Webinar: Winning Your EB-1A NIW

The following transcript is an approximation of this video’s audio content. Please view the video itself to see visual content and slides.

Hello everyone and welcome to today’s live broadcast “Green Cards for Scientific Researchers How to win your EB a and NIW case” presented by Brian Getson, a USA immigration lawyer at Getson & Schatz. I’m Suzy Valdez of Labroots and I’ll be your moderator for today’s events. We’re delighted to bring you this educational web seminar presented by Labroots and sponsored by Getson & Schatz (researchergreencard.com). Before we begin I’d like to remind everyone that this event is interactive. We encourage you to participate by submitting as many questions as you want. At any time during the presentation just click on a green Q&A box located at the lower left of your presentation window, type those questions into the box that appear on the screen and we’ll answer as many questions as we have time for at the end of the presentation. Also notice that you’re viewing the presentation in a slide window. To enlarge that window just click on the screen icon and located at the lower right if you have any trouble seeing or hearing the presentation click on the support button or click on that Q&A; button and let us know you’re having a problem good news this presentation is educational and offers continuing education credits click on the button in the bottom left hand corner to follow the process for obtaining your credits.

Please join me now in welcoming our speaker Brian Getson. Brian is a graduate of University of Pennsylvania law school with years of experience. He is a leading U.S. immigration lawyer who represents scientific researchers in applying for green cards and he’s the principal of a Boutique immigration law firm based in Philadelphia.

Mr. Getson:
Brian has given presentations on green cards for scientific researchers at numerous major scientific conferences, the Wistar Institute, and at universities. He often provides a money-back guarantee to qualified applicants giving clients confidence that they will get results. For more information go to his website at researchergreencard.com. I will now turn the presentation over to our presenter. Welcome Brian. Hi everybody thank you so much for having me today and Labroots and I’m going to talk about immigration for scientific researchers. So again Susie gave a little background about myself I’m a graduate of University of Pennsylvania Law School and I have been representing scientific researchers… I’m going into my 22nd year and I’ve authored a book on “How to obtain a US visa based on achievement”. Over the years I’ve handled hundreds upon hundreds of cases.

So in the year the place to start when talking about immigration is with President Trump and his main focus is on illegal immigrants and building a wall. So again that’s what his policy agenda is about. It’s to deport criminal aliens and secure the border and scientific researchers are you know still welcome in the year to apply for green cards in the United States so nothing has really changed when it comes to applying for a green card based on your research accomplishments. And you know there’s a lot of rumors out there in terms of what is happening what might happen and there are all rumors pretty much so you know the system is still the same and they are still approving cases for scientific researchers to get green cards in the United States, so everyone should feel confident about moving forward with their case if you want to get a green card and to live and work permanently in the U.S.

So most of you who are listening to this right now you’re here in the United States in one of three categories. You’re either here as an F-1 student, J postdoc or you are working on an H-1B visa. So these are the three most common types of non-immigrant visas that you would have before you would get the green card and when you’re thinking about the green card you really want to think about the big picture and the roadmap that you are going to take in order to eventually have permanent resident status. You need to think about maintaining your underlying non-immigrant status and when is the best time to go ahead and apply for the green card and you always want to have a plan B in case plan A doesn’t work.

So again, keep in mind where you want to go and everybody’s case is different so somebody you know might be looking to apply earlier because of a spouse or because they’re working in academia and they want a green card to go to industry or they need funding. Then in other situations, it might be better for somebody to wait a little bit longer to let their level of citation grow or for whatever reason so when we look at the timing of when to apply out of a non-immigrant status, again, everybody has their own unique situation.

So for those who are in F status after you graduate usually from your PhD you’re going to have optional practical training work authorization and this is three years total you get months initially and then you get a month stem extension. So, during this three-year period you can work to build your credentials towards a green card filing and perhaps you would even file for the green card while you’re still in this OPT period.

