Frequently Asked Questions for EB1-B (Outstanding professors and researchers)

Who qualifies as an outstanding professor or researcher?

Three requirements must be satisfied for a petition of outstanding professors or researchers:

1. An outstanding professor or researcher is a foreign national who is recognized internationally as outstanding in a specific academic field.
2. The foreign beneficiary must have at least three years of experience in teaching or research in the academic field.
3. The foreign beneficiary must be offered a tenured or tenure-track teaching or research position at a university, or a comparable research position with a private employer if the employer has at least three full-time researchers and documented accomplishments in the research field.

Who can file a petition under EB1-B?

The employer must file the preference petition with the USCIS; the foreign person is the beneficiary of the petition.

What form does EB1-B petition file?

All petitions of EB-1 need to file Form I-140.

Is a labor certification required before the filing of I-140?

No labor certification is required before the I-140 filing for all groups of EB-1.

Is a job offer required for EB1-B?

Yes. A job offer is required under this category and the foreign professor/researcher needs employer sponsor to file the petition.

What are the major advantages of applying for EB1-B-Outstanding Professors or Researchers?

1. No labor certification is required.
2. All visas are current so it much faster to obtain a Green Card in this category than others.

How difficult is it to have EB1-B petition approved?

The burden of proof in EB1-B cases rests solely with the petitioner. The petitioner has to provide substantial evidence of the two out of six regulatory criteria the foreign professor/researcher is attempting to satisfy. If the foreign professor/researcher is qualified, the probability of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely.The approval rate of EB1-B case has been over 90 percent over the last 5 years. See Approval rate from 2005-2010.

What eligibility criteria should be identified in the case of Outstanding Professor or Researcher petitions in Form I-140?

The I-140 petition for Outstanding Professor or Researcher should include the follow documents:

1. The petition should identify which of the six regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.
2. Provide evidence that the alien has at least three years of experience in teaching and/or research in the academic field.
3. Submit a copy of the petitioner's actual job offer issued to the alien beneficiary. This letter or contract must set forth the title, terms and conditions of the position offered.
4. Send documentation as outlined above for each position if the beneficiary has changed positions since s/he was initially hired.

What evidence should be included in an EB1-B petition?

Substantial amount of evidence must be included in EB1-B petition to support the satisfaction of qualification. A petition for outstanding professor or researcher must be accompanied by evidence of the six regulatory criteria the petition is attempting to satisfy and the relevant evidence for each individual criterion:

1. documentation of the alien beneficiary's receipt of major prizes or awards for outstanding achievement in the academic field;
2. documentation of the alien beneficiary's membership in associations in the academic field, which require outstanding achievements of their members;
3. published material, in any language, provided it is translated into English, in professional publications written by others about the alien's work in the academic field--this documentation must include the title, date, and author of the material;
4. evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same, or an allied, academic field;
5. evidence of the alien beneficiary's original scientific or scholarly research contributions to the academic field; or
6. evidence of the alien beneficiary's authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field.

Also, the petition should include evidence of the alien beneficiary's at least three-year teaching or research experience and tenure or tenured track position.

Can the experience in teaching and research combined together to calculate the three year experience?

Yes, under the USCIS regulations, the requirement of three years of experience can be met through a combination of teaching and research.

Does the three year experience of teaching or research include the experience in teaching or research while working on an advanced degree?

Experience in teaching or research while working on an advanced degree is generally not acceptable. It will only be acceptable if the foreign person has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding.

How should the petition present the evidence of at least three year experience in teaching or research?

Evidence of teaching and/or research experience must be in the form of letter(s) from current or former employer(s) and must include the name, address, and title of the writer, and a specific description of the duties performed by the alien beneficiary.

What jobs qualified as tenure, tenured-track or comparable positions?

Tenured, tenured track job means a job that has no definate termination date. It can be a teaching or research position at a university, or a comparable research position with a private employer if the employer has at least three full-time researchers and documented accomplishments in the research field.

Is a permanent research job qualified?

In recognition that many research positions at universities are not tenured or tenure-track positions, the USCIS rules permit a job offer to qualify for first preference consideration if the university is offering a “permanent research position“ to the alien beneficiary. A “permanent“ position is one that is for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.

