By: Navdeep Meamber and Samapika Dash
Due to their qualifications and experience, foreign national PhD holders may qualify for green card categories that have relatively faster processing times, like EB-1A, EB-1B, and EB-2 (national interest waiver). These categories of US permanent residency are desirable because they do not require the time-consuming labor certification process. However, these green card categories are competitive, and not every PhD holder will qualify.
Labor certification is a step in the employment-based green card sponsorship process that is only required for certain worker categories. To ensure that hiring a foreign worker does not displace US ones, employers must prove during labor certification that there are no minimally qualified US workers that can take the position offered to the foreign national.
While the timeline can vary by state, it may take six months to three years to finish the labor certification process. Green card categories EB-1A and EB-1B, and EB-2 (national interest waiver) do not require traditional labor certification, which means that these foreign nationals can obtain their green cards more quickly.
To qualify as having extraordinary ability for the EB-1A visa, an applicant must have “sustained national or international acclaim” in the sciences, arts, education, business, or athletics. Extraordinary ability refers to a small percentage of individuals who have risen to the top of their fields. Applicants should play a critical role in their organization and significantly impact its activities. Additionally, the foreign national will need to continue their research at organizations or establishments with distinguished reputations.
To demonstrate their achievements, EB-1A applicants must present extensive documentation during the application process of either:
To qualify for an EB-1A visa, PhD holders should closely document their research work, achievements, citations, publications, presentations, and conferences attended. Additionally, PhD holders can get recommendation letters from their professors and others who can attest to their distinguished work.
Application Process: With EB-1A green cards, a job offer and labor certification are not required. This means that an applicant can self-petition, and the visa processing time can be much faster.
EB-1B green cards are designed for outstanding professors and researchers with a US job offer that requires either extensive research or the supervision of researchers. Applicants must have also received international recognition for outstanding achievements in their academic field. Additionally, they must meet at least two of the six criteria listed below:
Supporting documentation can include things like publications, presentations, and reports of research work. Research must add to the general knowledge in the field. It can be accepted for publication, presentation, funding, or academic credit. To prove the importance of the applicant’s work, the application can prove that the work has been frequently cited by independent researchers or has otherwise contributed to progress in the field.
To sponsor an EB-1B worker, an employer must show documented accomplishments and employ at least three full-time researchers.
Application Process: US employers must file a Form I-140, Petition for Alien Worker to sponsor an EB-1B worker. As part of the application process, employers must be able to demonstrate a continuing ability to pay the foreign national’s offered wage as of the date their application is received, or its priority date. Employers can use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay the prospective EB-1B visa holder’s wage. No labor certification is required.
The EB-2 national interest waiver is popular with PhD holders because no job offer is required, and individuals may self-petition. National interest waivers are usually granted to those who have exceptional ability and whose employment would greatly benefit the United States. The application must show an urgent national interest to the applicant’s research, or that their contributions would benefit the nation even if other qualified US workers were available. These EB-2 applicants must also meet three national interest waiver (NIW) criteria:
Under the first NIW requirement, the project’s merit and prospective impact may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.
To determine whether an EB-2 applicant is qualified for the proposed role under the second NIW requirement, United States Citizenship and Immigration Services (USCIS) considers factors including:
As for the third NIW requirement of showing benefit to the US, USCIS may evaluate factors such as whether:
Application Process: PhD holders seeking a national interest waiver may self-petition without an employer’s sponsorship. These individuals may file their Form I-140, Petition for Alien Worker with USCIS. Under certain conditions, applicants will file their own labor certification.
Interested PhD holders should contact Chugh, LLP for help understanding which immigrant visa category they may qualify for. Our experienced immigration professionals and attorneys can assist with drafting persuasive letters of support that highlight the accomplishments of the PhD holder and their eligibility for the category.
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