As an attorney, working with startup businesses is both exciting and challenging. In addition to dealing with the typical corporate issues that are involved in forming a business, your client may present you with immigration challenges. This is particularly true if you represent a startup with a founder, leader or key team member who needs immigration issues resolved. While there are many immigration options available, one that is often overlooked is whether your client qualifies as a person of extraordinary ability.
SHORT-TERM OR LONG-TERM?
A fundamental concept in immigration law is the distinction between immigrant visas and nonimmigrant visas. For an individual seeking employment in the United States, immigrant visas allow that person to be admitted as a permanent resident, while non-immigrant visas allow the individual to come to the United States to work in a specific job for a set period of time. The process, requirements and timing are different for nonimmigrant and immigrant visas, as well as for each of the different visa types. However, whatever your client’s situation, you first need to ask whether your client’s primary goal is permanent immigration or a temporary work visa.
WHAT IS EXTRAORDINARY ABILITY?
An individual does not need to have won a Nobel Prize to be eligible for either a temporary (O-1) or permanent (EB-1) visa status as a person of extraordinary ability. While such an individual probably would qualify, there are a number of criteria that are used to assess whether an individual has extraordinary ability. For either temporary or permanent immigration status, as someone with extraordinary ability, it must be shown that the individual possesses “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim.” If this sounds like broad statutory language, that is because it is. The precise definitions of these terms and the required evidence will vary, but there are practical questions to ask that will help you determine whether it makes sense for your client to explore immigration in this category.
WHAT QUESTIONS SHOULD I ASK?
The following are some key questions to ask, whether you represent an individual of extraordinary ability who wants to work in the United States or you represent a business that wants to hire a foreign national who has extraordinary ability. First, is the individual’s work well-recognized in his or her field? For example, has he received national or international awards? Is his work widely published in respected media or journals? Has he been interviewed on television, radio or by magazines or newspapers about his work? Has he been issued patents or received other significant recognition for his work? Your client’s answers to these questions will help you determine whether some of the key statutory and regulatory requirements for an extraordinary ability visa (temporary or permanent) are met. It is worth noting that, in our experience, many people – often the most extraordinary – are quite humble and unwilling to “toot their own horn,” so some of these facts will require careful questioning by someone with knowledge of the requirements.
WHY DOES EXTRAORDINARY ABILITY MATTER?
Most employment-based immigrant visa cases require that a business sponsor the potential immigrant for an employment visa. In many, if not most of these cases, the employer is also required to go through an extensive process called labor certification that is designed to protect job opportunities for U.S. workers. This process can be time consuming, costly and uncertain. In addition, if the person needing work status is the owner of the business, a labor certification may not be an option.
However, the labor certification process is not necessary for those who can prove that they possess extraordinary ability. This simplifies the permanent residence process and saves both time and expense. In fact, if your client is a qualifying individual with extraordinary ability, he does not even need a prospective employer to sponsor an immigrant visa. This benefits entrepreneurs who want to establish their own business in the United States and are able to wait for the permanent residence process to be completed. Individuals with extraordinary ability who seek a nonimmigrant visa to work temporarily in the United States must still have an agent or employer file a petition on their behalf, however.
There are additional temporary and permanent visa categories that may provide potential options for entrepreneurs and other foreign workers with outstanding credentials. Determining the appropriate visa classification for your client will require a thorough evaluation of your client’s projected arrival or start date in the United States, background and goals. If your client wishes to pursue immigration to the United States temporarily or permanently, he should make sure he has time to navigate this complex system and fully understand all of his possible options. Laura Edgerton