So again, the normal course is F visa to OPT to H-1B status from a non-immigrant perspective and H-1B is a dual intent visa whereas an F is a non-immigrant intent visa. So what that means is that if you needed to apply for a green card, you could still hold your H1B status and get an H1B visa while that was going on. Whereas if you have applied for a green card out of student status, you could not extend that step. So when it comes to H-1B for the private sector, there’s something called the Visa Lottery and that is every April and there’s a lottery and there are 85,000 total visas available. There are sixty-five thousand regular visas and twenty thousand for those with us master’s degrees. Then if you’re going to do a university postdoc job you’re a cap exempt H-1B meaning you could go directly into H1B. So if you’re graduating and you’re a student and you get your OPT work authorization, then the planning of your green card might be different; if you’re going to go to a university or if you’re going to go to the private sector, because if you go to the private sector you might need to apply for the green card out of your student status, because if you don’t get an H-1B cap number then you would either need to have the green card or you would have to go back to a university to have an H1B or a J if you know that you’re going to go to a university after your opt and that they are going to sponsor you for H1B, then you have a little bit more flexibility in terms of maybe taking some more time to build your credentials towards a green card filing and the H1B you can hold that for six years.

So if you’re a graduating student you can have three years of opt and six years of H-1B and that’s nine years before you would need a green card. So the odds of winning the H-1B visa lottery… This past April there were approximately 199,000 applications for the slots and that was down from April 2016 where there were 237,000 applications. So again H-1B status can be granted for three years and can be extended for a second three-year period for a total of six years. H-1B status does not automatically result in a green card or permanent residence. You have to be able to still have a petition for a green card separate from the H-1B.

So there are two primary paths to a green card. The first is the most common for foreign nationals seeking green cards through employment and that is called a permanent labor certification and you have to have an employer to sponsor you and the employer has to do certain recruitment in newspapers and online to demonstrate a lack of U.S. worker availability for the job. The employer has to pay for the PERM labor certification part of that process. The second way is trying to avoid having to demonstrate a lack of U.S. worker availability and that would be through the EB-1A, which is extraordinary ability alien or outstanding professors or researchers or EB-2, which is the National Interest Waiver.

So everybody listening right now should be thinking about whether they can qualify for EB-1A which is extraordinary ability, EB-1B which is outstanding professors researchers or EB-2, which is NIW, in order to avoid the labor certification. So again this would be based upon your scientific research accomplishments you would say… you would ask the government to not care about U.S. worker availability based upon what you have accomplished in your past. So again I talked a little bit at the beginning about the timing of everything so you have to be able to manage that you’re always maintaining a non-immigrant status to bridge the gap to filing for the Green card.

So in some cases you might need to extend your H-1B status beyond six years in order to be able to keep working and that can be done one of two ways. Which is if a PERM case or even an EB-1A or EB-1B or NIW is filed before the end of your 5th year of H-1B in which case you could extend your H-1B status beyond six years in one year increments. Or if you had an approved I-140 petition then you could extend your H1B status beyond six years in three year increments if necessary. This typically only comes up for people from China or India that are in the EB-2 category where there is a long wait for a green card and the rest of the world typically can have at a minimum a work authorization based upon a green card filing before the end of the six years. But there are some cases where you don’t have that work permit from the green card in time and you have to extend beyond the six year limit and then another strategy possibly to extend beyond six years is called an O-1A visa and that is the non-immigrant version of EB-1A.

So again what’s the big picture? When is the ideal time for me to file and how do I keep myself in working status at all times? So with the PERM labor certification, an employer has to sponsor you and the petition has to be advertised according to law and if there’s a US citizen or green card holder who meets the minimum qualifications then you would not get a green card. So what we’re talking about and focusing on is getting a green card while avoiding this PERM labor certification.

So the first category that we’re talking about is EB-1A extraordinary ability and as I alluded to this category is generally only used by people who are from China or India. There are certain exceptions to that for certain reasons, but for the most part if you’re from China India you’re going to look to do this in EB-1A and the reason is that with the EB-2 NIW, the wait to get a green card from China is approximately four and a half years and the wait to get a green card from India is approximately nine years where for the rest of the world in EB-2 there is no wait to get a green card. With EB-1A, there’s no wait to get a green card for China India or the rest of the world so that’s why if you’re from China or India, the first thing we’re going to talk about is whether you might qualify for EB-1A.

EB-1A is important for China and India due to the backlogs and then the national interest waiver is going to generally be for all other countries and the reason is that the national interest waiver is an easier legal standard to meet than EB-1A. EB-1A is more difficult as you have to show that you’re among the small percentage of researchers at the very top of your field in the world whereas for NIW you essentially have to show that your research is of substantial merit and national importance and that it would be beneficial on balance for the united states to give you a green card.

There are two ways to win an EB-1A case. The first way is receipt of a major internationally recognized award such as the Nobel Prize and my note in the slide is good luck with this method and in my 20 plus years of practicing immigration law I have never had a Nobel Prize winner. I have never used this method and I never expect to use this method. So we move on to method number two which is for everybody else who never won a Nobel Prize and that is satisfying three of ten evidence categories.

