On Jun 10 2007

Taking Extraordinary Measures to Keep Key Personnel

According to the U.S. Department of Labor (DOL), in the weeks immediately following September 11th employers reported 430 events involving 125,637 workers who lost their jobs as a direct or indirect effect of the attacks.

[2] More recently, the DOL reported that employers initiated 2,146 mass layoff actions in January 2002.[3] Each of these actions involved at least 50 persons from a single establishment, and the number of workers involved totaled 263,821.[4] This only begins to tell the story of the vast numbers of layoffs around the United States as daily reportings of new layoffs become common.[5]

Despite the higher level of unemployment in the United States, however, many employers still have numbers of foreign nationals in key positions. Retaining these key personnel often requires petitioning for lawful permanent residence (LPR). Traditionally, these employers petitioned for permanent residence through the labor certification process.[6] Labor certification requires a test of the job market. Specifically, employers must show that after recruitment efforts, no U.S. worker has been found who is willing or able to perform the minimum duties required for the position at the prevailing wage.

With the economic boom of the 1990’s, and the low unemployment rates, it was relatively simple to show that in many occupations, there were no U.S. workers available for many positions. In fact, for many years in the late 1990’s, the DOL, cognizant of the need for workers in certain industries, readily approved many of these cases. While the DOL was accepting one print advertisement to meet its regulatory requirement of “good faith” recruitment efforts,[7] leaving the choice of forum largely to the employer, today the DOL is taking a more active role in dictating the where, when, and extent of recruitment efforts.[8]

There is no question that the downward turn of the economy and the increasing layoffs have raised the bar on labor certification applications. Layoffs from almost every major industry certainly mean that there are more workers available in the market, and the DOL is certainly taking note of that availability. Moreover, if a company who has recently laid off a good number of workers submits a labor certification application, that application is sure to come under increased scrutiny by the DOL.[9] Indeed, according to Department of Labor, “if there are layoffs, the employer should make it very clear that the layoff is not in the occupation for which the employer is filing and document it. If there are layoffs and the jobs have been offered to laid off personnel explain why they did not take the job.”[10]

In this sluggish economy, how do employers keep those foreign national employees who are most valued by the company? This article will suggest strategies that may be available to keep these most valued employees. One thing to consider is why an individual employee is so valued? What does she do that others in her field cannot do, or cannot do nearly as well? Does this person have “a level of expertise indicating that the individual is one of that small percentage at the very top of the field of endeavor,”[11] or “a degree of expertise significantly above that ordinarily encountered in the”[12] field, or is she making contributions to the field that have a national impact? If so, the employer, or the individual on her own, may successfully petition for permanent residency without applying for labor certification, and without having to address the issue of U.S. worker availability.

The Immigration and Nationality Act provides a special expedited process for foreign nationals who are either ‘aliens of extraordinary ability'[13], or those whose immigration is ‘in the national interest’.[14] One of the benefits of applying for permanent residence through these options is that they do not require a test of the job market.[15] This is a particularly important concern in light of the slowing economy and increased availability of U.S. workers in the job market. However, these petitions do require a detailed showing of what makes this person extraordinary, or why this person’s continued presence in the U.S. is of national interest.

Immigration & Naturalization Service (INS) regulations clearly state that “extraordinary ability in the field of science, arts, education, business, or athletics”[16] … “means a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.”[17] This is the main issue that INS adjudicators focus on in reviewing petitions. Namely, can this person be placed at the top of her field? To answer this question, the first hurdle is to define the individual’s field, and then to define the individual’s level of expertise within that field. In most cases, this requires working closely with the individual to determine what makes someone an expert in her field of endeavor.

Developing evidence relevant to an individual’s field sometimes requires a novel approach to the criteria set forth in the INS regulations.[18] The common mistake many employers and attorneys make is to focus on only one of the criteria, namely, publications. Yet, there are nine other criteria listed in the regulations that should be given equal weight in determining an individual’s eligibility for extraordinary ability. Consider, for example, the individual’s “leading and critical role”[19] at a nationally renown company, her “significant contributions”[20] via development of a cost-saving methodology, or “judging and evaluating the work of others”[21] through audits. These are just a few examples of how the existing regulatory criteria can be met in a particular case. Incorporating the regulatory language is particularly important, as, in my experience, INS is more comfortable with its criteria, and will more readily approve a petition that is structured using its language.

While INS regulations list evidentiary criteria for an alien of extraordinary ability,[22] this list recognizes: “If the above standards to not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.”[23] This is where the advocate needs to become creative. Investigation and exploration into a particular field of expertise is essential to identify this “comparable evidence.” For example, within various fields under consideration, “comparable evidence” may include prestigious fellowships, expertise with advanced technology, or a rare combination of skills. The key, then, is finding out how individuals within that field are judged and evaluated, and to portray the foreign national according to those standards.

