Many Ph.D. students and postdoctoral researchers were not able to obtain their H1B visa numbers for 2009. In this article, we will provide a few suggestions to enable you to work for companies without H1B.

We need to introduce to you an important concept prior to providing you with suggestions: For some Ph.D. students and post-doctoral research fellows, there is no visa backlog in the employment-based, 2nd preference immigrant visa category (EB2 including EB2NIW), including Korean, Hong Kong, and Taiwanese (and many other nationals) applicants. However, for those born in India and Mainland China, there is a long visa backlog to file an Application for Adjustment of Status (I485). In this article, we will call these applicants “visa-backlog-subject applicants.” The legal solutions for them are different from those who do not have a visa backlog, whom we will call “non-visa-backlog subject applicants”.

1. O1 application with the CIS Premium Processing Service may give qualified Ph.D. graduates and post-doctoral researchers a working visa to accept employment in a private company.

O1 is a temporary employment visa for aliens of extraordinary ability or achievement. An O-1 classification applies to an individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or an alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement.

O1 is available to qualified F1 students, including OPT holders, J1 visiting scholars (this includes holders who are subject to 2-year residence rule but have not received waiver), visa-backlog subject applicants, and non-visa-backlog subject applicants.

The qualifications of an O1 applicant may include the following:

a. Lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
b. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
c. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
d. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
e. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
f. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
g. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases; and
h. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

Successful O1 Cases: We helped two applicants receive O1 very recently to avoid the H1B visa number shortage. One was a postdoctoral researcher and the other was a Ph.D. graduate. A newly formed high-tech start-up company wanted to hire the Ph.D. graduate who had three published journal papers, one in-prep paper, 15 conference presentations, and two pending patent applications. This petition was approved by CIS in ONE (1) business day. The other O1 was approved in FIVE (5) business day. Both applicants are working for their respective private employers with six-figure salaries now.

2. To file an immigrant visa petition and concurrently file I485 / I765 / I131 applications to apply for employment authorization document (EAD) card.

For the non-visa-backlog-subject applicants, an EB2 National Interest Waiver, or an EB2 PERM Labor Certification application based I140 application will all give you an opportunity to file I485 / I765 / I131.

However, the time needed to get EAD card differs. EB2NIW can be a self-petition. Therefore, a qualified Ph.D. student or post-doctoral researcher can file it when they are still in school without a permanent job. After filing I140 / I485 / I765 / I131, it will take about 90 days for CIS to issue a EAD card. With the EAD card, the applicant may work with any U.S. employer in a job that is in the applicant’s field of specialty, and serves the national interest.

EB2 PERM Labor Certification application based I140 application will take a longer time because it is an employer-sponsored application. The petitioner (employer) is required to prove 6-month recruitment time in the labor market before submitting the Labor Certification application. And it will take time for the Department of Labor to adjudicate the application. The applicants may only file I140 / I485 / I765 / I131 after the Labor Certification Application is certified by DOL. Therefore, the minimum time required would be 9 months (6 months recruitment time + 3 months for adjudication) at the least.

For the visa-backlog-subject applicants, only EB1 category may allow the applicants to file I485 / I765 / I131 concurrently.

3. OPT and OPT extension.

For Ph.D. students, OPT is an option to work for a private company without H1B. OPT is not available to the majority of post-doctoral researchers because they may have used up the OPT, and come to the U.S. with visa cap exempt H1B or J1.

4. J1:

More and more private companies apply for J1 for new employees who need an employment authorization. J1 is easy to apply for, but it often attaches a 2-year foreign residence requirement. Therefore, very few Ph.D. students and post-doctoral researchers are willing to get this type of visa.

We hope this newsletter can provide you a few solutions for employment authorization when H1B visa number is not available. For more information, you can visit our website at http://www.sunlawfirm.com

For free case evaluation, please e-mail your updated resume and contact information to alicesun@earthlink.net. Subject: Visa Application.

Disclaimer: The above newsletter information is general information. They are NOT legal consultations for any specific case or legal issues.

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