There is a legal regulation under the Code of Federal Regulations that sets forth ten evidence categories and in order to qualify for EB-1A you have to meet at least three of the categories and then on top of that you have to show by what’s called a preponderance of the evidence that you are in fact among the small percentage of researchers at the very top of the field in the world and this is under a case called Kazarian. That’s k-a-z-a-r-i-a-n and that talks about this method of satisfying three of the follow of the ten categories and then on top of that showing by a preponderance of the evidence that you are among the small percentage at the top.

When I file a case I like to try and go in to every one with more than three categories if I possibly can and there are times where immigration says that the researcher has met three categories but hasn’t met that second standard of the preponderance of the evidence. So I’m going to walk through the ten categories and when one would be preparing a national interest waiver case you would look to these ten categories as a guide in terms of how to prepare a national interest waiver case, but there are no set evidence rules when it comes to an NIW. You can submit whatever evidence you would like but you still tend to follow along with the EB-1A categories.

So the first EB-1A category is not a category that is frequently used. It’s receipt of a lesser recognized award for excellence in the field. This is not a student award, it is not a travel award, it is not a young person award. It has to be an award that is open to anybody in the field at any career stage and it has to be on a national or international level, so these awards are difficult to obtain because they’re you know that they’re on that high level. So you know a lot of people have misconceptions that a student award or a young researcher award is helpful and it’s not and it’s never a good idea to file a case and try and highlight a piece of evidence that doesn’t count. When I’m preparing cases I always stay away from young person student travel things like that, but again if there’s a possibility, an award that you could apply for to build your case then you should go ahead and apply so the worst thing that happens is you don’t get the award. With everything I’m talking about, I always tell my clients it’s free to ask, it’s free to apply, and there is no room to be shy when it comes to an immigration case. You want to advocate for yourself and try as many things as you can to build your case and you know you want to be thinking now in terms of listening to me about what can you do to make your case stronger for a green card application.

The second category is achievement based membership and associations in the field. This is not a common category because it’s difficult. There are certain organizations where anybody could join like I could join the American Chemical Society if I was interested in chemistry or the American Heart Association, if I was interested in that. So those types of memberships do not count. You have to have a membership where you have to have achievement in order to get in and you have to be voted in so you know there these are higher level and they’re usually reserved for things that are people that are further along in their career but you never know, you know you have to research what memberships could be available in your field and there is no reason to not apply because you actually might get the membership if you go ahead and apply.

The third category is a category that we tend to use if it’s available and this is published material written about you and your work in journals are major media platform. So what this means is other people who are writing about your work, so there’s things such as on the Internet Science Daily, News RX, other types of sites. If you would go to Science Daily right now on the home page there’s going to be a lot of articles and they’re talking about you know researchers that have accomplished things and the other types of material is sometimes my clients have where there’s a book chapter that’s written and it’s talking about their work or there’s a review article that’s talking about their work more than just in passing where it’s really mentioning them by name and that’s the key to the Immigration Service is how they look at this, is it has to be about the foreign national, so if your name is mentioned in the text of the article that is very helpful if it’s about your work and even if it’s just about your publication and your publication is mentioned at the end, I will still look to use that although it’s not as strong and convincing as if the article is actually written about you, so if you’re at a university then your university has a press office and your university likes to get good press and good things written about them, so if you have a publication that is important in your field then go to the university press office and ask them if they can do a press release or ask them if there’s any journalists that might want to talk to you about it. You know journalists always need something to write about so you know I have had clients get material published about them because they went ahead and asked. So again, advocate for yourself, you know that this is the category, so if you have a good publication, try and get somebody to write about it.

Okay, so the next category, number four, is participation as a judge of others in your field and this is something that is almost always used as one of the three categories. It’s something that you can completely control and it’s doing peer review, so what this means is you know doing peer review for journals but it’s in your own name and not the name of your supervisor. So you want to ask journals to do peer review, just email the journal. Maybe if you go to a conference and there’s some journals who are exhibiting then you can, you know, reach out to the journals even, you know, to ask if they’re available to give you some peer review and you want to do as much peer review as possible. Five is better than three, ten is better than five, and if you’re able to do peer review on an editorial level, that is excellent as well so sometimes I have people tell me that oh, I was offered peer review and I declined it, don’t decline it, it’s really helpful for your green card case and it’s something that you have complete control over. Do as much peer review as possible.

