Yes, a PhD student may be eligible for a green card under the EB-2 NIW (national interest waiver) category if the student satisfies both the criteria for EB-2 and NIW.

EB-2 Criteria

EB-2 is a category for an employment-based, second preference green card. To obtain an EB-2 based green card, you must be a member of the professions holding an advanced degree or its equivalent or must have exceptional ability. You need to satisfy either of the following occupational categories and requirements:

Advanced Degree

You must possess an advanced degree or its foreign equivalent. You can satisfy the advanced degree requirement by holding either a:

• U.S. master’s degree or higher or a foreign equivalent evaluated as such; or

• U.S. bachelor’s degree, or a foreign equivalent evaluated as such, plus 5 years progressive, post-degree work experience (USCIS considers this equivalent of a master’s degree).

Under an EB-2 category, the position you apply for must require an advanced degree. However, this requirement does not apply to an EB-2 NIW case as NIW waives the job offer requirement.

Exceptional Ability

You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” To qualify for this category, you must submit at least three of the evidence listed below:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;

• Letters from current or former employers documenting at least 10 years of full-time experience in your occupation;

• A license to practice your profession or certification for your profession or occupation;

• Evidence that you have commanded a salary or other payment for services that demonstrates your exceptional ability;

• Evidence of membership in a professional association(s); and

• Evidence of recognition for your achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

NIW Criteria

In principle, to apply for an EB-2 green card, you must obtain a job offer and a certified labor certification from the Department of Labor. However, you may request a waiver of these requirements through petitioning for a NIW.

That is, a petition for an EB-2 NIW green card does not require a job offer or certified labor certification. Because of this, you do not need a sponsorship from an employer for the EB-2 NIW green card petition. You can file the EB-2 NIW petition as a self-petitioner.

“Dhanasar Test”

To petition for NIW, you must establish that the waiver of the job offer requirement is in the national interest. And to be eligible for the NIW, you need to satisfy the following three requirements in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) (“Dhanasar test”):

• The petitioner’s proposed endeavor has both substantial merit and national importance;

• The petitioner is well positioned to advance the proposed endeavor; and

• On balance, it would be beneficial to the U.S. to waive the job offer and thus the permanent labor certification requirements.

How to satisfy the requirements of Dhanasar Test

To satisfy the Dhanasar Test’s first prong, you must demonstrate that your endeavor in the specific academic filed has substantial merit and national interest to the U.S. If the evidence demonstrates that your proposed endeavor has the significant potential to broadly enhance social welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.

As to the Dhanasar’s second prong, you should submit evidence that establish your past achievements. Additionally, you should also corroborate projections related to the proposed endeavor. You may be well-positioned to advance an endeavor even if you cannot demonstrate the proposed endeavor’s ultimate success. However, your claim must be substantiated or plausible to meet the burden of proof.

The last prong of the Dhanasar Test requires to demonstrate that granting the waiver outweighs the benefit of the labor certification requirement. The requirement is to ensure that the admission of foreign workers will not adversely affect U.S. workers’s job opportunities, wages, and working conditions. USCIS assesses whether your endeavor and you being well-positioned to advance that endeavor, taken together, provide benefits to the U.S. such that a waiver of the labor certification requirement outweighs the benefits gained through such requirement.

Conclusion

It is possible for a PhD student to obtain an EB-2 NIW green card. To do so, he/she must satisfy the required criteria. For a PhD student to satisfy the Dhanasar Test, it is important to build a strong academic track record. The student should actively involve in projects funded by government (i.e., NSF, NHI, AHRQ). He/she also should engage in publications and conference presentations. Creating a professional relationship with researchers in the field is also very important. Strong reference letters from the professionals could be critical for the NIW petition.

USCIS recognizes the importance of progress in STEM (science, technology, engineering, or mathematics) fields. It also recognizes the importance of the essential role of advanced STEM degree holders in fostering this progress. This is especially so in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.

Thus, a PhD student with an advanced STEM degree would be better positioned for the EB-2 NIW petition if the student is involved in work that is advancing such technologies or other STEM areas important to U.S. competitiveness or national security.

USCIS’s website on EB-2 green card is here.

Disclaimers