As a US immigration lawyer, I travel to the annual meetings of numerous major scientific organizations like SPIE to give presentations and provide free consultations. I find that many foreign scientists in the US have a poor understanding of the nation’s immigration laws and some hesitate to speak with an experienced immigration lawyer due to consultation fees. Instead, they often rely on what they hear from friends and the advice received is not always good advice.
If you are attending a US college or university or working in the US and you are not a green card holder (lawful permanent resident) or citizen, it is extremely important that you understand your legal situation and plan a path that will lead to having a green card. You should have a clear timeline so that you know exactly when it will be necessary to take action and move forward at each step of the process.
You should start by asking yourself what your plans are in the US? What is your dream job? Is it a tenure track teaching position, or is it in industry with a private company? If you are currently a PhD student, do you want to do a postdoc or go straight to industry? Once you have established what your short- and long-term goals are, you can begin to formulate a plan for your own immigration timeline.
If you complete a PhD degree in the US on an F-1 student visa, it is possible to apply for a green card before you graduate, but due to what are called “visa backlogs” that is very rare today. You may be able to begin the process with the first step of the case (a Form I-140 Petition) if you have a master’s degree, but most people will file at some point after receiving their PhD degree. Also, depending on your future plans for work, there may be no benefit to applying early and few people qualify before graduating. In some cases, it may make sense to take the risk, but as that is relatively rare, I will not discuss the pre-PhD filing option in this article.
If you are a PhD graduate with an F-1 student visa, your first option after graduation is to obtain work authorization through the OPT work authorization program. Through this program, you can obtain an EAD or employment authorization document if you complete your doctoral degree in the US. Generally, a US PhD qualifies you for three years of work authorization through the OPT program.
Eventually, at the expiration of your OPT, you will need a green card or a work visa (usually an H-1B or an O-1). A green card gives you a permanent lawful status in the US and a path to citizenship. To obtain a green card (also known as lawful permanent resident status), there are two main paths: The first involves EB-1A (extraordinary ability) or NIW (national interest waiver) Petitions, and the second is PERM (permanent) labor certification process.
Details about the EB-1A and NIW paths may be included in a future article. For now, what to remember about them is that you can “self-petition” (a Form I-140 petition), meaning, you can file an application for a green card in these categories without an employer petitioning for you. But doing so requires higher qualifications than the second path, PERM labor certification, and not everyone will win a self-petition.
If you can’t win an EB-1A or NIW case, you will probably need an employer to help you get a green card due to something called the labor certification requirement. Under US law, to get a green card, most workers have to prove that there are no US citizens or green card holders who are qualified for a particular job/position offered by an employer who is willing to file a PERM labor certification for you.
Many foreign scientists in the US are currently working in a job where they are the most qualified person. If you have been working in a particular lab or for a particular employer, on a certain scientific problem or project, that lab or project would obviously suffer if you would be forced to leave the US or if you decide to leave because you cannot obtain a green card. No one else knows your job as well as you do. The lab or company would have to recruit a new employee to replace you, doing so would delay research projects that you are working on, and in many cases, important research findings may never be made.
However, US immigration law doesn’t take these factors into account. The law is designed to protect US-citizen workers.
The law says that an employer who is willing to file a labor certification for an immigrant worker to help that worker get a green card must prove that there is “no minimally qualified American worker” for the job.
It isn’t enough to prove that you are the best applicant. Rather, you and your employer must disqualify all other applicants (who are US citizens or green card holders) for the position being offered. Also, the “minimum qualifications” for the position are often limited by guidelines from the Department of Labor and those guidelines often set very low qualifications. If a job requires a particular degree and two years of work experience in the field, then any US citizen or green card holder who can match that can kill your PERM case simply by submitting a resume to the employer. If your PERM case fails, you will not have a path to a green card through your employer, although they can try again in the future and retest the labor market.
I think that this system is unfair, and that’s why the EB-1A and NIW categories are so important.
In addition to the possibility that it will be denied, there is another very important reason why you may want to avoid the PERM process. If an employer filed a PERM case for you, you may be forced to work for that employer for years before you get your green card. If you decide to change jobs during the process, you abandon the PERM case because it belongs to your employer, not to you. The only exception to this is rare, as you can change jobs and still receive your green card after the PERM case is approved and after you file a green card application which has been pending for more than 180 days.
Marco Pignone III, is an immigration lawyer and law partner of Brian Getson, Esq. Please visit researchergreencard.com for more information.
