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EB-2 NIW (National Interest Waiver) for Ph.D. Candidates, Ph.D. Students, or Applicants Without a Ph.D.

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We at North America Immigration Law Group (WeGreened.com) have successfully petitioned more than 2,600 EB-2 NIW (National Interest Waiver) cases for clients who were Ph.D. students, Ph.D. candidates, , or without a Ph.D. at the time we filed their cases.

In our extensive experience working with clients applying under the NIW (National Interest Waiver) category, we have had many clients express concerns that they do not qualify for EB-2 NIW (National Interest Waiver) because they have not yet obtained their Ph.D.. However, EB-2 NIW (National Interest Waiver) approval does not hinge on the beneficiary’s current position or employment, and NIW approval is possible for Ph.D. students and Ph.D. candidates . In fact, the EB-2 NIW (National Interest Waiver) is focused heavily on the beneficiary’s past achievements and a reasonable projection of their future benefit to the United States. By focusing our strategy on the past accomplishments and contributions to their field, we have successfully argued that our clients have influenced their field of endeavor despite their status as a Ph.D. student or Ph.D. candidate and that they will continue to do so in their future endeavor.

Meeting the Requirement for EB-2 (Second Preference of Employment-Based Immigration) — Showing Advanced Degree or Exceptional Ability

Although the petitioner first needs to meet the basic “entry” requirement for the second preference classification (EB-2) in order for NIW (National Interest Waiver) to then be considered, having a Ph.D. is NOT the only way to meet these basic EB-2 requirements. In fact, we have successfully filed thousands of successful NIW (National Interest Waiver) cases for clients who were Ph.D. students or Ph.D. candidates, , or otherwise without a Ph.D..

If you do not have a Ph.D., you still have some options you can utilize to meet the basic eligibility requirements for EB-2:

  1. For EB-2 Advanced Degree, you qualify if you:
    1. possess another advanced degree (degree above a bachelor’s), such as a master’s degree or MBBS/MD/BDS/DDS;
    2. possess the equivalent to an advanced degree (defined by the USCIS as a baccalaureate or bachelor’s degree plus 5 years of progressive work experience in the field).
  2. For EB-2 Exceptional Ability, you qualify if you satisfy any three of the criteria listed below:
    1. an official academic record showing that the foreign person has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
    2. evidence in the form of letters from current or former employers showing that the foreign person has at least 10 years of full-time experience in the occupation;
    3. a license to practice the profession or certification for a particular profession or occupation;
    4. evidence that the foreign person has commanded a salary or other remuneration for services that demonstrate exceptional ability;
    5. evidence of membership in a professional association; or
    6. evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

Maintaining Valid Visa Status During the Green Card Application Process Based on EB-2 NIW (National Interest Waiver)

One thing to keep in mind, however, is your visa status at the time of filing if you are a Ph.D. candidate or Ph.D. student. Most of the students are in the United States on an F-1 visa, which only permits non-immigrant intent. The conflict between non-immigrant and immigrant intent is a natural concern with filing for a green card directly from an F-1 status, but it is not true that you must obtain a visa permitting immigrant intent (such as H-1B/H-4, L-1/L-2) in order to apply for NIW (National Interest Waiver), nor is it true that filing an I-140 will invalidate your F-1 status. Your F-1 status will remain valid even after you file an I-140 or I-485 as long as you otherwise meet the F-1 status requirements. The approval or denial of the I-140 or I-485 will not affect your current I-20 or non-immigrant status, so you can continue to stay in the U.S. with your valid F-1 status regardless of the outcome of the I-140 or I-485 as long as you don’t otherwise violate your F-1 status.

After an I-140 is filed, the F-1 holder may have difficulty obtaining OPT or STEM OPT because the filing of an I-140 still is a demonstration of immigrant intent to a certain degree. As such, if you plan to initiate your green card application based on EB-2 NIW (National Interest Waiver) while in your Ph.D. program, but you do not wish to compromise your chance to obtain/extend your OPT, you should retain an immigration law firm that has abundant experience working with Ph.D. students and Ph.D. candidates filing their NIW (National Interest Waiver) cases. At North America Immigration Law Group, we will not only help you prepare your EB-2 petition, but we will advise you on how to avoid any potential visa issues that may arise during the process of your green card application.

