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National Interest Waivers May Provide a Path to Permanent Residence for Foreign-born Postdocs

Victoria Donoghue

The prestige and opportunity for professional advancement offered by the American biomedical research enterprise draws scientists from around the world. Oftentimes, after completing graduate programs in their native countries, young foreign-born scientists seek postdoctoral positions at American universities. Indeed, a recent survey showed that approximately 55% of the US postdoctoral community consists of non-citizens. While all postdocs face difficult challenges transitioning from graduate student to independent researcher, foreigners who wish to research in the US also face complicated immigration laws.

The experience of Dr. Leila Akoujan (name changed to protect her identity) provides an illustrative example of the cumbersome process that foreign-born individuals endure in order to gain postdoctoral positions in the US. Dr. Akoujan earned her medical degree and began practicing medicine in her native country of Morocco. However, her true interest was research and she set her sights on postdoctoral positions in the US.

At an international neuroscience symposium she met a professor who was conducting research into new therapies to treat Autism. The professor needed someone with a medical background that could develop the medical protocols necessary to advance his basic science work into the clinical stage and offered her the opportunity to join his lab. Dr Akoujan accepted and came to the US under H-1B visa status in 2004.

Since joining the lab, the relationship between Dr. Akoujan and her PI has been mutually beneficial. To date, they have published four research articles in scholarly journals and given six presentations at international conferences. The professor has mentored the scientist, encouraging her to become licensed as a doctor in the US and to pursue a PhD.

However, one major problem emerged: the 6 years of H-1B time would end long before Dr. Akoujan would be able to establish herself as an independent researcher.

Getting a green card in her case would not be easy. While many foreign scientists seek green cards through the "Outstanding Researcher" category, her professional record did not meet the requirements necessary for that classification. Alternatively, the Advanced Degree Professional category was not an ideal option because it would require the employer to obtain a labor certification from the Department of Labor a lengthy and expensive process. Because of this, Dr. Akoujan had only one option: seek a National Interest Waiver (NIW).

While the test for an NIW is not easy, it is one that many foreign scientists conducting research have a reasonable chance at meeting. It requires that the research has "substantial intrinsic merit" and will have a benefit that is "national in scope," and that the applicant has had "some degree of influence on the field."

The scientist's NIW petition was granted because the research into a pharmaceutical intervention for Autism was found to have intrinsic merit and was national in scope. She demonstrated her influence on the field by her publication and presentation record, and had other scientists testify on behalf of her original scientific contributions.

Universities in the US are currently engaging in many kinds of research that might qualify for a NIW including renewable energy sources, remote satellite sensing and cancer, to name a few. Foreign-born postdocs should consider the NIW category as a possible path to permanent residence.

Victoria Donoghue, Esq. is Of Counsel to the law firm of NPZ Law Group ( www.visaserve.com), specializing in US Immigration and Nationality Law.

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