Okay, so next and this is a category where 100% of people applying for EB-1A try and meet this category and its original contributions of major significance in the field and this includes commercially viable patents, your work being used by others, and conference presentations. When it comes to conference presentations, poster is good, an oral presentation is better, and a keynote address is best. You know just to sort of talk a little bit more about this, so the main way to prove original contributions of major significance is through reference letters, and you’re really looking to have three sets of reference letters: set number one is independent reference letters and these are people who may not know you personally, who haven’t worked at the same University or company where you have worked and who are not co-authors on any of your publications, and this is the theory behind that is that if you were going to have the lawyer in the office next to me, write a letter about me what would you expect that lawyer to say, the lawyer is going to say that I’m a great lawyer, they’re not going to say I’m terrible so that’s the same thing with you people who work with you immigration knows that they’re going to say nice things about you, so they’re looking for people outside of your circle to write the letters and of the five letters you maybe want to get three in the U.S., two outside the U.S. or the other way around. How do you find these people? Again you ask, think about who has cited your papers? Who has reached out to you to ask about your research? Who you may have met at a conference? Ask your supervisor for some help in terms of finding the authors and you know everybody winds up finding independent authors. and I like for the independent authors to talk about all of the scientific contributions that you have made there, you know my theory behind that is that if your research has really impacted the field, the authors are going to know about all of it, not just some of it, whereas if one author just writes about one aspect of your research and another author writes about another aspect of your research, then maybe immigration could view that as well the authors don’t know about all of your research, so I like to have the independent authors talk about all of your research findings.

You know when we represent clients, we write the letters for our clients and the way that we have the process work is our clients would outline their research for us and then after we receive the research outline, we will ask questions to get details about the research because you know I can look at any of your CVs, I could see scientific terms that I don’t understand and the immigration officer is just a layperson. They have no scientific background and they’re not going to understand the science either and that’s where a lawyer really helps in preparing these types of cases is the lawyer can explain your science in very simple easy-to-understand terms that the immigration officer can say hey I understand what this person has researched and accomplished. I understand the practical significance of it and why it’s important and how it’s going to benefit the United States. So after the questions are answered, then we would draft the letters and normally you would just send it to the author and nine out of ten times the author will just sign what it is that you have sent them and every now and then the author will make changes and most of the time the changes that the author makes is still okay. Sometimes the author adds language that can be detrimental to your case and in that case I usually tell my clients find another author and usually what I mean by detrimental is you would be getting a green card based upon what you have accomplished in the past, so immigration doesn’t like to see what may happen in the future. So when I have letters where somebody changes the language to say this you know “will” impact the field or it “may possibly” lead to a drug or you know there’s a chance that this could do something that type of language could be very harmful to you and immigration can use that language against you. So you know that in the letters really the number one thing is to make sure that the letters are always focused on your past accomplishments and not being speculative about what may happen in the future.

Additionally, there is law that says any research that you have made even if you’re a co-author or worked as part of a team can be considered your own research, so when you’re writing a letter you can say that you found this, you discovered this, even if you were the third author on the paper and that’s important to know. Immigration knows that the lawyers are writing the letters they’re really just looking at there are people out there who are going to sign their name signing off on the importance of your research. So that’s the first set of letters is the independent letters.

The second set of letters is from your supervisors, so even though they are your supervisors, immigration still wants to hear from them about you, know what you did under their supervision and what you’re currently doing and those supervisor letters only will talk about what you did under the direction of the supervisor.

And then the third set of letters goes towards these sort of what I call supplemental letters, so if you have a commercially viable patent, maybe you get a letter from somebody that’s using your patent if your work is being used by others. This is really important, for example, if there’s a government agency like the USDA that’s interested in your research, then you know go ahead and get a letter from them, if there is a you know you were asked to give an oral presentation at a conference, get a letter from the conference as to why they asked you to do the presentation, so you know if you have a lower citation level then the use of work letters are very important and you know I was talking about the USDA, I’ve represented a client last year where she was in agriculture and she basically made soil, you know, more nutritious and better to grow crops on and because of her type of field, she did not have a high level of citations, so in order to overcome that we got a letter from the USDA that they were interested in her research and NASA had been interested in her research because she was helping to grow in space and there were some agricultural companies that were using her research and we explained to immigration that her research was more practically oriented and due to the nature of her field she didn’t have a high level of citation. So we, you know, use these letters and the case was approved because we showed sort of the practical significance of her research. So you always want to be creative and be thinking outside of the box in terms of how you can best present your case to immigration.

