Enhanced Immigration Options for Life Science Companies

Updated: August 7, 2018

Navigating U.S. immigration law can feel like sailing through an alphabet soup of statuses and forms and be a daunting experience for employers and their foreign national workers. Life science companies are able to take advantage of the common work statuses and green card programs the same as every other company. However, due to the type of work in which life science companies engage, as well as the types of workers they hire, life science companies have a few additional options that can give them a leg up in hiring and retaining foreign workers.

The following is a very brief overview of some of the extra options available to life science companies that employers in other industries typically have a more difficult time accessing.

Recent Graduates from U.S. Colleges and Universities

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 STEM fields (Science, Technology, Engineering, or Mathematics) are allowed to apply for an additional 24 months of employment authorization, provided the company employing them has registered on E-Verify (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 many foreign nationals who work at life science companies have STEM 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, which provides extra time to move the worker into a longer-term status.

Extraordinary Ability Workers

The U.S. immigration system provides temporary (i.e., O-1) and permanent (i.e., green card) work visa classifications to foreign nationals with "extraordinary ability" in their field. In the context of a business, extraordinary ability is defined as ‘sustained national or international acclaim’ and being one of ‘that 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 objective indicators of high achievement, and the foreign worker must be able to produce evidence that s/he meets at least three of those criteria. If the worker is able to make that demonstration, then the adjudicator makes a subjective decision as to 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.

The specific factors that the government relies on vary between temporary and permanent visa classifications; however, as a general rule, they look for objective indicators of extraordinary ability, like whether:

• the worker has written scholarly articles in prestigious publications,
• those scholarly articles have been cited by others in the field,
• the worker has judged the work of others in the field,
• the worker has received national or international awards, and
• the worker has been written about in the media.

These criteria favor individuals who have a background in research and publishing. 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 ordinary business people because they have a strong paper-trail documenting their success. Note that if a foreign national is pursuing an extraordinary ability immigrant visa (green card), then they can self-petition and do not necessarily require a permanent job offer in the United States.

Outstanding Researchers

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 have a permanent job offer at innovative companies with a dedicated team of accomplished researchers. In order to qualify, the company must employ at least three full-time researchers who have documented accomplishments in the field. The foreign worker also needs 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. If those basic elements are met, then the foreign worker needs to provide objective evidence of only two of the types of factors that are described above for extraordinary ability workers. The adjudicator then makes a subjective decision as to whether the evidence establishes that the foreign worker is internationally recognized as outstanding, which is a lower standard than for extraordinary ability. As a result, life science companies with a dedicated team of researchers who have documented their achievements by doing things like receiving patents and/or writing articles may be able to take advantage of this program.

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 or outstanding research, the most likely path to a green card will require that the employer obtain a prevailing wage from the Department of Labor and 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." Labor Certification is time consuming and can take anywhere from one to three years to complete. The government exempts certain individuals who will be performing services that serve the "national interest" of the U.S. from the Labor Certification requirement.

Foreign workers who utilize this method will generally have a quicker path to a green card than those who utilize Labor Certification. Though the kinds of jobs that qualify for a national interest waiver are not specifically defined, national interest waivers are usually granted to those who have "exceptional ability" and whose employment in the U.S. has both substantial merit and national importance. Exceptional ability means ‘a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.’

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.

Schedule A – Exceptional Ability Workers

Foreign nationals who can demonstrate that they have “exceptional ability” described in the above section (with an additional requirement that they have documentary evidence of ‘widespread acclaim and international recognition’ by recognized experts in their field), and who also have a permanent job offer in the United States that will require that they apply that exceptional ability, can avoid the part of Labor Certification where the company must 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. Note that the company must still perform certain actions that are required for Labor Certification, such as obtaining a prevailing wage from the Department of Labor and posting an internal notification of the job opportunity that is visible to its other workers. However, the U.S. company files the Labor Certification application directly with the Department of Homeland Security, along with its petition on behalf of the worker, for Homeland Security to evaluate instead of the Department of Labor. Also note that due to a couple of court decisions over the past 20 years that have made National Interest Waivers easier to obtain, this type of green card is rarely pursued as the National Interest Waiver does not require that the company first obtain a prevailing wage or provide notice of the job to its other workers. Since it is rarely used, the results of adjudication can be difficult to predict.

Life science companies should keep these additional options in mind when considering hiring foreign workers.

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