Alternate Visa Options for Life Science Companies

Updated: October 2023

Navigating U.S. immigration law can be a daunting experience for employers and their foreign national workers. While there are a number of temporary work visas and several employment-based Green Card processes available to employers, the most common of them carry significant challenges.

The common temporary working visa for professionals is the H-1B visa, which is only available through a lottery system each year where the odds of selection are low. The most commonly used employment-sponsored Green Card process begins with a Labor Certification Application involving a test of the labor market. This process is currently taking almost 2 years to complete. 

This article will look briefly at alternatives to both the H-1B visa and the Labor Certification Green Card process that are available to life science companies. These options give life science companies an advantage in hiring and retaining certain categories of foreign workers.

Recent Graduates from U.S. Colleges and Universities and the STEM EAD Extension

Most foreign students who graduate from bachelor’s and master’s degree programs in the United States are eligible for up to 12 months of work authorization which is called "optional practical training" or "OPT." Graduates from programs in a STEM field (Science, Technology, Engineering, or Mathematics) can apply for an additional 24 months of employment authorization, provided the employer has registered in the E-Verify system (an electronic system that is used to verify work authorization of new employees) and agrees to other conditions, such as writing a training plan explaining how the worker will apply their degree and confirming that no U.S. worker was laid off to make the position available. 

Since foreign nationals who work in scientific and research positions at life science companies typically have STEM-qualifying degrees, a life science company can take advantage of this program to employ recent graduates from U.S. schools for up to 36 months, instead of the 12 months normally allowed. This additional time can be very useful when seeking to move the worker either onto H-1B status or a Green Card. 

Extraordinary Ability Workers – The O-1 Temporary Visa and the EB-1(a) Green Card Category

The U.S. immigration system provides temporary (i.e., O-1) and permanent (i.e., EB-1(a) green card) work visa classifications to foreign nationals with "extraordinary ability" in their field. Extraordinary Ability is defined as possessing ‘sustained national or international acclaim’ and being one of a ‘small percentage who have risen to the very top of the field of endeavor’ and requires extensive documentation. 

When evaluating these cases, the government uses a series of indicators of high achievement (8 indicators for O-1 beneficiaries in the sciences and 10 indicators of high achievement for EB-1(a) beneficiaries with extraordinary ability in the sciences). The foreign worker must provide evidence either that they have received a one-time achievement award in their field that is “major” and “nationally recognized” or provide evidence of falling within at least three of these indicators. If the worker can show this, then the Immigration Service Adjudicator decides whether the evidence supports the worker being classified as one who has sustained national or international acclaim and is one of the few who have risen to the very top of his or her field. 

Examples of indicators which are common to both the O-1 temporary visa and the EB-1(a) green card process include:

• the worker has written scholarly articles that have been published in prestigious publications,
• the worker has made original scientific contributions of major significance in the field,
• the worker has participated as a judge of the work of others in the field,
• the worker has received national or international awards for their work in the field,
• the worker’s work in the field has been written about in major media sources.

Since life science companies often hire workers who have previously performed extensive research and have written academic articles in journals, those workers usually have an easier time demonstrating extraordinary ability than those in other fields due to the strong paper-trail documenting their success.

There are several advantages to life science employers using one or both of these options. Because the annual H-1B lottery is oversubscribed each year by a significant amount, the O-1 visa is a good option for a foreign worker in the sciences who has not been selected in the H-1B lottery. In addition, a significant advantage of the EB-1(a) green card process is that it does not require the labor market test that applies to most employment-based green card cases. This reduces the time and cost of green card sponsorship for a life sciences employer and the time required to complete that process.

Another advantage of the EB-1(a) green card process is that a foreign worker can self-petition and does not require a permanent job offer in the United States.

The EB-1(b) Outstanding Researcher Green Card Category

In addition to extraordinary ability workers, U.S. immigration law has created a streamlined pathway to a green card that is available to foreign workers who are recognized internationally as outstanding in their field and who have a permanent job offer at innovative companies with a dedicated team of accomplished researchers.

To qualify in the EB-1(b) green card category, the company must employ at least three full-time researchers who have documented accomplishments in the field and the sponsored foreign worker must have at least three years of relevant research or teaching experience. Note that in some circumstances research or teaching experience obtained while pursuing a Ph.D. can be counted. Where these requirements are met, the employer is exempt from the labor market test required in most other employment-based green card cases. 

To establish that they meet the requirement of being recognized internationally as outstanding, the foreign worker must provide objective evidence that they met 2 out 6 indicators of high achievement. Examples of these indicators include:

• Evidence that others in the field have published material about the worker’s work in professional publications,
• Evidence of authorship of scholarly books or articles in scholarly journals in the field,
• Evidence of original scientific or scholarly research contributions in the field.

