In Russian

  1. Disclaimer
  2. Useful links
  3. What is the difference between EB-1A and EB2-NIW?
  4. For EB-1A, should one claim as many criteria as possible?
  5. What happens if the I-140 petition is denied?
  6. Can Form I-140 be filed by a person who does not live in the United States?
  7. Can Form I-485 be filed together with Form I-140?
  8. When can Form I-485 be filed?
  9. What are the processing times for Form I-140 and Form I-485?
  10. Can you estimate my chances?
  11. Should one hire a lawyer for preparing the I-140 petition?
  12. How many recommendation letters are necessary?
  13. How did you translate your documents?
  14. Should the photocopies or originals of documents be sent?
  15. How can fees be paid?
  16. Is the Asylum Program Fee required? And if so, how much?
  17. Is the Form ETA-750B or ETA Form 9089 required?
  18. What is the RFE?
  19. Does a J-1 visa automatically require to spend 2 years in a home country?
  20. What is the difference between O-1 and EB-1A?
  21. How did you fill Form I-907?
  22. Can new papers that will have been published after the filing of the petition be submitted as additional evidence?
  23. To what address and in what form did you send your petition?
  24. Should the petition be written in the first person (“I”) or the third person (“Dr. Doe”)?
  25. Why did you create this website?

Disclaimer

ATTENTION!

This website https://andreychemist.github.io/ describes my personal story of immigration and includes my general discussion of the US immigration laws and practices. All information on this website is general information and do not constitute legal advice. I am not a lawyer and I am not affiliated with the USCIS or any other government agency. I do not give legal advice or guarantee the approval of your petition. Please consult a licensed immigration lawyer about your specific situation and circumstances.

Please check the correctness and relevance of all information on this website before taking any action. You are free to share it in any way possible, just please add the appropriate disclaimers that it is not legal advice.

Andrey Solovyev, 1 July 2018.

andreychemist@gmail.com

Useful links

The USCIS websites for Forms:

USCIS tips for filling and filing Form I-140.

USCIS instructions for EB1.

Request for Evidence (RFE) Template that explains EB1-A criteria in detail.

USCIS instructions for EB2.

The latest national interest waiver (NIW) criteria can be found in the Interim Decision #3882 Matter of Dhanasar, Petitioner 26 I&N Dec. 884 (AAO 2016): https://www.justice.gov/eoir/page/file/920996/download.

The most relevant underlying laws and regulations: The Immigration and Nationality Act, Section 203(b) [8 U.S.C. 1153] - Allocation of Immigrant Visas: EB1-A - 203(b)(1)(A); EB2 - 203(b)(2); NIW - 203(b)(2)(B).

Section 245 [8 U.S.C. 1255] - Adjustment of Status.

Title 8, Code of Federal Regulations, Section 204.5 “Petitions for employment-based immigrants”: EB1-A - 204.5(h); EB2 - 204.5(k).

What is the difference between EB-1A and EB2-NIW?

EB-1A (extraordinary ability) and EB2-NIW (advanced degree or exceptional ability with the national interest waiver) are two categories that allow the alien to be a self-petitioner, i.e., to file Form I-140 without an employer.

EB-1A requires you to provide:

  1. evidence of at least three criteria out of 10 listed in the official instructions for Form I-140 (https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf, page 3);
  2. evidence that the alien is coming to the United States to continue work in the area of expertise;
  3. evidence of sustained national or international acclaim;
  4. be one of that small percentage who has risen to the very top of the field of endeavor. See also https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1

EB2-NIW requires you to be a person with exceptional abilities (defined on the page 4 of the official instructions https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf) and to satisfy the criteria for granting a national interest waiver listed in the Interim Decision #3882 Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016): https://www.justice.gov/eoir/page/file/920996/download. See also https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2.

