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Extraordinary Ability - EB-1

To qualify as a “person of extraordinary ability” and obtain an immigrant visa (green card), a foreign born physician must meet requirements similar to those for the O-1 visa. Or, in other words, he must prove that he is “one of the few who has risen to the top of his field,” either nationally or internationally. As a result, he must be the recipient of either (i) a major, internationally recognized award or (ii) at least three of the following distinctions:

  • The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;
  • The physician belongs to professional associations which require outstanding achievements of their members, as judged by recognized national or international experts;
  • The physician has been the subject of articles in major media or trade publications relating to his work;
  • The physician has participated on a panel or as a judge of the work of others in his area of practice;
  • The physician has made original scientific or scholarly contributions of major significance;
  • The physician has written scholarly articles that have been published in professional journals or other major media;
  • The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; or
  • The physician has commanded a high salary or other compensation.

The chief advantage of qualifying as a person of extraordinary ability is that the physician can “self-sponsor.” In other words, the physician does not need an employer sponsor. The physician need only show that he intends to continue work in the field of his extraordinary ability. Evidence of this intent can include an employment contract, an offer of employment, or simply an expressed intent to engage in self-employment.

However, most physicians do not qualify as persons of extraordinary ability. To do so, a physician must produce extensive documentation and the support of medical experts to show that the physician has “risen to the top of the field.”

Caveat for Former J-1 Physicians

Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three years of required medical service before they can apply for adjustment of status or consular processing. For example, let's suppose that Dr. Smith began his three-year service for his J-1 waiver on January 1, 2016. His employer immediately started the labor certification process to sponsor him for a green card and obtained an approved I-140 on June 30, 2016. Unfortunately, Dr. Smith cannot apply for adjustment of status or consular processing until January 1, 2019 – the end of his three-year service requirement.

The only exception to this rule is for physicians who apply for a National Interest Waiver for physicians. In this case, the physician may file the I-140 and the I-485 concurrently, even though he has not completed three years of J-1 waiver service. However, the I-485 will not be approved until the physician has fulfilled his five-year medical service obligation as required by the National Interest Waiver. Nevertheless, the ability to file the I-485 is a real advantage because the physician's spouse will obtain an employment authorization document (EAD) which will allow him or her to work during the years that the I-485 is processed. For many physicians, this is the only way their spouse can work with authorization.

To schedule your immigration examination to determine if you qualify for an EB-1 green card, click here.

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