• Introduction to the EB1B Visa Category for Outstanding Professors and Researchers
  • November 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • The EB1B Preference Category: Outstanding Professors and Researchers

    The EB1-B (EB1B) category is an employment-based immigrant visa category for outstanding professors and researchers. The underlying statute for the category is found in section 203(b)(1)(B) of the Immigration and Nationality Act (INA).

    The statute requires that in order to qualify for classification in the EB1B category, an alien must:

     (i) be recognized internationally as outstanding in a specific academic area, and
     (ii) have at least 3 years of experience in teaching or research in said academic area.

    The statute requires that an alien who qualifies on those merits must be seeking to enter the United States in order to:
    • take a tenured position (or tenure-track position) within a university or institution of higher education to teach in the alien’s academic area of recognition and expertise; or
    • take a comparable position within a university or institution of higher education to conduct research in said academic area; or
    • take a comparable position to conduct research in said academic area within a department, division, or institute of a private employer (which must employ at least 3 persons full time in full-time research activities and must have documented accomplishments in the academic field).
    Demonstrating Qualifications as Outstanding Professor or Researcher
     
    United States Citizenship and Immigration Services (USCIS) regulations list evidentiary requirements for demonstrating that an alien is an outstanding professor or researcher with international recognition in his or her field. These requirements are found in section 204.5(i)(3)(i) of title 8 of the Code of Federal Regulations (C.F.R.). In order to meet the minimum requirements for consideration, an alien must satisfy two of the following evidentiary requirements:
    • (A) Documentation of major prizes or awards for outstanding achievement in the academic field;
    • (B) Documentation of membership in associations in the academic field which require outstanding achievements of their members;
    • (C) Published material in professional publications written by others about the alien’s work in the academic field;
    • (D) Evidence of participation, either individually or on a panel, as a judge of others in the same or allied academic field;
    • (E) Evidence of original scientific or scholarly research contributions to the academic field; or
    • (F) Evidence of authorship of scholarly books or articles (in journals with international circulation) in the academic field.
    “Academic field” is defined in section 204.5(i)(2) of title 8 of the C.F.R. as “a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.”

    It is important to remember that satisfying two of the six requirements do not guarantee that a professor or researcher will be found to qualify as “outstanding.” A petition should contain as much quality evidence as possible to demonstrate outstanding achievements and recognition. However, the regulations explicitly state that satisfying two of the six evidentiary requirements a minimum threshold for demonstrating that a professor or researcher is “outstanding.”

    Section 22.2(i)(2)(A) of the Adjudicator’s Field Manual provides guidance on how individual pieces of evidence will be evaluated. Please follow this link and scroll down to the bottom of the section to learn more.

    Demonstrating 3 Years of Teaching or Researching Experience in the Academic Field
     
    Section 204.5(i)(3)(ii) of title 8 of the C.F.R. require that evidence of 3 years of teaching or researching experience in the academic field be submitted in the form of letters from current or former employer(s).

    Under limited circumstances, experience in teaching or research while working on an advanced degree is considered acceptable for meeting the 3-year requirement. First, the alien must have already acquired the degree. If the experience is in teaching while working on the advanced degree, the alien must have had full responsibility over the class taught. If the experience is in research while working on the advanced degree, the research performed by the alien must be recognized within the academic field as “outstanding.” All of the evidentiary requirements in the previous section apply.

    Qualifying Offer of Employment in the Academic Field
     
    Labor certification is not required for the EB1B preference category. However, regulations found in section 204.5(i)(3)(iii) of title 8 of the C.F.R. require that the alien have an offer of employment in letter form from:
    • (A) A United States university or institution of higher learning which is offering the alien a tenure or tenure-track teaching position in the alien’s academic field; or
    • (B) A United States university or institution of higher learning which is offering the alien a permanent resident research position in the alien’s academic field; or
    • (C) A department, division, or institute of a private employer offering a permanent research position in the alien’s academic field (provided that it employs at least 3 persons full-time in research positions, and that it has achieved documented accomplishments in the academic field.
    Regulations in section 204.5(i)(2) define a “tenure,” “tenure-track,” or “permanent” position as being of a term of “indefinite or unlimited duration” where the employee “will ordinarily have an expectation of continued employment unless there is good cause for termination.”

    An EB1B petitioner is required to show the ability to pay in order for the petition to be approved.[1] Government entities may not act as petitioners for (C) because that is limited to “private employers.” In the case of a “private employer” under (C), the position may not be for engineering or product design.[2]

    Advice for the EB1B Category

    For those who can meet the rigorous evidentiary requirements, the EB1B preference category is an appealing employment immigration option both because it is part of the first preference category, and because it does not have a labor certification requirement. However, substantial evidence is required to demonstrate that an alien is an “outstanding professor or researcher.” Employers and professors and researchers should consult with an experienced immigration attorney in order to determine whether the EB1B preference category is appropriate for the alien and the specific offer of employment. If it is determined that it is, an experienced immigration attorney will be able to help the petitioner and alien compile the requisite evidence to demonstrate the alien’s qualifications as an “outstanding professor or researcher” to USCIS.


    1. Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 07-26 (Sept. 14, 2009),published on AILA InfoNet at Doc. No. 09110465
    2. Matter of --, WAC 99-016-52605 (AAO Feb. 6, 2001) reported in 7 Bender's Immigr. Bull. 1095-1104 (Sept. 15, 2002)