For researchers on grants, or without an offer of permanent employment from either a university or private employer, current U.S. immigration law provides two pathways to lawful permanent residence for self-petitioners without having to first test the U.S. labor market through a period of recruitment:
- Extraordinary Ability: Proof of extraordinary ability in the arts, sciences, business or education; or
- National Interest Waiver: Proof that the work performed by the researcher is in the national interest such that the normal labor certification market test via PERM is waived. The researcher must also prove a record of past achievements which justify projections of substantial future benefit to the U.S. if the labor certification requirement is waived.
Often a researcher is not sure which pathway to choose. We advise filing for both in the alternative, if finances allow, unless the researcher’s work fits neatly into one or the other category.
In terms of making a decision we view Extraordinary Ability to be reserved for those at the very top of their field with an impressive record of publications, original contributions to the field, and proof of a significant impact on the field beyond that of colleagues. This is a petition based on the individual’s record, regardless of the field in which he/she is a star. For more details on how to qualify for this category, please read more about employer sponsorship for green cards.
Since this is a category for scientists as well as artists we have represented clients in both areas. We recently obtained lawful permanent residence for a self-employed digital audio composer and producer under this category as well as a theoretical physicist based in a university.
With regard to national interest, it is the field itself which determines the suitability of this category. Recent cases indicate that seven fields of research have been consistently considered to be in the national interest.
Once it can be established that the work is national in scope and of “substantial intrinsic merit” then the researcher must show her impact on the field to a greater degree than colleagues in her cohort. Recent cases indicate a current trend by USCIS to focus on citation to the researcher’s work by others as well as the objectivity and high stature of third party endorsers.
As with other employment-based I-140 preference petitions, the researcher and family can file for Adjustment of Status concurrently with the petition. The obvious benefit of this would be to obtain an Employment Authorization Document (EAD) with the filing which then allows employment freedom and flexibility for the researcher and spouse. If possible, we recommend that the researcher remain in valid H-1B visa status, if applicable, during the process. In addition, if applicable, it might also be prudent to wait for an approval of the I-140 petition before filing for Adjustment of Status. The obvious benefit of such a strategy is to avoid the loss of government filing fees if the underlying I-140 is denied.
The law office of Ann Lipson took over my green card application in January 2006 after I received a request for further evidence (RFE) on my NIW application submitted through another law office. The RFE needed to be addressed rapidly and required a focused and extensive resubmission. To this end Ms Lipson provides a very human face to an often anonymous and daunting process. Most important amongst the RFE requirements (and what was lacking from my original application) was the selection of endorsers, and procurement of letters of endorsement from them.
Ms Lipson diligently and expertly coordinated this resubmission and produced an impressive application that yielded a positive response within 7 days. I am thoroughly indebted to Ms Lipson and her office. Her knowledge and reinterpretation of my application was directly responsible for its success.”
Scientific Researcher and Recipient of NIW
Ms Lipson is exceptionally knowledgeable, helpful, and efficient. She handled my difficult Green Card application from the very beginning. She evaluated all options and determined the best one for me. She helped me and guided me through the process of putting together the application as an “Outstanding Professor” and made it as clean and robust as it could be. She, as well as her excellent paralegal, Edward, followed the application process during its entire course, always ready to help me through all the steps, and ready to answer all my questions.
They have an exceptional experience in this field, and they always figure out a way through the intricacies of immigration policy and bureaucracy. Thanks to them, I happily received my Green Card without a problem. Ann is an awesome attorney, and an awesome and exceptionally pleasant person too, and I keep recommending her to all my friends.”
Professor and Software Engineer at Fortune 500 Company, and green card recipient