What if the employer is a private employer and they don't provide “tenure or tenured-track job“?

The USCIS takes the position that since private employers do not ordinarily give tenure to employees, a “comparable“ position for purposes of this category would be one in which the job description and duties are analogous to those of a researcher in an academic setting, that is, one who is offered a “permanent“ position as defined by the rules.

Is a government agency a qualified employer?

The UCIS clarifies that government agencies at the federal, state, or local level do not fit within the definition of employer for the purposes EB1-B unless the government agency is a U.S. university or an institution of higher learning. And the burden of proof is on the petition(employer) instead of the beneficiary (the foreign person).

How should a petition preset the evidence of being offered of employment from a prospective United States employer?

Since a labor certification is not required for this classification, the offer of employment must be in the form of a letter from:

1. a United States university or institution of higher learning offering the foreign professor/researcher a tenured or tenure-track teaching position in his/her academic field;
2. a United States university or institution of higher learning offering the foreign professor/researcher a permanent research position in the his/her academic field; OR
3. a department, division, or institute of a private employer offering the foreign professor/researcher a permanent research position in the his/her academic field; the department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

Is there any evidence that would present a strong case that the professor or researcher is considered outstanding?

In a June 1992 memorandum on the subject, the former INS indicated that the following evidence would present a strong case that the professor or researcher is considered outstanding:

1. Peer-reviewed presentations at academic symposia;
2. peer-reviewed articles in scholarly journals;
3. testimony from other scholars on the alien beneficiary's contribution to the field;
4. a number of entries in a citation index citing the alien beneficiary's work as authoritative; or
5. Participation by the alien beneficiary as a reviewer for a peer-reviewed scholarly journal.

Is the foreign professor/researcher required to have a PhD degree?

Although one would normally expect outstanding researchers and professors to have Ph.D. degrees, neither the statute nor regulations require possession of a doctorate. Furthermore, a foreign national who qualifies as an outstanding professor can be offered a position as a researcher and vice versa.

Does the two-part approached applied to EB1-A also apply to EB1-B case?

Yes. The types of evidence listed in the regulations serve only as guidelines for the adjudicator and the petitioner. Ultimately, the evidence must establish that the beneficiary is a researcher or professor who is internationally recognized as outstanding. Merely presenting evidence which relates to two of the listed criteria does not necessarily mean that the priority worker petition will be approved since the adjudicator must weigh and evaluate the evidence. If the USCIS determines that the evidence submitted does not meet the standard for classification, therefore, additional evidence may be requested.

How many publications are sufficient to meet EB1-B requirements?

There is no specific minimum publication requirement; rather, it is determined by USCIS on a case-by-case basis.

What is the most update two-part approach taken by the USCIS now?

In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under the classification of EB1-A, the Kazarian case. The AAO determines that Kazarian case sets forth a two-part approach : Part One- Counting the Types of Evidence Provided; Part Two: Final Merits Determination. A USCIS memorandum issued in August 2010 now mandates two-step analysis for EB1-A Alien of Extraordinary Ability, EB1-B Outstanding Professors and Researchers and EB-2 Foreign Nationals of Exceptional Ability

1. Part 1: The adjudicator must determine whether the petition has submitted evidence to meet the criteria for the immigration classification he or she is seeking as required by the USCIS rules.
2. Part 2: The adjudicator must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. In this phase, the adjudicator evaluates all the evidence and determine if, cumulatively, it proves by a preponderance of the evidence that the I-140 beneficiary satisfies the general definition of the category.

Can my employer files EB1-B for me and I file EB1-A and/or NIW simultaneously?

Yes. But you have to file a separate Form I-140 petition, with the required fee and supporting documentation for each requested visa category. Do not check multiple categories on one I-140 Form.

How can a petition be filed?

An I-140 Form can be file electronically or by mail. But supporting evidence has to send to service centers.

Is priority date matter in a EB1-B case?

No because all visas are current.

Can a petition be withdrawn?

Yes, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS .

How can a petitioner request the withdrawal of a Form I-140 petition?

The petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS

Withdrawal requests should include:

1. A statement indicating that the Form I-140 petitioner wishes to withdraw the petition;
2. The Form I-140 petition receipt number;
3. The name, address and phone number of the petitioner;
4. The name of the alien beneficiary;
5. The alien registration number of the alien beneficiary, if known;
6. The petitioner's signature or the Form G-28 representative.

If an EB1-B petition gets rejected, how long do I have to wait to file under EB1-B or other categories again?

The law does not restrict the time you can file your EB1-B petition after the rejection of your previous filing. A previously rejected petition does not bar you from submitting another petition subsequently, regardless which classification is concerned. However, unless your circumstance has improved, it is not advisable to simply submit a similar petition again because it is unlikely your case will be approved.

How should evidence accompanied the petition be organized?

Follow the tips below for how to organize the evidence:

1. Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.
2. If providing photocopies of documents, provide clear legible copies.
3. All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
4. If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portion(s) that cite the alien's work and the “works cited“ or bibliography.
5. Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

What is a letter of recommendation?

A letter of recommendation is also called reference letter, and it is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. Recommendation letters are essential in petition for employment-based immigration benefits. Given that adjusting officers are rarely experts in an academic field, the only way for them to determine whether you qualify for the standard set by the law (outstanding) is looking at objective evidence submitted. A recommendation letter is among the most important of them.

Whom should I contact to obtain letters of recommendation?

The USCIS takes the position that an individual with international recognition should be able to produce ample unsolicited materials reflecting that acclaim. Therefore, recommendation letters from independent and outside sources carry more weight because they are proof of the alien's accomplishments. If an alien's contributions are not praised widely outside his or her current and former circle of acquaintances, then it cannot be concluded that he or she has earned sustained international recognition. Therefore, the government will not give as much weight to letters from the alien's immediate circle of colleagues submitted in support of the criterion of original contributions of major significance in the field.

In addition to be an expert in the field of your endeavor, it will better if the person writing you a recommendation letter knows about your research and contribution enough to specifically address them in the recommendation letter. Therefore, although someone who has a prominent reputation in the field of your endeavor will be a better candidate than someone from your immediate circle of acquaintances, a perfect candidate will be an expert familiarizing himself/herself of your contribution. A recommendation letter from your existing or prospective employer is also appropriate.

What information should be included in the recommendation letters?

These are things that should be included in a recommendation letter:

1. Qualifications of the recommender: A recommendation letter needs to include the description of the drafter. If the drafter comments on the foreign person's achievements or research, a statement should be included in the support letter that establishes the qualifications of these individuals to judge the applicant's work.
2. Helpful testimonials from experts: Expert testimonials of your accomplishments are crucial to your petition. However, keep in mind that expert testimonials should bolster the argument that you meet the standard set by law, i.e., that the alien beneficiary is internationally recognized. Evidence that merely establishes the alien beneficiary's competence or which fails to set him/her apart from other persons in the field does not support the case because it carries little weight and may actually be used to deny the petition.
3. Substantive information: A good recommendation letter should point out the high level of unique expertise the applicant possesses. If it is a recommendation letter from an employer or professor of the applicant, it should specify the work the foreign national is responsible for and the requirements of the job. A recommendation letter from an employer can cite to such a position to establish that very few individuals can fill the offered position and the alien is one of these few individuals. In addition, recommendation letters that briefly discuss the alien beneficiary's activities and described him or her as a knowledgeable individual, but lack specific information regarding how the his/her contributions had significantly and consistently influenced the field are insufficient.

How many recommendation letters are needed?

There is no specific number of letters set forth by the USCIS. You should generally include three to seven letters of recommendation in an EB-1 case.

What assistance does your firm provide concerning drafting recommendation letters?

Letters of recommendation are hard to draft yet good letters of recommendation will substantially boost your chance of successful petition. After you retain us, our firm will help you obtain good recommendation letters step by step:

1. We will provide detailed information concerning recommendation letters and walk you through the purpose, format and content of recommendation letters.
2. We will discuss with you about potential candidates to write you recommendation letters.
3. You provide us detailed information pertaining to the authority and expertise of the recommenders, your connections, the relationships beteween your research and theirs ect.
4. After receiving the information you provide, our attorneys and legal team will draft recommendation letter for you.
5. You send the recommendation letters to recommenders for them to review and sign.
6. Before we submit the petition, we will review those substantially changed recommendation letters to see if it is necessary to ask the recommender to sign another updated version.