The law about the EB2 category mentions both aliens who are members of the professions holding advanced degrees and aliens of exceptional ability. It was not clear for me if the first group (advanced degree holders) can self-petition and request the NIW. But the case described in Matter of Dhanasar hints that the advanced degree is enough to establish eligibility under EB2 for both self-petitioning and requesting the NIW. Advanced degrees, besides MS, PhD, include a bachelor degree followed by at least 5 years of professional experience.

EB2-NIW is considered to be an easier category. I personally don’t know cases when the EB2-NIW petition was denied for a person with a PhD degree working in the US in the field of expertise. The disadvantage of the EB2-NIW category was that you couldn’t request the premium processing (Form I-907) when you submit your I-140 petition. The premium processing for EB2-NIW was introduced in January 2023, and not it looks like an even better alternative to the EB-1A category, because you can get an answer in 45 days if you are ready to pay more for a quick reply.

For EB-1A, should one claim as many criteria as possible?

I claimed 4 criteria on my petition, though I don’t know if all of them were approved. If the I-140 petition is approved, the USCIS doesn’t provide the detailed explanation of their decision for each criteria. Such an explanation is usually presented in the Request for Evidence (RFE) that is sent when the USCIS officer doesn’t like something in the I-140 petition. The template for writing the RFE can be found on the USCIS website. This document is useful in understanding what officers are looking for.

In my opinion, claiming the criterion for which you do not have solid evidence is a bad idea. For example, several criteria are created for specific occupations, and a scientist should not claim the criteria (vii) (artistic exhibitions) and (x) (commercial success in performing arts) that are reserved exclusively for persons with extraordinary abilities in arts.

However, denial of one or more criteria is not the reason to deny the petition if three other criteria are met.

PhD scientists usually have two criteria: authorship of scholarly publications (vi) and original contribution of major significance (v) that is proved by recommendation letters and the number of citations. The problem is to find the third criterion.

I claimed the awards (i) (I was a winner of the international chemistry olympiad and a finalist of the international prize for the PhD dissertations) and the critical role for the organization (viii), though I can’t be sure which one or both were approved.

Most of people who I know got the EB1-A approval claimed the criterion (iv) (judging the work of others in the field) due to reviewing manuscripts for scientific journals. As I understand it, it must be judging of your peers, not students.

I don’t know the associations in science that satisfy criterion (ii), besides the National Academies. The membership in the associations that admit everyone who pays the member fee (such as the ACS, AAAS, IEEE) doesn’t count as far as I know.

If you claim a high salary (ix), be ready to provide official tax documents. A letter from the employer is not enough.

If the third criterion is not easy to find, one should consider filing under the EB2-NIW category.

What happens if the I-140 petition is denied?

I know several people who got their I-140 petitions denied (or they received the RFE and didn’t reply to it, effectively abandoning their petition). This didn’t affect their nonimmigrant status. They could renew the nonimmigrant visa or file the new I-140 that would be approved. I even read the stories online about people filing several I-140 petitions simultaneously under different categories (EB1-A and EB2-NIW), one was denied, another was approved, and they could proceed with getting the green card due to the approved I-140.

This is a major difference between filing I-140 alone and filing I-140 concurrently with I-485. In the second case, the filing of I-485 constitutes the immigration intent and the denial of I-140 may result in the loss of the legal status in the US, and it will be very difficult to obtain a new nonimmigrant visa in the future. That’s why I did everything stepwise: 1) got I-140 approved; 2) filed I-485 only after approved I-140.

Can Form I-140 be filed by a person who does not live in the United States?

As far as I understand the laws and the USCIS instructions, any person from any country can file an I-140 petition under the EB-1A or EB2-NIW category. I even know a few people who filed their I-140 from Russia and received the approval. However, my brother and I filed this form when we already worked in the US as postdocs in the F-1 OPT status. I believe that this fact greatly increased the chances of success.

One of the requirements for the EB1-A category is “D. Evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letters from prospective employers, evidence of prearranged commitments such as contracts, or a statement from the alien detailing plans on how he or she intends to continue work in the United States.”https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf.