The adjudicator then makes a final decision as to whether the evidence as a whole establishes that the worker is internationally recognized as outstanding.

As is the case for the extraordinary ability green card category, since life science companies often hire workers who have previously performed extensive research and have written academic articles in journals, those workers usually have an easier time showing that they meet the standards for outstanding researcher than those in other fields due to the strong paper-trail documenting their success.

The EB-2 National Interest Waivers

Unless a foreign worker is one of the few who are able to qualify for a green card based on extraordinary ability (EB-1(a)) or outstanding research (EB-1(b)), the most likely path to a green card based on employment are the EB-2 and EB-3 employment-based categories. Both categories generally require that the employer test the U.S. labor market to show that there are no qualified U.S. workers who are looking for work in the employment area. This process is called "Labor Certification" or "PERM." 

The Labor Certification process is time consuming and currently takes approximately two years to complete. Both categories also require that an employer sponsor the foreign worker throughout the green card process.

In the EB-2 Advanced Degree Professional category, the USCIS exempts from the Labor Certification requirement individuals who will be performing duties that serve the "national interest" of the United States. A foreign national who qualifies for a National Interest Waiver is also exempt from the employer sponsorship requirement and can sponsor themselves. Additionally, USCIS has set forth specific evidentiary considerations for foreign workers with advanced degrees in a STEM field, acknowledging the national importance of progress in these fields.

National Interest Waiver applications must demonstrate that the foreign worker qualifies as a member of the professions either by holding an advanced degree, or as a person of exceptional ability, as well as that the waiver of the job offer requirement, and therefore of the Labor Certification requirement, is in the “national interest.” In order to demonstrate that the waiver of the Labor Certification process is in the national interest employers must show: (i) that the foreign worker’s proposed endeavor has both substantial merit and national importance, (ii) that the foreign worker is well positioned to advance the proposed endeavor, and (iii) that on balance, it would be beneficial to the United States to waive the job offer and the labor certification requirements.

The USCIS has indicated that it “recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security. The USCIS Policy Manual provides a detailed explanation of how the “importance of progress in STEM fields” should be taken into account in the processing of National Interest Waiver applications Regarding the first prong listed above (that the foreign worker’s proposed endeavor has both substantial merit and national importance), USCIS states that it tends to view STEM professions which advance technology in academic and industry settings to have substantial merit and national importance. Regarding the second prong (that the foreign worker is well positioned to advance the proposed endeavor), USCIS will consider advanced degrees in STEM fields furthering critical technology, U.S. competitiveness, and/or national security, particularly at the PhD level, as well positioned to advance the proposed endeavor.

Finally, regarding the final prong (that on balance, it would be beneficial to the United States to waive the job offer and the labor certification requirements), the USCIS will consider the combination of the following to represent a strong positive factor towards approving the case:

• The foreign worker has an advanced STEM degree, particularly a Ph.D.
• The foreign worker will be engaged in work which will further a critical and emerging technology or other STEM area important to U.S. competitiveness, and
• The foreign worker is well positioned to advance the proposed STEM endeavor of national importance.

As with extraordinary ability workers and outstanding researchers, the government evaluates these applications using a combination of objective and subjective criteria that favors individuals who have a background in research and publishing. Additionally, similar to extraordinary ability workers, foreign nationals seeking a national interest waiver immigrant visa (green card) can self-petition and do not necessarily require a permanent job offer in the United States. Due to the special considerations granted to STEM workers, life science companies are in a better position to pursue NIWs for their employees than other employers.

Schedule A – Exceptional Ability Workers

Another green card option that favors employees of life sciences companies is the Schedule A, Group II category for Exceptional Ability Workers. Foreign workers who can demonstrate that they have “exceptional ability”, defined as “widespread acclaim and international recognition accorded by recognized experts in the field”, and who also have a permanent job offer in the United States that will require that they apply that exceptional ability, are exempt from the labor market test described in prior sections.

The foreign worker must have practiced in their field for at least a year. In addition, the regulations describe 7 indicators of “exceptional ability” of which the foreign worker must provide evidence of meeting at least 2. These include (i) receipt of internationally recognized prizes or awards for excellence in their field, (ii) published material in professional publications about the foreign worker, (iii) original scientific or scholarly research contributions of major significance and (iv) authorship of published scientific or scholarly articles in the field.

Conclusion

As described above, life science companies seeking to employ foreign workers in scientific and research positions and then to retain them over the long term can avail themselves of several specialized temporary visa and green card sponsorship options. These options are both well suited to foreign workers in scientific and research positions and in the case of the green card options, are exempt from the requirement of conducting a labor market test that applies for most other employment-based green cards. These options should be considered by life science companies when hiring foreign workers in scientific and research positions.

For more information, or to discuss immigration options, please contact your Parker Gallini immigration attorney.