The Immigration and Nationality Act makes special provision for permanent residency and work visa options for scientists and researchers in the United States. While the H-1B visa is generally available to such professionals, the low quota often proves to be a significant hindrance. Instead, scientists and professionals can consider other options, including the TN visa for Canadian and Mexican nationals and, in appropriate cases, the O-1 visa. The latter visa covers individuals of extraordinary ability who can demonstrate that they meet specific evidentiary criteria laid out in federal regulations and are the recipients of job offers in their field.
Scientists and researchers may also choose from multiple options for permanent residency. The EB-1 category, which has always been current in recent history and is therefore an attractive option for nationals of backlogged countries such as India and China, includes options for both “aliens of extraordinary ability” (EB-1-1/EB-1A) and “outstanding professors and researchers” (EB-1-2/EB-1B). Similar to its temporary visa counterpart, the O visa, the EB-1A visa requires a showing that the foreign national is of “extraordinary ability.” Unlike the O visa, the foreign national does not need a job offer and can apply for permanent residency on his or her own. The individual must be willing to work in his field of expertise as a permanent resident of the United States.
Outstanding professors or researchers require a full-time job offer of indefinite duration from a university or institution of higher education or, in selected cases, a private institution with an established research department. The job offer must involve either teaching or research, and the sponsored individual must have at least 3 years of relevant experience. USCIS tends to scrutinize such applications more carefully as numerous regulatory criteria must be met, and it is therefore important to consult with qualified immigration counsel before proceeding with such an application.
Finally, scientists and researchers may also be able to apply for a National Interest Waiver in the EB-2 category. Although subject to the backlogs of the EB-2 category, successful applicants do not require a job offer or a labor certification to obtain permanent residency. They must, however, demonstrate that their work is in the national interest and of intrinsic merit, that the benefits of their work are national in scope, and that requiring a labor certification would adversely affect the national interest, as laid out by Matter of New York State Dep’t of Transport (NYSDOT), 22 I&N Dec. 215 (BIA 1998).
These options are available to researchers working in fields ranging from medical and life sciences to geology/oil and gas, physics and nanotechnology, organic chemistry and pharmaceutical science, linguistics, the social sciences, finance, and other fields of benefit to the United States.
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