After we published the last newsletter, many postdoctoral researchers and Ph.D. students sent us e-mails asking whether or not they were qualified for green card applications.

Therefore, in today’s newsletter, we will provide some important information on qualification requirements, particularly for postdoctoral researchers and Ph.D. students, to apply for U.S. Permanent Residence under current immigration law and CIS adjudication policies. We will also give you some examples of successful cases.

Postdoctoral researchers and Ph.D. students generally do not have permanent jobs. Therefore, there will be NO U.S. employer to sponsor their green card application. They must file a self-petition green card application. According to the U.S. Immigration laws and regulations, there are two types of employment-based immigrant visa classifications that can be self-petition application. One is EB1A “Alien of Extraordinary Ability” and the other is EB2 “National Interest Waiver”.

The one that is most commonly used is EB2 National Interest Waiver. The basic legal requirements for EB2 National Interest Waiver applicants include the following.

I. Applicant must have advanced degree or exceptional ability.

(1) Advanced degrees include Master’s degree, Ph.D. degree, M.D. equivalent degree:

Advanced degrees can include ones received from countries other than the United States. If all of the advanced degrees were received outside of the United States, you must obtain a Foreign Academic Credential Evaluation by a credited evaluation agency. If at least ONE of the advanced degrees was obtained from an accredited educational institution in the United States, you may not need a Foreign Academic Credential Evaluation report.

(2) Exceptional ability:

There is no degree requirement. Applicant needs to prove exceptional ability and oftentimes TEN years (or more) experience in the field.

II. Applicant’s work has practical significance to the national interest of the United States.

The applicant must prove that his/her work is in an area of national interest of the United States. CIS has been broadly interpreting this particular area. The only area of work that has been excluded by CIS is attorneys’ legal service. CIS said that by the nature of legal representation, attorneys serve the interest of their clients.

III. Applicant’s research and his/her contributions have direct link to the national interests.

The applicant is required to prove that his/her work has a direct link to the national interest. Based on our experience, the applicant should provide evidence to prove his/her key role in important research projects and specific research contributions. For example, if someone works in a cancer research lab as a lab tube washer, it may not be sufficient to prove the direct link of this person’s work to the national interest. Merely working in the cancer research lab is not enough – your work must be directly connected to national interests, such as a leading research role in a cancer research project, since treatment of cancer is a national interest of the United States in both the welfare of the public and healthcare costs.

IV. Applicant’s work brings a benefit that is national in scope.

The benefit of the applicant’s work shall not cover only a small group of people or a specific region. For instance, CIS denied the petition of a special language tutor in a Chinese community because her work only benefitted a few students who had learning disabilities. On the other hand, in a case titled NYSDOT, CIS confirmed that a researcher who designed an improved bridge for New York City did bring a benefit on a national level because the bridge in New York was an important integral structure for interstate commerce (i.e. people would use the bridge in order to travel and/or conduct business from all over the United States)

CIS has also demanded that EB2BNIW applicants working for private profit-making companies to prove that their work is not merely making profit for the employer.

This is another reason why postdoctoral researchers and Ph.D. students should file EB2NIW before starting a position at a private company.

Although the above requirements seem difficult to meet, we did have helped quite a large number of researchers in private companies successfully applied for EB2NIW petitions.

V. Alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

In order to satisfy this requirement, the applicant must have substantial evidence to provide that he/she will serve the national interest to a much greater degree than a U.S. citizen or resident who possess the same minimum qualifications as the applicant. We often help our clients prepare the evidence to prove their research accomplishments in their fields of specialty.

VI. If a labor certification were required for the alien, the national interest would be adversely affected.

This is a very difficult legal issue. Our experience is that each case must provide very specific legal arguments based on our client’s facts.

The following are examples of three approved EB2NIW cases to help you understand the above legal requirements.

1. Postdoctorate researcher – A Korean national with a Ph.D. Degree and a M.S. degree in pharmacology (obtained from Korea) was a post-doctoral research fellow in the field of neurology, electrophysiology and epilepsy research. After review and a close study of her work and accomplishments, we recommended that she file an EB2 National Interest Waiver. At the time of filing, she had 7 journal papers published in both Korea and the U.S., as well as 5 conference presentations. We prepared and filed an I-140 EB2NIW and I-485 Application for Adjustment of Status concurrently. The EB2 NIW was approved in 5 months.

2. Researcher without a Master’s degree – We helped a researcher prove exceptional ability and obtain approval of an EB2 NIW petition, even though the applicant did not have a master’s degree or any other advanced degrees. The applicant only had a B.S. degree in Medicine from China and, at the time of filing, was a research scientist in the field of Molecular Biology focusing on oral cancer and the mechanism of HIV infection in the oral mucosa. At the time of filing, she had 6 journal papers published in China and the U.S., as well as 2 conference presentations. CIS approved the EB2 NIW case without RFE.

3. Researcher in a private profit-making company: As we mentioned above, an EB2 NIW application is more difficult to prepare if the applicant works for a private profit-making company. However, we DO have successful cases in this category. A researcher with a private company in the field of synthesis of multiple nano-scaled coatings on SiC whiskers, SiC fibers, SiC nanowires to develop high-temperature ceramics for matrix composites asked our law firm to file an EB2 NIW. She had a Ph.D. degree in Materials Science and Engineering and a M.S. degree in Materials Physical Chemistry; 5 journal papers; 4 conference papers; and 6 conference presentations. CIS approved the EB2 NIW case without RFE.

We hope this newsletter helped to clarify the requirements for EB2 NIW. For more information, you can visit our website at http://www.sunlawfirm.com

For free case evaluation, please e-mail your updated resume and contact information to alicesun@earthlink.net. Subject: Green Card Application.

Our contact information: Tel: (310) 481-6118***Fax: (310) 481-6117
Email: alicesun@earthlink.net Website: http://www.sunlawfirm.com

Disclaimer: The above newsletter information is general information. They are NOT legal consultations for any specific case or legal issues.

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