Paths to Adjustment of Status for Scientists in the United States

At Pelton + Balducci, we know that immigration status in the U.S. opens doors to people from all over the world. This is especially true for scientists, and it’s vital to understand the best ways for scientists to remain in the United States while completing their work.

In this blog, our Louisiana immigration attorneys focus on paths to “adjustment of status,” i.e., on how to apply for permanent residency from within the United States. This blog provides a generalized overview of immigration law in this area to orient you on the pathways to adjustment of status available to scientists currently in nonimmigrant status. Each person’s case is different and requires and individualized assessment before making decisions on what status to pursue and/or the path for pursuing that status. 

“Adjustment of Status” refers to applying for a green card within the United States. The application is completed on Form I-485.

 It is different from a “change of status,” in which you go from one temporary status to another.

 The following are general requirements for adjustment of status under 245(a) in the employment-based green card application context:

A beneficiary will file the green card application (I-485) if there’s a green card available – or if the United States Customs & Immigration Services (USCIS allows you to apply for adjustment of status, because the agency anticipates that green cards will be imminently available. 

This is important, because it authorizes your presence in the US, which means that if your underlying status lapses, you are still authorized to be in the U.S.

When a green card application (application for adjustment of status) may be filed depends on the availability of the green card as stated in the Visa Bulletin, which can be found on the USCIS website.

There are a few things to pay attention to when determining whether your green card is available.

There are some important elements to consider while filing your adjustment of status application.

For one, it is vital that you maintain your nonimmigrant status through at least the time that your file your adjustment of status application.

This means different things for people with different types of visas.

During this time, you have to get your petition filed and wait for eligibility to apply for permanent residency. 

Of course, for those who do not have J-Visas subject to 212e home residency requirement, you could also change to another nonimmigrant status, if that’s an option.

Optimally, your underlying status would remain through the adjudication of your green card application.

Navigating the U.S. immigration landscape can be complex, especially for scientists looking to contribute their expertise while securing a future in the country. Let’s take a look at the various visa options available to scientists, from temporary avenues like the J-1 and H-1B to paths leading to permanent residency. Understanding these options is the first step in charting a successful journey in the U.S. 

J-1s are classified as “Exchange Visitors” (EVs). The State Department notes that “the program has served as a valuable and important diplomatic tool of U.S. foreign policy. Its mission – to increase mutual understanding between Americans and people of other countries – remains vital to U.S. national security and building people-to-people connections around the world.”

 Therefore, it imposes a 2-year home residency requirement on certain J-1 EVs. 

 Until the EV satisfies the two-year home residency requirement, the following restrictions apply:

• They cannot change to most types of other nonimmigrant status (“Change of status” refers to changing nonimmigrant status within the US, as opposed to applying for a visa to acquire the new status)
• They are also ineligible for H, L, or permanent resident status.

 In the absence of a waiver of the two-year home residency requirement, there are very few exceptions to these restrictions on changing status (e.g., “U visas”, asylum).

Waivers of the two-year home residency requirement are available. The following waivers are generally available to EVs subject to INA § 212(e):

• No objection letter: For this type of waiver, the EV completes an application and requests a letter of “no objection” from the country of citizenship or last residence. 
  • Requires cooperation from the consulate
  • Consulates have different conditions
  • In practice, not available where there has been USG funding for the program 

• Fear of Persecution: This waiver requires the J nonimmigrant to demonstrate that they “would be subject to persecution on account of race, religion, or political opinion”. While similar to the asylum requirements, there are important differences. The standard of proof required differs between asylum and the waiver. For asylum, the applicant must demonstrate a “well-founded fear of persecution”. However, for the waiver, it is required to show that the person “would be subject to persecution”. Thus, the persecution waiver imposes a higher standard than asylum law.
  Furthermore, asylum law provides additional grounds for eligibility, including nationality and membership in a particular social group, which are not considered in the persecution waiver for the two-year home residency requirement.
  Finally, an approved asylum application provides asylee status and employment authorization, while the persecution waiver does not by itself provide status. Instead, it merely removes the obstacles imposed by the two-year home residency requirement to acquiring a new type of status.