Defining “Proposed Endeavor” for Ph.D. Students and Ph.D. Candidates

One important characteristic change in the NIW (National Interest Waiver) requirements under the “Matter of Dhanasar” precedent decision that is different from the previous regulatory statutes is that the USCIS notably broadened the consideration of a petitioner’s work from proposed “employment” to proposed “endeavor” in the United States. Under the Dhanasar framework, the foreign national needs to show that his/her specific “proposed endeavor” has substantial merit and national importance and that he/she is well positioned to advance that proposed endeavor. This “endeavor” should be the entire body of work that the applicant is engaged in rather than being restricted by his/her official employment or lack of employment. An important first step to a successful NIW (National Interest Waiver) petition for Ph.D. students and Ph.D. candidates would be to clearly define the “proposed endeavor.”

RFE (Request for Evidence) for Proposed Endeavor That Is Not Well-Defined

As part of a Ph.D. student or Ph.D. candidate’s life, he/she will most often be taking courses, teaching, and/or researching on a daily basis. Many foreign nationals currently studying to obtain their doctorate have plans to engage in nationally-important endeavors after they graduate from their program, with many students planning to either pursue academic research positions or engage in R&D positions in industry. Often, however, they do not have concrete plans for their endeavor, particularly if they are only in the first or second year of their Ph.D. program. However, in our experience, some immigration officers will issue RFEs (Requests for Evidence) in instances where the endeavor is not clearly defined in the petition because they feel they do not have sufficient evidence to understand exactly what the applicant proposes to do in the United States. At the time of application, therefore, it is important is to establish the foreign national’s post-graduation endeavor and provide strong evidence of this endeavor with the NIW (National Interest Waiver) petition.

We at North America Immigration Law Group have great experience assisting clients to clearly define their proposed endeavor and provide all the relevant information to avoid an RFE or even denial being issued for this reason. If you have received an RFE challenging your proposed endeavor as a Ph.D. student or Ph.D. candidate, feel free to contact our firm at law@wegreened.com.

Documentary Evidence to Support that the Proposed Endeavor has National Importance for Ph.D. Students and Ph.D. Candidates

In determining a well-defined proposed endeavor, it is also important to keep in mind that the proposed endeavor must have national importance to the U.S. Typically, in determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact. It is generally easy to demonstrate that most types of scientific research—both in academia and in industry—have benefits that are nationally important, as scientific advancement in a particular area can reasonably be tied to a specific national goal such as healthcare or security.

Evidence that can be submitted may include documentation showing that the proposed endeavor:

  1. Has national or even global implications within a particular field,
  2. Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area;
  3. Will broadly enhance societal welfare or provide cultural or artistic enrichment; and
  4. Impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.

For Ph.D. students and Ph.D. candidates, it can sometimes be difficult to demonstrate that their proposed endeavor is nationally important to the U.S., most often because it is difficult for Ph.D. students and Ph.D. candidates to receive a job offer to demonstrate a clear and defined future endeavor. Officers may sometimes even confuse a Ph.D. student’s or candidate’s proposed endeavor with their current engagement in their doctoral program and question whether working in a doctoral program can be considered nationally important.

However, EB-2 NIW (National Interest Waiver) is a self-petitioned category, and therefore does not require a job offer for eligibility; furthermore, a job offer is not the only way to establish the national importance of a proposed endeavor. If a proposed endeavor is well-defined, we can provide arguments of how the endeavor is also nationally important. Letters of recommendation, for example, are important supporting evidence for an NIW (National Interest Waiver) petition as they offer a comprehensive discussion of the foreign national’s work as a whole by an expert in the field and can include the expert’s opinion on the national importance of the foreign national’s proposed endeavor.

After assisting over 2,600 Ph.D. students and Ph.D. candidates to obtain their NIW (National Interest Waiver) approval, we have developed strategies to submit other documents to establish the specific endeavor in our clients’ petitions.

Examples of NIW (National Interest Waiver) Approvals for Ph.D. Candidates

In 2018 alone, we have gained more than 2,000 NIW (National Interest Waiver) approvals, and around 30-40% of these cases were filed when our clients were Ph.D. students or Ph.D. candidates. The following are a few examples of these approvals.