So the next category that everybody uses is authorship of articles in the field in major trade publications or major media and you know those again it doesn’t matter whether your first author or second author or third author, if it’s a publication, then it’s good and you know to me the number of publications is more important than the impact factor of the journal so I would rather see publications than one publication in nature again quantity tends to be better than quality sometimes with these types of cases.

So going back to the level of citation, this is probably the number one gauge for what are my chances for approval, the higher your level of citation, the higher the chance of approval, so if you have more than a hundred citations then you’re you know you’re in a good place for an NIW that might not be enough for EB-1A or EB-1B you know Immigration can be very stingy on this but you know this is something that you cannot control. What I you know like to advise clients is you know think about the timing. If you’re maybe six months away from having more citations and maybe you wait a little bit until that comes, if you have between fifty and a hundred citations it’s certainly possible to get approved. Again the agriculturalist that I just told you about had less than that amount and was approved for EB-1A. Likewise if you have less than 50 citations, it’s still possible to get a case approved, but it becomes more difficult, so if you have a lower level of citation, how are you going to overcome that in terms of presenting your evidence to convince Immigration that even though this is your citation level you’re still among the small percentage at the very top of the field in the world or you still are worthy of a national interest or any … international recognition is outstanding.

So again the three most common categories or the core three so to say are the peer review the original scientific contributions of major significance and the publication. So number seven doesn’t apply to researchers which is display of work at exhibitions or showcases.

Number eight is a critical role and this is something that we frequently do for researchers. It’s a leading or critical role for organizations that have a distinguished reputation. I often use this to try and meet a fourth category immigration is often very difficult with this so you know we have to show what made your role leading or critical if you were at a university did you get them funding did you are you training other researchers there you know did you is there a patent that is being benefiting the university right now or likewise for a private company. So we’d have to show how your role is leading or critical, but again if you’re going to look for a fourth category you know most people are either having media or publications written about them or they’re showing that they’re in a critical role, and then the other ways to go would be memberships or Awards, so critical role is something that you know you always want to try and ask and at least see if either a current or past employer would be able to give you such a letter high salary compared to others in the field, this is generally not done for researchers but you know the always an exception to the rule it would usually have to be if you’re at a private company of some kind and then again what doesn’t apply is commercial success in the performing arts.

So those are the categories for EB-1A. Again China and India you’re looking for EB-1A or EB-1B, the rest of the world you’re probably looking to file in a NIW but these categories are going to apply to NIW.

I had talked a little bit earlier about the O non-immigrant visa and unlike EB-1A where you can self-file and you can also self-file in NIW and self-filing has benefits because you could change jobs and still keep your green card in EB-1A or NIW whereas with EB-1B if a university is sponsoring you for outstanding professor or researcher, you could only change jobs after your green card has been pending for more than 180 days. But you know I’m sure some of you have heard that there’s been a change under the Trump administration that all employment-based green card applicants are going to be interviewed now and that is going to make receiving the green card take longer. It will not change the time it takes for you to receive a work permit or travel document but it will make getting the green card take a little bit longer. So if you have that EB-1A or NIW then you can change your underlying non-immigrant status whether that’s with an H or an O and still be able to keep your green card.

So back to the O. This is really used in two situations for you guys, and the first would be if you’re working for a private company and you do not win the H-1B lottery then you could look to get an O non-immigrant visa and that would be applicable even if you are not from India or China you might use an O non-immigrant visa, and the other would be if you’re at the end of your six years of H-1B status, but for whatever reason you can’t maintain work authorization in any other way then you could look at the O visa to be able to maintain the non-immigrant work authorization.

So again this is the same three out of ten categories for EB-1A but you need an employer sponsor, so again it’s the receipt of the international award or you’re meeting three of the evidence categories and what’s the difference between EB-1A and O is EB-1A for a green card and an O is for temporary residents and employment and EB-1A is the higher standard and the reason for that is that second Kazarian step to show by a preponderance of the evidence that you’re among the small percentage a at the top of the field. That does not apply to an O-1A, if you meet the three categories you get the visa okay.

