Lana Oconnell
International PhD students can apply for a Green Card through self-petition by completing Form I-140 (Immigrant Petition for Alien Worker) with the U.S. Citizenship and Immigration Services (USCIS). The form, which can be filed at any time, establishes the applicant's eligibility for an immigrant visa based on employment and determines whether they meet the job requirements. The base filing fee for Form I-140 is $715, and applicants must also pay an Asylum Program Fee to fund asylum processing costs in the U.S. PhD students can self-petition under the EB-1A category, demonstrating substantial intrinsic merit in their research or field of expertise without requiring employer sponsorship. They can also apply under the EB-1B category, which is specifically for outstanding researchers and professors, or the EB-2 NIW category if their work is of national interest.
| Characteristics | Values |
|---|---|
| Form name | I-140 |
| Form type | Immigrant Petition for Alien Worker |
| Who can file the petition | Employer or self-petitioning |
| Petition type | EB-1, EB-2, EB-2 NIW, EB-1A, EB-1B, EB-1C |
| Petition cost | $715 base filing fee + Asylum Program Fee |
| Priority date | The day USCIS receives the petition |
| Processing time | 6-8 months |
| Petition requirements | Proof of ability to pay the offered wage, Final Determination from FLAG, National Interest Waiver requests, evidence of at least three years of experience in teaching and/or research, job title, terms, and conditions of the position offered |
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EB-1A Green Card
The EB-1A visa is a type of employment-based immigrant visa for individuals with exceptional abilities in fields like science, business, arts, technology, education, sports, or similar areas. This visa category is for foreign nationals with extraordinary abilities who do not require a prospective employer to sponsor their visa.
To qualify for an EB-1A visa, the applicant must provide extensive documentation demonstrating:
- Sustained national or international acclaim for their achievements in their field.
- They are seeking to enter or remain in the United States to continue working in the field in which they have extraordinary ability.
- Their presence and work in the United States will substantially benefit the country.
The EB-1A visa application process involves two main steps:
- Submitting a petition (Form I-140): The individual with exceptional abilities submits a petition, acting as their own sponsor. The base filing fee for Form I-140 is $715 for all petitioners, and there may also be an Asylum Program Fee.
- Applying for a U.S. green card: Once the petition is approved, the individual may proceed to apply for a green card. There are two options: adjusting status within the USA or applying for an immigrant visa at a U.S. consulate outside the USA. After paying the necessary fees and completing the process, the EB-1A green card will be dispatched to a specified U.S. address.
It is important to note that the EB-1A visa application process can be complex, and it is recommended to seek legal advice from experienced immigration attorneys to navigate the specific requirements and strategies for a successful application.
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EB-2 NIW
International PhD students can apply for an EB-2 NIW (National Interest Waiver) if they can prove that their work is of national interest to the US and that they possess an advanced degree or demonstrate exceptional ability in the sciences, arts, or business. The EB-2 NIW is a subcategory of the EB-2 visa, which is an employment-based immigration classification. It allows foreign nationals to self-petition for an immigrant visa without employer sponsorship and without a specific job offer.
To qualify for an EB-2 NIW, an individual must satisfy the threshold requirements for EB-2 classification and the three-prong test established by the Matter of Dhanasar. The three prongs are:
- The proposed endeavour has substantial merit and national importance
- The petitioner is well-positioned to advance the proposed endeavour
- It would benefit the United States to waive the job offer and labour certification requirements
The EB-2 NIW petition is submitted using Form I-140, Immigrant Petition for Alien Workers. The form must be accompanied by documentation proving both EB-2 eligibility and satisfaction of the Dhanasar three-prong standard, including a proposed endeavour statement, expert letters, and evidence of the petitioner's credentials and achievements.
The USCIS may issue Requests for Evidence (RFEs) after the initial submission of Form I-140, requiring additional documentation or clarification of the evidence presented. The filing fee for Form I-140 consists of a base fee and an Asylum Program Fee, which is a new one-time fee introduced in January 2024.
It is important to note that the EB-2 NIW is not the only option for international PhD students seeking a green card. They may also be eligible for EB-1A or EB-1B, which are for individuals with extraordinary ability or outstanding researchers and professors, respectively. Consulting an immigration attorney can help determine the best pathway based on individual circumstances.
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EB1-B
The EB1-B visa is a type of employment-based, first-preference immigrant visa in the US. It is intended for outstanding international professors and researchers who are planning to teach or conduct research in their field of expertise. EB1-B applicants are required to provide substantial evidence of meeting two out of six regulatory criteria. While there is no specific minimum publication requirement, this is determined by USCIS on a case-by-case basis.
The EB1-B petition must be filed by a US employer using Form I-140, "Immigrant Petition for Alien Worker". The employer must be able to demonstrate a continuing ability to pay the offered wage, using financial statements such as an annual report, federal income tax return, or audited financial statement. The base filing fee for Form I-140 is $715 for all petitioners, and there is an additional Asylum Program Fee, introduced by USCIS in January 2024, to help fund asylum processing costs.
