The EB-1B visa category was created for “outstanding” professors and researchers in order to shorten the length of time it takes for these high-priority individuals to become permanent residents of the United States.
One of the requirements of an EB-1B is that the alien beneficiary secures a permanent job offer from the sponsoring employer. In 2006, U.S. Citizenship and Immigration Services (USCIS) released a memo clarifying its definition of “permanent employment” in the context of EB-1B petitions.
“Permanent” for Research Positions vs. “Permanent” for Tenured or Tenure-Track Positions
According to USCIS, “permanent” employment is recognized as a job that is “tenured, tenure-track, or [that lasts] for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”
This definition is easy to conform to for a tenured or tenure-track teaching position, but there are caveats to it for research positions. A chief concern among many beneficiaries of the EB-1B visa is that research positions are often based on grant monies allocated on an annual basis. In many cases, grant-funded research positions are awarded on one-year contracts, and not for “an indefinite or unlimited duration.”
In its 2006 memo, USCIS spoke to this issue, explicitly qualifying the requirement of “permanent” for research positions. For such a position to be considered “permanent,” a petitioning employer must simply show “the intent to continue to seek funding and a reasonable expectation that funding will continue.” In other words, if a research position has a defined duration of one year, but the employer can demonstrate the likelihood and its intention of lengthening the duration—i.e. by way of subsequent, renewed grant funding—then USCIS will consider said research position “permanent.” Further, USCIS instructed its adjudicators to adopt a more nuanced view of research positions, directing them to “consider the circumstances surrounding the job offer as well as the benefits attached to the position.”
Ultimately, these clarifications are helpful to EB-1B beneficiaries. Before 2006, researchers were often reluctant to pursue an employer-sponsored EB-1B petition because the associated research jobs were technically not “permanent.” Consequently, some alien beneficiaries would file for lawful status through other channels, like a National Interest Waiver. Since the memo was published, qualifying intending immigrants can reap the benefits of an employer-sponsored EB-1B petition, which in many cases also means enjoying a shorter timeframe to becoming a permanent resident of the U.S.
“Good Cause for Termination”
As you’ll notice in the definition quoted above, USCIS included the phrase “good cause for termination” with respect to the “permanent” job offer. This phrasing serves to ensure that a job position in question is not “at will” employment, which refers to jobs in which the employer can terminate the employee at any time, for any reason—or even for no reason at all. A job position adheres to the EB-1B conditions only if it may be terminated for “good cause,” or for a relevant reason.
A trend among employers of late is excluding this phrasing regarding termination from their job offer letters. (This is unsurprising, given that such a clear-cut phrase as “good cause for termination” has potential legal and business implications for employers). But USCIS further clarified in its memo that adjudicators should refrain from denying a petition simply on the basis of a job offer letter not containing a “good cause for termination” clause.
For research positions, employers must ultimately show that their offer “is intended to be of an indefinite or unlimited duration” and that the associated alien beneficiary has “an expectation of continued employment.” Again, these guidelines are beneficial to potential EB-1B beneficiaries, whose petitions cannot be automatically denied because of a missing clause in their employment offer letters.
For tenured and tenure-track positions, a “good cause for termination” clause is never mandatory. This should come as no surprise, since tenure denotes permanence. However, positions in which the employee does not have an expectation of long-term employment, such as temporary or adjunct teaching positions or fellowships of limited duration, will not be recognized as tenured or tenure-track positions.
For more information on the EB-1B visa, refer to the following links:
Our experienced immigration attorneys are here to assist you in your EB-1 application. For more detailed information on the EB-1 category, including minimum requirements and USCIS policies, refer to the following links:
Updated 04/05/2017