Accomplishing the prestigious task of obtaining your PhD is no easy feat. Using it to obtain a green card, however, may prove to be almost as challenging without help. Keep reading to view the requirements for an EB1 for PhD holders and how you can qualify for this distinguished immigrant visa.
EB1 Green Card
The EB1 is the topmost preference level for employment-based immigration. If you qualify for one, you will not need to have your employer go through the PERM process, which will be outlined later on in this article. The EB1 is divided into three categories: the EB-1A, the EB-1B, and the EB-1C.
This category is reserved for individuals who exhibit extraordinary achievement in the areas of business, art, athletics, science, or education. To prove this extraordinary achievement, you will need to present evidence of an international award such as the Nobel Prize. In lieu of such an award, three of the following will suffice:
- A smaller award that is still internationally or nationally recognized
- Significant contributions to your practice
- Scholarly articles that have been published in a professional or trade journal
- Membership in an organization or association of distinguished reputation that requires its members to have extraordinary ability
- Material written by others that details your ability
- Having been a judge of the work of others in your field on a panel or individually
- Playing a critical role in a reputable organization.
- Having a large salary indicative of your ability
The USCIS also presents applicants with a catch-all phrase indicating that, if you have evidence that does not fall into the above groups, you may be able to submit it as comparable evidence. Work with your attorney to determine what qualifies as evidence under this rule.
If you do qualify for the EB-1A, you will be one of the few beneficiaries that can self-petition. Other than the EB-2 with a National Interest Waiver, the EB-1A is the only green card that does not require you to have a job offer or sponsoring employer, meaning that you only need to prove that you will be doing work in your field once you come to the U.S.
The second category available as an EB1 for PhD holders is the EB-1B for outstanding researchers and professors. This reaches a narrower group than the EB-1A, but the requirements are lower. To qualify, you need to demonstrate that you have done at least two of the following:
- Received a renowned or distinguished prize or award for your efforts in your field.
- Participating as a judge of the work of your peers in your field either individually or on a panel.
- Contributed substantial research of a scholarly or scientific nature to your field.
- Wrote scholarly articles or books in distinguished publications in your field.
- Held membership in an organization in your field that requires outstanding work for entry.
- Had material published by others about your work in the field.
Again, much like the EB-1A, you are able to work with your attorney to submit comparable evidence if it is not listed above.
This last category is meant for the managers and executives of multinational companies. To qualify, you must have worked with the company for at least one year in the three years leading up to your green card petition.
The employer must be a multinational company that has been conducting business in the U.S. for at least a year before filing. This is a common green card for foreign national who have come over on an L-1A visa.
How Your PhD Can Help
While your PhD does not automatically grant you a green card, you may find that many of the requirements for the EB-1A or EB-1B have been fulfilled throughout your studies. Things like exclusive memberships, scholarly published articles, and acting as a judge are all things that may go along with getting your degree.
However, it is important not to assume anything when it comes to immigration law. In the end, it still comes down to the discretion of the USCIS. Only an attorney who has dealt with multiple EB1 for PhD cases is experienced enough to effectively determine what qualifies as evidence.
EB1 Processing Time for PhD Holders
The amount of time you will need to wait does not change if you are a PhD holder. You need to have your employer file an I-140 petition or file one yourself if you are self-petitioning under the EB-1A. The petition takes an average of 6 months to process, though this depends heavily on the service center that is processing your case.
Once the USCIS receives your petition, that date is marked as your “priority date”. Each month the Department of State releases a visa bulletin that shows the “final action dates” for green card petitions based on the different kinds of green cards and the country that the beneficiary is from. Once your priority date matches the final action date in your category, it will be considered “current”, allowing you to move onto the next step.
Once your priority date matches the final action date in your category, you can move onto the next step. Fortunately, the priority dates for almost all countries are current in the EB1 for PhD category. However, as of June, 2017, a backlog has developed that is causing nationals of China and India to wait several years before their priority date is current.
If you are inside the U.S. when your priority date becomes current, then you will be able to submit an I-485 application to adjust your status to permanent resident (green card holder). This step also takes an average of 6 months depending on the service center.
What If I Am Outside the U.S.?
If you are abroad when your I-140 is approved and your priority date is current, then you will need to go through consular processing. This means that you will have to make an appointment with the designated U.S. embassy or consulate located in your home country.