  • In one example, we obtained case approval for a doctoral student engaged in a Ph.D. program in Molecular Biology. This client was in her second year of her Ph.D. program, and considering her status as a doctoral candidate, our strategy relied on first demonstrating the multitude and significance of the contributions she had made in her work on cancer and cardiovascular diseases and then establishing a projection of these advancements continuing after obtaining her Ph.D. In addition to the client’s recommendation letters, 9 peer-reviewed publications, and 60 accumulated citations, we submitted evidence of the awards received by the client from U.S. governmental institutions and highlighted the importance of these awards. With this strong emphasis on our client’s past record of success as a foundation for her accomplishments, we were able to craft a strong and unique petition for our client, thereby obtaining EB-2 NIW (National Interest Waiver) approval.
  • In another case, we assisted a client who was a doctoral student in the field of theoretical and applied mechanics. Considering the client’s advanced degree situation and status as a graduate assistant, we focused on showing the significance of the client’s work, namely the multiple pieces of media recognition focused on the impact of his work on nanofluidics and nanotechnology. To put the significance of these contributions into context, we helped our client procure 4 letters of recommendation from experts in the field to confirm the impact of his developments. Additionally, we researched AAO (Administrative Appeal Office) rulings for similar cases and applied our findings to develop a unique and strong strategy for our client. By focusing on the influence of his past achievements, we were able to successfully obtain EB-2 NIW (National Interest Waiver) approval for our client almost a year before he earned his Ph.D.
  • In yet another instance, we worked with a client who was a fourth year Ph.D. candidate in Industrial Engineering at the time of case filing. To achieve success in this case, we submitted extensive documentation to demonstrate the highly significant contributions he had already made to the field of computer engineering, including at least five peer-reviewed articles. Moreover, we submitted evidence that his publications had been cited at least 40 times by researchers around the world, demonstrating the impact and influence of his contributions. To supplement this objective evidence, we drafted recommendation letters to explain how our client’s work was beneficial not only to his field, but to a variety of industries and sectors nationwide. By detailing his unique accomplishments and skill set, we argued that our client would serve the national interest to a substantially greater degree than others with a similar education and experience.
  • To cite just one more example, one prominent success story we have achieved was for a Ph.D. candidate in Applied Physics who only held an M.Sc. in Mechanical Engineering at the time of case filing. For this situation, we focused on our client’s unique background and emphasized how his past degree accomplishments influenced his current work and extensive achievements. In addition to discussing the client’s prominent publication and citation records, we offered the USCIS 6 expert recommendation letters with extensive details on how he was able to uniquely apply physical principles to solve problems inherent in the mechanics of fluids at nanoparticle levels. We also highlighted the national recognition of our client’s history of success and unique research and stipulated how this would enable him to make similar accomplishments following graduation. Although this client had only been working toward his Ph.D. for about a year, the USCIS officer agreed with our arguments and granted an approval.

In many cases, our clients only possess a Master’s degree at the time of filing. As the requirements for EB-2 state that one must possess any advanced degree above a Bachelor’s, a Master’s degree is sufficient to meet the basic requirements for EB-2. In these cases, providing documentary evidence of the client’s advanced degree in addition to documentary evidence of all past and projected future contributions and achievements is sufficient to meet the requirements of EB-2 NIW (National Interest Waiver). Since many Ph.D. students and Ph.D. candidates are still in the early stages of their career, it is not uncommon that they have fewer publications and citations than some of our more established clients. Therefore, drafting strong recommendation letters and a petition letter detailing the client’s contributions, widespread significance, and the national importance of the client’s proposed endeavor is a crucial factor to supporting the client’s objective evidence and obtaining EB-2 NIW (National Interest Waiver) success for many Ph.D. students and Ph.D candidates.

With these facts in mind, we encourage you to contact us about your EB-2 case even if you are a Ph.D. student or Ph.D. candidate. While not having a Ph.D. is certainly not a bar to NIW (National Interest Waiver) approval, a strong petition and evidence package are critical for success. We have had many NIW (National Interest Waiver) cases approved for clients without Ph.D. degrees and will let you know at the time of evaluation if you meet the minimum qualifications for EB-2 NIW (National Interest Waiver).

Please see our EB-2 NIW (National Interest Waiver) success stories for clients who were Ph.D. candidates at the time of case filing: