Page 36 - The Indian EYE 111122
P. 36

IMMIGRATION                                                        NOVEMBER 11, 2022  |      The Indian Eye 36




            USCIS Guidance Enabling STEM Graduates to Obtain


           O-1 Extraordinary Visas Should Apply Equally to EB-1

                       Extraordinary Petitions for Green Cards



        BY CYRUS D. MEHTA &        appendix  describing  examples   arts have been moved under a   benefit from a National Inter-  6. Evidence of the alien’s au-
        JESSICA PASZKO             of evidence that may satisfy   different section in the regula-  est Waiver, this path may not   thorship of scholarly articles
                                   the O-1A evidentiary criteria,   tions at 8 C.F.R. § 214.2(o)(3)  befit  them  with  a  green  card   in  the  field,  in  professional
             arlier this year, the US-  as well as considerations that   (iv). See the INA provisions for   for many years, even decades,   journals, or other major me-
             CIS issued policy guid-  are relevant to evaluating such   EB-1A under INA § 203(b)(1)  if  they  are  nationals  of  back-  dia;
        Eance in the USCIS Pol-    evidence (with a focus on evi-  (A) and the O-1A under INA   logged countries such as India   7. Evidence that the alien has
        icy Manual to clarify how the   dence and considerations that   § 101(a)(15)(O). See also the   or China. If Indian born ben-  been employed in a critical
        USCIS evaluates evidence to   are  relevant  to  STEM  fields)   regulatory criteria for the EB-  eficiaries  can  qualify  for  the   or essential capacity for or-
        determine eligibility for O-1A   and provides examples of qual-  1A under 8 C.F.R. § 204.5(h)  O-1A under the new guidance,   ganizations and establish-
        nonimmigrants of extraordi-  ifying comparable evidence   (3) and for the O-1A under 8   they should similarly be able to   ments  that have a distin-
        nary ability, with a focus on   that petitioners could provide   C.F.R. § 214.2(o)(3)(iii). How-  qualify for the EB-1A as this   guished reputation;
        persons  in  science,  technolo-  in  support  of  a  petition  for  a   ever, and most notably, a vic-  category is current for India   8. Evidence that the alien has
        gy, engineering, or mathemat-  beneficiary in a STEM field.  tory under EB-1A comes with   and all other countries under   either  commanded  a  high
        ics  (STEM)  fields.  The  O-1A   The O-1A visa is the non-  a green card, while a victory   the State Department Visa   salary or will command a
        nonimmigrant visa is available   immigrant “cousin” of the   under O-1 comes with a tem-  Bulletin.            high  salary  or  other  remu-
        to persons of extraordinary   employment based first prefer-  porary period of authorized   8 CFR § 214.2(o)(3)(iii)    neration for services, evi-
        ability in the sciences, business,   ence immigrant visa (EB-1A)   employment. While there is no   provides that:  denced by contracts or other
        education, and athletics. The   for  individuals  with  extraor-  limit on the number of times                 reliable evidence.
        O-1B  is  available  to    persons   dinary ability, often dubbed   that an O-1 can be extended,   An alien of extraordi-  (C) If the criteria in paragraph
        with a record of extraordinary   the Einstein visa. The two visa   there are virtually no paths to   nary  ability  in  the  fields  of   (o)(3)(iii) of this section do not
                                                                                          science, education, business,
        achievement in the motion   categories mirror one anoth-  citizenship  for  O-1  beneficia-  or athletics must demonstrate   readily apply to the beneficiary’s
        picture of television industry   er  and  require  petitioners  to   ries unless they can qualify un-        occupation, the petitioner may
        or to persons who have gained   effectively establish the same   der any of the other employ-  sustained national or interna-  submit comparable evidence in
        distinction in the arts. The   evidentiary criteria. But note   ment-based (EB) preference   tional acclaim and recognition   order to establish the beneficia-
        new guidance has not added   that the regulatory standards   categories, such as EB-1, EB-  for  achievements  in  the  field   ry’s eligibility.
                                                                                          of expertise by providing evi-
        additional criteria or require-  for an O-1A require that the   2, or EB-3. However, the very   dence of:       To satisfy the second cri-
        ments  for  O-1A  applicants  in   beneficiary  meet  only  eight   reason that one many apply               terion, USCIS has typically re-
        STEM, but has, among oth-  rather than 10 criteria as the   for the O-1 is because the oth-  (A) Receipt of a major, interna-  quired that the petitioner show
        er things, added a chart in an   criteria for beneficiaries in the   er EB categories are not the   tionally recognized award, such   that membership in the asso-
                                                                  right fit for that particular   as the Nobel Prize; or  ciation requires outstanding
                                                                                          (B) At least three of the following
                                                                  beneficiary.  For  instance,   forms of documentation:  achievements  in  the  field  for
                                                                  because they don’t  have   1. Documentation  of  the  which  classification  is  sought,
                                                                  a qualifying degree or an   alien’s receipt of  nationally   as judged by recognized na-