Leaving the Part 6 of Form I-140 (about the proposed employment) blank is not a good idea. The USCIS may not believe in self-employed scientists. (I’m less sure about artists or businessmen.) Though the law does not require a job offer for the EB-1A category, ideally one should find the job in the US on a nonimmigrant visa (F-1 OPT, J-1, H1-B, O-1, etc.) or at least have a job offer letter from a prospective US employer.

For a person with a foreign PhD degree, a common and reasonable option would be to move to the USA for a postdoc position first. After all, everyone should have a good plan how to earn money in the US before trying to get the green card.

I’m even less sure about the reasonableness of filing the EB2-NIW petition from outside the US. For this category, it is necessary to prove that one’s work is in the national interests of the US. And only an example of a successful filing under EB2-NIW will be able to shake my skepticism.

Filing from abroad has also technical problems with paying fees (according to the I-140 instructions, they must be paid either by a US bank check or by a money order) and longer times to get mail from the USCIS. One should consider hiring a US-based lawyer to handle these issues.

The process of getting the green card after the approval of I-140 is also very different for the people who are already in the United States in the legal nonimmigrant status (they file the Form I-485 to adjust their status) and for the people who reside abroad. They have to go through the process called “consular processing” about which I know relatively little; their case will be transferred to the Department of State that will provide further instructions about filling forms, paying fees, taking the medical exam, and scheduling the interview in the US consulate abroad. First, they will be issued an immigrant visa for crossing the US border, and they will get the green card when they are already in the US.

The official statistics for the fiscal year 2016 (Table 7, p. 21) shows that for EB-1A category only 761 (14%) are new arrivals in the US and 4,769 persons (86%) were already in the US. For EB2, 877 (4%) are new arrivals and 18,702 (96%) were in the US.

Can Form I-485 be filed together with Form I-140?

The instructions allow concurrent filing of Form I-485 (adjustment of the status) with the petition I-140. I didn’t do so myself, but I know people who did. Their reasoning was that filing I-485 allows requesting the employment authorization document (EAD) (Form I-765) and the advance parole (Form I-131) for traveling abroad while waiting for the green card. If Form I-485 has been filed, the applicant can remain in the US legally until the decision is made, even if the previous nonimmigrant status has expired. This is not the case if only Form I-140 is filed (no EAD, no advance parole, the alien must maintain the legal status in the US).

When I filed my Form I-140, I was in the F-1 OPT status after getting the PhD from the US university, and I had a separate EAD card due to this status. I filed the I-140 with premium processing so I knew that I would receive the USCIS decision on my I-140 in about two weeks. It was not necessary for me to file the I-485 concurrently with my I-140. It would affect my status, and, if my I-140 was denied, I was at risk to immediately become out of status in the US. I consider it especially risky to file Form I-485 being in the US in the B1/B2 tourist visa status. As far as I understand the laws, people waiting for a political asylum cannot file the I-485 form even if their I-140 is approved, because “waiting for a political asylum” is not a status that can be changed to a legal permanent resident via the I-485 form.

Remember that you can file Form I-485 concurrently with Form I-140 only if the status for this specific immigration category is current (“C”) in the Visa Bulletin published by the Department of State: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.

When can Form I-485 be filed?

I have already explained why I consider it a good idea to file the I-485 application to adjust the status only after Form I-140 is approved. However, there may be other obstacles for filing I-485. First of all, one should check the Visa Bulletin published by the Department of State: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html, Table “B. Dates for filing of employment-based visa applications”.

The filing of Form I-140 establishes the priority date of your case. Form I-485 can be filed for this I-140 only if its priority date is the earlier than the date in the corresponding table cell. Its value depends on the category (EB-1A is “1st” and EB2-NIW is “2nd”) and the country where you was born.

The EB1-A category (1st priority) was usually current (“C”), but it’s non-current for all countries since Aug 2018 (as of Jan. 2019), and the EB2-NIW (2nd priority) used to be non-current for all countries several times during the past several years. The bulletin also discriminates against the people born in such as China and India where too many immigrants have come from. The nationals of those countries have very long waiting times with getting the green card under the EB2 categories and may consider filing the I-140 petition under the EB-1A category.

