The H-1B is one of the most popular employment-based visas among future workers pursuing higher education, but due to its high demand, it can be challenging for foreign students to get it. So, if you like many other foreign students and foreign workers have at least bachelor’s degree or an advanced degree, you might be asking whether it is easier to get an H-1B for PhD holders and students.
To answer some of your questions, we’ll go over the H-1B process and emphasize the areas where having a PhD may give you the competitive edge you need to work in the U.S.
H-1B For International Students and PhD holders
If you are a PhD holder or student considering getting an H-1B visa, here is a basic overview of the application process.
The H-1B visa is designed for international students and workers with specialty occupations. To be considered eligible, a foreign national must have a job offer from a U.S. employer for a specialty position and at least a bachelor’s degree and a higher degree in a related field.
What you need to know is that foreign nationals cannot self-petition for an H-1B visa for PhD holders. Instead, the US employer needs to offer you a job and file the H-1B petition on your behalf, and get a Labor Condition Application.
Labor Condition Application LCA
The latter form for LCA is filed with the Department of Labor and ensures that your employer will pay at least the prevailing wage. Also, the employer attests to the Department of Labor that hiring you will not adversely affect other employees that currently work for the sponsoring company.
The sponsoring employer cannot file I-129 form until April 1st of the year that the foreign national intends to work. Upon correctly filing the petition, it will be entered into a pool from which 85,000 will be randomly chosen in the H-1B visa lottery.
The 85,000 is the annual H-1B limit per fiscal year where the 65,000 is for the regular cap and the 20,000 is subject to cap-exempt petitions (for H-1B visa holders holding a master’s degree or higher from a US university).
There has been many controversials about the H-1B process. While Trump administration intended to end the H-1B lottery, but was forced to change its policies, the U.S. Department of Homeland Security DOL announced an interim final rule (IFR) that strengthens the H-1B nonimmigrant visa program in order to protect U.S. workers and citizens.
If the filed H-1B petition is selected, it will go on to processing. The processing may take up to six or seven months, but the U.S. Citizenship and Immigration Services USCIS offers an optional service called premium processing.
If you choose the premium processing, USCIS will process your application within 15 days. Once your petition is approved, you will be able to start working as an H-1B nonimmigrant on October 1st of that current year.
H-1B Rules for PhD Holders
The H-1B visa process for PhD holders is not always different from the process for other international students and international workers.
Still, you will see that you have an advantage in the lottery as a PhD holder. As we mentioned previously, your petition will be cap-exempt.
The reason is that the H-1B lottery is divided into two stages:
- The advanced degree cap
- The regular cap.
The USCIS will select 20,000 petitions for petitioners that obtained advanced degrees. H-1b petitions for advanced degrees that USICS hasn’t selected in the first phase will be re-entered into the regular cap. This way, you will have a second chance at being selected.
There have been various proposed rule changes and legislation affecting H-1B visas. But for our topic, the most important is Congress’s consideration to exempt foreign-born PhD degree holders from the annual quota.
For this purpose, the Stopping Trained in America PhDs from Leaving the Economy (STAPLE) Act is designed.
Stopping Trained in America PhDs from Leaving the Economy or the Staple act makes significant steps in retaining foreign workers who earned their PhD degrees in the US universities and now seek jobs in the U.S..
A bill seeks exemption for foreign-born professionals with a PhD in science, engineering, technology, or mathematics, from an institution that qualifies as a United States institution of higher education, from the cap limit on the number of employment-based green cards and H-1-B visas annually.
Trained in America PhDs from Leaving the Economy (STAPLE) Act will have the highest benefit for Indian students, which constitute the most significant number of students doing PhD and pursuing STEM degrees (science, technology, engineering, and mathematics) in the U.S.
Thousands of high-skilled jobs are going unfilled in the U.S., and the STAPLE Act would ensure American companies hire the most talented foreign nationals on H-1B visas. By stapling a green card or visa to the PhD diplomas, foreign professionals can remain in the U.S. working for the U.S. employers, invent and inovate new discoveries while contributing to the U.S. economy growth.
Employment-Based Green Cards
If you consider getting the H-1B visa, you may find it is not as easy to obtain your employment-based green card as you thought it would be as a PhD student. As for all other petitioners, there is a lot of paperwork to go through, many rules to follow, and many categorizing to do.
If you don’t know precisely what you are supposed to do to get your PhD green card, here is the short overview.
Can An International student Get Green Card After PhD?
The short answer is YES- a PhD student may apply for a green card!
But, to obtain a green card with your advanced degree, you will have to prove that there is a good reason to be allowed to stay in the U.S.
Here is a short guide on how a student may apply for a green card.
The EB-1 green card is at the top of preferences and one of the most popular options for obtaining permanent residence as a PhD student or holder.
If you are eligible for the EB-1, you will no longer need your sponsoring employer to undergo the PERM process. The EB-1 is divided into three categories:
EB-1A and EB-1B are for students and PhD holders, while EB-1C is intended for higher roles in multinational companies such as executives and managers.
This option is intended for those who show extraordinary talent and achievements in various areas (arts, science, business, athletics, etc.).
This one is designed for professors and outstanding researchers. Compared to the previous one, the EB-1A, this one tackles a much narrower group, but, the requirements that petitioners have to meet are not as high.
To prove your eligibility, you should provide the required documentation demonstrating that you are useful in the related field and have the awards necessary to do so.
Don’t get confused– you do not necessarily need the actual PhD. You only have to prove that your work is influential and useful in your field.
To apply for a PhD green card, you must submit specific documentation, depending on the type of green card you want to apply for.
If you chose the EB-1A:
- An award showing that you got national or international recognition.
- Scholarly articles published in a trade or professional journal.
- Evidence of significant contribution in regards to your practice.
- Material written by others detailing your abilities.
- Playing a crucial role in a recognized organization.
- Evidence that you are a member of an association/organization that requires the member to have extraordinary abilities.
- Having experience as a judge of the work provided by other people working in a related field.
- Having a fairly large salary indicating your competence in the field.
Do PhD Holders Have Other Options?
You may assume that the H-1B might seem like the ideal visa for PhD holders, except for the relatively small chance of being selected in the random selection process. This, surely, can be an obstacle forcing you to think about other solutions.
Fortunately, there are alternatives that you can consider.
The J-1 is program-based, meaning that your sponsor can be an educational or research entity that is especially useful for PhD students. But, this visa has the home residency requirement meaning that after your stay in the U.S., you must return to your home country and spend a minimum of two years there. Upon expiration of this period, you may re-enter for another visa or lawful permanent residence. Although, some petitioners can get a J-1 visa waiver.
O-1 is a dual intent visa reserved for foreign nationals with extraordinary achievements in specific fields provided on a USCIS list of evidence that can demonstrate your achievement.
The main benefit of this visa is that it can be renewed indefinitely.
F-1 is a student visa usually used by international students who want to pursue PhD at U.S. universities. Once obtained, the visa is valid for a certain time after your graduation, and STEM (science, technology, engineering, and mathematics) degrees holders may stay longer.
How An Attorney Providing Immigration Services Can Help You?
U.S. immigration law provides a lot of opportunities for foreigners, but it is complex and the smallest mistake could cost you losing your opportunity to get the desired visa.
Although an attorney cannot guarantee success in the way you may think, it is highly important to hire an experienced immigration attorney who will handle your case, and give you the best legal advice according to your personal situation.
Seek out counsel from the Herman Legal Group, a law firm with over 25 years of experience in representing individuals, families, and companies in all aspects of immigration law, in all 50 states and around the world.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, whatsapp, facetime, or in-office.