Ability to apply for EB1 NIW while currently on H4

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phdblues

Registered Users (C)
Hello,

My wife is currently on H4 visa. She has a Phd in Analytical Chemistry, has worked at two US universities as a Post Doc and has around 15+ publications and each has atleast 7-8 citations. She also has national and international awards.

After doing some research and talking to attorneys we have established that she qualifies for an EB1 NIW GC.

However our recent conversation with an attorney indicated that she can apply for a GC under this category while she is on her H4.

This was news to me as we thought applying for GC while on H4 is not possible. Can you throw some light on this as to whether this is possible!!

Thank you
 
The attorney is correct. Your wife is definitely eligible to apply as long as a visa number is available (more on that below). Moreover, H status is "dual intent", so unlike J or F visas, the holder can maintain their H status while their adjustment of status application is pending. H is a very good status for one to be in while applying for AOS because it doesn't put their non-immigrant status is jeopardy. (This is true whether H-1B or H-4).

Now - there is no such thing as EB-1 (NIW). There is EB-2 (NIW). If you are from India or China, then EB-2 is probably not available to you right now because there are no visa numbers available (priority dates are retrogressed). EB-1 is available (EB-1A: extraordinary ability or Eb-1B: outstanding researcher or professor). But Eb-1 is supposedly more difficult to attain because the applicant must demonstrate being among the top few in their field internationally.
 
Thank you for the clarification. So out of the two outlined

EB 1 A : Extraordinary Ability (EA) &
EB 1B : Outstanding Researcher/ Professor

given that my wife is on H4, does she qualify for the first one i.e. EB 1 Exatraordinary Ability. She currently has not prospective job offers in hand (if that matters).
 
EB1-OR needs employer sponsorship. So, EB1-EA is the only possibility for you wife. Alternatively, you could try EB2-NIW, which also does not require an employer sponsorship.

Good luck!
 
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