Filing dates may differ from the final action dates. The former determine when one can file Form I-485, the latter determine when Form I-485 can be approved and the green card can be issued. These are two different tables in the Visa Bulletin.

I passed my medical examination after getting the approval for I-140 and before filing I-485. I found the nearest doctor who can sign the medical form on the USCIS website, made an appointment, took tests, got the missing vaccinations (the list of required vaccinations can be found on the CDC website), then visited the doctor’s office one more time to pick up Form I-693 (https://www.uscis.gov/i-693). It was signed by the doctor and sealed in a separate envelope. It cost me $400, but the price depends on the doctor, and it would be cheaper if I got the missing vaccinations in advance with my health insurance.

I filed the required medical form together with my I-485 application, but the processing times have increased greatly since 2012. And now one may wait for longer than a year to get their I-485 approved. Since Nov. 1, 2018, Form I-693 is valid for two years, but it must be signed by a civil surgeon no more than 60 days before filing the underlying I-485 application.

With I-485, you also need to send a copy of the birth certificate along with its certified translation. You can google “birth certificate translation for uscis”, choose a translation company that you trust, send them a pdf file with the birth certificate, and for $20-25 and in 1 day they should return its translation to you along with a USCIS-compliant translation certification.

See also: https://www.uscis.gov/greencard/adjustment-of-status.

What are the processing times for Form I-140 and Form I-485?

Use the USCIS website to check current processing times: https://egov.uscis.gov/processing-times/.

Historic Average Time: https://egov.uscis.gov/processing-times/historic-pt.

In 2012, I was very lucky to get my I-485 processed and the green card issued in just 2 months after filing the form. My I-140 had been approved even faster, in about one week, because I requested the premium processing (Form I-907; the current fee for the premium processing is $2,805 fee). Since January 2023, the premium processing can be requested for both EB1-A and EB2-NIW petitions. Pay more and get a reply (EB-1A - 15 days; EB2-NIW - 45 days).

The processing times have increased significantly since 2012, partially due to the introduction of a personal interview. In 2018, people have reported to me that they had waited for more than a year to get the decision on the I-140 petition filed without premium processing or for the I-485 application. It was impossible for me to find any logic in the processing times. Often two persons filed the I-140 forms under the same category almost simultaneously, and one person got I-140 approved in 2 months, while another person had to wait for 9 months. And as in the case of financial markets, “the past performance doesn’t guarantee the future results”, so be prepared to wait for as long as necessary.

After waiting longer than the official USCIS processing times, it may be a good idea to schedule an appointment in the USCIS office to discuss your case (https://my.uscis.gov/appointment), and I know that some people even wrote to Congressmen for assistance. But you never can be sure if it accelerates the USCIS decision.

Can you estimate my chances?

I’m not a lawyer, and by law I am not allowed to provide advice on the specific cases, write petitions or prepare the documents for other people. I’m always happy to discuss the US immigration laws in general or answer the questions about my story and petition. I wrote my opinion about employment-based categories and criteria based on my own experience and experience of my friends with whom I talked about immigration issues.

Generally, I consider that a scientist with a PhD degree and more than 50 citations working in the US has very good chances for the EB2-NIW approval. The EB1-A category requires the “third criterion”: several reviews of manuscripts for journals, major awards, or publications about the person’s achievements in the major professional media.

The chances of people who don’t work in the US or don’t have PhD are much lower. I know cases when graduate students in the US universities got their I-140 petitions approved, but it’s better to get the PhD before filing the petition. The USCIS considers only achievements that existed on the priority date (the day when the petition has been received by the USCIS).

I’m not competent to estimate the chances of non-scientists. I know almost nothing about designers, businesspersons, athletes and about the criteria they can claim. Besides the fact, that the person who is going to work as a sport coach in the US must provide evidence of extraordinary abilities in coaching rather than the achievements as an athlete.

Should one hire a lawyer for preparing the I-140 petition?

