I am an artist/entertainer interested in permanent residence in the United States. What level of recognition or ability do I have to achieve before I can qualify for a green card?

1. a first preference employment-based petition as an alien of extraordinary ability; or

2. a second preference employment-based petition as an alien of exceptional ability.

In the case of an alien of extraordinary ability in the first employment based preference, neither a job offer nor a labor certification is required. The alien must only submit evidence to show that he or she will continue to work in the United States in his or her area of expertise.

The term "aliens of extraordinary ability" is defined in §203(b)(1)(A)(i) of the Immigration and Nationality Act as persons having "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." The regulations define extraordinary ability at 8 CFR §204.5(h)(2) as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field of endeavor.

The regulations at 8 CFR 204.5(3) discuss initial evidence which must be submitted for an alien of extraordinary ability in the first employment-based preference. A petition must include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of following ten criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Aliens who, because of their exceptional ability in the sciences, arts or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States, are included in the second employment-based preference pursuant to §203(b)(2). Second preference aliens must normally be petitioned by an employer and must have an approved labor certification.

However, an alien of exceptional ability in the sciences or the arts may seek an exemption from the labor certification (but not the job offer requirement) under Schedule A, Group II of the Department of Labor regulations. Alternatively, if it can be shown that the second preference alien's admission would be in the national interest, it is possible to obtain a waiver of both the job offer requirement and the labor certification requirement. This is known as a "national interest waiver". National interest waivers are discussed in greater detail below.

The use of the term "exceptional ability" is somewhat confusing since it is applied differently in relation to second preference eligibility and in relation to Schedule A, Group II precertification. To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria which appear at 8 CFR §204.5(k)(3)(ii):

1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

3. A license to practice the profession or certification for a particular profession or occupation;

4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

5. Evidence of membership in professional associations; or

6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Under 8 CFR §204.5(k)(3)(iii), if the above standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

However, to qualify as an alien of exceptional ability under Schedule A, Group II of the Department of Labor regulations, the individual must submit:

1. evidence which demonstrates widespread acclaim and international recognition accorded the alien by recognized experts in their field;

2. documentation showing that the alien's work in that field during the past year did, and the alien's intended work in the United States will, require exceptional ability; and

3. documentation concerning the alien from at least two of the following seven groups:
   1. Documentation of the alien's receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought.

   2. Documentation of the alien's membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields.

   3. Published material in professional publications about the alien, relating to the alien's work in the field for which certification is sought, which shall include the title, date, and author of such published material.

   4. Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought.

   5. Evidence of the alien's original scientific or scholarly research contributions of major significance in the field for which certification is sought.

   6. Evidence of the alien's authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation.

   7. Evidence of the display of the alien's work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Despite the similar terminology, qualifying as an alien of exceptional ability under the second preference is easier than qualifying as an alien of exceptional ability under Schedule A, Group II of the Department of Labor regulations. Therefore, it is possible to be considered an alien of exceptional ability without being eligible for a waiver of the labor certification requirement.

If the alien does not qualify under Schedule A, Group II, it is still possible to obtain a waiver of both the job offer requirement and the labor certification requirement by seeking a national interest waiver. The "national interest" is not defined in either the statute or the regulations. It is supposed to require a showing "significantly above that for prospective national benefit". Unfortunately, the term "prospective national benefit" is not defined either. However, in Matter of [Name Not Provided], EAC 92 091 50126 (AAU July 21, 1992), commonly referred to as the Mississippi Phosphate case, the Administrative Appeals unit listed seven factors to be considered when determining national interest. Satisfying any one of these factors (or relevant factors which are not specifically referred to in this non-exhaustive list) may be considered in the national interest:

1. improving the U.S. economy;

2. improving wages and working conditions of U.S. workers;

3. improving education and training programs for U.S. children and under qualified workers;

4. improving health care;

5. providing more affordable housing for young and/or older, poorer U.S. residents;

6. improving the environment of the United States and making more productive use of natural resources; or

7. a request from an interested U.S. government agency.

Unfortunately, the above criteria are not readily applicable to artists or entertainers.

Comparison Between Use of First and Second Employment-Based Preferences

One would expect the standard for "extraordinary ability" to be higher than the standard for "exceptional ability". However, as a practical matter the first preference "extraordinary ability" standard is often easier to use than the second preference "exceptional ability" standard when a Schedule A, Group II application is involved.

The first preference standard can be satisfied by providing three of the ten listed criteria. It also permits evidence demonstrating either national or international acclaim. In contrast, Schedule A, Group II requires evidence of the alien's widespread acclaim and international recognition from recognized experts in the field, evidence that the aliens previous and future work requires an alien of such acclaim or recognition and a further demonstration of exceptional ability through the submission of two of the seven listed criteria.

The first preference also avoids both job offer and labor certification requirements. Even where a Schedule A, Group II application is approved, an exceptional ability alien in the second preference will still require a job offer.

In light of the above, it is usually preferable for artists to seek permanent residence as aliens of extraordinary ability under the first employment-based preference.