Visa Crunch

USA: Alternate Pathways Take Less Time For Green Cards; Reduced Waiting Time For Indians

For many years, thousands of Indians in the United States have been waiting in long lines for green cards (permanent residence).

Although the process from an H-1B work permit or an F-1 student visa to a green card is typically long and difficult for several Indian nationals, there are several categories where the path to permanent residency in America is substantially faster and more convenient.

The majority of H-1B visa holders in the United States who are awaiting green cards are eligible for immigrant visas under the employment-based, second preference (EB-2) or employment-based, third priority (EB-3) categories.

In reality, while the EB-3 visa category for skilled workers, professionals, and certain unskilled workers are the most preferred by Indians, it is also the immigrant visa category with the biggest queue for Indians, with US officials presently processing applications received in 2012.

“Indians who have significant professional achievements, received recognition or are at the top of their field of work, among other things, could qualify for an EB-1A green card that is granted to those with extraordinary abilities in science, art, education, business, or athletics,” explains Poorvi Chothani, managing partner of LawQuest, an immigration law firm with offices in India and the US.

The EB-1A employment-based visa is one of the quickest means of obtaining a green card. Both the petitioning employer and the alien beneficiary must collaborate to present evidence that proves the petition’s encompassing statement that the candidate is an outstanding member of and significant contributor to his or her relevant disciplines as a research scientist or professor, for an EB-1B visa, which is a fast-track pathway for a green card.

“An alien of extraordinary ability, or EB-1A, classification applies to those who have distinguished themselves professionally in their fields of work or study. Notably, these employment-based, first-preference visa candidates do not have to secure sponsorship from an employer, as an EB-1A petition requires neither a job offer nor a labour certification,” says Naresh Gehi, an Indian American lawyer who specializes in immigration.

The employer becomes the petitioner in EB-1B cases hence the immigrant beneficiary and his or her counsel must have the company’s unwavering support throughout the procedure. Labour certification, which is necessary for most other employment-based categories, is not required for either EB-1A or EB-1B.

Each petition’s fundamental criterion is displaying one’s broad achievements and abilities.

“Supporting documentation that serves to demonstrate achievements and abilities of petitioners is essentially the same. Both EB-1A and EB-1B petitions typically include application material such as letters of recommendation and track records of publishing and reviewing the work of other professionals,” Gehi said.

The applicants must satisfy and fulfil at least two of six conditions which include:

  • evidence of receipt of major prizes or awards for outstanding achievement;
  • evidence of membership in associations that require their members to demonstrate outstanding achievements;
  • evidence of published material in professional publications written by others about the applicant’s work;
  • evidence of participation, either on a panel or individually, as a judge of the work of others in the same or in an allied academic field;
  • evidence of original scientific or scholarly contributions in the field and evidence of authorship of scholarly books or articles in academic or scholarly journals with international circulation.

Even if the above-specified criteria are not met then the applicant can nevertheless demonstrate their outstanding ability, backed up by detailed proof, by meeting any three of the ten listed criteria. In addition to fulfilling the requirements, applicants must demonstrate that they will continue seeking employment in the United States in the profession in which they have exhibited exceptional ability.

To that aim, they attempt to demonstrate that their work has a significant and foreseeable advantage in the national interests of the United States.

Several H1-B employees qualify for the EB-2 category and are eligible for a national interest waiver. The benefit of this is that the applicant does not have to be sponsored by an employer and can self-petition.

They must show that they have a master’s or doctorate degree, or the equivalent (a bachelor’s degree and 5 years of professional experience), or that they have shown extraordinary skill in their field.

After passing the normal EB-2 eligibility test, applicants must also meet all three elements of the national interest waiver assessment, which are that the proposed work is both substantial and in the national interest.

Aside from the EB1 and EB2 alternate paths, the EB5, or investor route, is another popular option for Indians seeking green cards quickly. A few EB-5 applicants, particularly those who are stranded because the EB-5 regional centre program has expired, may be able to stay in the United States by filing for the comparatively recent immigration benefit known as advance parole for foreign entrepreneurs.

Some of these conditions include: a substantial ownership interest in the start-up (at least 15%) and an engaged and focal role in its operations; start-ups formed in the US within the last three years; start-ups with considerable and illustrated prospects for rapid market growth and job creation, as demonstrated by receiving a considerable investment of capital (at least $3,45,000) from certain eligible US investors with defined records of profitable venture and receiving significant awards or grants (at least $1,00,000) from certain US federal, state or local government entities.

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