• Exceptional Hardship: The exceptional hardship requires showing that J nonimmigrant’s U.S. citizen or lawful permanent resident spouse or child would suffer “exceptional hardship” if the two-year home residency is required. It’s important to note that any hardship faced by the J visa holder does not count towards this waiver, although arguments can be made that the hardship to the J nonimmigrant contributes to the hardship of the spouse or child.
  The hardship in question must be one that would occur regardless of whether the spouse or child stays in the U.S. or accompanies the J-1 holder abroad for the two-year requirement. Further, the hardship must be “exceptional”. Simple professional or economic disadvantage on its own will not be sufficient to make this showing. Rather, USCIS and the State Department are looking for hardship in the nature of a medical or financial emergency.

 If the waiver is granted, you can no longer re-enter the U.S. on J-1 visa.

H-1Bs are for nonimmigrants (i.e., temporary visitors) in the United States to work in so-called “specialty occupations”.  “Specialty occupation” are occupations that require-

• (A) theoretical and practical application of a body of highly specialized knowledge, and

• (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

H-1B status is infamous for the H-1B “cap” and “lottery”. Only 65,000 H-1Bs are allotted annually (plus and additional 20,000 visas for individuals who have a master’s or higher-level degree from a U.S. educational institution). 

 H-1Bs require that an employer  file a petition on the employee’s behalf. Certain employers are exempt from the H-1B cap by law. These include:

• Institutions of higher education,
• Nonprofit entities that have an academic affiliation or relationship with institutions of higher education,
• Nonprofit research organizations
• Governmental research organizations

The maximum length of H-1B status is generally two consecutive 3-year increments (for a total of 6 years). However, this may be extended in cases where

• 365 days or more have passed after filing of I-140 immigrant petition or an application for a labor certification or
• An I-140 petition has been approved, but no visa number available
  • Note that premium processing can give some control over ability to qualify for H-1B extension, if an individual is coming up on their 6 years and has yet to file the I-140. So you can accelerate adjudication in order to satisfy this basis to get the H-1B extension.
    • EB-1A (15 calendar days)
    • EB-1B (15 calendar days)
    • (EB-1C) (45 calendar days)
    • EB-2 professionals with advanced degrees (and individuals with exceptional ability in the sciences, arts, or business) (15 calendar days)
    • EB-2 NIW (45 calendar days)
• This is designed to allow those in “oversubscribed” preference categories to continue in H-1B status in the US until a visa becomes available

**Bonus: if you have approved I-140 petition or 365 days or more have passed after filing of I-140 immigrant petition or an application for a labor certification, your H-4 dependent will be able to apply for employment authorization.

STEM OPT lasts for a maximum of 24 months. Unlike in the H-1B context, there is no “cap gap” extension.

So if you choose to go directly from OPT to adjustment of status, you must be eligible to file for adjustment and USCIS must receive your application before your 60-day grace period is over.

Persons of extraordinary ability in the sciences, arts, education, business, or athletics may self-petition to enter the United States permanently to continue working in their area of extraordinary ability.

 Must demonstrate “sustained national or international acclaim” and “recognized achievements in your field of expertise”

 You do so by showing: (1) that you have received a major internationally recognized award, similar to a Nobel Prize; or, more commonly, (2) that you meet at least 3 of the 10 requirements listed below and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field.

1. Have you received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor?
2. Are you, or have you been, a member of an association that requires outstanding achievements of its members as judged by recognized national or international experts?
3. Is there published material in professional or major trade publications or major media about you that relates to your work in the field?
4. Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
5. Have you made an original scientific, scholarly, or business-related contribution to the field that is of major significance?
6. Have you authored any scholarly articles in professional journals or other major media?
7. Has your work been displayed at an artistic exhibition or showcase?
8. Have you played a leading or critical role for an organization with a distinguished reputation?
9. Have you commanded a high salary or other remuneration for your services in comparison to others in your field?
10. Have you enjoyed commercial successes in the performing arts?

Persons of extraordinary ability in the sciences, arts, education, business, or athletics may self-petition to enter the United States permanently to continue working in their area of extraordinary ability.

 Must demonstrate “sustained national or international acclaim” and “recognized achievements in your field of expertise”

 You do so by showing: (1) that you have received a major internationally recognized award, similar to a Nobel Prize; or, more commonly, (2) that you meet at least 3 of the 10 requirements listed below and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field.

