Can a person of extraordinary ability to obtain legal status in the United States without an offer of employment?

A person with extraordinary ability in sciences, arts, education, business or athletics may enter the United States and obtain legal status under EB1 category. However, the person must demonstrate that he sustained national or international acclaim and his achievement has been recognized in the field. The legislative history indicates among other things, that this category is intended to be “for the small percentage of individuals who have risen to the very top of their field of endeavor.”

A person can prove extraordinary ability by providing certain documentation, including, but not limited to, the receipt of a major internationally-recognized award such as the Nobel Prize, or by providing documentation of at least 3 factors, namely i) recipient of nationally-or internationally-recognized awards; ii) membership in an organization that requires outstanding achievement; iii) published materials in professional or major trade publications;

iv) Judgment of the work of others; v) original scientific or scholarly work of major significance in his or her field; vi) evidence of authorship of scholarly work; vii) evidence that he or she has been employed in an organization with a distinguished reputation; viii) has commanded and does command a high salary (if the standards do not readily apply, petitioner may submit comparable evidence).

The submission of evidence of three of the above-mentioned categories may not be dispositive. It establishes the initial evidence, but such threshold evidence may fall short of providing extraordinary ability and the INS may require additional evidence.

A person with extraordinary ability does not have to have an employer-sponsor. However, he needs to prove that he intends to pursue in the United States work in an area of his expertise. As such, no labor certification is required for the position and the position is deemed to be pre-certified.

The applicant can file the immigrant worker petition along with substantive documentation to prove his extraordinary abilities to the Immigration and  Naturalization Service (INS). If the petition is approved, spouses and minor children may accompany the extraordinary ability alien who has the approved petition.

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