EB-1B is outstanding professors and researchers and this is also a category that’s a little bit easier than EB-1A, so if you are from India or China and you have an employer to sponsor you for EB-1B, I would recommend that you strongly consider that because it is easier to get the case approved under EB-1B and to get a green card under EB-1B you have to show international recognition as outstanding, you have to have a qualifying employment offer, which I’ll talk about in a minute, and you have to have at least 3 years of teaching or research experience in the field, so the typical employment offer is a tenured or tenure-track teaching position or it’s a research position at a university without a fixed term and that is not a postdoctoral research fellow, it has to be a higher position than a postdoc, like a research associate or a research assistant, or you have to have a permanent research position at a private company and to talk a little bit more…

I’m going to go back a second in the slide… so the three years of teaching or research if you can use that gained at the PhD level as long as you had research considered to be outstanding at the PhD level. So in most cases you can count three years as research you did at the PhD level toward that three years and in terms of a qualifying employment offer for a private company, there has to be at least three other full-time researchers at the company in a department division or Institute of the company where there are outstanding accomplishments and you cannot count as one of the three researchers.

So now we move to EB-2 national interest waiver and the standard for this is you have to have an advanced degree which all of you would and you have to demonstrate that your employment is in the national interest and as of December there is a new legal standard for NIW and it’s called matter of Dhanasar and the Immigration Service can grant a national interest waiver. There’s a three part test. Number one is that your proposed endeavor has substantial merit and national importance and generally that’s going to be anybody who’s conducting scientific research is going to have substantial merit and national importance whether it has to do with healthcare or the economy or the environment. We will explain to the Immigration Service in the cover letter that we draft how the research is of merit and importance and we’ll give some literature usually from government agencies talking about why what it is that you’re researching is important number two is that you’re well positioned to advance the proposed endeavor. This is looking at you know what have you accomplished in the past and you know how is that setting you up now to continue your research and what did are plans for work. You do not need a job offer and you could apply for this even if you’re outside of the U.S., and that’s the same for the EB-1A and the EB-1B, but it’s certainly helpful if you’re already in the U.S. and working in a non-immigrant status and you would just tell the Immigration Service that you’re simply going to continue working in your current position conducting research in your field and speaking of your field how you define your field is important.

So you know especially if you’re going to want to change jobs before the green card or even after you want to define your field broad enough that, number one, it covers everything you’ve ever done in the past and that it would cover any possible future job that you might have but you know you don’t want to define your field too broadly. You don’t want to say for example you’re among the small percentage of researchers at the top of the field of chemistry. I mean that’s a really big field and it’s hard to show that, so you have complete control in terms of how you define your field for the EB-1A or the NIW with EB-1B the field is unimportant. It’s just the academic field of your degree, so you want to try and make yourself a big fish in a small pond while still defining your field broad enough. So, for example you would say you know understanding you know the molecular mechanisms of proteins related to heart disease if that’s what you’re working on and what you’ve always worked on so that’s defining your field in such a way that you know it’s going to cover what you’ve done but it’s not too big so that’s being well positioned to advance the proposed endeavor which is your field.

And number three is on balance it would be beneficial to the U.S. to waive the job offer requirement and labor certification so this is just making an argument to immigration that you know when you look at all of your past accomplishments that the U.S. is going to benefit from having you here and you should not worry about U.S. worker and again national importance is benefiting the U.S. but you know it doesn’t have to be completely national in scope although in most cases it will be. And again it’s benefiting the economy education health care environment safety, everyone’s research is going to have some kind of benefit and you know this new legal standard it eliminates terms like track record of success and degree of influence on the field at the hole which was under the old standard, but you know again immigration still looking at what have you accomplished and why is it important.

Okay, so premium processing is available for EB-1A and EB-1B but not for NIW and in the year immigration has been deciding all of these cases faster so they have been deciding NIW cases in about three to six months along with EB-1A and EB-1B. It used to take more than a year but if you wanted to premium process your EB-1A or EB-1B you could do so for an extra fee you know we tend to hear and see that sometimes Immigration is more difficult with premium processing. So you have to balance how quickly do you want to get the case approved versus you know the possibility of maybe increasing your odds of a request for evidence or notice of intent to deny if you do premium processing.

Again back to the timing. Getting the green card involves two steps. There’s the I-140 petition which is the EB-1A EB-1B the NIW and then there is the green card application. In most cases you know if for the whole EB-1 category and for the EB-2 NIW for not from China or India you have a choice whether you want to file the I-485 at the same time as the I-140 or if you want to wait for the I-140 to be approved and then file the 485 after. And a lot depends on your status. Are you in J status? Are you in F status in which case you would not want to file them simultaneously unless you absolutely had to or are you in H-1B status which is dual intent in which case, if everything got denied it would not affect your underlying status. So again there’s a lot of strategy there’s a lot of timing involved and it’s all done on a case-by-case basis.