I did everything myself without a lawyer, and I know more than 30 other people who did so. But my case was relatively simple: I indeed had major achievements in Chemistry, the PhD degree from a US university, and I worked as a postdoc in the US national lab. I never had problems with the legal status in the US, and I had no dependents. After studying the hundreds of scientific articles and writing a PhD dissertation, it was not difficult for me to study the 10-pages instructions for Form I-140 and write a 15-pages petition. The longest part was to collect the recommendation letters. A lawyer can provide only a limited help in drafting them. The burden of contacting professors and prompting them to sign the letter is on you.

Most people without a strong background should at least consider contacting a lawyer for free evaluation of their chances. Websites of lawyers who provide this service and their contact information can be easily found online. After all, even if a lawyer is willing to take your case and estimates the chances of success as very high, it’s up yo you to decide whether you want to hire a lawyer or do everything yourself.

19 people with whom I shared an example of my petition hired lawyers and were happy to spend money to save time. It’s especially true for extraordinary businesspeople who must value their time and delegate immigration work to hired professionals. However, other people complained that their lawyers were too slow in filing their paperwork and even made mistakes that resulted in getting RFEs. So be careful! I can’t recommend any specific lawyer.

How many recommendation letters are necessary?

The recommendation letters are not mentioned in the law as a separate criterion for the petition approval. They are convenient way to prove and support other criteria such as original contribution of major significance in the field.

I asked 14 professors and eventually got 9 letters of recommendation for my petition. My brother had 5. So 4-5 letters are usually fine. I asked my academic advisors, co-authors of my publications, and also people who I didn’t know personally, but they worked in the same field, read and cited my publications.

Examples of recommendation letters are included as exhibits in the end of petition examples.

Many professors wrote letters completely themselves and sent me either paper or signed electronic copy. But since these letters are of a legal nature, some professors asked me to provide them with drafts that they could modify and sign if they would agree with everything written there.

I didn’t attach the CVs of professors who gave me recommendations. They wrote about their experience, credentials, and honors in the first paragraph of the letter. However, it won’t hurt to attach CVs of referees.

Don’t forget to thank your recommenders when you have received your green card.

How did you translate your documents?

For I-140, I had only one attachment that was not originally written in English (my undergraduate diploma), but I already had the certified translation that I ordered for the graduate school. Later I translated the birth certificate for Form I-485. Many online translation services specialize on the translation of documents for the USCIS and know all requirement for the certification.

The instructions for Form I-140 state: “If you submit a document with information in a foreign language, you must also submit a full English translation. The translator must sign a certification that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English.” (https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf)

The professional translator should know how to certify the translation. My translations had a separate sheet with the certificate of accuracy: “I, XXX being duly sworn depose and state to the best of my knowledge, ability and belief that the transcript, prepared by a professional translator who is equally proficient in the Russian and English languages, of the original Russian material described as . . . is a true and correct transcript and translation of the source content”. Signature of the translator. Sworn before Notary Public.

I read the stories that people who know English well made and certified their translations themselves in the presence of a US notary.

Should the photocopies or originals of documents be sent?

I sent only photocopies of all supporting documents. Even when I had originals. The instructions for I-140 recommend: “You may submit legible photocopies of documents requested, unless the Instructions specifically state that you must submit an original document.” (https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf)

There is a small chance that the USCIS will ask you to resubmit your evidence, so it’s important to keep originals of all sent documents.

But I sent all forms with original signatures and, of course, originals of checks to pay the fees. I kept the photocopies of sent forms and checks.

How can fees be paid?

Since I lived in the US, I paid fees with my personal checks from a US bank. I know that people who didn’t live in the US had problems with paying the fee because the instructions for Form I-140 specify: “The check or money order must be drawn on a bank or other financial institution located in the United States and must be payable in U.S. currency” (https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf). Some traveled to the US themselves or asked their friends traveling to the US to buy money orders there. Others had family members or good friends in the US who paid for them with their bank checks.

