EB1B Visa Category - Outstanding Professors and Researchers

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Introduction to the EB1B Preference Category — Outstanding Professors and Researchers

The EB1B category is a subpart of the broader first preference EB1 category for employment-based immigrant visas. The EB1B category, found in section 203(b)(1)(B) of the Immigration and Nationality Act (INA), covers “outstanding professors and researchers.” This article will explain the requirements for qualifying for a petition in the EB1B category, and the requisite evidence to support such a petition.

Statute: EB1B Preference Category — Outstanding Professors and Researchers

Pursuant to section 203(b)(1)(B) of the INA, an alien with a petition filed on his or her behalf must satisfy the following to qualify for classification in the first preference category as an “outstanding professor or researcher”:

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

Provided that those two requirements are satisfied, the alien 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 academic area in which the alien has the requisite 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

Regulations found in 8 C.F.R. 204.5(i)(3)(i) provide a list of evidence that may support an alien's qualifications as having international recognition in his field.1 The alien must satisfy two of the following evidentiary points from the list in order to qualify:

(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 (must include title, date, author, and, if necessary, translation);
(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.

Section 22.2(i)(2)(A) of the Adjudicator's Field Manual (AFM) lists additional considerations for adjudicators in determining whether each point supports the alien's claim for classification as an “outstanding professor or researcher”:

(A) Consider whether the award was for the alien or the alien's employer. In the second case, consider whether the award was directly attributable to the work of the alien. Consider whether the award has national or international significance (reports in the media may support the requisite significance, but are not required).
(B) Consider the requirements of the association(s) in the academic field which the alien is a member of. Does membership depend on accomplishments, or something else such as the payment of a fee or years of experience in the academic field?
(C) Consider whether the published material is specifically about the alien and his or her work in the academic field, or if it is about his or her employer or an association he or she is associated with. Consider whether the publication qualifies as a professional publication rather than a trade or media publication (emphasis on the target audience of the publication).
(D) Consider whether the alien acted as a judge of the work of others in the same or allied academic field.
(E) Consider whether the alien made original scientific or scholarly research contributions in the academic field.
(F) Consider whether the articles are scholarly articles within the field. The articles should contain reports on original research, experimentation, or philosophical discourse. They should include footnotes, endnotes, or bibliographies. Consider whether the journal(s) that the articles are published in are scholarly journals with international publication. The emphasis on this point should be consideration of whether a journal submitted as evidence has a specialized audience.

The AFM emphasizes that satisfying two of the six types of evidence does not by itself satisfy that the alien meets the requirements of an “outstanding professor or researcher,” but that it is simply the minimum requirement. To fully satisfy that the alien qualifies as an “outstanding professor or researcher,” all of the evidence taken together must show, by the preponderance standard (weight of the evidence), that the alien is an “outstanding professor or researcher.”2

Regulations found in 8 C.F.R. 204.5(i)(2) define “academic field” as “a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.”

Demonstrating 3 Years of Teaching or Researching Experience in the Academic Field

Regulations found in 8 C.F.R. 204.5(i)(3)(ii) explain that the requisite documentation for demonstrating 3 years of experience teaching or researching in the academic field must be in the form of letters from current or former employer(s) which include:

Name, address, and title of the writer;
A specific description of the duties and responsibilities of the employer.

Experience in teaching or research while working on an advanced degree in the academic field will be acceptable if and only if:

The alien has acquired the degree; and
The teaching duties were such that the alien had full responsibility over the class taught; or
The research performed by the alien was recognized within the academic field as “outstanding.”

Qualifying Offer of Employment in Academic Field

Pursuant to 8 C.F.R. 204.5(i)(3)(iii), labor certification is not required for the EB1B preference category. However, the alien must 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 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).

8 C.F.R. 204.5(i)(2) defines 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.” The petitioning entity must show the ability to pay in order for the petition to be approved.3

Pursuant to AFM 22.2(i)(2)(B), it is important to note that “private employer” in point (C) excludes officers of government employment. While a government entity may qualify under (A) or (B) if it is a “university or institution of higher learning,” it may not qualify under (C) where the requirement is explicitly for a “private employer.”4

In the case of a “private employer” under (C), the research may not be for engineering or product design.5

Advice for Applying for an Immigrant Visa in the EB1B Outstanding Professor or Researcher Category

An applicant for an employment-based immigrant visa in the EB1B category should, as with any immigrant visa applicant, consult with an experienced immigration attorney. The primary evidentiary consideration is to remember that meeting the minimum requirement does not guarantee that the applicant will be recognized as an “outstanding professor or researcher.” Any hopeful for an immigrant visa in the EB1B category should submit as much quality evidence (evidence that meets the criteria set forth in regulations and agency guidance) as possible. Since the ultimate determination will be made based upon the weight of all of the evidence rather than merely satisfying two of the regulatory categories, each piece of quality evidence will help support an applicant's claim that he or she qualifies for classification in the EB1B preference category.

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  1. See also . Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1189, citing Policy Memo, USCIS, Evaluation of Evidence Submitted with Certain Form I-140 Petitions, PM-602-0005.1 (Dec. 22, 2010) at 2, published on AILA InfoNet at Doc. No. 11020231; 56 FR 30703 (July 5, 1991)
  2. See for more detail Kurzban 1190, citing Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) [sets forth two-part wherein USCIS first considers whether 2 or more criteria are met and then evaluates the evidence as a whole]; Matter of __, TSC (AAO Dec. 23, 2011); Matter of __, TSC (AA) May 21, 2010), published on AILA InfoNet at Doc. No. 10061065; Policy Memo, USCIS, Evaluation of Evidence Submitted with Certain Form I-140 Petitions, PM-602-0005.1 (Dec. 22, 2010) at 4, published on AILA InfoNet at Doc. No. 11020231
  3. Kurzban 1189, citing 8 C.F.R. § 204.5(i)(3)(iii), Matter of __, NSC, LIN 03-122-52049, 2005 WL 2160025 (AAO Jan. 3, 2005)
  4. See also Kurzban 1189, citing 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; Matter of __, TSC (AAO May 21, 2010), published on AILA InfoNet at Doc. No. 1006165
  5. Kurzban 1189, citing Matter of __, WAC 99-016-52605 (AAO Feb. 6, 2001) reported in 7 Bender's Immigr. Bull. 1095-1104 (Sept. 15, 2002)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1189-90, Print. Treatises & Primers.

 

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