So post filing issues. I talked a little bit about this if you are filing an EB-1A or NIW, you can change jobs without problems with as long as you’re still in your field with an EB-1B if the application is pending for more than 180 days you can change to a “same or similar” job and you would have to file what’s called form I-485 J as in Jack with the Immigration Service.

So what’s new is H4 work authorization and you know the new NIW standard makes it a little bit easier for entrepreneurs to apply for a green card in that category. But H for work authorization… it’s really only going to be for people from China or India who have an approved NIW petition or a EB-2 perm case and then their spouses could work. So while there is a long wait for China and India in EB-2 if you don’t qualify for EB-1, the silver lining is that your spouse can work. And again there’s been some rumor about H4 work authorization going away, but it’s just rumor and we’re not expecting that to happen.

So you know what we do as lawyers is we provide a money-back guarantee for most of our clients who are well qualified. And what that means is that if your petition isn’t approved we will refund the attorney’s fee. And you know our standard attorney’s fee for a case is $5000 total plus $100 for costs and the I-140 filing fee is $700 and we offer a payment plan to our clients where we will have a payment of $2350 initially followed by four monthly payments of $687.50 each, and if the I-140 petition is denied we will give you back the $5000. And then we employ a team of science writers to help draft the recommendation letters and because these science writers really have a science background and can understand how to explain your you know scientific terminology in simple terms for an officer to understand. Then we have been doing this a very long time. So for more information you can visit our website at researchergreencard.com and on that site there is an online scheduler where you can schedule a free consultation with me directly and I would be able to speak with you about your individual case and situation.

So thank you very much for attending and now I’m going to take some questions and Susie’s going to come back in and moderate.

Moderator (Question):
Thank you so much Brian and thank you for that informative presentation, so incredibly important. We will now start the live Q&A portion of the webinar. If you have any questions you’d like to ask please do so now just click on that green Q&A; lower left button in the presentation window. Type in the question into the box and click the button. We’ll answer as many questions as we have time for today, so let’s look to our audience members today, we have a great engaging audience. Our first question Brian is I have a J1 visa with a two-year requirement. When should I apply for my waiver of the two-year rule?
Brian (Answer): Once you apply for… once you apply for a waiver of the two-year requirement you can no longer extend your J status, so you need to really coordinate with your employer about whether they’re going to be able to put you into H-1B once your J status is waived. If they can’t put you in H-1B, then you’re going to need to be able to time the green card application so that you have a work permit by the time your J status expires. Normally, the ideal time to apply for a J waiver is right after you have received an extension of your DS-2019 and the reason you would need a J waiver is that you cannot get a green card or H-1B status without the waiver. So you know again we’re going to talk on a case by case basis with everybody but the main thing to keep in mind is that you can’t extend your DS-2019 once you have the waiver so you need to time that accordingly with your employer.

Moderator (Question):
Thanks so much Brian. Here’s another great question from our audience members. If I have a patent in another country, not a U.S. patent, will that help my case?

Brian (Answer):
So the answer to the question is yes. A patent will help your case but it really only helps your case if it’s being used or utilized, so if a foreign patent is… you know if it’s being utilized by a company then you would want to get the company to write a letter talking about how they’re utilizing your patent. Even if patents are not being utilized it’s still an important part of the case and I will include them in the section on original scientific contributions of major significance, but you know the key to a patent whether it’s foreign or U.S. is anybody utilizing it and can you get just a short one to two-page letter talking about how they’re utilizing it. That goes back to the importance of the Supplemental letters and showing how your work is being used what’s the practical importance if somehow it’s being utilized by somebody that shows immigration that yes you really have impacted and influenced the field.

Moderator (Question):
Thanks Brian and I want to thank again our audience today you have some fantastic questions. Coming in our next question comes from an audience member out of the country. Can you file EB-1A and NIW cases at the same time?