The instructions say that “if you live outside the United States, contact the nearest U.S. Embassy or U.S. Consulate for instructions on the method of payment.” I’ve never heard that the US Consulate could assist with paying the USCIS fees, but one may always ask them just in case.

Since April 2018, fees for Forms Processed at USCIS Lockbox Facilities (they include I-140, I-907, I-485) can be paid with a credit card issued by a US bank by submitting the form G-1450, Authorization for Credit Card Transactions. The USCIS “cannot accept a credit card issued by a foreign bank”.

If the premium processing is requested, its fee must be paid by a separate check (or money order, or G-1450) as indicated in the I-907 instructions in the top of the Page 5.

Is the Asylum Program Fee required? And if so, how much?

(Added July 1, 2024)

This new fee was added in May 2024, and I have already been asked twice whether it should be paid if one is filing an I-140 as a self-petitioner, without an employer. I found the following page on the official USCIS website Frequently Asked Questions on the USCIS Fee Rule, where in the section “Employment-Based Forms and Fees”, exactly this question is asked.

“Q. Do self-petitioners also pay the Asylum Program Fee, and, if so, do they pay the full amount of $600?

A. An individual self-petitioner would pay the reduced Asylum Program Fee of $300 when filing Form I-140 as an EB-1A noncitizen of extraordinary ability or as an EB-2 with national interest waiver. On Form I-140, such self-petitioners must select Yes in Part 1, Question 6, to indicate that they currently employ a total of 25 or fewer full-time equivalent employees.

When an individual beneficiary of a Form I-129 or Form 1-140 petition is a part or sole owner of the petitioning entity, then the Asylum Program Fee depends on the petitioning entity’s number of employees and nonprofit status, as is the case for any petitioning entity or individual.”

My understanding of this answer is that “freelancers” who file an I-140 will need to pay an additional $300 (by a separate check in addition to the basic I-140 fee, which is $715 in July 2024). But it is important not how I understand it, but how USCIS understands it. If, for example, you work at a university with more than 25 employees, but you are self-petitioning (you are both the petitioner and the beneficiary), do you have to pay $600, $300, or even $0, because many universities are non-profit organizations? I would be grateful if someone would get the answer directly from USCIS and forward it to me so I can update this question.

Is the Form ETA-750B or ETA Form 9089 required?

Form ETA-750B is briefly mentioned in the instructions for I-140 and in 8 CFR, Section 204.5(k)(4)(ii). It was not clear for me if this form was required for the EB1-A petition. But I read in an online forum that someone filing the EB1-A petition received the RFE asking to provide this Form ETA-750B. So I decided to attach it as well.

In 2017-2019, there was no current version of the Form ETA-750B, and I read that the requirement was to submit the much longer ETA Form 9089. But as of Feb. 2020, Form ETA-750B is back on the U.S. Department of Labor website.

What is the RFE?

The Request for [Additional] Evidence (RFE) is the reply from the USCIS if they don’t like something about the filed form. It may be something trivial (the petitioner forgot to sign Form I-140; the medical Form I-693 required for I-485 has expired), but more often a serious critique of the petition’s weak points. 90 days are usually given to reply to the RFE by providing additional evidence and explanation. But all new documents must have been valid on the priority date of the filing of the petition. It’s already impossible to claim a new additional criterion for EB-1A, for example.

Neither my brother, nor I received the RFE for our petition. So I don’t have the first-hand experience with them. But other people showed me their RFE. For the EB-1A, they usually follow the USCIS template. The decisions on the employment-based petitions are highly subjective. The USCIS officer has a lot of discretion about each criteria and requirement. Sometimes, I was surprised that the people who in my opinion had more scientific achievements than I had received the RFE claiming, for example, that 600 citations of the publications is nothing special for a postdoc. The best scientists in the field have thousands of citations.

