Foreign nationals and aliens can generally secure a pathway to citizenship through one of two immigration processes: family-based immigration and employment-based immigration. Immigrants who avail themselves of either process typically require an employer or family member to file a petition on their behalf. However, there are some instances where a petition by a third party is not necessary. However these scenarios are rather limited to individuals possessing extraordinary ability or those individuals who can qualify for a National Interest Waiver (NIW). In some limited circumstances, immigrants who qualify through family-based immigration may be able to self-petition under the Violence Against Women Act (VAWA).
Individuals of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics Can Qualify Through Self-Petition
The EB-1 visa for individuals holding extraordinary abilities can permit extremely talented individuals secure a pathway to citizenship in the United States. Individuals of extraordinary ability are those individuals who are considered to be the best and the brightest in their field of industry. Covered fields and industries include athletics, the sciences, the arts, education, and business. While many people consider themselves better than average at their job or even particularly good at their occupation, the truth of the matter is that “extraordinary ability” applies to a small number of individuals. Individuals who may qualify as an EB-1 immigrant with extraordinary ability would include notable athletes, renowned researchers, and Nobel Prize winners. In fact, absent the award of a major one-time achievement an intending immigrant for “extraordinary ability” must show that he or she can satisfy at least three of the following criteria:
- Commercial success in the performing arts.
- Evidence of significant remuneration for your work that is significantly greater than others in the field.
- Evidence as a leader in a distinguished organization.
- Your work has been displayed or showcased.
- Authorship of articles in major trade publications or major media.
- Proof of original contributions to your field.
- You have been asked to judge others or sit on a panel charged with judging the work of others.
- Material in industry publications profiles your accomplishments or achievements
- You hold membership in organization or societies reserved for high-achievement or significant progress in a field.
- You have received other national or international awards recognizing the quality or excellence of your work.
Individuals who can meet the strict requirements set forth for “extraordinary ability” do not require an offer of employment, labor certification, or the sponsorship of an employer.
Individuals Who Qualify for a National Interest Waiver Can Self-Petition
Under the EB-2 visa, holders of advanced degrees and those with exceptional ability can receive a visa. However, those who apply for a visa under the second preference category are typically required to have a petition filed by an employer, have a job offer, and successfully complete the labor certification process. However there are some circumstances where an intending employment-based immigrant can self-petition his or her EB-2 visa. One instance is when the intending immigrant is a physician or otherwise likely to be able to demonstrate that his or her presence in the United States would be in the country’s national interest. For a doctor to qualify for a national interest waiver he or she must generally agree to the following conditions:
- He or she will work for a defined period of time typically not less than five years.
- The doctor agrees to work in a primary care facility.
- The doctor can obtain and provide an attestation from a state or federal agency stating that he or she is a qualified physician working in the public interest.
- The doctor agrees to work in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA).
Qualifying for a national interest waiver requires extensive documentation and proof of your status and intent.
Rely on our Experienced Self-Petition Immigration Guidance
Aside from the employment-based immigration situations described above, in some family-based immigration situations self-petition is also possible. The most common situation is when the sponsoring family member is or becomes an abuser. While protection is available under the Violence Against Women Act (VAWA), an intending immigrant must file a sworn affidavit to avail herself of the protections including the ability to self-petition. An experienced EB-1 Visa lawyer of Colombo & Hurd take a meticulous and strategic approach to every immigration matter. To schedule a private immigration legal consultation call our firm at 800-659-7142 or contact us online today.