Thoughts on Green Card application via EB-2NIW please

[ConBran]

Hi,

Hopefully I can get some good advice about applying for a Green Card through self-petition.

Original my wife and I came to the US a little over 5 years ago on my wife's J1 visa (I as a J2 with EAD) and we are now both on our own H1-B applications. Unfortunately, neither of our employers can/will sponsor for Green Card, so we need to self petition and we are hoping that at least one of us will qualify for EB-2 NIW.

My wife is a cancer research scientist with a PhD obtained from the UK and over 5 years experience here in the US. She has several papers published, a few with first author, and has given talks and several large cancer research conferences over the past few years.

I myself have an MSc in computer science and am currently working as a Senior Delphi Applications Developer for a software company here.

Would either of these be sufficient to apply for a Green Card via EB-2 NIW? I don't think my wife quite meets the criteria for EB-1, and I know I definitely don't. If we do meet the criteria, do we start with an I-140, or the I-485?

Also, would we both need to apply separately, or just one of us? I am curious as to how this would affect our H1-B's whilst we were waiting for a Green Card application to process.

Thanks in advance for all your help and advice!!

 

[CalGreenCard]

Hi,

Hopefully I can get some good advice about applying for a Green Card through self-petition....

In my opinion, your wife stands a better chance. The petitioner must establish that it is in the national interest not only that the green card be granted, but also that the usual labor certification process be waived. Thus the person must in some way benefit the national interest substantially better than a minimally qualified US worker--who might be hired following a LC process--would.

Your wife clearly has the qualifications to show she is a bit above the ordinary person in her field--plus she is in a field with a clear potential impact nationally.

You haven't shown enough about your own case to be optimistic about your own chances. In my experience, almost everyone in the software engineering field has "senior" in their job title--it is a meaningless term not really connoting any seniority. You haven't really said anything about how your work benefits the national interest--as opposed to the bottom line of your own company. It is possible that you have a master's--where the majority of your colleagues have only a bachelor's--but that, by itself, isn't likely to be enough to get you the NIW.

It is possible, of course, that the specific software development does benefit the national interest--and that you have exceptional qualifications, beyond just your degree, in doing that work--but you haven't provided any info that would allow one to think so.

You would definitely start with the I-140's--one for each person who decides to apply. You can file I-485 concurrently w/I-140 if your priority date is current (which is to say if you come from anywhere EXCEPT India or China). So in theory you could file all of the following, if you are from a country other than India or China:

Your wife's I-140, your wife's I-485, your derivative I-485

Your I-140, your I-485, your wife's derivative I-485

Since all of these petitions cost $$$ and inconvenience, you may want to consider how many of them you want to file immediately. If a I-140 is denied, any associated I-485's will also be denied but they will keep the fee!

Also, although it is legal to have two I-485's pending at the same time, it is a bit redundant--so if I were you I'd file the following only:

Your wife's I-140, your wife's I-485, your derivative I-485

Your I-140

In the (IMHO highly unlikely) event that your wife's I-140 is denied but your I-140 is approved, you can always file new I-485's later.

Remember--again--that any talk of I-485's at this stage is contingent on you not being from India or China. If you are from India or China, the priority dates for EB2 are in 2008 so you can file only I-140's at this time.

Also if you are from India or China, your wife might consider filing for EB1--for which I believe she has a remote chance although I'd agree the odds are long. The reason is that the EB1 priority dates are current for all countries including India and China.

 

[ConBran]

In my opinion, your wife stands a better chance......

Thanks for all the information!

I should have mentioned in my original post that we are both from the UK (we have dual citizenship of Ireland and Great Britain) so all the numbers are current.

I too feel that my wife stands the best chance of being awarded the I-140, and that is the road we are going to take - I never had confidence that my application would be in the nations interest, there is nothing 'special' about what I do.

We will file the I-140 and then the 2 I-485's once approved to be safe - no point in losing out on the money if it gets denied. We should be filing the I-140 at the end of this month provided we can get enough 'evidence' together - the director of her research institute, as well as the engineering firm who makes the machines she use (of which there are 26 in the world and she is considered an 'expert on' [only just found that out this week]), will be providing letters of reference to help support the case, so it looks good.

I'll keep the post updated as we go through the process in case I have any other issues and/or someone else is in a similar situation and just needs to see how the process will work from start to finish.

Again CalGreenCard, thanks for your response, it really was very useful and helped me feel more confident that this approach we are taking is the correct one for obtaining our green cards!

C

 

[CalGreenCard]

I too feel that my wife stands the best chance of being awarded the I-140, and that is the road we are going to take - I never had confidence that my application would be in the nations interest, there is nothing 'special' about what I do.

As noted I think she has an excellent chance. Good luck!

 

[CalGreenCard]

3. If she qualifies, she would file an I-140. As long as both of you are not from India or mainland China, when the I-140 gets approved, you would both file the I-485.

You can file the I-485 immediately--concurrently w/the I-140 along with an I-765 for employment authorization.

There are advantages and disadvantages to doing so. The primary disadvantage is, of course, that if the I-140 is denied, all associated other applications are denied and the cost of filing is forfeited.

The advantage is that by filing the I-485 concurrently you can get an EAD (employment authorization document) in hand a bit sooner than otherwise. Then you have the EAD if you need it because you lose your job. IMHO--despite ConBran's wife's impressive qualifications--neither job is 100% secure. The failure of both employers to sponsor for GC's sends an unmistakeable signal that the jobs aren't 100% secure--despite the other evidence of considerable job success by ConBran's wife.

Alternatively, as long as both jobs seem fairly secure at least in the short term--your wife could just file the I-140--with a view that you would quickly file I-485's if there are any rumblings of potential problems on the job front.

As long as both of you keep your jobs and neither of you needs to use the EAD, you can stay on H-1B until you get your GC's. Having the EAD is an important insurance document that can provide flexibility when you most need it. But, like all insurance, it comes at a premium and you have to decide if it's worth it.

 

[Joanna88]

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[kben23]

NIW-Publications and Citations

HI,

I am working as a Post-doc (PhD from US). So far, I have 12 peer-reviewed publications and 8 citations (4 self and 4 independent). Am I eligible for NIW? And, Is there any definite number mentioned in the law regarding publications and citations (minimum) ? In other words, how many minimum number of publications and citations one should have to feel confident about a positive outcome of the NIW application?

Thanks in advance.