Since late last year when the Trump administration first announced its intention to eliminate the regulation that allows some H-4 visa holders to obtain a work permit, Farha and her husband Rajiv* have been nervous and stressed.
Farha and Rajiv came to the U.S. on student visas from their native India. Both of them earned doctoral degrees in physics. After graduation, Farha received a job offer to head the research department of a technology company. The company obtained an H-1B Visa for Specialty Occupations on her behalf.
Since Farha received a job offer before Rajiv, he obtained an H-4 Visa as her dependent spouse. He applied for an Employment Authorization Document (EAD)—a work permit—and quickly found a research job at a Silicon Valley firm.
When the Trump administration made its announcement about H-4 EADs, permanent residency became more urgent for the couple. If Rajiv found himself unable to work, he and Farha would have to reconsider building a life together in the U.S. That would mean that they might have to leave the U.S. and delay their plans for having kids and starting a family.
Farha’s employer didn’t want to lose her, so it jumped into action. The company contacted the Alcorn Immigration Law team to determine the best option for Farha to gain a green card for permanent residency.
Green Card Options
The Alcorn Immigration Law team laid out the options. Most H-1B visa holders are eligible to pursue EB-1, EB-2 or EB-3 green card categories. However, citizens of India and China face ridiculously long wait times for EB-2 and EB-3 green cards of more than a decade. A public policy institute recently estimated that individuals from India face a 151-year wait to transition from an EB-2 visa to a green card.
U.S. law limits how many immigrant visa numbers are available each year and to each country. That means even if your green card petition is approved, you won’t receive a green card until you receive an immigrant visa number.
Opting for a New Approach
The EB-1 green card category offers the shortest wait times for individuals from India and China. In addition to presenting an EB-1A Green Card for Aliens of Extraordinary Ability as an option, we presented another option that would help the company in the long run if successful: An EB-1B Green Card for Outstanding Professors and Researchers, which does not require the lengthy and complicated PERM (Program Electronic Review Management) labor certification process.
However, an EB-1B would require the for-profit technology company to request that the U.S. Citizenship and Immigration Services (USCIS) designate it as a qualifying research organization. Typically, only government agencies, government-affiliated research organizations, and universities qualify. We advised the company of the risks of this approach.
Given that the technology company employed many researchers from China and India, it chose to pursue the more challenging, long-term option. We made the case that the company deserved the qualifying research organization designation based on numerous patents and vast intellectual property. We showed Farha is an outstanding researcher based on her expertise, experience, and accomplishments.
Still, both Farha and Rajiv were nervous. They emailed us every week, asking for an update. They became particularly nervous when USCIS sent us a request for evidence (RFE) which has become increasingly common. However, we knew we could address the questions raised by USCIS.
Happy Ending All Around
Even with that request for additional documentation, USCIS approved the petition shortly after we filed it.
Now, Farha and Rajiv are safe. They have work permits and should receive their green cards within two years. What’s more, USCIS has designated the technology company as a qualifying research organization. That means the company can now file EB-1B green card petitions on behalf of international researchers it seeks to hire, as well as those it currently employs.
The Alcorn Immigration Law team takes pride in its creative thinking. We care about understanding the unique situation facing each of our clients. We tailor a strategy to help them meet their goals. Contact us if we can help you, an employee or a loved one. We can help whether an individual is inside or outside of the U.S.
* To maintain confidentiality, the name of the client has been changed, and details may have been omitted or slightly altered. Our success in a case does not predict nor guarantee the outcome in your legal matter. The result portrayed above was dependent on the facts of that case. Results will differ based on different facts.