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

We at Liu & Associates, P.C. (Liu & Associates, P.C.) 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 had no Ph.D. when we filed their cases.

In our extensive work with clients applying under the NIW (National Interest Waiver) category, many have expressed concern that they do not qualify for EB-2 NIW (National Interest Waiver) because they have not yet obtained a Ph.D. Approval does not, however, hinge on the beneficiary’s current position or employment, and Ph.D. students and Ph.D. candidates can qualify. The EB-2 NIW (National Interest Waiver) focuses heavily on the beneficiary’s past achievements and on a reasonable projection of future benefit to the United States. By centering our strategy on past accomplishments and contributions to the field, we have argued successfully that clients have influenced their field of endeavor despite being Ph.D. students or Ph.D. candidates, 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

The petitioner must first meet the basic “entry” requirement for the second preference classification (EB-2) before an NIW (National Interest Waiver) can be considered, but having a Ph.D. is NOT the only way to satisfy those basic EB-2 requirements. We have in fact filed thousands of successful NIW (National Interest Waiver) cases for clients who were Ph.D. students, Ph.D. candidates, or otherwise without a Ph.D.

If you do not have a Ph.D., you still have options for meeting the basic eligibility requirements for EB-2:

1. For EB-2 Advanced Degree, you qualify if you:
   1. hold another advanced degree (a degree above a bachelor’s), such as a master’s degree or MBBS/MD/BDS/DDS;
   2. hold the equivalent of an advanced degree (which the USCIS defines 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 holds 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. 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 or certification to practice a particular profession or occupation;
   4. evidence that the foreign person has commanded a salary or other remuneration for services demonstrating exceptional ability;
   5. evidence of membership in a professional association; or
   6. evidence of recognition by peers, governmental entities, or professional or business organizations for achievements and significant contributions to the industry or field.

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

If you are a Ph.D. candidate or Ph.D. student, keep your visa status at the time of filing in mind. Most such students are in the United States on an F-1 visa, which permits only non-immigrant intent. The conflict between non-immigrant and immigrant intent is a natural concern when filing for a green card directly from F-1 status, but you need not obtain a visa that permits immigrant intent (such as H-1B/H-4 or L-1/L-2) in order to apply for an NIW (National Interest Waiver), and filing an I-140 will not invalidate your F-1 status. Your F-1 status remains valid even after you file an I-140 or I-485, as long as you otherwise meet the F-1 status requirements. Approval or denial of the I-140 or I-485 will not affect your current I-20 or non-immigrant status, so you may continue to stay in the U.S. in valid F-1 status regardless of the outcome, provided you do not otherwise violate that status.

After an I-140 is filed, the F-1 holder may have difficulty obtaining OPT or STEM OPT, because filing an I-140 still demonstrates immigrant intent to a certain degree. If you plan to begin a green card application based on EB-2 NIW (National Interest Waiver) during your Ph.D. program but do not want to compromise your chance to obtain or extend OPT, retain an immigration law firm with abundant experience helping Ph.D. students and Ph.D. candidates file NIW (National Interest Waiver) cases. At Liu & Associates, P.C., we will help you prepare your EB-2 petition and will also advise you on how to avoid potential visa issues that may arise during the green card process.

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

One important change in the NIW (National Interest Waiver) requirements under the “Matter of Dhanasar” precedent decision, as compared with the previous regulatory statutes, is that the USCIS broadened its consideration of a petitioner’s work from proposed “employment” to the proposed “endeavor” in the United States. Under the Dhanasar framework, the foreign national must show that his or her specific “proposed endeavor” has substantial merit and national importance, and that he or she is well positioned to advance that proposed endeavor. The “endeavor” is the applicant’s entire body of work rather than something restricted by official employment or the lack of it. An important first step toward a successful NIW (National Interest Waiver) petition for Ph.D. students and Ph.D. candidates is therefore to define the “proposed endeavor” clearly.

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

As part of a Ph.D. student’s or Ph.D. candidate’s life, he or she will most often spend each day taking courses, teaching, and/or researching. Many foreign nationals now studying for a doctorate plan nationally important endeavors after graduation, with many intending to pursue academic research positions or R&D positions in industry. Often, however, they have no concrete plans for the endeavor, particularly in the first or second year of a Ph.D. program. In our experience, some immigration officers issue RFEs (Requests for Evidence) where the petition does not clearly define the endeavor, because they feel they lack sufficient evidence to understand exactly what the applicant proposes to do in the United States. At the time of application, therefore, it is important to establish the foreign national’s post-graduation endeavor and to provide strong evidence of it in the NIW (National Interest Waiver) petition.

We at Liu & Associates, P.C. have great experience helping clients define their proposed endeavor clearly and provide all the relevant information to avoid an RFE, or even a denial, on this ground. If you have received an RFE challenging your proposed endeavor as a Ph.D. student or Ph.D. candidate, feel free to send us your resume, your original petition letter, and the RFE letter by submitting a free evaluation request online. Please click here.

