Immigration Paths for Scientific Researchers in the U.S.: Part 1 of 3

As an immigration lawyer in the U.S., I travel to the annual meetings of numerous major scientific organizations to give presentations and provide free consultations. I find that most foreign scientists, from PhD students to postdocs who have been in the U.S. for many years, have a poor understanding of their legal situation. If you are going to school or working in the U.S. and you are not a green card holder (“lawful permanent resident”) or U.S. citizen it is extremely important that you understand your own personal path that will lead to a green card. You should have a clear timeline so that you understand your situation and know exactly when it will be necessary for you to take action and move forward at each step of the process.

Start by asking yourself about your plans in the U.S. What is your dream job? Is it a tenure track teaching position or is it in industry? If you are currently a PhD student, do you want to do a postdoc or go straight to industry? Once you have established your short- and long-term goals, you can start to formulate a plan for your own personal immigration timeline.

F-1 Student Visas and OPT (Work Authorization)

If you complete a PhD in the U.S. on an F-1 student visa, it is possible to apply for a green card before you graduate with your PhD, but for a variety of reasons, it is usually not recommended. Depending on your future plans, 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’m going to skip over this option.

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 (Optional Practical Training) program. Through OPT, you can obtain an EAD or (Employment Authorization Document) if you did your PhD in the U.S. Generally, a U.S. PhD qualifies you for three years of work authorization through the OPT program.

Eventually, at the end of your OPT, you will need a green card or a work visa. A green card gives you a permanent lawful status in the U.S. and a path to citizenship. There are two main paths to get a green card (also known as “lawful permanent resident” status): 1) EB-1A (Extraordinary Ability) or NIW (National Interest Waiver) Petitions and 2) the PERM labor certification process.

EB-1A and NIW Green Card Petitions

I will discuss the EB-1A and NIW paths in detail in future articles. The one thing that I want you to remember about them for now is that you can “self-petition” or, in layman’s terms, you can file an application for a green card in these categories without an employer. This, however, requires higher qualifications than the second path, the PERM labor certification, and not everyone will qualify to self-petition.

The PERM Labor Certification

If you can’t win an EB-1A or NIW case, you will probably need an employer to help you get a green card. You will need an employer to help due to something called the “labor certification” requirement. Under U.S. law, in order to get a green card, most workers have to prove that there are no U.S. citizens or green card holders who are qualified for a particular job/position offered by an employer who is willing to file a “labor certification” for you.

Now, many immigrants are currently working in a job where they are the MOST qualified person for the job. If you have been working in a particular lab or for a particular employer, on a certain scientific problem, working on a particular project, that lab or project would obviously suffer if you are forced to leave the U.S. or if you decide to leave because you aren’t able to get 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, it would delay research projects that you are working on, and, in many cases, important research findings may never be made.

However, U.S. law doesn’t take these contributions into account. The law is designed to PROTECT AMERICAN WORKERS. I disagree with the premise that the law actually protects American workers, and I think people like you who are driving scientific research in this country make Americans in general, and specifically, Americans who are involved in research, much better off. Many economists will agree with me on this point, but the economics of this issue aren’t relevant to the decisions that you and your potential employers will be forced to make.

The law says that a company/employer who is willing to file a labor certification for an immigrant worker to help the worker get a green card has to 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 have to disqualify all other applicants (who are U.S. citizens or green card holders) for the position being offered to you. Also, the “minimum qualifications” for the position are often limited by guidelines from the Department of Labor and these guidelines often set very low qualifications. If a job requires a particular degree and two years of work experience in the field, then any U.S. citizen or green card holder with the right degree and two years of work experience in the field can kill your PERM case simply by submitting a resume to the employer. If your PERM case fails, then 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.

Why Avoid the PERM Labor Certification?

In addition to the possibility that it will be denied, there is another 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 that has been pending more than 180 days.

In my next blog post, I will talk about the two most important work visas, H-1B and J-1 visas, and how they will impact your path to a green card.