Postdocs and green cards

Postdoc: A postdoctoral scholar ("postdoc") is an individual holding a doctoral degree who is engaged in a temporary period of mentored research and/or scholarly training for the purpose of acquiring the professional skills needed to pursue a career path of his or her choosing. http://nationalpostdoc.org/index.php/policy-22/what-is-a-postdoc

This definition, from the National Postdoctoral Association, has important implications for you, the postdoc, as you consider your green card options. The most important factor, from a green card standpoint, is the “temporariness” of the position. According to the definition, a postdoc position is not a permanent one. For this reason, therefore, you are precluded from (that is, you are ineligible for) the following types of green cards:

-          Outstanding researcher or professor (EB-1B)

-         Advanced degree or exceptional ability alien, via labor certification (EB-2 PERM)

Both of these green cards require regular jobs.  The outstanding researcher or professor green card requires, among other things, either a tenure track teaching position or a permanent research position. The EB-2 PERM green card requires, among other things, a labor certification, showing that no ready, willing, qualified and available U.S. workers exist for the offered job. While ANYONE with an advanced degree or with exceptional ability (not just academics and researchers) might qualify for such a green card, it still nonetheless requires a permanent job.

Therefore, should you wish to gain a green card while you are a postdoc, you have only two options, and most likely only one of them is realistic.  However, the good thing is that neither of these green card options requires a permanent job, and in fact neither of them requires that you even have a job at all.

The first such green card is for aliens of extraordinary ability, 特殊才能的外籍者. However, this category expects that successful candidates are in that small percentage of persons who have risen to the very top of their field. When I discuss this option, I tell clients that they need to be at the level of a Yao Ming or a Lang Lang. While this option technically and legally can accommodate you in that it does not require a job at all, much less a permanent one, the high standard might make this option impractical.

For this reason, the second option—the national interest waiver (NIW, 国际利益豁免)—is your best chance for a green card while being a postdoc. The NIW is considered an EB-2 category green card. Normally, such green cards require a labor certification. However, the immigration laws of the United States provide a waiver of this labor certification, as well as a waiver of a job requirement, for those who can demonstrate that their work will benefit the national interest of the United States. From a policy standpoint, this provision for the NIW is saying that should your work meet the standards for an NIW, then the U.S. considers your getting a green card to outweigh the importance of protecting the U.S. workforce via a labor certification. In slang terms, with regard to the labor certification requirement, the U.S. government will “let it slide.”

Be aware, however, that the EB-2 nature of this green card could involve a period of waiting if you were born in China, India, Mexico or the Philippines. Right now, for example (that is, in June 2013), people born in China who filed their EB-2 green card petitions on or before July 15, 2008 are just now getting their green cards, meaning they had almost a five-year wait. http://www.travel.state.gov/visa/bulletin/bulletin_5953.html

That is, people with priority dates on or before July 15, 2008 only this month are now becoming "current."

If you wish to discuss the national interest waiver, I am happy to do so with you.

This material does not constitute legal advice.

csun@calvinsun.com, 610-296-3947