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David Fullmer 6

TIM,Immigration, David Fullmer


David-Fullmer-6In today’s current economic conditions, with unemployment at record highs, many foreign nationals who want to work in the U.S. are currently unemployed or finding it hard to get the permanent job offer needed to support a labor certification necessary for permanent resident or “green card” status.   The Labor Certification handled through the U.S. Department of Labor (DOL) requires the Employer to demonstrate that:1) a valid job exists, and 2) there are no qualified U.S. workers available to fill the position. Since the principle object of the Labor Certification is to ensure that a foreign national employee will not displace any U.S. workers, the process requires the Employer to conduct recruitment or place a series of ads for the position, review each resume and interview any qualified applicants. Once a Labor Certification has been approved by DOL, it is then submitted to the United States Citizenship and Immigration Services (USCIS) as the basis for permanent residency. This process can take years from start to finish. With many US workers unemployed, Employers may actually find a qualified US worker, leaving the foreign national without the ability to apply for permanent residency. Alternatively, if the Labor Certification is approved by DOL, the employer may not be financially stable enough to obtain approval of the green card application.

Therefore, I am frequently being asked by prospective clients if they have options for “green card” status without a job offer. There are several categories for “green card” application that can be made without a specific job offer from an Employer. First, as most people are aware, an alien can qualify for a “green card” if they are an immediate relative of a U.S. citizen. The family based “green card” does apply to those who are married to a US citizen. For some this is the best option, however, even for those in a happy marriage, a family based application may not always be the best choice. Marriage, even at its best, is hard work and some foreign nationals may prefer to avoid the additional stress the immigration process can place on the marriage relationship. One concern for some is that the initial green card status will be conditional and if the marriage terminates prior to receiving permanent status, the green card could be lost.

The second option for a foreign national with no job offer seeking “green card“ status is through investment in the U.S.. This option is an excellent route for those able to make such an investment, however it requires  substantial resources. The EB-5 or investor green card is available to eligible foreign nationals who invest $500,000 or $1,000,000 in a new commercial enterprise that benefits the US economy and creates full-time employment for at least 10 employees. There are also opportunities for foreign nationals who invest $500,000 or $1,000,000 in a “regional center.” If an individual qualifies, the EB-5 program provides the individual investor conditional resident status for 2 years. The investor will then need to file a petition to remove the conditions before the 2 years is up and demonstrate that the 10 jobs still exist.

Since 1990 there is another great option for those that qualify. The EB-1, Extraordinary Ability category grants “green card” status to individuals that have recognized “extraordinary ability” in the sciences, arts, education, business or athletics.  The foreign national does not need a job offer or an employer to sponsor them, but rather only need show that they plan to continue to work in the field of their extraordinary ability in the US. This means that the foreign national may file a petition on their own behalf, rather than having an employer file for them.  Upon approval the foreign national is then free to work at will and the status is granted on a permanent not conditional basis.

Extraordinary ability is a relatively new concept in immigration law. USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” The regulations set out two ways to demonstrate extraordinary ability. First, the individual can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. The second and more common method is for the individual to show other evidence from at least three of the following ten types of evidence:

  • Receipt of lesser national or international prizes or awards for excellence in their field of endeavor ;
  • Membership in associations in the field of endeavor that require outstanding achievements of their members;
  • Published material about the alien and his work in professional journals, trade publications, or the major media;
  • Participation, either in a group or alone, as a judge of others in the same or a similar field ;
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor ;
  • Authorship of scholarly articles in the field, published in professional journals or the major media;
  • Display of the alien’s work at artistic exhibitions or showcases in more than one country ;
  • Performance in a lead, starring, or critical role for organizations with a distinguished reputation ;
  • Commanding a high salary compared to others in the field;
  • Commercial success in the performing arts, as shown by box office receipts and sales.

Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence. While the standard for ‘extraordinary ability” is a high one, our experience is that it is obtainable not only for Academy Award or Nobel Prize winners but also for those who have, through years of dedication to their field, become recognized as leaders and as outstanding in their field of expertise.    Green cards have been granted in the Extraordinary Ability category for individuals working in a broad range of fields. Recently our firm has obtained Extraordinary Ability green cards for accomplished individuals in various professions including: Film Director, Dog Trainer, Photographer, Stunt Performer, Actor, Composer, Jewelry Designer, Magazine Editor and Newscaster. The key will be to show that the individual has established themselves as the top of the field.

Therefore, even in these difficult economic times with job offers harder to come by, foreign nationals do have options to obtain a green card without an employer acting as sponsor. They can pursue a family based green card, or consider an investment based application if the resources are available. If the individual has established themselves in a field, the Extraordinary Ability green card is definitely worth exploring with immigration counsel. This category can encompass a wide range of professions.

Disclaimer: Nothing on these pages should be taken as legal advise for any individual case or certain situation. The information is general and should not be relied on upon for any specific situation. For legal advice, please contact one of our attorneys at

All content is copyrighted by IVENER & FULLMER LLP 2008. All rights reserved. No portion of this article may be duplicated without permission. Services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Bar of California or by a person under the supervision of active members of the State Bar of California.

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