Immigration for the Best and the Brightest

The Statue of Liberty bears the inscription from Emma Lazarus' "New Colossus" poem::

"Give me your tired, your poor,

Your huddled masses yearning to breathe free."

However, current immigration law strives to bring energetic and affluent people, such as investors and scientists, who will help the country to reduce poverty and improve the air that we all breathe.

U.S. immigration law provides special visas for aliens considered to have extraordinary, outstanding , or exceptional ability. Such distinguished people can qualify to immigrate without necessarily having a family petition or labor certification.

We often have to respond to the question, "How extraordinary do I have to be?" The law provides that the individual has to be at the top of his or her field. The first issue then becomes how to define the "field." Most scientists, for example, are working in a very narrow field of research. A PhD medical researcher typically is working on a particular cure in tandem with other researchers throughout the world. Certain fields are very unique and narrow. One of our colleagues reported that her application for a macrobiotic baker was approved under the extraordinary ability first preference category. One might be tempted to ask, "how many macrobiotic bakers are there."

If the particular applicant can mobilize reference letters from distinguished colleagues in several continents, this will help to demonstrate that the applicant has an international reputation. Most PhD's are in the business of publishing articles in professional journals, which is another indication of "extraordinary" or "outstanding." Every applicant should be able to show that she is making significant contributions to the particular field. Winning a Nobel prize is not required. Indeed, Nobel prize laureates need only to present evidence of such an award to qualify, assuming they can demonstrate that they will continue to work in their field after coming to the United States.

We have the O and P temporary, nonimmigrant, visas for extraordinary ability artists, scientists, athletes and other professionals, including business people. Under the Immigrant system we have 4 different categories, all of which have their special requirements. Extraordinary ability aliens and exceptional ability aliens seeking to perform work in the national interest can achieve lawful residency status without even having a job offer. Outstanding professors and researchers may require an appropriate job offer but the employer does not have to undertake the labor certification process to demonstrate unavailability of a qualified U..S. worker.

We have official regulations outlining the applicable criteria and documentation which must accompany an application. Fulfillment of more than the minimum requirements will improve the chances of overcoming a subjective denial. As lawyers, we emphasize that "packaging" of a persuasive and understandable application is critical to enhance an approval of the case without government requests for additional information.

There are some published decisions involving professional athletes. South African golfer Nick Price's case was only approved following an appeal. By the time his case was decided he had won several major tournaments and was close to the top on the annual money list.

We also have 2 decisions by the District Court in Illinois, in which the INS initially hesitated to approve applications for professional hockey players because they were not among the top players in terms of salary or perennial "all stars." The judges justified their favorable decisions without explicitly invalidating the government's argument that merely achieving major league status does not automatically entitle the athlete to approval of his or her petition, by finding a superior quality for each player. Grimson qualified based on his reputation as being one of the top "enforcers" in the NHL. The fact that he spent a lot of time in the penalty box actually worked in his favor.

Among some of our interesting, successful cases, besides the typical PhD medical scientists: marble sculptor, sky diver, Latin American poet, and speech therapist working with developmentally disabled adults. In the speech therapist case, involving a national interest theory, we cited Congressional History, including a commentary by President Kennedy on the importance of providing community services in lieu of institutionalizing our disabled citizens.

As lawyers, we particularly enjoy representing clients in these cases because it exposes us to important and interesting areas of human endeavor. By prevailing on the cases, we can take satisfaction in knowing that we not only helped an individual to achieve his or her dream to live in America, but we also can take some credit for our client's important societal contributions and reinforcing the greatness of America.