                                                                  employer who wishes to   or internationally recog-  tional or international experts.
                                                                  pursue the lengthy and   nized prizes or awards for   In cases where associations
                                                                  costly PERM labor certi-  excellence in the field of en-  may have multiple levels of
                                                                  fication  process  on  their   deavor;             membership, the petitioner
                                                                  behalf. Many who seek   2. Documentation  of  the  must show that in order to ob-
                                                                  an O-1A are founders     alien’s membership in  as-  tain the level of membership
                                                                  of their own companies   sociations  in  the  field  for   afforded  to  the  beneficiary,
                                                                  which would make labor   which   classification   is   the  beneficiary  was  judged
                                                                  certification  virtually  im-  sought, which require out-  by recognized national or in-
                                                                  possible. Those who are   standing achievements of   ternational experts as having
                                                                  unable  to  file  labor  cer-  their members, as judged by   attained outstanding achieve-
                                                                  tifications  because  they   recognized national or inter-  ments  in  the  field  for  which
                                                                  own their companies may   national experts in their dis-  classification is sought. In light
                                                                  sidestep the labor certifi-  ciplines or fields;   of the new policy guidance,
                                                                  cation process by apply-  3. Published material in pro-  USCIS has provided a possible
                                                                  ing for a National Interest   fessional or major trade   example that may be helpful to
                                                                  Waiver. Still, to apply for   publications or major media   STEM beneficiaries. It states:
                                                                  a National Interest Waiv-  about the alien, relating to   [M]embership in the In-
                                                                  er, the USCIS considers   the alien’s work in the field   stitute of Electrical and Elec-
                                                                  whether  the  person’s   for  which  classification  is   tronics Engineers (IEEE) at
                                                                  proposed endeavor has    sought,  which  shall  include   the IEEE fellow level requires,
                     m of                                         both substantial merit   the title, date, and author of   in part, that a nominee have
                                                                  and national importance,
                                                                                                                     “accomplishments that have
          CYRUS D. MEHTA & PARTNERS PLLC                          the person is well posi-  such published material, and   contributed importantly to the
                                                                                           any necessary translation;
                                                                  tioned to advance the                              advancement or application of
                                                                                             proposed endeavor, and   4. Evidence of the alien’s par-  engineering, science and tech-
          
                          
  	                            
             that it would beneficial to   ticipation on a panel, or in-  nology, bringing the realization
                                                                  the U.S. to waive the job   dividually, as a judge of the   of significant value to society,”
             	                                 
                                         work of others in the same
                                                   
             ­       offer and thus the perma-  or in an allied field of spe-  and nominations are judged by
               €   
              ‚                                                     nent  labor  certification   cialization to that for which   an IEEE council of experts and
                                                                  requirements. See Mat-   classification is sought;  a committee of current IEEE
                                                                  ter of Dhanasar, 26 I&N   5. Evidence of the alien’s orig-  fellows.  As  another  possible
                                                                  Dec. 884 (AAO 2016).     inal  scientific,  scholarly,  or   example, membership as a fel-
                                                                  At the same time though,   business-related  contribu-  low in the Association for the
          2              6th Floor                                for some EB-2 beneficia-  tions of major significance in   Advancement of Artificial In-
           
     
        	
     
         
                ries,  even  those  who  can   the field;          telligence (AAAI) is based on


                                                               www.TheIndianEYE.com
   31   32   33   34   35   36   37   38   39   40