Years ago, as a young attorney new to the Houston area, I was set up on a blind date with Pavan.
Pavan was was a very nice and honest man. He was also a young doctor from India. He was working as a high skilled immigration candidate to get his Green Card. He said that people like him felt that they loved the U.S.
Then he said something that struck me:
“When you get your Green Card, it’s like the U.S. loves you too.”
I’ve been privileged to grow up in the U.S. I didn’t have to go through any kind of process to get status here. And, I understand the privilege we inherit as Americans. Not just because of what Pavan said that evening.
With a major in Chinese, I lived in China for a couple of years before I went to law school. I’ve lived in a country that’s not my home. It’s challenging. But, unlike Paven, I never sought to move to China permanently.
Many of the clients I’ve worked with over the past nine years were just like Paven.
Simultaneously optimistic about living the American Dream, yet filled with anxiety fearing his dream could end on a whim. If you work in oil and gas in the U.S. on a work visa, you more than likely know the feeling.
With that in mind, let’s take a look at the high skilled immigration hurdles you face on your path to “Permanent Residence.” Hopefully this will help answer some of your questions.
My Oil and Gas Employer Won’t Sponsor Me
If you’re in the U.S. on a work visa, you may have already thought about applying for a Green Card or “Permanent Residence.” If you’ve researched It on your own, you already know that your employer can serve as your “Petitioner” and be responsible for the process.
But, if you’re still reading this, it’s probably because your employer won’t sponsor employees – it’s not a legal requirement that they sponsor employees, so many oil and gas companies don’t do it.
That doesn’t change the fact that you want a Green Card because you want a sense of permanence rather than feeling that your status in the U.S. could end on a whim.
Or, you might be concerned about your earning potential if you can’t stay here. Maybe your kids’ education is most important to you, and you think they have the best education opportunities here.
Many people who come to my firm for help getting a Green Card tell me that, more than anything else, it’s about their kids and the opportunities that a Green Card can provide to them.
As someone who has represented these people in their journey, I would tell anyone who wants to apply for a Green Card without a sponsoring employer, that it’s all about you.
If you know you’re a high skilled immigration candidate, interested in a Green Card, and your employer doesn’t sponsor employees for Green Cards, you may have other options. For anyone working in Oil and Gas with this dilemma on their hands, consider a self-petition for permanent residence based on your achievements, your experience, and your potential.
There are two ways to self-petition if you do not have a sponsoring employer or an employment offer:
- The Extraordinary Ability petition.
- The National Interest Waiver petition.
Extraordinary Ability Self-Petition (EB-11 or EB-1A)
The Extraordinary Ability petition requires that you show that you are at the top of your field.
The U.S. Immigration Service or USCIS defines “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”
To show extraordinary ability in your field, you will need to show that you have achieved sustained national or international acclaim and that your achievements have been recognized in your field. This can be done in one of two ways:
– You may either show that you have been given a major international award in your field, or…
– You can show that you have achieved at least three of the following criteria:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence in your field of endeavor;
- Membership in associations in your field which require outstanding achievements of their members;
- Published material about you or your work in professional or major trade publications or other major media;
- Evidence that you served as a judge of others in your field, either individually or on a panel;
- Proof that you have made original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field;
- Authorship of scholarly articles in your field in professional or major trade publications or other major media;
- Performance in a leading or critical role for organizations or establishments that have a distinguished reputation; or
- Evidence that you have commanded a high salary or other significantly high remuneration for services in relation to others in the field.
If you can’t meet some of the criteria above because they don’t apply to your work, you can provide other evidence. My firm has used this category for Geologists or Geophysicists who have published articles about their experiments or findings or those who have patents or other innovations that are now used in their field.
One of the most attractive aspects of the Extraordinary Ability self-petition is that, as of May 2016, there are no backlogs in this immigration category (even for nationals of India and China).
Of course, it takes significant achievement to get into this category, and many energy employees haven’t written for journals or patented their own inventions. If it seems like this category isn’t a good fit, there’s another option.
National Interest Waiver Self-Petition (NIW)
If you’re interested in a self-petition but Extraordinary Ability isn’t a good fit, you should consider the National Interest Waiver (NIW) self-petition as your alternative. The NIW requires that you show that you have a U.S. advanced degree or its equivalent.
If you can’t meet the advanced degree requirement, you can show that you have exceptional ability in your field (by meeting some alternative criteria).
Besides the advanced degree/exceptional ability showing, you also need to show that:
- Your work is national in scope. Work in O&G tends to be national or international in scope.
- Your work is in an area of substantial intrinsic merit. We have argued that since the U.S. is an energy-dependent country, jobs in O&G has substantial intrinsic merit.
- Your work is that in the U.S. national interest to keep you here in your field rather try to find a minimally qualified U.S. worker to take the job.
Besides the advanced degree or exceptional ability showing, you also need to show that your work is national in scope. For example, work in O&G tends to be national or international in scope.
Your national scope of work should also be in an area of substantial intrinsic merit. For example, in the past, we have argued that since the U.S. is an energy-dependent country, jobs in O&G have substantial intrinsic merit and it’s in the U.S. national interest to keep you here in your field rather than try to find a minimally qualified U.S. worker to take the job.
This usually means showing that your past record justifies projections that you will benefit the U.S. national interest to a substantially greater degree than your peers. There are specific ways that a firm like ours works with you to show that you meet these criteria.
High Skilled Immigration Challenges
In the past two years, my firm has filed successful high skilled immigration, NIW petitions for a Health, Safety and Environment Manager with a background in drilling tools and a Supply Chain manager. We are currently working on petitions for other O&G roles, including some for people with a unique combination of skills or specializations.
Not everyone will have a strong case for a self-petition, and not every self-petition we believe in will get approved. At the same time, I have enjoyed high skilled immigration and the challenges of the energy industry self-petitions and the opportunity to keep talented people within our borders.
And, for those who share Pavan’s view, self-petitions are a way for people who love the U.S. to get the U.S. to love you back.
Are you an oil and gas employee trying to become a permanent resident? How has your high skilled immigration experience gone so far? Do you have any questions you’re dying to ask an expert attorney?
Leave your stories and questions in the comments below. I would love to help!
The Oil and Gas Immigration Seminar in Houston
Join Kathryn as she discusses steps employees of oil and gas companies can consider to protect their ability to remain in the United States in the event of a layoff, and actions to consider for those interested in remaining in the United States long-term. Click here to register.