Becoming a lawful permanent resident and obtaining a green card is the goal of many foreign-born scientists who come to the United States to study and conduct research. Unfortunately for would-be immigrants, U.S. immigration law is confusing, and much of it is based on the premise that U.S. workers need to be protected from the competition of would-be immigrants.
Fortunately, the law recognizes that scientists are different from other foreign-born workers, and special immigration options exist for highly qualified scientists. Under current immigration law, three specific Immigration Petitions are appropriate for highly qualified scientists and researchers, and there are a few steps foreign-born researchers can take to improve the chances of their petition being approved.
In order to become a permanent resident through an employment-based immigration petition, the vast majority of foreign-born workers must first apply to the U.S. Department of Labor to obtain labor certification, a document certifying that there is no qualified U.S. worker willing and able to take the job for which the foreign-born worker has applied. Obtaining labor certification is difficult and time-consuming. Labor certification requires that the applicant be sponsored by a U.S. company; furthermore, the company must actively recruit American workers for that position. If a single qualified U.S. worker or permanent resident wants the job, the application fails.
Fortunately, for highly skilled scientists three specific Immigration Petitions exist that make it possible to waive the labor certification requirement. The petitions (which are among the most difficult immigration petitions to have approved) are Alien of Extraordinary Ability, Outstanding Professor or Researcher, and National Interest Waiver.
Alien of Extraordinary Ability
The Alien of Extraordinary Ability petition is appropriate for those few researchers who have already risen to the top of their field. The petition does not require a sponsoring employer; it can be submitted by the scientist on his or her own behalf.
Outstanding Professor or Researcher
The Outstanding Professor or Researcher petition is an employer-sponsored petition for scientists who are recognized internationally as outstanding in their field. The approval of both of these petitions is based on a set of factors including the significance of the scientist's research, the number of peer-reviewed articles published by the scientist, whether the scientist has been asked to serve as a judge of other researchers' work (as a reviewer of manuscripts or grant proposals, for example), and the number of awards received, among other factors. Generally speaking, Outstanding Researcher petitions are easier to win than Alien of Extraordinary Ability petitions. For more information on the Outstanding Professor or Researcher category, click here.
The National Interest Waiver
The National Interest Waiver (NIW) petition is, as the name implies, a request to waive the need for labor certification based on the national interest of the United States. An NIW does not require a sponsoring employer and can be filed by the scientist. In order to have an NIW approved, the petitioner must satisfy a three-prong test: The field of research must have substantial intrinsic merit, the benefits of the research must be national in scope, and the results of the scientist's work must be of such significance as to outweigh the U.S. government's inherent interest in protecting U.S. workers from the competition of would-be immigrants. Like the first two petitions, the supporting evidence for an NIW petition will include information concerning the scientist's research accomplishments, the number of peer-reviewed articles published by the scientist, whether the scientist has been asked to serve as a judge of other researchers' work, and the number of awards received by the scientists, among other evidence. For more information on the National Interest Waiver, click here.
A Few Tips
In addition to submitting information concerning the scientist's research, publications, and awards, each of these three petitions requires the researcher to submit a set of letters of recommendation from fellow scientists attesting to the petitioner's scientific achievements. It is important that these letters be skillfully written to address the criteria that are of most importance to the reviewing immigration officer. But in addition to what each letter says, whom the letter is from is often just as important.
For example, letters from scientists who do not know the petitioner personally, but only through the scientist's publications or conference presentations, are seen as more credible than letters from a scientist's close colleagues. Letters from close colleagues are helpful, but letters from scientists who have not worked with the petitioner significantly improve the chances of approval. As a result, as foreign-born researchers make their way through their studies and research, it's a good idea for them to keep track of (and keep in contact with) researchers with whom they have discussed their work, e.g., at various scientific conferences. Contacts with researchers in foreign countries are also important, as they can help prove the scientist's international reputation. Likewise, it helps to keep a list of researchers who have commented positively about, or have shown significant interest in, the scientist's work. When it comes time to request a letter of recommendation, these contacts could be of significant value.
Additionally, immigration officials have a tendency to give greater credibility to letters that are written by researchers at government labs or agencies. As a result, graduate-level and postdoctoral researchers should keep track of people they know who work at such facilities.
As noted above, participating as a judge of the work of fellow researchers can play a significant role in the approval of these petitions, especially Alien of Extraordinary Ability and Outstanding Researcher petitions. One way to satisfy this criterion is to review articles submitted to academic journals. Foreign-born scientists could contact editors of journals that have accepted their publications and volunteer to review submitted articles. Similarly, volunteering to review abstracts submitted for presentations at scientific conferences also is an excellent way to serve as the judge of other researchers' work.
Although these three petitions are among the most difficult immigration petitions to be approved, scientists who follow the tips presented in this article can improve their chances of approval.
Mark E. Harrington, Esq., is an immigration attorney, now with The Harrington Law Firm in Houston, Texas. Prior to practicing immigration law, Harrington worked in Washington, D.C., for the House Committee on Science. His e-mail address is firstname.lastname@example.org. Although we believe that professional assistance from a skilled immigration attorney can be valuable in navigating complex immigration processes, Science's Next Wave does not endorse a particular firm.