Some people got an approval after a successful reply to the RFE; some got a denial notice. These are not my stories, so I usually don’t know the details besides the final outcome. There are several options what to do next in case of the denial. The appeal process to the Administrative Appeals Office (AAO) requires either a good lawyer or a strong commitment to studying the immigration law and cases. One may file a new petition under the different category or under the same category with the new facts and achievements and hope that it will get on the desk of a nicer officer this time.

Reading relevant decisions by the AAO may provide a glimpse of understanding of the USCIS’s decision making. However, I warn you that it’s quite depressive reading, because most of appeals are dismissed. And these decisions are non-precedent. Their usefulness is extremely limited for the future cases.

Does a J-1 visa automatically require to spend 2 years in a home country?

J-1 nonimmigrant visa (exchange visitors) may require that its recipient spends 2 years in his or her home country after the end of the J-1 program (2-year home-country residency requirement or HRR). It usually happens when the J-1 program is sponsored by the US government or a foreign government. I know that the participation in the Fulbright Scholar Program or working as a J-1 postdoc in a national lab triggered the HRR.

However, working as a postdoc in a US university, even if it’s a public university, even if the work is funded by a government grant, usually doesn’t lead to the HRR. I have friends who worked as postdocs in a J-1 status, and they could get their green cards via EB-1A or EB2-NIW process without removing the HRR because they were not subject to it.

Everyone can request a free Advisory Opinion from the Department of State on whether the HRR applies to them. Sometimes, it turns out that even if this requirement is shown on the J-1 visa stamp, it actually does not apply. If it does apply, this J-1 person still can file an I-140 petition, but can’t apply for adjustment of status or change the status to H1-B. It’s possible to obtain a waiver of the HRR, and I know people who got one either through the request of the US Government Agency (Department of Defense) or through an exceptional hardship to a US citizen child of an exchange visitor. I also read about people who spent required 2 years in their home country, prepared and filed I-140 petitions and then returned back to the US as permanent residents.

What is the difference between O-1 and EB-1A?

First, O-1 is a nonimmigrant visa that provides only a temporary status in the US, while EB-1A is a category of a green card, i.e. permanent residency. Second, getting O-1 visa requires a US employer who does all paperwork, while one can self-petition under the EB-1A category without an employer.

I didn’t have O-1 visa myself, I got my green card under the EB-1A category when I was in the F-1 OPT status (practical training after getting a degree from a US university). But I knew several people who had O-1 visas. Most of them could later obtain green cards. Requirements for O-1 visa are similar to those of EB-1A, however I do observe that it’s easier to get O-1 visa. The requirements are not so strict. I know people who had O-1 visa, worked in the US, but their EB-1A petition was denied.

I read stories that someone created a company in the US while on B1/B2 visa and then applied for O-1 visa using their own company as an employer. For me, this way looks risky, especially if the company is not a real business and is created just for getting O-1 visa. More importantly, I don’t know anyone who got O-1 visa without a lawyer. And if you have a lawyer, you should ask him or her all questions you have about O-1 visa rather then read this FAQ.

How did you fill Form I-907?

You can submit Form I-907, Request for Premium Processing Service, with the I-140 Petition under the EB-1A category. Since January 30, 2023, you can request the premium processing under the EB2-NIW category as well (at last, I have been waiting for this feature for 10 years). Please refer to the USCIS website to find which categories are eligible for premium processing.

First, make sure that you are filling the most recent form. An expiration date can be found in the top right corner on the first page. I prepared my form in 2012, it was similar but not the same. The fee has increased since that time and since 2024 is $2,805 (and it may increase again in the future). It must be paid with a separate check.

Second, most of fields in the form are obvious. In Part 1, item 8, I checked the box “I am the petitioner who is filing or has filed a petition eligible for Premium Processing Service”, because I did everything without a lawyer. There is a subtle difference between the petitioner and the applicant (you can petition for someone else, but apply only for yourself). Since Form I-140 is called “Petition”, I chose “the petitioner”.

Part 2, item 1. I put “I-140”. item 2: “N/A” since I filed I-907 together with I-140. item 3: “EB-1A”. I filled both item 4 and item 5 with my name, because I was both the petitioner and the beneficiary.