The burden of proof in EB1-B cases rests with the petitioner, and the approval rate has been over 90% in the last 5 years. If the petition is approved, the applicant's spouse and unmarried children under 21 may also be eligible to apply for admission to the US.
It is worth noting that while a Ph.D. degree is not strictly required for EB1-B applicants, it is typically expected that outstanding professors and researchers hold such a qualification.
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National Interest Waiver
International PhD students can apply for a National Interest Waiver (NIW) under the EB-2 visa category. This option is available to those who can demonstrate that their work or proposed endeavour is of national interest to the United States.
The National Interest Waiver is a type of self-petition, which means that the applicant can file Form I-140 on their own behalf without requiring employer sponsorship. This is particularly relevant for PhD students who may not have a job offer yet but believe their work benefits the US.
To qualify for the National Interest Waiver, applicants must provide evidence that their endeavour has substantial merit and national importance. This can include awards, memberships, publications, and recognition. A detailed description of the proposed endeavour should be provided, along with supporting documentary evidence. It is important to note that the benefits to a specific employer are not sufficient to demonstrate national importance. Instead, the applicant should focus on explaining the potential direct impacts of their work and how it will further their field within the US.
For example, a PhD student in the field of epidemiology from China had their EB2-NIW petition approved, demonstrating that their work has groundbreaking impact and is of national interest. Similarly, a research assistant from Iran in the field of operations management successfully applied for the EB2-NIW by clearly defining their proposed endeavour and providing relevant information.
It is recommended that PhD students consult an immigration attorney or law firm with experience in National Interest Waiver cases to guide them through the process and avoid any potential visa issues.
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EB-1 and EB-2 categories
International PhD students may be eligible to apply for self-petition under the EB-1 and EB-2 categories of Form I-140, "Immigrant Petition for Alien Worker". The EB-1 category is for those with "extraordinary ability" in the sciences, arts, education, business, or athletics, while the EB-2 category is for "advanced degree professionals" and "aliens of exceptional ability".
Very few candidates are eligible for self-petitioning in the EB-1 category or the EB-2 with a National Interest Waiver (NIW). A NIW may be filed by persons classified as employment-based second preference, and it exempts the beneficiary from the requirement that their employer first obtains a labour certification (PERM) from the Department of Labor. Additionally, a job offer is not required, allowing the intending immigrant to self-petition. To qualify for a NIW, the beneficiary must fall into the EB-2 category and meet the criteria for either an advanced degree professional or an alien of exceptional ability.
The EB-1 category is further divided into three subgroups:
- Persons of Extraordinary Ability: Applicants in this category must provide extensive documentation showing sustained national or international acclaim and recognition in their field of expertise. They can file their own petition without a specific job offer, as long as they will continue working in the US in their field of extraordinary ability.
- Outstanding Professors and Researchers: These applicants must have at least three years of experience in teaching or research and international recognition. Their US employer must file Form I-140 and demonstrate a continuing ability to pay the offered wage.
- Multinational Executives and Managers: Applicants in this subgroup must have been employed for at least one of the three preceding years in an executive or managerial capacity by a US parent, subsidiary, branch, or affiliate of a foreign corporation. Their US employer must file Form I-140 and demonstrate a continuing ability to pay the offered wage.
The EB-2 category has two subgroups:
- Professionals Holding an Advanced Degree: This includes individuals with a degree beyond a baccalaureate or a baccalaureate degree and at least five years of progressive experience in the profession.
- Persons with Exceptional Ability: This subgroup is for those with exceptional ability in the arts, sciences, or business, significantly above that ordinarily encountered within the field.
It is important to note that labour certification (PERM) is generally required for the EB-2 category, and a job offer is necessary. The prospective US employer must file a petition on behalf of the applicant. However, an application may be made for an exemption from these requirements if it is in the "national interest".
When preparing an EB-1 or EB-2 petition, it is crucial to provide a clear and compelling narrative that showcases the applicant's extraordinary ability or exceptional achievements. The story should be presented in a way that is understandable and enjoyable for the USCIS Adjudicator, using less technical jargon and more accessible language.
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Frequently asked questions
Form I-140 is the Immigrant Petition for Alien Workers, which can be used to ask USCIS to classify an alien as eligible for an immigrant visa based on employment.
International PhD students can self-petition with Form I-140 if they qualify for the EB-1 or EB-2 NIW categories. They do not need to wait until they have completed their PhD program to petition and can apply while in F-1 status.
The base filing fee for Form I-140 is $715 for all petitioners, and there is an additional Asylum Program Fee.
Strong evidence includes awards, memberships, publications, and recognition. If you are applying for the EB-1 category, you must also provide evidence of at least three years of experience in teaching and/or research in the academic field.
After submission, the applicant must wait for USCIS to adjudicate the petition. This involves responding to any Requests for Evidence (RFEs) issued by USCIS, which may require additional documentation.
