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. This is a possibility for scientists who have developed and maintained professional recognition at the national or international level.
As you may 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-1”). It may therefore grant an immigrant visa for permanent residence (a “green card”) even without a job offer, without a permanent, sponsoring employer, and without 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 Nolo's article, "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.
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 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.
If you are choosing to aggregate achievements, you must show at least three of the following, within your field:
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.
If you realize that you do not yet meet the minimum requirements, or are not sure whether your achievements are demonstrably strong enough, you may 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.)
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:
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.
This article does not supply a complete guide to the application process, but gives a brief overview. The process would start by your submission of what’s called a “visa petition” to U.S. Citizenship and Immigration Services (USCIS) on Form I-140. Be sure to 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. To learn more, please read Nolo’s article on, “Applying for a Green Card.”
If you are abroad, you would go through consular processing after USCIS has approved your visa petition. To read more about the follow-up steps for applying from abroad, see Nolo’s articles on, “Consular Processing Procedures.”
The government may consider not only your eligibility under this 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 may be affected.
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.
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 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 does not guarantee approval of an extraordinary ability petition for a green card later; but it can give you some useful feedback, which will help you prepare to make the extraordinary ability application in the future.