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 remember that the endeavor must have national importance to the U.S. Typically, USCIS assesses whether a proposed endeavor has national importance by considering its potential prospective impact. It is generally easy to demonstrate that most types of scientific research—in academia and in industry alike—have nationally important benefits, because scientific advancement in a particular area can reasonably be tied to a specific national goal such as healthcare or security.

Documentation that may be submitted can show that the proposed endeavor:

1. Has national or even global implications in a particular field,
2. Has significant potential to employ U.S. workers, or 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. Affects a matter that a government entity has described as nationally important, or that is the subject of national initiatives.

For Ph.D. students and Ph.D. candidates, it can sometimes be difficult to show that the proposed endeavor is nationally important to the U.S., most often because these applicants find it hard to obtain a job offer demonstrating a clear and defined future endeavor. Officers may even confuse a Ph.D. student’s or candidate’s proposed endeavor with the current doctoral program and question whether work in a doctoral program can be considered nationally important.

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

Having assisted more than 2,600 Ph.D. students and Ph.D. candidates in obtaining NIW (National Interest Waiver) approval, we have developed strategies for submitting other documents that establish the specific endeavor in our clients’ petitions.

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

In 2018 alone, we obtained more than 2,000 NIW (National Interest Waiver) approvals, and around 30-40% of those cases were filed while our clients were Ph.D. students or Ph.D. candidates. A few examples of those approvals follow.

• In one example, we obtained case approval for a doctoral student in a Ph.D. program in Molecular Biology. She was in the second year of her Ph.D. program, so our strategy was first to show the number and significance of the contributions she had made to work on cancer and cardiovascular diseases, and then to establish that these advances would continue after she obtained 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 she had received from U.S. governmental institutions and highlighted the importance of those awards. Building on our client’s strong past record of success, we crafted a strong and unique petition and obtained 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. Given the client’s advanced degree situation and status as a graduate assistant, we focused on showing the significance of his work—namely the multiple pieces of media recognition of the impact of his work on nanofluidics and nanotechnology. To put the significance of those contributions into context, we helped our client procure 4 letters of recommendation from experts in the field confirming the impact of his developments. We also researched AAO (Administrative Appeal Office) rulings in similar cases and applied our findings to develop a unique and strong strategy. By focusing on the influence of his past achievements, we obtained 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. 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. We also submitted evidence that researchers around the world had cited his publications at least 40 times, demonstrating the impact and influence of his contributions. To supplement this objective evidence, we drafted recommendation letters explaining how our client’s work benefited not only his field but 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, we achieved a prominent success story for a Ph.D. candidate in Applied Physics who held only an M.Sc. in Mechanical Engineering at the time of case filing. We focused on the 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 that detailed how he was able to apply physical principles in unique ways 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 explained how this would enable him to make similar accomplishments after graduation. Although this client had been working toward his Ph.D. for only about a year, the USCIS officer agreed with our arguments and granted an approval.

In many cases, our clients possess only a Master’s degree at the time of filing. Because EB-2 requires an advanced degree above a Bachelor’s, a Master’s degree is sufficient to meet the basic EB-2 requirements. In such cases, documentary evidence of the client’s advanced degree, together with documentary evidence of all past and projected future contributions and achievements, is sufficient to meet the requirements of EB-2 NIW (National Interest Waiver). Because many Ph.D. students and Ph.D. candidates are still early in their careers, they not uncommonly have fewer publications and citations than some of our more established clients. Drafting strong recommendation letters and a petition letter that details the client’s contributions, their widespread significance, and the national importance of the client’s proposed endeavor is therefore a crucial factor in 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. Not having a Ph.D. is certainly not a bar to NIW (National Interest Waiver) approval, but a strong petition and evidence package are critical to success. We have had many NIW (National Interest Waiver) cases approved for clients without Ph.D. degrees, and we 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 when their cases were filed:

• EB2 NIW Petition Approved within 6 Months for PhD candidate in the Field of Chemical Physics Thanks to Customized Petition Letter
• EB2 NIW Approved in Less Than 3 Months for an Iranian PhD Candidate and Research/Teaching Assistant in the Field of Computer Science
• Comprehensive Petition Led to EB2 NIW Approval for an Iranian PhD Candidate and Research Assistant in the Field of Industrial Engineering
• PhD Candidate and Researcher from Ethiopia in the field of Epidemiology Received EB2 NIW Approval by Presenting a Customized Petition
• EB2 NIW Approval for Iranian PhD Student and Graduate Research Assistant in the field of Industrial and Systems Engineering
• EB2 NIW Petition Approved for PhD Candidate and Researcher from China in the Field of Epidemiology
• Customized EB2 NIW Petition Approved for Research Assistant from Iran in the Field of Operations Management
• EB2 NIW Petition Approved for Graduate Research Assistant from Iran in the Field of Electrical Engineering