I am a fellow at a research hospital in Florida. What are my options for filing an employment-based green card? I am looking at the EB-1/EB-2 categories and the National Interest Waiver

Question:

I am a fellow at a research hospital in Florida. I have completed 3 years of my residency on an H-1B visa, and I am about to complete the first year of my fellowship. Currently, I am in the process of applying for an H-1B visa extension for the upcoming academic year. Based on this information, by March 2016, I would be finishing up 5 years on my H-1B visa. Can you please let me know my options for filing an employment-based green card? In particular, I am looking at the EB-1/EB-2 categories and the National Interest Waiver (NIW).

Answer:

Congratulations on your success as a fellow. Please find some guidance about employment-based immigration below.

FIRST PREFERENCE: Priority Workers (EB-1)

The EB-1 classification is divided into three subcategories: persons of extraordinary ability; outstanding professors and researchers; and multinational executives and managers. To qualify as an individual of extraordinary ability, you must show that your accomplishments have been recognized in the field of endeavor, and that you have received acclaim for those accomplishments. Furthermore, regulations define extraordinary ability as a level of expertise indicating that you are one of a small percentage who has risen to the very top of the field of endeavor.

The evidentiary thresholds for the extraordinary ability category are high, so I would have to review your research and academic accomplishments/publications/citations before making a recommendation. Approval under this category is difficult.

SECOND PREFERENCE: Members of Professions Holding Advanced Degrees or Individuals of Exceptional Ability in the Sciences, Arts, or Business (EB-2)

In your question, you referenced the national interest exemption from a job offer and labor certification. The national interest waiver (NIW), if obtained, waives the job offer requirement for individuals who are members of the professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business. In short, the standards for an NIW approval can be stated in a three-part test: (1) a showing that the applicant seeks employment in an “area of substantial intrinsic merit;” (2) a showing that the proposed benefit is “national scope” — the impact from the activity must be felt on a national scale; and (3) a demonstration that the national interest would be adversely affected if a labor certification were required. 

The National Interest Waiver (NIW) may be an option for you, however, we would need to speak with you in greater depth to determine the viability of filing such a petition, e.g., what is your career path? What is the current state of your profession? Is your profession an area of intrinsic merit? 

Permanent Electronic Review Management ("PERM") Process

Finally, have you looked into the Program Electronic Review Management (“PERM”) Process? The PERM process involves obtaining a labor certification, the first step for obtaining an employment-based immigrant visa for most EB-2 and EB-3 positions. Before a U.S. employer can file a immigrant petition on your behalf, the employer must first obtain an approved labor certification from the Department of Labor (DOL). Basically, the DOL certifies that there is an insufficient amount of U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. Workers. 

There are many different timing issues involved in a PERM case, and sometimes it can take a few years until the Green Card is actually obtained. However, the PERM process may allow you to extend your H-1B status beyond the 6 year limitation. This means, you could continue to hold H-1B status until your Green Card is approved. This option does, however, require that you begin looking for employment opportunities sooner rather than later.

Based on the information you provided in your email, I believe you may have some options available to you. If you would like to learn more about those options, in particular the NIW or the PERM Process, please call the office and set up a consultation to discuss your immigration matter further. I hope this information was helpful.