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Professors and Researchers: Employment Based Green Card Options - EB-1, EB-2, and EB-3
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As with the nonimmigrant status there are several options for professors and researchers that are seeking permanent residence. While each option is designed for specific circumstances, many individuals will qualify for more than one employment based green card category.

Employment Based Green Card Categories for permanent residence in the U.S. 

  1. EB-1 Green Card Option: EB-1.2 - For Outstanding Professors and Researchers  

    Outstanding professors and researchers are individuals that are recognized internationally for their outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years experience in teaching or research in their academic field, and must be entering the U.S. to fill a tenure or tenure track teaching position or a comparable research position at a university or other institution of higher education or private organization.  

    If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.

    Note: The employer must file the petition for an outstanding professor or researcher

    (i) Initial evidence Employment Based Green Card Petitions for outstanding professors and researchers must be accompanied by sufficient evidence to show that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following categories:

    A.

     

    Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;

     

     

     

    B.

     

    Documentation of the alien's 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. Such material shall include the title, date, and author of the material, and any necessary translation;

     

     

     

    D.

     

    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;

     

     

     

    E.

     

    Evidence of the alien's original scientific or scholarly research contributions to the academic field; or

     

     

     

    F.

     

    Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

    The petitioning employer must also provide evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Any experience in teaching or research gained while working on an advanced degree will only be acceptable if the alien 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.

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

    Finally, Outstanding Professors and Researchers require an offer of employment as initial evidence in support of a first preference employment based green card petition filed on their behalf. The offer of employment may be in the form of a letter from the petitioning employer (i.e., U.S. university or institution of higher learning or a department, division, or institute of a private employer) stating that the employment is a tenured or tenure-track teaching position or a "permanent" research position in the alien's academic field. The word "permanent", in reference to a research position, is defined as:

      "either tenured, tenure-track, or 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."

    If the employer is a private organization it 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.

    A recent review of modern business practices reveals that most employment agreements for professors and researchers provide that a tenure-track teaching position or comparable research position is terminable "at will," even though both the employer and the employee have the expectation that the employee will continue in the employment for an indefinite or unlimited duration. "Good cause for termination" clauses often are not included in such agreements because they raise numerous legal and business issues for employers.

    In determining whether a petitioning employer has established that a research position is permanent, some USCIS adjudicators have focused solely on whether the language of an actual employment contract (if submitted) or the offer of employment contains a "good cause for termination" provision. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment.
    PUZZLER
    For EB-1.2 researchers and professors, an offer of permanent employment is met when there is intent for ongoing employment. Does an individual whose employment is renewed annually meet the requirement for an offer of permanent employment based upon the mutual expectation the offered employment will be extended on an ongoing basis?

    No. In the case of researchers the petitioner must establish that a job is permanent. The regulations require that a petitioner submit evidence that the position is tenured, tenure-tracked or 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. The mere fact that the petitioner claims that the job may be renewed annually is not sufficient to establish the permanent nature of the job.

    1. EB-1 Green Card Option: EB-1.1 - For Aliens with Extraordinary Ability:

      Professors and researchers, or any person on their behalf, may file a Form I-140 petition for employment based green card as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. Extraordinary ability, as defined by USCIS, means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.

      (i) Initial evidence

      An employment based green card petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award, i.e., the Nobel Prize), or at least three of the following:

      A.

       

      Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

       

       

       

      B.

       

      Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

       

       

       

      C.

       

      Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

       

       

       

      D.

       

      Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

       

       

       

      E.

       

      Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

       

       

       

      F.

       

      Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

       

       

       

      G.

       

      Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

       

       

       

      H.

       

      Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

       

       

       

      I.

       

      Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

       

       

       

      J.

       

      Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales


      Note: Not all of the above categories will fit or be applicable to all professors or research positions. If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility

      (ii) No offer of employment required


      Foreign nationals seeking classification in as persons of extraordinary ability do not need to have an employer in the U.S., i.e., they can self petition. However, the employment based green card petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.


      Relative advantage of EB-1 Green Card option for Aliens with Extraordinary Ability


      The main advantage of the extraordinary ability category, when compared to the outstanding professor or researcher category is that the extraordinary ability alien is not required to be “employed” and may self-petition. Professors and researchers must, however, demonstrate that they are planning to work in their field of expertise. Further, an extraordinary ability alien who was sponsored by an employer may take advantage of an approved immigrant visa petition under this classification if he or she chooses to change employers (without having to rely on the “portability provisions” of AC21), as long as the alien can prove that he or she plans to work in the same field.