1. Have you received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor?
2. Are you, or have you been, a member of an association that requires outstanding achievements of its members as judged by recognized national or international experts?
3. Is there published material in professional or major trade publications or major media about you that relates to your work in the field?
4. Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
5. Have you made an original scientific, scholarly, or business-related contribution to the field that is of major significance?
6. Have you authored any scholarly articles in professional journals or other major media?
7. Has your work been displayed at an artistic exhibition or showcase?
8. Have you played a leading or critical role for an organization with a distinguished reputation?
9. Have you commanded a high salary or other remuneration for your services in comparison to others in your field?
10. Have you enjoyed commercial successes in the performing arts?

The EB-2 classification is divided into two sub-categories: 

1. professionals with advanced degrees (or equivalent) and 
2. individuals with exceptional ability in the sciences, arts, or business.

My understanding is that everyone in this audience has or will have an advanced degree, so I won’t discuss proving exceptional ability.

Not only must you show that you have the advanced degree, but you must also show that the position requires the advanced degree. The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree.

 EB-2 also requires either

• A job offer from an employer and a labor certification, OR
• Demonstration that your work is in the national interest (national interest waiver or NIW).

The labor certification is a survey of the labor market conducted by the employer that demonstrates that there are not enough US workers available to accept the job in the area of employment. 

Demonstrating that your work is in the national interest will eliminate the need for a job offer and a labor certification. You must show:

• That the endeavor has substantial merit and national importance
  • The focus is on what the worker will be doing, not merely on the type of occupation
• That the self-petitioner is well-positioned to advance the endeavor and
  • Analysis of workers credentials, history, prior contributions
• That it’s beneficial to the US to waive the job offer and labor certification requirements, eg., because of
  • The impracticality of a labor certification application;
  • The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available;[59] and
  • The national interest in the person’s contributions is sufficiently urgent,[60] such as U.S. competitiveness in STEM fields. 

O-1 is an option if there are timing issues in your pursuit of permanent residency, or in the case of J-1s, you are unable to get a waiver of 212e, but need to remain in the U.S. It’s comes with high requirements, that are comparable to requirements for EB-1A.

 It’s issued initially for a period of 3 years, then renewable indefinitely in 1-year increments.

Dependents are ineligible to work.

 O-1, like H-1B, requires employer petitioner. But this is a nonimmigrant petition, so it’s filed on an I-129 and there is no labor certification required.

 The petitioner must establish that the beneficiary:

• Has extraordinary ability in the sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim;
• Has achievements that have been recognized in the field through extensive documentation; and
• Is coming to continue work in the area of extraordinary ability (but not necessarily that the particular duties to be performed require someone of such extraordinary ability).

Must demonstrate extraordinary ability either through receipt of a major internationally recognized award or at least three of the following types of evidence:

• Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of the beneficiary’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;
• Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary’s work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;
• Evidence of the beneficiary’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;
• Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field;
• Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional journals, or other major media;
• Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
• Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence.[20]

If a category is not applicable to your field, you can use comparable evidence.

USCIS Policy Manual states, “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.”

Substantial Merit and National Importance:

Focus on “critical and emerging technologies”[65] or other STEM areas “important to U.S. competitiveness”[66] or “national security”. To identify a critical and emerging technology field, officers consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists. Note that these lists have a penchant towards national security and maintaining ahead of competitors and adversaries; however, one should be able to argue in many instances that fields in biology, health, and public health advance national security.

Teaching may not satisfy the NIW criteria: Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. On the other hand, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

Whether the self-petitioner is well-positioned to advance the endeavor. USCIS considers the individual’s education or skillset

USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.[72]

Beneficial to the US to waive the job offer and labor certification requirements

• The person possesses an advanced STEM degree, particularly a Ph.D.;
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The person is well positioned to advance the proposed STEM endeavor of national importance.

If you’re a scientist navigating the complexities of U.S. immigration, the journey to secure your place in the United States is intricate but vital. At Pelton + Balducci, we understand the unique challenges you face and the critical importance of each step towards achieving your American dream.

Our experienced Louisiana immigration attorneys are dedicated to guiding scientists like you through the maze of adjustment of status processes. From assessing your eligibility to preparing your application and addressing any hurdles along the way, our team stands ready to assist you.

Don’t let the complexities of immigration law deter your scientific endeavors. Contact Pelton + Balducci today to schedule your consultation.