Enhanced Immigration Options for Life Science Companies

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By Grant W. Godfrey, Immigration Attorney

Navigating U.S. immigration law can feel like sailing through an alphabet soup of statuses and forms. Life science companies are able to take advantage of the common work statuses and green card programs as is 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.

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 cards) work visas to foreign nationals with "extraordinary ability" in their field. Extraordinary ability is defined as being as one of the few who have risen to the top of their field 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 he/she 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 of the few who have risen to the top of his or her field.

The specific factors that the government relies on vary between temporary and permanent visas; however, as a general rule, they look to things like whether:

  • the worker has written scholarly articles,
  • 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. Since life science companies often hire workers who have previously performed extensive research and have written articles, those workers usually have an easier time demonstrating extraordinary ability than ordinary business people because they have a strong paper-trail documenting their success.

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 work 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 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 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. Though the 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. will greatly benefit the nation. 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 academic research and publishing.

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

For more information, or discuss immigration options, please contact Grant Godfrey.