When a Scientist Can Petition for a Green Card Based on Talent, With No Job Offer

If you have extraordinary ability in the sciences, you might qualify for an EB-1A so called "Einstein visa" even without an employer.

By , Attorney · University of San Diego School of Law

In this article, we explore the possibility of a scientist petitioning to become a U.S. permanent resident without help from an employer or other sponsor, based solely on talent and achievement. U.S. immigration law offers this possibility for scientists who have developed and maintained professional recognition at the national or international level; to the point where it's often casually referred to as the "Einstein visa."

As you might know, the traditional, usual path to transition toward or obtain U.S. permanent residence is through an employer or a U.S. citizen or national family member sponsor. However, the United States considers certain talented individuals to be "priority workers" because of their extraordinary ability (also referred to as category "EB-1A," as it's the first subcategory of EB-1 visas). The United States may therefore grant an immigrant visa for permanent residence (a "green card") to someone who lacks a job offer, a permanent, sponsoring employer, or a U.S. family member sponsor.

The U.S. Congress created the extraordinary ability option to help attract and keep talented people in the United States, so that they could contribute to their field and to the economy. You can read the regulation that defines this category in the U.S. Code of Federal Regulation (C.F.R.) at 8 C.F.R. § 204.5(h). See EB-1 Visa for Priority Workers: Who Qualifies? for a detailed summary.

This article summarizes general requirements and provides some practical considerations for preparing to apply.

Basic Eligibility Requirements for Priority Workers of Extraordinary Ability in Category EB-1A

For an EB-1A visa, the U.S. government wants to see that you have extraordinary ability and that your level of expertise places you at the very top of your field. To show this, you are required to submit evidence demonstrating that:

  • you have sustained recognition at the international or national level, and
  • others in your field recognize you for your achievements—in this case, in the field of science.

You can show all of this either through one major, international award, or through several significant achievements. While a Nobel Prize would be great, more realistically, you will likely have to point to a combination of achievements to prove that you are qualified.

What Combination of Achievements Might Be Sufficient to Show Extraordinary Ability in Science

If you are choosing to aggregate achievements, you must show at least three of the following, within your field:

  • awards for excellence (national or international)
  • association membership that required outstanding achievement as judged by experts
  • publication about your work in major media (such as an association journal or periodical)
  • service as a judge of others in your field or an allied field (such as by serving as a peer-reviewer for scholarly articles)
  • original contributions of major significance (journal rankings and professional recommendations);
  • articles you authored in professional or other major media (such as in research journals);
  • important service role in distinguished organization, or
  • high salary or pay for your scientific work.

Nevertheless, showing that you've earned at least three of the above does not mean you will receive automatic approval for U.S. lawful permanent residence. Ultimately, the U.S. government must be persuaded that you are at the "very top" of your field and that you have extraordinary ability.

Are You Close to Meeting The Required Level of Achievement—But Not Quite There?

If you realize that you do not yet meet the minimum requirements, or are not sure whether your achievements are demonstrably strong enough, you might be able to augment them before applying as a priority worker.

If, for example, you are not overly pressed for time, you might apply to become a peer reviewer for a research journal or apply for association membership in a competitive scientific organization. (If you are currently in the United States, be sure your permitted stay will last long enough to allow you to maintain lawful status while you do this; failure to do so could make you ineligible for a green card.)

Showcasing and Explaining Your Achievements in Science

When it comes time to ask the U.S. government to grant you a green card as a priority worker of extraordinary ability, you will have to submit some basic forms as well as supporting documents proving your eligibility. For starters, an application letter or cover brief can help to organize and explain the documents you will be including, and sum up their significance.

Supporting documents will help objectively prove that what you claim about your ability, reputation, and professional recognition is actually true. You will need to make sure to have documents that clearly demonstrate that you meet each and every one of the criteria listed above. Here are some tips for doing that:

  • Gather objective evidence of your achievements. So, for example, you'll want to be ready with a copy of the signed letter that informed you of an award for excellence in Chemistry and photographs from the award reception, rather than merely mentioning the award on your resume or curriculum vitae. Similarly, in compiling your list of publications or citation record, consider including copies of lists generated by known companies that regularly prepare such lists, instead of just making your own.
  • Be sure some of your documents show the level of your achievements. The materials you collect will need to show that whatever award, recognition, or other achievement you claim meets the specific type or level of achievement required in the appropriate category (excellence, outstanding achievement, major contribution, and so on.). This might be obvious from the name of the award. If it is not, however—for example, if you won an award named after a philanthropist or former professor—you might have to explain that, and include any additional support for your explanation.
  • Be sure some of your documents show that your acclaim and achievements have been ongoing. To show that you have "sustained" acclaim, you might pull together documents that show your previous, current, and likely future achievement at the high level required by the regulation. Awards while you were pursuing your Ph.D. or a fellowship can help show your history of achievement, while your more recent nomination or awards show your ongoing achievements.
  • Be sure that your documents clarify what scientific field you're in. The regulations use the term "field" throughout their description of the requirements. That's an indicator that the U.S. government wants to see that you have made your achievements within an identifiable field of science. So, if you are in an interdisciplinary field that is still emerging, such as Artificial Intelligence, Environmental Science, or Bioinformatics, your application might need to include an explanation of how the sub-fields relate to or complement one another. Obtaining a professional recommendation letter from others who are recognized leaders in the interdisciplinary area might also be helpful.
  • Be sure that the source of your honors or awards are recognizably prestigious. You might want to gather historical information on the organizations, institutions, or individuals that have honored your achievements or are recommending you for U.S. permanent residence. Don't assume that everyone knows a "big name" or a Nobel laureate in your field. If, for example, you are a member of a professional association or scientific society, such as the American Chemical Society, consider including copies of membership forms, bylaws, or other objective evidence showing the standards you had to meet to become a member. Board member or membership committee biographies can be useful to show their authority as experts in your field.
  • Gather evidence of how you're in a select, limited group of honorees. To show the significance of your various awards and achievements, you might wish to add a quantitative dimension, for example by citing available statistics on the number of awards given per year, per field, or by sub-field. If such information is not available online, try contacting the organization and asking it to provide you a letter with this information.
  • Look for other evidence of the significance or breadth or your achievements. If, for example a scientific study you conducted led to a publication on the front cover of a research journal, you might make a copy of the cover.
  • Be sure that your documents will indicate the real-world, plain-English explanations of the significance of your contribution, discoveries, or publications. If, for example, you request letters of recommendation from peers and colleagues, ask them to write for a sophisticated but unspecialized audience. If your field is academic or highly theoretical, you might have to provide historical context so that the significance of your findings are apparent. For example, if no new antibiotic that can be lab-grown has been discovered since the 1970s and your findings led to a published method for doing so, indicate that fact in addition to the technical details of the experiment or protocol. You might also want to tie the finding to public policy issues, such as the potential for improvement in global and national public health that your findings have led to or will result in.

    The above are just some issues to take into consideration, and only some might be relevant to you. Be sure to consult with your attorney and professional peers to help you select the most complete and persuasive list of documents to prove your achievement in your field.

    Application Process to Become a U.S. Immigrant (a Permanent Resident)

    This article does not supply a complete guide to the application process, but gives a brief overview. The process would start by your submitting what's called a "visa petition" to U.S. Citizenship and Immigration Services (USCIS) on Form I-140. Review the USCIS website when you start for the most current forms and instructions.

    What happens next depends on where you are. If you are already in the United States legally as a nonimmigrant (such as on an H-1B or O-1 visa), you would adjust your status after USCIS approves your immigrant visa petition and your visa category is current (by submitting USCIS Form I-485 and supporting forms and documents).

    If you are abroad, you would go through consular processing after USCIS has approved your visa petition. This involves interacting initially with the National Visa Center (NVC) then eventually with a U.S. embassy or consulate in your home country.

    The government may consider not only your eligibility under the EB-1A visa category, but your current or past immigrant status as well as your personal background to decide whether you are admissible to the U.S. at all. Additionally, your ability to qualify for certain nonimmigrant visas while your petition for an immigrant visa is pending could be affected, because of a legal concept known as "dual intent."

    Consider consulting with a qualified immigration attorney before you pursue the petition for status as a priority worker. While your knowledge of the basics and your cooperation in compiling and organizing the documents can be very helpful, the application process demands a great deal of paperwork and attention to detail. Your attorney is in the best position to help you persuade the government that you are at the very top of your field and make sure that other factors will not affect your options.

    Testing the Immigration Waters With an O-1 Visa

    As you can see, gaining U.S. residence as a priority worker can be quite challenging. Wouldn't it be nice to get some sort of reading of how U.S. immigration authorities will regard your application?

    One way to do this, if you are planning to or already have lined up a U.S. job with an employer who will sponsor you for a temporary visa, is to ask that the visa be an O-1 petition instead of the more common specialty occupation H-1B.

    Briefly, the O-1 is a nonimmigrant visa, which means it does not make you a U.S. permanent resident. Its core requirements are, however, nearly identical to those for the extraordinary ability immigrant visa category. If you work on compiling documents for the O-1 visa, these documents will be useful if you later apply for EB-1 status. And by submitting your application, you will get a preview of how the government will view your accomplishments.

    The approval of an O-1 visa does not guarantee approval of an extraordinary ability petition for a green card later; but it can give you useful feedback, which will help you prepare to make the extraordinary ability application in the future.

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