USCIS Issues New Guidance about Employer Requirements in EB-1B Petitions
Recently, USCIS issued a memo detailing their new stance on acceptable employers for EB-1(b) cases. According to them:
USCIS must determine, in connection with the filing of a first preference petition on behalf of an outstanding professor or researcher, whether a particular U.S. employer falls within the definition of INA section 203(b)(1)(B). 1 The statute requires that the beneficiary of an E12 petition must be seeking a position with a university, institution of higher education or a department, division, or institute of a private employer if the department, division, or institute employs at least 3 persons full time in research activities and has achieved documented accomplishments in an academic field. Id; see also 8 CFR 204.5(i)(3)(iii).
In general, government agencies at the federal, state, or local level will not fit within the definition of203 (b)(1)(B) unless the government agency is shown to be a U.S. university or an institution of higher learning. Thus, USCIS may only approve an E12 petition in instances where the offer of permanent employment is from a government agency, if that agency can establish that it is a U.S. university or an institution of higher learning. Government agencies do not qualify as "private" employers.
As such, before applying for an EB-1(b), aliens must determine whether or not their prospective employer is acceptable under this new decree.
EB-1(b) or “outstanding researcher/professor” is an employment based category reserved for internationally outstanding scientists in any scholarly field.
In order to apply for an EB-1(b), applicants must meet three important criteria.
First, one must be internationally recognized in a particular academic field, and should support this with specific evidence (please see below).
Second, one must have at least three years of teaching experience or research. Part of this requirement can be fulfilled while in pursuit of an advanced degree, only if the applicant has in fact, conferred the degree and if his/her duties as a teacher/researcher can be deemed as “outstanding”. This should be documented in the form of letters from employers (past and/or current) detailing work history, years of employment, and specific duties.
Finally, an applicant must have a current job offer with the employer sponsoring him/her. This is one of the main differences between an EB-1(a) and EB-1(b), as an EB-1(a) does not require an applicant to have a pending job offer. Usually, valid job offers are for tenured/tenured track positions; any permanent research position should also suffice. Job offers can come from universities, other similar institutions, or private companies. Please keep in mind that a private company will only qualify if it employs at least three full-time researchers. Supporting material documenting the acclaim of the private company must also accompany the petition. Like other EB-1 categories, the “outstanding researcher/professor” classification requires no formal labor certification.
The EB-1(b) category is quite comparable to an EB-1(a) as far as strength of evidence one must provide. In order to substantiate your status as an “outstanding researcher”, you must provide indisputable evidence in at least 2 of the following categories:
Evidence detailing participation as a judge of the work of others
- Citation record (professional material published about the applicant’s work written by others)
- Membership in outstanding organizations (requires members to go through a competitive application/nomination process)
- Receipt of outstanding prizes or awards (must not be awards exclusive to students or recent post-docs, but open to the entire field)
- Original scientific, scholarly, or artistic contributions in the field.
Published books/articles with international circulation
- From August to October, we have had 21 EB-1(b) cases successfully approved. All 21 applicants have a Ph.D. The average number of journal papers published among applicants was 14. The average of number of reviews conducted was 4. Most of them work for universities or institutes as assistant professors or postdoctoral research associates, while others work for private companies as senior engineers or researchers.
We would like to encourage those who are affected by this new ruling to apply in the Eb-1(a) category instead. So long as one meets the requirements for this type of petition, there is currently no restriction against what type of employer can file a petition on your behalf.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past thirteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
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(11/18/2009)
