Visa process proves to be a daunting challenge



This is one of an occasional series of Pittsburgh's recent immigrants -- the thousands of people from other countries who have flowed into the region during the past 40 years.

Alon Lavie hesitates to describe himself as an "outstanding professor and researcher," but this designation is exactly what allowed him to become a citizen of this country.

Born in Israel, Mr. Lavie spent four years in Pittsburgh while his father completed a Ph.D. at Carnegie Mellon University in chemical engineering. In 1989, at age 28, he returned to obtain his own doctorate degree at CMU, in computer science.

For six years, Mr. Lavie held a student visa, and then he switched to an H1-B temporary employment visa as he began teaching at CMU and later co-founded Safaba, a team of leading researchers in language technology that has recently focused on translation of text.

In 2003, when Mr. Lavie began considering permanent residence in the United States, his lawyer, Barbara Bower, presented him with an option: the EB-1 visa, under the subcategory of "outstanding professor or researcher."

EB-1, which stands for "Employment-Based Immigration, First Preference," is one of five types of employment-based visas that lead to a green card and permanent residence. It is typically reserved for "priority workers," and it is therefore very difficult to obtain.

The category has three subdivisions, according to the U.S. Citizenship and Immigration Services website -- extraordinary ability (EB-1-1) "in the sciences, arts, education, business or athletics through sustained national or international acclaim"), outstanding professors and researchers (EB-1-2), and multinational managers and executives (EB-1-3) -- each with a list of criteria. Applicants must meet a certain number of these criteria to even be considered for the visa.

For instance, in the extraordinary ability category, applicants must have either claimed a one-time major achievement such as a Pulitzer Prize or an Olympic medal or meet three out of 10 separate criteria, which include winning a "lesser nationally or internationally recognized" award, judging the work of others or earning a high salary relative to others in the same field. The criteria for professors and researchers, including Mr. Lavie, are similar, and applicants under this track need only meet two out of six possibilities as long as they have a job offer from a university or research institution.

In 2013, 38,978 EB-1 visas were given out. This comprises 3.9 percent of all lawful permanent residents admitted that year and 24 percent of all employment-based admissions.

Regardless of the chosen subcategory, four lawyers interviewed for this story acknowledged the difficulty of obtaining an EB-1 visa. Still, each year, many applicants continue to apply for a green card under this track to avoid having to go through labor certification -- a process that aims to prove that no one within the United States can perform the job as well as the hired immigrant.

Mr. Lavie, who lives in Squirrel Hill and splits his time between teaching at CMU and heading Safaba, obtained his visa and green card in 2004, a year after he submitted his application. Now, he is a U.S. citizen.

"I never really considered myself to have an extraordinary ability," he said. "What counts is basically the presentation according to the criteria."

Boundaries of 'outstanding'

While his humility is apparent, industry literature and popular media all point to Mr. Lavie as a leader in his field. Yet legal experts say that ever since the EB-1 program was implemented in 1990, there has been confusion about what qualifies as "extraordinary" or "outstanding."

In a 2010 paper, immigration lawyers Chris Gafner of New York City and Stephen Yale-Loehr of Ithaca, N.Y., wrote about the debate over whether one merely needed to meet the minimum amount of criteria to qualify for the visa or if an adjudicator was necessary to decide each case.

Over the years, an adjudicator the U.S. Citizenship and Immigration Service employs has emerged as the standard procedure, although Mr. Yale-Loehr said there are critics of that approach.

"It is subjective," he said in a recent interview, because each applicant must pass a sort of a "qualitative test" to determine if the candidate is truly extraordinary. "Oftentimes, the agency says 'No, even though you meet the three out of 10 criteria, we still don't think you're extraordinary enough.' "

For example, the 2010 article explains that many researcher applicants were denied the EB-1 because an adjudicator didn'‍t think that their journal publications attracted sufficient attention and had major influence. The criterion, however, only stipulates that evidence be provided of "authorship of scholarly articles in the field, in professional or major trade publications or other major media."