At that appointment, a consular officer will conduct a one-on-one interview with you to determine if you are who you say you are. This will involve asking you questions about yourself, your work, your employer, and your plans in the U.S. If your officer clears you, you will be able to enter the U.S. through your new green card.
The timeline for consular processing depends on how busy the consulate is. They may schedule your interview for a date several months away or only a few weeks. Keep this in mind as you make plans for your work.
Can I Use Premium Processing?
If waiting 6 months for your I-140 to process is too long, you can opt to have it expedited with premium processing. This service shortens your petition’s processing time to 15 calendar days for an additional fee. However, there are some things to keep in mind:
- Premium processing does not expedite any other phase of the green card process, only the I-140 petition.
- If your priority date will not be current for some time, premium processing may not help your case, as the USCIS may decide to process your I-140 closer to the time when your date will be current.
- Premium processing is not available for EB2 NIW cases or EB-1C cases.
Alternatives to the EB1 for PhD
If the EB-1 is not an option, don’t lose hope. There are some other alternatives that may be available depending on your qualifications.
The EB-2 usually requires applicants to have a job offer from a sponsoring employer in order to apply. In addition, that employer must obtain a PERM Labor Certification on your behalf. With a National Interest Waiver (NIW), however, you can bypass the job offer and PERM requirements by proving to the USCIS that your work will be beneficial to the United States.
In order to do this, you must demonstrate these three things:
- Your work will have a substantial positive impact on American health, culture, education, society, jobs, economy, technology, education, or science.
- You are uniquely qualified to work on and advance the work in the U.S. through your education, past successes, current progress, or business plan for the future.
- It will be to the advantage of the U.S. to waive the job offer and PERM requirements rather than to enforce them.
So if you are planning on using your doctorate to start a business in the U.S., the EB-2 NIW is a great alternative to the EB1 for PhD holders.
PERM Labor Certification
If the EB-1 and EB-2 NIW are unavailable as green cards based on your qualifications, a solid option is to apply for the EB-2 visa through the use of a PERM Labor Certification. You may only want to consider this after you have worked with your attorney and exhausted your other options.
The PERM is an involved and complicated process that requires many different steps and is easily impeded by errors without the help of an expert. Essentially, the PERM is a process used by the Department of Labor (DOL) to determine if are U.S. workers are willing and able to take your position instead.
First, you will need an employer to sponsor you for your green card. Then, you would need to have that employer obtain the prevailing wage for your position. Once that has been determined, your employer will need to conduct a 30-day recruitment process to find local workers. If a qualified U.S. worker applies, your employer will need to hire them in your stead or develop a good reason for why the candidate was rejected.
If the DOL is satisfied with the recruitment report and the position has not been filled, your employer can then move on to the I-140 and I-485 steps to complete the green card process.
The PERM process is also open to complications through random and targeted audits as well as supervised recruitment. The best way to avoid these obstacles is to have your immigration attorney handle the minute details of the process. For these reasons, the PERM is a viable, but not an optimal alternative to the EB1 for PhD holders.
Frequently Asked Questions
Q. Is there a direct path to a green card through my PhD?
Unfortunately, there is no direct path. Having a PhD does not automatically grant you an EB1 or any other green card. It does, however, afford you the opportunities many people lack to fulfill some of the key requirements for an EB1.
Q. Do I have to have a STEM degree?
The STEM (or Science, Technology, Engineering, and Mathematics) degrees are helpful in obtaining a green card, especially if you are applying for the National Interest Waiver. However, the USCIS does not discriminate based on your field. Having your doctorate in English will not have a negative effect on your chances of getting an EB1 for PhD holders in comparison to a STEM degree such as computer science.
Q. What should I do if my petition is Denied?
If you are applying for an EB1 for PhD holders and your petition is denied, then you need an attorney now more than ever. You may be able to appeal the decision or make a legal motion to reconsider. You may also want to contemplate applying for a green card in a lower preference level.
How Our EB1 Attorneys Can Help
Just because you’re planning on self-petitioning, doesn’t mean you should go through the EB1 process alone. As a PhD holder, you are an expert in a certain field. Let those who are experts in immigration law handle your case.
At SGM Law Group, you can rest easy knowing that your case is in the best hands. From gathering evidence to support your qualifications to filing the correct fees to the correct places, our attorneys will work tirelessly to make sure that you have the best chance for approval.
To speak with one of our expert EB1 lawyers, fill out this contact form and tell us a little bit about your case so that we can schedule your consultation.
Published at Thu, 24 Aug 2017 13:00:23 +0000