In addition to petitioning for an employee as an alien of extraordinary ability, another strategy to apply for permanent residency is through a national interest waiver of the labor certification requirement. This strategy is available only to foreign nationals with advanced degrees, or with proven “exceptional ability” in their field.24 What is in the “national interest” remains largely undefined, as neither the statute[25] nor the regulations provide any specifics. However, since 1998 when the INS’s Administrative Appeals Office (AAO) released the precedent decision of Matter of New York State Transportation (NYSDOT),[26] the INS has employed a three prong test to evaluate whether a national interest waiver is warranted. The first prong is that the area of intended employment must be of substantial intrinsic merit; in other words, the field of endeavor must promote something that is of national interest, be it cultural, scientific, economic, or health care. Similar to the petition for an alien of extraordinary ability, this requires a careful analysis and definition of the foreign national’s field of endeavor. The second prong that NYSDOT imposed is that the proposed benefit must be national in scope. Again, as with the alien of extraordinary ability, this entails a detailed investigation of what the individual has done in the field, and the far-reaching impact of her work.

The most troubling of these requirements is the last and least comprehensible prong. This is that it is contrary to the national interest to deprive the prospective employer of the services of the alien by making the position available to United States workers.[27] If you do not understand this sentence, you are not alone. What is most important, however, is that this is where U.S. unemployment issues may come into play. This is because in its decision, the AAO stipulated that ‘the benefit the alien’s skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the Labor Certification process’.[28] Basically, this prong requires a balancing of interests between leaving the job open to minimally qualified U.S. workers, 29 and the importance of the foreign national’s rare skills and expertise in promoting the national interest.

As demonstrated above, there is certainly an overlap in the evidence required for both types of petitions. Consider, for example, the similarities between evidencing that the alien has special qualifications above the norm (alien of extraordinary ability), and evidencing that these qualifications will prospectively benefit the U.S. (national interest waiver). The main difference between the above-mentioned categories is perhaps that the stronger focus in the national interest case is on the needs of the U.S., and the foreign national’s ability to satisfy these needs. On the other hand, in the extraordinary ability petition the stronger focus is on the alien’s superior qualifications. In order to document these types of cases, it is necessary to establish the superior qualifications of the alien and the need of the U.S. for an alien of such qualifications. The greater the alien’s qualifications, of course, the more obvious it becomes that the services of the alien will benefit the United States. Therefore, as both applications require similar documentation, both can be applied for concurrently, allowing for two bites at the apple.

The purpose of this article is to provide a broad framework for evaluating various permanent residency strategies. It is not to suggest that every valuable employee will be a successful candidate for a petition as an alien of extraordinary ability or a national interest waiver. At the same time, there is a widely-held, but incorrect, belief that “extraordinary ability” petitions are only available to Nobel laureates, and national interest waivers are only available to cancer researchers. Ultimately, the success of these petitions is based on a detailed analysis of the respective field of expertise, and documenting the individual’s expertise according to the INS criteria.

1 Copyright 2002. All rights reserved. Materials have been abridged from laws, court decisions and administrative rulings and should not be considered as legal opinions on specific facts or as substitute for legal counsel.

2 “Mass Layoffs in January 2002” www.bls.gov/news.release/mmls.toc.htm

3 Id.

4 Id.

5 See eg. www.pbs.org/newshour/media/data/dotcom; and www.iwantmedia.com/layoffs.html as just two examples of regular reports of layoffs.

6 20 CFR 656.1(a) states that “Under section 212(a)(5)(A) of the Immigration and Nationality Act (INA)…certain aliens may not obtain a visa for …permanent employment unless the Secretary of Labor has first certified …that (1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application…; and (2) the employment of the alien will not adversely effect the wages and working conditions of the United States workers similarly employed.

7 20 CFR 656.21(i)(1)(i).

8 See eg “Liaison Report of US-DOL Processing Times as of September 2001” posted on AILA InfoNet Doc. No. 01091734 (September 17, 2001), in which the US Department of Labor Region IX provides “recommended sources of recruitment” and notes that if “employers believe that another publication is more appropriate…information should be submitted ot show that the alternative publication is more likely to generate greater response from US workers than the recommended publication.”

9 “Liaison Report,” op. cit. Posted on AILA Infonet (Sept 17, 2001).

10 Id.

11 8 CFR §204.5(h)(2)

12 8 CFR §204.5(k)(2)

13 INA §203(b)(1)(A)

14 INA §203(b)(2)(B)

15 Nor does it require guaranteeing the “prevailing wage.” Moreover, because the employer is foregoing the labor certification process, it also a far more expedited process.

16 8 CFR §204.5(h)(1)

17 8 CFR §204.5(h)(2)

18 8 CFR §204.5(h) (3)

19 8 CFR 204.5(h)(3)(viii)

20 8 CFR 204.5(h)(3)(v)

21 8 CFR 204.5(h)(3)(iv)

22 8 CFR §204.5(h)(3)

23 8 CFR §204.5(h)(4)

24 8 CFR §204.5(k)(1) – (2)

25 INA §203(b)(2)(B)

26 22 I & N Dec _, 19 Immigr. Rep. B2-93, Interim Dec. No 3353 (August 7, 1998 Acting Associated Commissioner Program)

27 For a comprehensive discussion of these criteria, see Nathan Waxman “New York State Department of Transportation: National Interest Waivers One Year Down the Road” 76 Interpreter Releases 1641 (November 15, 1999).

28 22 I & N Dec_, supra at n. 22.

29 20 C.F.R. §656.21(b)(5)