Mr. Lavie's lawyer, Ms. Bower, said that the EB-1 designation, especially the "extraordinary ability" subcategory, is a "nebulous concept" with very demanding standards. After years of experience, she has learned only to move forward on EB-1 applications if she feels that the candidate has a strong, clearly presented case, but even so, the result depends on the application's reader, she said.

"Sometimes you almost have to know how things are being interpreted," Ms. Bower said. "Right now ... I have a better feeling of what they're looking for."

All kinds of 'extraordinary'

Melih Demirkan of Churchill, another client of Ms. Bower's, moved from Turkey and studied chemical engineering at the University of Maryland and then got an EB-2 visa with a National Interest Waiver.

Similar to the EB-1, the EB-2 program is divided into three subcategories: advanced degree (for immigrants seeking a job requiring such a degree), exceptional ability (not quite "extraordinary," but "a degree of expertise significantly above" average) and the National Interest Waiver.

The last subdivision is most similar to the EB-1 program. The National Interest Waiver removes the requirement of making sure an American isn't qualified for the job, and as with EB-1-1, no employer sponsor is necessary.

Still, they still are not easy to obtain, Ms. Bower stressed.

"You don't have to be internationally recognized as a great guru in a particular crew," but the applicant still must stand out in some way, she conceded.

Another applicant, Ali Israr of Pakistan, now living in Monroeville, applied for the EB-1-1 visa and EB-2 with the National Interest Waiver. Mr. Israr, who conducts haptics research at Disney Research Pittsburgh on technology that recreates the sense of touch for users, eventually received his green card through the EB-2 program, though he also received a positive decision from the EB-1 adjudicator a few months after.

Regardless of which track they chose, these three men all heard a similar message: the country needs more people with your advanced abilities. Still, many critics of the current policy believe that the country should be less selective with visa decisions and actively try to recruit more foreign professionals of similar caliber.

In his capacity as a professor, Mr. Lavie has seen many talented foreigners pass through the city. The country needs people like them, and yet the current system fails to serve many of them, he said.

"It's very difficult for us to keep this talent ... based on the current restrictions on immigration," he said.

Recruiting creativity

Yakhoub Yadali moved to the United States in 2012 from his home country of Iran. He spent time at the University of Iowa, Harvard University and is currently at Chatham University. Now 44 and living on the North Side, Mr. Yadali is applying for the EB-1-1 visa.

He's not a researcher, engineer or professor. He's a fiction writer, occasionally dabbling in journalism and filmmaking.

If he is successful with his application, Mr. Yadali, who lives in the City of Asylum Pittsburgh Writers' House, will be an unusual case locally and nationally, as an artistic EB-1 recipient. All lawyers interviewed said that they dealt with few artistic "extraordinary ability" applicants and had higher rates of success with more technically oriented clients.

Bob Whitehill of Fox Rothschild, who represents Mr. Yadali, said that his client could seek asylum rather than the EB-1-1 visa (he is qualified to do either) but is choosing the "extraordinary ability" status.

Mr. Yale-Loehr recalled encountering trouble while representing a Chinese film director seeking an EB-1-1 visa. Despite having won the Chinese equivalent of an Oscar, the applicant was pestered for more specific documentation. The application eventually was approved, but Mr. Yale-Loehr called the experience "nasty," adding that success often does depend on the field of the applicant.

Mr. Whitehill said the preponderance of technical EB-1 visas here probably reflects the fact that applicants in the region are often affiliated with one of the universities, research centers or medical institutions that the city is known for.

"If we were looking at this issue in [Los Angeles], where there are more actors and actresses ... it would be a robust issue and a more robust practice," Mr. Whitehill said.

With his many awards, books and stories published in multiple languages, prestigious university appointments and connections to industry leaders (he is friends with acclaimed Iranian filmmaker Jafar Panahi), Mr. Yadali stands a good chance at attaining the EB-1. He is optimistic about the situation, and he hopes to stay in the country for as long as he can. Asked to describe what makes the United States' atmosphere different, Mr. Yadali spoke about the lack of censorship and the calmness with which he is able to work without worrying that his country might find his work offensive.

"I'm going to live here forever if I can, or at least until the situation in my country gets better," he said.


Wesley Yiin: wyiin@post-gazette.com; 412-263-1723

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