Research scientist reaches 6-year limitation on H-1B visa
A young (under age 35) research scientist from Malaysia retained our firm to assist her in petitioning for an employment-based immigration, second preference (EB-2) visa with a request for a National Interest Waiver (otherwise known as “EB-2 NIW”). Our client was entering her fifth year on an H-1B employment visa sponsored by a well-known research institution in Ohio. However, her employer was not able to sponsor her for labor certification or PERM, and the 6-year limitation for H-1B visa holders was approaching.
Accordingly, our firm recommended that our client self-petition as an alien possessing an “advanced degree” or “exceptional ability” in the sciences, arts, or business, with a request for a National Interest Waiver (“NIW”). Normally, a petition under the EB-2 category requires a permanent job offer and an approved labor certification. However, a National Interest Waiver petition asks that the requirement be waived for the benefit of the “national interest of the United States” and consequently permit an applicant to apply for an NIW immigrant visa without a job offer from a U.S. employer and without having to undergo the labor certification process.
Restrictions to EB-2
In addition to fulfilling the requirement of holding an “advanced degree” or possessing “exceptional ability” in the sciences, arts, or business, an EB-2 NIW visa petitioner must establish that he or she meets three additional criteria: (1) that the petitioner seeks employment in an area of substantial intrinsic merit; (2) that the benefit of the petitioner’s work is national in scope; and (3) that the national interest of the United States would be adversely affected if labor certification were required.
Due in part to her age, our client had received a limited number of awards and had contributed to less than 10 peer-reviewed articles at the time we prepared her NIW I-140 petition. However, she had presented a number of abstracts on groundbreaking bacterial research, and her letters of recommendation attested to her unique and valuable skill set combining microbiology and molecular genetics and her substantial scholarly contributions in cutting-edge areas of research critical to public health in the United States.
Currently, with the exception of individuals born in Mainland China and India, all employment-based, second preference applicants may concurrently file an I-485 Application to Adjust Status with their I-140 petitions. Thus, our firm filed an I-140 NIW petition and an I-485 application concurrently on our client’s behalf. Less than four months after filing, our client received an approval notice for her NIW I-140 petition! Because our client is from Malaysia, her employment-based immigrant visa category (EB-2) is now current, and we are anticipating that her I-485 adjustment of status application will also be approved shortly.
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