Brian (Answer):
So the answer to the question is yes, you can file EB-1A and NIW at the same time and you know that would because one has nothing to do with the other. An EB-1A would be decided on its own merits and the NIW would be decided on its merits and there is often strategy in doing this and usually if you do this you’re not going to premium process the EB-1. If you were going to premium process the EB-1A then you know you’ll just wait the 15 days to get the decision and hopefully it gets approved and you don’t need the NIW so this type of strategy is most often used for somebody from China or India where we’re not fully confident in the credentials for EB-1A so what you would do is you would file them both at the same time the EB-1A and the NIW and that preserves the right to extend H1B status beyond six years as long as you’re filing this before the end of the fifth year and then you would let them both play out. Hopefully the EB-1A would get approved but if the EB-1A was denied then at least you have the NIW and hopefully that gets approved and then you would get in that long line for EB-2. Your spouse can get work authorization and you could extend your H beyond six years, so the answer to the question is yes, you can file EB-1A and the NIW at the same time. It’s mostly a strategy for somebody from China or India but it is a strategy that we use.

Moderator (Question):
Thanks Brian and here’s a related question to the one you just answered. Is it recommended for a recommendation from a world expert when filing the green card through EB-1 and NIW categories? Is that something that would be needed?

Brian (Answer):
So the answer is that is it absolutely not needed. No. If you had only United States experts you could still show for EB-1A that you have received sustained national or international acclaim for EB-1B that you have international recognition as outstanding or for NIW that you know your work is of substantial merit and national importance, but you know I just used the word international a lot and for that reason well it’s not absolutely needed I always highly recommend that clients get letters from people outside of the United States it shows a broader you know impact of your research worldwide, if you have people from outside the U.S. and when we’re talking about these five independent letters as I indicated earlier it’s usually good to have three in the US and two outside or the other way around so you know it would be strongly strongly encouraged for you to get letters from people outside the United States because it shows that your research is really having a global impact and that makes your case stronger.

And to see on that same track, Brian you mentioned letters here’s another related question to making a stronger case. An audience member wants to know how can one work on making his stronger case if employed in the industry you mentioned letters what else can someone do?

Brian (Answer):
So again we talked about there are certain things that you can control and there’s others that you can and what you can control whether you’re an industry or academia is doing peer review and what you can control is publishing. Although in industry you know you might not be able to publish, what you can control is trying to get people to talk about your work. What you can control is applying for memberships and applying for awards if available. But you know if you’re in industry then you really want to think about controlling the timing of when you apply moreso than if you’re in academia. If you’re in academia, you’re going to continue publishing. You’re going to continue getting your papers cited etc., but if you take an industry job and you stop publishing then you may want to consider filing a little bit sooner than you otherwise would because you don’t want your publications to look stale. You know you don’t want to be filing in 2017 when your last publication was in 2013 because you went to industry and you stopped publishing. So you know when you go to industry you really want to think about you know when are you going to file and additionally I talked about the practical use of work. So if you’re in industry, you’re hopefully going to have more of an opportunity to get letters from other companies that are benefitting from your work like customers of the company that you’re working on or things along those lines and those types of letters become you know very important you know when you’re working in an industry setting and they’re likewise equally important in an academic setting. So you know again do as much as you can to build your credentials towards a green card file.

Moderator (Question):
Thank you sir and we have time for one more question from our audience. Here’s our final question. What is the success rate of obtaining a green card through industry versus academia?

Brian (Answer):
So the success rate depends on your credentials. It doesn’t really matter whether you’re in academia or whether you are in industry. You look at each person’s you know history, their publication records, their citation level, who’s using their work, their memberships, their you know awards whatever it may be. So what I tell everybody is take the career path that you want to take and as long as you and then let the immigration follow sometimes you can’t always do that you might for example if you don’t get the H1B lottery you might be forced to go back to an academia job. But you know do what you want to do without worrying about the chances for success because the chances for success depend more on your credentials than they do on the type of job that you’re taking and then once you decide what you want to do then you’ll figure out when what’s the best time for me to apply, what’s the best category for me to apply, and you know you just sort of everything falls into place. And then also have that plan B where if things don’t get approved, they don’t go the way you hope that they’re going to go, how are you going to move forward from there and you know never give up. Always keep fighting and you know hopefully you wind up getting the green card and then once you have the green card your entire career path is open to you.

Brian thank you so much and thank you for your informative presentation again for helping those that need this information. I’d also like to thank Labroots and I’d like to thank Getson and Schatz for making today’s educational webcast possible. Thank You audience members. Before we go, I want everyone to know that today’s webcast will be available for on-demand viewing through January. You’ll receive an email from Labroots so you know when the webcast will be available for replay, please share that announcement with your colleagues who may have missed today’s live event. That’s all for now and thanks for joining us hope to see you again soon. Bye.

Marco PignoneGetson & Schatz Webinar: Winning Your EB-1A NIW