Lastly, I followed the instructions for I-907: “If a question does not apply to you (for example, if you have never been married and the question asks, “Provide the name of your current spouse”), type or print “N/A” unless otherwise directed. If your answer to a question which requires a numeric response is zero or none (for example, “How many children do you have” or “How many times have you departed the United States”), type or print “None” unless otherwise directed.”

Can new papers that will have been published after the filing of the petition be submitted as additional evidence?

No. This case is regulated by 8 C.P.R. § 103.2(b)(1), (12). Citing it: “(12) Effect where evidence submitted in response to a request does not establish eligibility at the time of filing. A benefit request shall be denied where evidence submitted in response to a request for evidence does not establish filing eligibility at the time the benefit request was filed. A benefit request shall be denied where any benefit request upon which it was based was filed subsequently.”

For me, it’s clear that all evidence that is used to support the case must exist at the moment of the initial filing of the petition. I read the appeal decisions that stated that any future achievement does not count. The beneficiary must be fully eligible for the benefit when the I-140 petition is filed. So, if one expects to publish new papers or receive new awards in the near future, it might be wise to wait until all evidence for the petition actually exists rather than hope to submit it later in response to the RFE.

As I also understand, it’s possible to claim new criteria under the EB-1A classification after the initial filing of I-140, but all evidence for these newly claimed criteria had to exist on the moment of the initial filing.

To what address and in what form did you send your petition?

I printed out all the documents and attachments and arranged them in the order indicated on the first page of the petition example (Table of Contents): as requested by USCIS, I attached the bank checks for fee payment at the very top of my submission. I sent this stack of papers via UPS courier service. On the USCIS website you can find addresses where to send the petition (the specific address depends on which forms are being sent, which postal service is used, and in which state you intend to work), and tips on organizing the petition.

I did not number the pages in the exhibits or did not add headers to them. For each exhibit, a cover page with its number and title was printed. If the exhibit consisted of multiple related pages (for example, a recommendation letter spanning several pages), I fastened them with simple paper clips. I did not punch holes for binders. At the bottom, I added 4-5 small tab sheets indicating the exhibits (1st, 10th and so on, not for all 30), but I do not know if they helped the reviewing officer. Perhaps they can be omitted. The most important thing is for the officer to quickly find evidence for each criterion listed in the law, and I have never heard of rejections due to formatting (rejections often occur due to lack of the certification of the translation ).

The list of exhibits included references to the sections of the petition that referred to the specific exhibit. I had exhibits consisting of a single page as well as multiple pages. But they should be printed on one side so that it is easier for the USCIS to scan.

In the only case when I attached a translation, the order of the papers was as follows: translation certification, translation into English, original document in Russian. The certification was at the top, because this is how a professional translator returned the translation to me.

Should the petition be written in the first person (“I”) or the third person (“Dr. Doe”)?

It doesn’t matter, they won’t reject it because of that. Both ways are acceptable. You are both the petitioner (the one who files) and the beneficiary (the one who is being filed for). I wrote about myself in the third person as “Dr. Solovyev” because I followed the example I had.

Why did you create this website?

I learned a lot about employment-based immigration, and it would be sad if no one would benefit from this knowledge after I received my green card. I shared my story in my Russian-language blog (https://andresol.livejournal.com/) and offered to send an example of my petition. During the next 5.5 years, I sent it to almost 250 people, and more than 30 people wrote me back that they received the approval of their I-140 petition and that my example encouraged and helped them write their own petitions. I decided that it’s time to share my story and petition example not only with my friends but also with everyone interested in self-petitioning under EB1-A or EB2-NIW categories.

Writing about immigration laws and procedures is my hobby and volunteering. I’m not going to earn money on selling any documents, providing paid consultations, or third-party advertisements. I am just happy to help fellow scientists and other people, and I do believe that the qualified immigrants benefit the country I live in. I still see the lack of information about successful self-petitioning online, and I hope that this website will be my contribution in disseminating knowledge.