What if I change jobs while my EB1-B petition is pending?

If the alien beneficiary changes employers when I-140 is pending, a new petition must be filed.

What is the real difference between EB1-B and NIW applications? Is it possible to file two petitions such as an EB1-B and a NIW at the same time?

The requirements in EB1-B and NIW are different, and the application preparation is significantly different between these two classifications. For example, foreign person seeking classification of NIW can do self-petition while EB1-B seekers need to have an employer sponsor. But once your I-140 is approved, there is no major difference between these two classifications for the I-485 application later.

It is possible to file two petitions such as an EB1-B and a NIW at the same time. Some applicants file two I-140 petitions simultaneously in EB-1 and NIW. There is nothing stated in the law that prohibits multiple filings. Actually, multiple filings increase your chances.

What is the real difference between EB1-A and EB1-B applications? Is it possible to file two petitions at the same time?

Unlike the extraordinary ability category, the outstanding professors and researchers category requires an offer of employment. Therefore, outstanding professors and researchers cannot self-sponsor themselves. Their petitions must be accompanied by an offer of employment from a U.S. employer.

Despite this additional requirement of a job offer, the standard for outstanding professors and researchers is, nonetheless, a lessor one than that of extraordinary ability aliens. The latter must show a major internationally recognized award, or documentation from at least three of ten specified categories. On the other hand, outstanding professors and researchers are only required to show that they have received international recognition as outstanding in their particular academic areas by meeting at least two of the six criteria set forth above.

In addition, foreign nationals may also qualify for the outstanding professors and researchers category much easier since they can utilize experience gained while they were still students. These professors or researchers may qualify even if they received their three years of qualifying experience while still enrolled in a Ph.D. or teaching program if they had full control over the courses they taught. In addition, outstanding researchers may also count their research experience which was gained as was part of their education if they can show that their research was “outstanding.“

If I do not have published articles in journals within my field, may my employer still petition for me under EB1-B?

Yes, there is no specific requirement that you need to have published articles in order to apply or obtain approval of an EB1-B petition, although in many instances publications would help improve chances of approval. Publications may help to establish alien beneficiary's original scientific or scholarly research contributions to the academic field and the alien beneficiary's in the academic field. A petitioner can still support the case by providing evidence that satisfies other prongs listed by the law.

If I do not have any awards in my field, may my employer still petition for me under EB1-B?

If you do not have any awards in your field, you still can apply for an EB1-B. There is no specific requirement that you must have awards in order to apply or obtain approval of an EB-1 petition, although in many instances awards would help improve chances of approval by satisfying one of the prongs listed by the law. The petitioner can still support the case by providing evidence that satisfies other prongs listed by the law.

I am a J-1 holder subjected to the two-year foreign country residency requirement. May I apply under EB1-B now, and get my J-1 waiver later?

Yes, you can apply for the EB1-B now, and get your J-1 waiver later. Even with a I-140 approval, you are still subject to the two-year foreign country residency requirement, and need to get the J-1 waiver before you can adjust your status to permanent resident.

You do not have to have a J-1 waiver before submitting an I-140 petition. The two-year foreign residency requirement does not allow you to adjust the status from J-1 to permanent residency, but it does not prevent you from submitting I-140 petition. Also, you may prepare for I-140 and J-1 waiver concurrently. If you receive an I-140 approval before a J-1 waiver, you need to wait for the J-1 waiver to submit the I-485 application for adjustment of status.

What is the legal fee of EB1-B case of your firm?

We charge a flat attorney fee of $5,000 for I-140s eligible for our "Approval or Refund" service. With the comprehensive service provided, we North America Immigration Law Group still keeps the attorneys' fee affordable and reasonable. Our goal is to make every qualified foreign beneficiary realize their American dreams within their means. Answer provided by North America Immigration Law Group.

What is the filing fee of I-140?

The filing fee of I-140 is $700.