The Bioscience Researcher: "How It Works"
In this case study, we will discuss the immigration process experience of a European Bioscience Researcher who would like to come to the U.S. to accept a position with a large U.S. pharmaceutical and healthcare company. This individual has been awarded the equivalent of a U.S. Doctoral degree, a Ph.D., in Biochemistry from a respected university in her home country of Germany.
The Bioscience Researcher has also had a distinguished 12-year research career with a large European pharmaceutical and healthcare multinational (which is similar to the U.S. company offering the job, but has no direct corporate relationship with the U.S. company beyond that of competitors in the marketplace). The Bioscience Researcher's career has included many achievements such as international patents, extensive publications, awards, press coverage and the respect of peers in the field internationally.
The U.S. company makes its offer to the Bioscience Researcher, but finds that the annual cap on H-1B nonimmigrant visas has been reached and that therefore no H-1Bs will be available until the next federal fiscal year. The H-1B is normally the most appropriate visa for any professional position where the foreign national is required to have a Baccalaureate or higher degree (or the equivalent), and therefore the visa of first resort. However, there is often more than one nonimmigrant visa which may be appropriate for a given situation. The U.S. company and the Bioscience Researcher consult the company's immigration attorney for other options.
After a review of the Bioscience Researcher's C.V., the company's immigration attorney determines that the foreign national here is a good candidate for an O-1 nonimmigrant visa - a visa which can be used for an individual of extraordinary ability in the arts, sciences, education, business or athletics who has demonstrated sustained national or international acclaim. Eligibility for this visa is demonstrated by showing that the foreign national meets at least three out of eight criteria and by submitting letters from others in the same field attesting to the individual's achievements and level of acclaim.
Here, the patents can be used to demonstrate that the Bioscience Researcher meets both the criteria concerning original and unique contributions to the field and the criteria concerning the performance of a lead or critical role for an organization with a distinguished reputation (the current European employer). Likewise, the extensive journal publications can be used both to demonstrate the original and unique contributions to the field criteria and a separate criteria relating specifically to scholarly publications.
While the above information covers the required three criteria, the company's immigration lawyer knows that it is always wiser to argue - if possible - that the foreign national meets more than just the minimum three criteria. Here, the press coverage can demonstrate compliance with the criteria concerning publications about the foreign national in major media, while the awards can demonstrate compliance with the criteria concerning national or international awards.
The Bioscience Researcher's good standing among peers translates to letters confirming elements of the foreign national's career and attesting to the extraordinary nature of her skills. With all of this information, and with the close collaboration of the Bioscience Researcher in explaining the technical details of her niche and in assembling the required support letters, the immigration attorney is able to create a viable O-1 nonimmigrant visa application which is approved by CIS.
After the Bioscience Researcher applies for and receives a visa stamp from a U.S. consulate in Germany, she comes to the U.S. and begins work for the U.S. company. After a six-month probationary period mandated by the U.S. company's corporate policy, the company decides that it is very satisfied with her work and wishes to sponsor the Bioscience Researcher for permanent residence. Again, the company consults its immigration lawyer.
The immigration attorney determines that the most advantageous way to seek permanent residence is an Outstanding Researcher Petition. The position itself is appropriate for such a petition because the U.S. company has an established research division with a demonstrated record of well-documented success in the field of pharmaceutical development.
Moreover, the Bioscience Researcher qualifies for such a petition based upon the fact that her background meets certain requirements and "tests" - as with several other nonimmigrant and immigrant categories, the law provides a list of tests and provides that the foreign national must meet a certain number of tests from the list in order to qualify for that particular nonimmigrant or immigrant category. Some of these requirements and tests, but not all, are very similar to those for the O-1 visa for which the Bioscience Researcher has already been approved.
For instance, the Outstanding Researcher petition carries the requirement that the Bioscience Researcher demonstrate international renown in his or her field. In addition, several of the specific tests are similar to those for the O-1: Receipt of major prizes or awards for outstanding achievement, membership in associations which require outstanding achievements of potential members as a prerequisite to membership, published material in professional publications or major media about the foreign national's work, and published books or articles by the foreign national about his or her work in the academic field are all criteria or "tests" which are similar for both the O-1 and the Outstanding Researcher Petitions.
However, not all of the requirements here are similar to those for the O-1 nonimmigrant visa. For the Outstanding Researcher petition, the Bioscience Researcher must demonstrate at last three years of teaching or research experience in the field. Included among the "Tests" which the Bioscience Researcher is permitted to meet are submission of evidence of original scientific research and submission of evidence of the foreign national's participation as a judge of the work of others (including peer review for journals or academic competitions). While the former achievement might be argued under the "original and unique contributions to the field" and "performance of a lead or critical role for an organization with a distinguished reputation" O-1 criteria, and both of these would arguably fit under the catch-all "Other Evidence" criteria, neither of these Outstanding Researcher tests specifically included among the criteria for the O-1.
A check of Immigrant Visa availability reveals that the First Employment-Based preference category is backlogged in the "general" classification - the one in which individuals born in Germany would fall under. Therefore, the I-140 Immigrant Visa Petition which contains the request for classification as an Outstanding Researcher is filed alone. The I-485 Application to Adjust Status to Permanent Residence cannot be filed until the priority date in this preference category becomes current in the general classification.
After the I-140 Outstanding Researcher petition has been pending for five months, the priority date becomes current and the company's immigration lawyer files the I-485 Application to Adjust Status long with applications for an Employment Authorization Document and Advance Parole. The Bioscience Researcher will need the Advance Parole to travel once the I-485 is on file without being considered by CIS as having abandoned the I-485, as she is not on an H-1B or L-1 visa - the only two nonimmigrant visas which permit their holders to travel abroad and back without abandoning an Adjustment of Status case absent Advance Parole.
The Bioscience Researcher completes fingerprinting per the instructions on the I-485 receipt notice, and about two to three months after the I-485 was filed receives the Employment Authorization Document and the Advance Parole. The I-140 Outstanding Researcher petition is approved ten months after filing - normal for the CIS Service Center where it was filed at this point in time.
About twenty months from the time the I-485 was filed, the company's immigration lawyer receives a notice for the Bioscience Researcher to appear for an interview at her local CIS District Office about two months later. The timing of CIS' action on the I-485 case is normal for the CIS Service Center where it was filed.
It is unusual for an interview to be scheduled in an employment-based case, but not necessarily problematic. While interviews are sometimes scheduled where some problem exists - a perceived period of unauthorized employment or some other issue in the foreign national's past which would normally present some problem for adjustment purposes - sometimes employment-based cases are merely selected for interview for quality control purposes. The Bioscience Researcher appears for the interview, and no issues or concerns are raised by the interviewing officer. A stamp is placed in the Bioscience Researcher's passport indicating that she has been approved for U.S. permanent residence.
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