Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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I came to the United States from Tunisia to get my master’s degree and Ph.D. I recently finished my Ph.D., and I’m working for a biotech company on OPT.
I’ve been trying to get publications and significant awards to qualify for the EB-1A green card and I need to travel internationally frequently for business.
Once I apply, will I be stuck in the U.S.? If so, for how long?
— Tenacious from Tunisia
Thanks for reaching out! Let me first provide an overview of the green card process and then suggest an alternative to the EB-1A green card that will likely give you a faster, less risky path forward.
Rather than waiting to add to your list of accomplishments to qualify for an EB-1A extraordinary ability green card, consider applying now for the EB-2 NIW green card. Listen to my chat with my colleague Nadia Zaidi on the EB-2 NIW and what it takes to present a strong case.
Applying for either an EB-1A extraordinary ability green card — or an EB-2 NIW (National Interest Waiver) green card for that matter — is typically a two-step process that involves filing to U.S. Citizenship and Immigration Services (USCIS) for individuals maintaining valid nonimmigrant status (such as F-1 OPT or H-1B) in the United States:
- Form I-140 is the green card petition where you and your immigration attorney make the case for why you qualify for the green card type for which you’re applying.
- Form I-485 is also called the application to register permanent residence or adjust status.
Sometimes, if your “priority date” is current, you can file these two steps concurrently — more below. Whenever we file the I-485, we usually also include Form I-765, the application for employment authorization document (EAD), and Form I-131, the application for a travel document that will enable you to reenter the U.S. with “Advance Parole” after traveling abroad.
If you don’t receive Advance Parole, with many types of nonimmigrant statuses — you could accidentally abandon your I-485 if you travel internationally and even be denied reentry unless you have a specific valid status like H-1B or L-1 — also, more below. When approved for the I-765 and I-131, you’ll typically receive a “combo card” that will allow you to work and travel while you wait for your physical green card to be issued after your I-140 is approved.
You can file your EB-1A I-140 with premium processing, which means you will either get a decision or a request for evidence from USCIS within 15 days. Without premium processing, USCIS is taking nearly two years to process EB-1A I-140s, according to a recent USCIS Case Processing Times page. (USCIS recently expanded premium processing to EB-2 NIW I-140s as well, but the premium processing time is longer at 45 days. Without premium processing, USCIS can take as long as eight months to process EB-2 NIW I-140s.)
Keep in mind that there’s no premium processing for the I-485 green card, the I-765 work permit or the I-131 travel document for any green card category. The I-485 process typically takes one to two years and can sometimes culminate in an interview before the decision. Depending on the USCIS service center, an I-765 takes 15 to 18.5 months and the I-131 takes anywhere from eight to 18 months.
One way to save time: As long as the green card category you are applying for and your country of birth is “current” in the Visa Bulletin, which is the case for you in the June Visa Bulletin, you can file your I-140 and I-485 — plus the I-765 and I-131 — all at the same time.
As you likely know based on your question, once you file for a green card, it’s best not to travel outside of the United States. If you leave the U.S. during the green card process unless you have a specific status such as an H-1B or L-1, USCIS may assume you have abandoned your green card application. Plus, you risk not being able to return to the U.S. on your F-1 visa because it requires nonimmigrant intent, with which your pending green card would then conflict.
You should have your green card in hand in one to two years after filing. Assuming that you get the two-year STEM OPT extension and you’re approved for permanent residence status, you should expect to receive your green card before the end of STEM OPT. After five years as a permanent resident (green card holder), you can apply for citizenship.
Faster, less risk
As Nadia and I discussed, it’s easier and quicker to make a strong case for the EB-2 NIW than the EB-1A. To qualify for the EB-2 NIW, you must have either an advanced degree — a master’s or higher degree or a bachelor’s degree with at least five years of work experience — or exceptional ability in science, business or the arts. You must also demonstrate that your skills and work are important to U.S. interests. That means you and your work will have a substantial impact on the U.S., such as its economy, education, health, environment or national security.
The EB-2 category is not current for individuals born in China and India, which means there’s a bigger backlog and a much longer wait for an EB-2 NIW green card than for an EB-1A green card. So, unless you have an older priority date that’s current, I typically don’t recommend the EB-2 NIW for individuals born in China or India unless their spouse was born in a different country and they can take advantage of cross-chargeability.
To show exceptional ability, you must meet at least three of the following criteria (which are often easier than even the O-1A criteria!):
- Have a degree, diploma or certificate from a college, university or other institution in your area of exceptional ability.
- Letters showing you have at least 10 years of full-time experience in your field.
- License or certification to practice your profession.
- Commanded a salary or other compensation in your field.
- Membership in a professional association that requires an invitation or special selection process.
- Recognition for your achievements and contributions to your field by peers, government entities or professional organizations.
- Other comparable evidence.
To meet the National Interest Waiver, you must show that:
- Your work has substantial merit and national or global importance, such as developing robotic surgery equipment or creating cancer therapies.
- You have the education, skills, knowledge, accomplishments and a future plan to make advancements in your field.
- Why the U.S. should waive the requirements of a job offer (employer sponsor) and labor certification — known as PERM — to allow you to live and work permanently in the U.S.
The key is to explain — ideally with specific benchmarks — what contributions you will be making that benefit the U.S. once you get your green card through recommendation letters from experts or your congressional representative. Favorable factors can include technologies that support health and the environment as well as job creation in the United States. I recommend you work with an immigration attorney whether you decide to proceed with an EB-2 NIW or continue working toward an EB-1A.
EB-2 NIW benefits
The EB-2 National Interest Waiver enables you or an employer sponsor to avoid having to get PERM labor certification with the U.S. Department of Labor, which is a time-consuming and expensive process. PERM aims to make sure that allowing you to live and work in the U.S. will have no negative impact on U.S. workers or the labor market.
Like the EB-1A, the EB-2 NIW enables you to apply on your own as a self-petition, without an employer sponsor, making it much easier to change jobs without interrupting your green card process. But the EB-2 NIW has far less stringent criteria than the EB-1A and has become easier for individuals to qualify, particularly entrepreneurs and individuals holding doctoral degrees in STEM fields.
As you know, for the EB-1A, you must highlight your past work and demonstrate you have a track record of achievements that meet at least three of 10 criteria, such as winning a nationally or internationally recognized award or having articles about you or your work in professional publications or major media. In contrast, the EB-2 NIW focuses on your future work and how it serves the national interest, such as advancing cybersecurity, addressing a big problem facing the U.S., creating jobs in the U.S. or bolstering the U.S. economy. Many of the accomplishments you planned to present in your EB-1A application can be used for your EB-2 NIW application.
Based on our experience, it’s easier for students to go from an F-1 OPT to an EB-2 NIW than an EB-1A because most students don’t have a long track record of professional accomplishments, such as awards, patents and publications. For many individuals, the EB-2 NIW green card is a better fit with lower risks than the EB-1A green card.
You’ve got this!
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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.