How to apply for a greencard as a distinguished researcher (EB-1a/b), or an extraodinary person with national interested waiver (EB-2 NIW)

(Disclaimer: This is my personal understanding with some personal experience and experience from some friends. Presented here as additional information for friends. There is no guarantee or implication of gurantee on anything.)

There are many ways to apply for greencards in United States. In large there are two categories: family-based (you are a relative of a United States citizen) or employment-based (you are employed or potentially employed by a US institute, company, government agency and etc).

Employment-based (EB) green cards are divided into a few priorities. For most of the researchers/engineers who receive their advanced professional degree (e.g. Ph.D), they are easily eligible for at least EB2 (second category of employment-based greencards). The small subset of them who can convincingly demonstrate to be "distinguished", are qualified for EB1 (the category with highest priority), another small subset of them whose work can be considered as of national interests to US can apply EB2-NIW, which has the same priority of normal EB2 applications but with some convenient exceptions such as requirement of existing jobs and change of jobs. For details of these priorities, see Department of State's Operation of the Numerical Control Process.

This document summarizes the steps to apply for EB1 or EB2-NIW, assuming the reader an individual with experience on research (and writing academic papers) and is qualified for either of these two categories.

Full process of employment-based greencard application:

The full process of EB green card application is parallel with 4 processes: qualification (form 140), adjust of status(form 485), working authorization (form 765) and advanced pararol (form 131). The dependency of these processes are depicted by the following state diagrams:

Legend:

Notes:

• You can work without an H-1B visa when you get the EAD.
• You can travel outside US without getting a new visa when you are holding Advanced Parole (AP).
• Both EAD and AP are derivative of your 485 application. If the 485 application is declined for whatever reason, both EAD and AP become invalid.

Detailed steps:

Usually, an applicant with Ph.D degree, or experience professionals with master degress, can apply for either EB-1 or EB-2. There are a few steps in the applications for the I-140:

• Step 0: when you are working as a graduate student, or as a researcher, make sure you are doing great:
  • work hard and achieve some great research results
  • professional membership
  • professional connections
• Step 1: Understanding the basic concepts:
  • Which categories are you applying for?
  • What are the advantages and disadvantages?
  Both EB-1 and EB-2 NIW can change job within the application period of time (For EB-2 without NIW, job changes are only allowed 180 days after the submission of I-485 application). While they different in the handling process, priority and requirements: Priority:
  • The EB-1 class has the highest priority, usually does not need to wait for the backlog for quota. If there is no backlog, that means you can submit the I-140 application with I-485 with EAD and AP. EAD and AP are usually approved in 3 months and you can travel
  • The EB-2 NIW class has no advantage over EB-2 normal cases in terms of priority day for 485 applications and greencard quotas.
  • The EB-1 class has premium service which will approve/disapprove 140 in 2 weeks with additional fee (There is rumor that application via premium process is more likely to be rejected/RFE -- I don't see no concrete statistics to support the agreement though).
  • Though EB-2 normal class has premium services, EB-2 NIW class has no premium services.
  Requirement and evaluations:
  • The EB-1 class has highest requirement on the applicant's capacity while EB-2 NIW has less requirement on the applicant's capacity.
  • The evaluation of EB-1 class is more deterministic. The applicant has to meet 3 out of the 7 requirements listed in the I-140. So, it is relatively simpler to prove your case with fewer reference letters / evidence to support the requirements.
  • EB-2 NIW has additional requirement on the applicant's potential conribution: The I-140 lists 7 areas of national interests that the applicant must have potential to contribute significantly. The applicant has to demonstrate that if his/her applicantion is denied, the US national interests will be potentially damaged. The NIW requirement is more subjective, and usually needs more reference letters / evidence to support both requirements.
• Step 2: try to find a good lawyer to represent you. It is not easy -- usually immigration lawyers provide service to the whole process as a "package" and charge a lumpsum for the whole process, instead of by actual hours. This make it possible for lawyers to appear very responsible before you pay, and become less responsive after you pay the package. There are pro and con for having a lawyer to do the work: Pros:
  • A lawyer can give you the basic ideas, so it saves your time to go over all the forms and documents;
  • Lawyers usually have a lot of existing cases and templates, they can draft the reference letters for you and save some of your time.
  • Lawyers are more experience to deal with unexpected situations (such as RFE and etc)
  • if your case is not very strong, they might have some way to make the impression that you are stronger
  Cons: even with a reasonably good lawyer, don't expect they will do a very good job for you as they don't really understand what you work on. That leads to:
  • most of the lawyers hand the cases to assistants, some assistants do not work promptly -- quality control is not easy because references are only for lawyers themselves, the assistants' quality can change even the lawyer does not change
  • the draft might be very inaccurate as they don't know exactly what you are doning
  • many lawyers encourage applicants to max-out academic references (so they can pick the most useful ones to them), such style might not fit the academic taste well and might feel annoying
  • if the lawyer is hired by company to represent both of the applicant and his/her company, the lawyer has no motivation to do very good job in such cases
  The bottomline is: You are the single person that is responsible for your application -- make sure everything is right even it is prepared by a lawyer.
  There are a few steps to make this less risky:
  • try to find a few lawyers before settle down;
  • ask for references, and talk to their references. Be careful for the out-dated references -- some lawyers get less responsible after their business grow and they get more customers.
  • also talk to their assistants to see how responsible they are.
  • make the pricing clear: usually lawyers for 140 applications charge by packages. however, make sure what the package includes: does it include the government fees for applications (that's another ~1000$ for various form)? how many steps does the package cover (140 only, or 140 and 485)? what happen for exceptions (e.g. if you got an RFE in the steps covered, do you need to pay extra)?
  Personally, I ended up with not having a lawyer to submit my I-140 application (I did pay for the package and hired one, who made many typos in the draft letters and even my references suggested me not to work with him anymore. And I rewrote all the applications and reference letters). However, in later phase of my applications (RFE due to some USCIS mixups/errors), I got a very good lawyer (with good assistants) that I have been very happy with.
• Step 3: at least read and understand the most relevant forms: 140, 485, understand what the immigrant regulation expects the applicant to demonstrate. As you are taking the final responsibility of your applications, make sure you know the overall direction.
• Step 4: think about it as writing a paper: you want to demonstrate a case that "you are a distinguished researcher" or "you are an extraordinary individual and your work has potential to make huge impact to national interests", given what the regulations expect, how do you organize your arguement, supplement with your evidence to make the case clear?
  • Arguements: this is a letter to the immigrant officer, like a paper, lay out the argument and quote evidence. if you are applying for these two categories of greencard, you should be good enough to organize such a paper/letter.
  • Evidence: you should show as much evidence as possible. Some of the materials that might serve as evidence:
    • your diploma might show that you have strong professional preparation
    • your inrollment in top school, some professional association, some academic committee, might show that you are very competitive to your peers (based on a very selective enrollment rate or a high entrance-threshold)
    • your publications might show that your achievement is very competitive from your peers (publications in very selective arena)
    • references to your publications might show your impact to the community, and might possibly show your potential impact to the national interests (e.g. some works that have direct impact to the national interests refer to your work)
    • national/international awards (similarly, in very selective arena)
    • testimony from your peers might show that you are competitive in some area, or some of your work has huge potential to benefit the US national interests (My personal understanding is that: no broad statement, just make it right to the point) if it is long, make sure to itemize them -- as a paper, to allow the examiner to quickly identify the main contents.
    • the number and diversity of visitors visiting your research paper/documents (e.g. from google analytics) might show your works' impact to the world
    • the news report / blog report from well-known peers on your research work
• Step 5: Sketch the main letter, make sure that the logical arguements are all correct.
• Step 6: while working on your main letter, ask your peers for help on testimony.
  • emphasize on your work, not you: it is much easier and natural to ask someone who cites your publications/works to write a paragraph of letter to describe your work -- even he/she does not know you personally.
  • right communication channel, right time: make sure you write email at the right time. E.g. I tried a few times with different hours, it seems that writing at midnight is really a bad idea -- the email got through to the receipient, along with tons of emails sent overnight, and easily get skipped in the morning when the recepient goes through the tons of emails quickly.
• Step 7: now you are finishing your grand paper, collect all the evidences (maybe dozens of them) and make it a good presentation:
  • label each evidence well, check the reference numbers;
  • check for typos, grammatical errors
  • double-check for fatual accuracy
  • double-check for forms (you might want to ask a friend to double check for you, as you double-check an academic paper)
• Step 8: write a material checklist
• Step 9: staple all the materials, include checks for the fee, and all the forms, doublecheck everything with the checklist, put them into the envolope with checklist as the first page (The lawyer might help you do get part of 7/8/9 done. I strongly recommend that you personally double check everything and seal the envolop. it is not impossible that someone else mess up with another person's checklist or materials with your application -- i've seen things like that in graduate school applications).
• Step 10: send it out with trackable confirmation (for such important document, you might want to send as express mail); follow up to make sure that the mail arrive to the center; also make sure that the receipt is back in a month. Good luck.

The 485 part is relatively straight-forward paperworks. You can find lots of advice from Internet, or find a lawyer to do them. Again, you are the person that holds the final responsibility -- make sure you double-check everything before sending out (forms filled by lawyers, medical examiners and etc if allowed)