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.
What is Labor Certification?
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.
EB-1A: Extraordinary Ability
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:
- One-time achievement with a major internationally recognized awards such as a Pulitzer, Oscar, or Olympic medal, or
- At least three of the 10 accomplishments listed below, or similar, in their professional field:
- Recipient of prizes or awards that are nationally or internationally recognized for excellence on a lesser scale.
- Member of associations in the field which require outstanding achievement for membership.
- Subject of published material in professional publications, major trade publications, or other major media.
- Service as a judge of the work of others, either individually or on a panel.
- Contributions of major significance to scientific, scholarly, artistic, athletic, or business-related field.
- Authorship of scholarly articles appearing in professional publications, major trade publications, or other major media.
- Work displayed at artistic exhibitions or showcases.
- Performance of a leading or critical role in distinguished organizations.
- Recipient of a high salary or other significantly high compensation compared to others in the field.
- Commercial successes in the performing arts.
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: Outstanding professors and researchers
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:
- Recipient of awards or major prizes for outstanding achievement.
- Member of associations that only accept members that have outstanding achievements.
- Coverage of their work by others in professional publications in the same field.
- Service as a judge of others’ work in the same or a related field.
- Contributor of original scientific or scholarly research in the field.
- Writer of scholarly books or articles in the field. Articles must be in scholarly journals with international circulation.
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.
Eb-2: National Interest Waiver
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:
- The proposed activity has both national importance and considerable merit.
- The foreign national is qualified to further the proposed activity.
- The United States would benefit from waiving the requirements of a job offer and labor certification.
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:
- The individual’s education, skills, knowledge, and record of success in related or similar efforts.
- A model or plan for future activities.
- Any progress towards achieving the proposed endeavor, and
- The interest of potential customers, users, investors, or other relevant entities or individuals in the project.
As for the third NIW requirement of showing benefit to the US, USCIS may evaluate factors such as whether:
- It would be impractical for the foreign national to secure a job offer, or for the petitioner to obtain a labor certification, due to the nature of the foreign national’s qualifications or the prospective role.
- The US would still benefit from the foreign national’s contributions, even if qualified US workers are available, and
- The foreign national would sufficiently contribute to an urgent national interest, warranting skipping the labor certification process.
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.