in the occupation being sought; A license to practice the profession or certification for a particular profession or occupation; Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability; Membership in professional associations; Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations. EB-2 Exceptional Ability in the Sciences, Arts, or Business

Mississippi Phosphate test: 1.Improving the U.S. economy; 2.Improving wages/working conditions of U.S. workers; 3.Improving education and training programs for U.S. children and under qualified workers; 4.Improving health care; 5.Providing more affordable housing for young and/or older, poorer U.S. residents; 6.Improving the U.S. environment and making more productive use of natural resources; 7.A request from an interested U.S. governmental agency. “National Interest” Test

NYSDOT test: 1.Employment sought is in an area of substantial intrinsic merit 2.Proposed benefit must be national in scope; 3.U.S. national interest adversely affected if labor certification were required “National Interest” Test

Questions Judy J. Lee Partner Board Certified - Immigration and Nationality Law Texas Board of Legal Specialization Avalyn C. Langemeier Partner Board Certified - Immigration and Nationality Law Texas Board of Legal Specialization