      Other Employment Based Green Card categories

      The EB-2 and EB-3 green card categories are also viable options for professors and researchers who cannot satisfy the eligibility criteria as an outstanding professor or researcher or as an alien of extraordinary ability.

      EB-2 Green Card for Professionals with advanced degrees or persons with exceptional ability

      The EB-2 Employment Based Green Card classification includes aliens who are members of the professions holding advanced degrees or their equivalent and aliens who have exceptional ability in the sciences, arts, or business.

      For purposes of this section “advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.”

      In order to be classified as a person having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three of the following:

      A.

       

      An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;

       

       

       

      B.

       

      Letters documenting at least ten years of full-time experience in the occupation being sought;

       

       

       

      C.

       

      A license to practice the profession or certification for a particular profession or occupation;

       

       

       

      D.

       

      Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;

       

       

       

      E.

       

      Membership in professional associations;

       

       

       

      F.

       

      Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations


      Note: If the above standards do not apply to the petitioner's occupation, other comparable evidence of eligibility is also acceptable

      CASE SCENARIO
      Chen is a Chinese national who has a PhD in biological statistics. He has just been offered a tenure track position with a Southern California university to teach advanced statistics and to provide statistical support to their cancer research department. Chen has an extensive resume after only 5 years. He has written numerous articles about biological statistical methods, in fact the methods he developed for his PhD research in the field have been adopted by many and have been praised as some of the most innovative and groundbreaking research presented in years. Chen is also a reviewer for several scientific journals and has written numerous articles in his field. At his last position he was named as one of the members of the development team that received a patent on the work they were doing.

      What options does Chen have? Given the strength of his background he should qualify for several categories, including an individual of Extraordinary Ability (EB-1.1), an Outstanding Professor or Researcher (EB-1.2), an individual with an advanced degree (EB-2) using either the university ‘special handling’ procedures or seeking a National Interest Waiver, and clearly as a professional in the EB-3 category.

      (i) Labor certification and waiver

      EB-2 Employment based green card petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor. The labor certification must outline the minimum requirements for the position and is proof that there are no minimally qualified U.S. workers that are ready, able, and willing to fill the position. Colleges and universities that are seeking labor certification for a professor and certain researchers can take advantage of the “special handling” rules. These rules allow the educational institution to show that the foreign national is more qualified (minimum qualifications do not apply) than other applicants, and document that the alien was selected for the job opportunity in a competitive recruitment and selection process. They can use the recruitment process for the position as long as it was within 18 months of the time the labor certification application is filed.

      If you are a worker with an advanced degree or you meet the exceptional ability requirements you may apply to waive the requirement that you have a job offer if such a waiver would be in the national interest. The USCIS established a three part test for the national interest waiver. You must show that:

      (1)

      the person seeks employment in an area of substantial intrinsic merit;

       

       

      (2)

      the benefit will be national in scope; and

       

       

      (3)

      the national interest would be adversely affected if a labor certification were required


      Having met the exceptional ability standard by itself is not sufficient to grant the waiver. The USCIS has held that work such as local pro bono lawyering, teaching in a single school, or providing nutritional information in a localized setting is not sufficient to meet the national criteria.

      Additionally, a national interest waiver is not warranted solely to ameliorate a local labor shortage. The petitioner must prove that the benefit his unique skills would provide substantially outweighs the inherent national interest in protecting U.S. workers through the labor certification process. A national interest waiver application must also be accompanied by a completed Department of Labor Form ETA 9089. One of the greatest benefits of the national interest waiver application is that the foreign national, as with the EB-1.1 category, can self- petition.


      EB-3 Green Card for Skilled or professional workers:

      A category that will not be overly utilized for professors and researchers, but which nonetheless should be considered, is EB-3 Employment Based Green Card for skilled workers, professionals and “other” workers. While eligibility requirements for the EB-3 Green Card classification are less stringent than the EB-1 and EB-2 Green Card classifications, one should be aware that a long backlog exists for visas in the skilled workers, professionals, and “ other” workers category.

      The EB-3 Green Card classification includes:

    • Aliens with at least two years of experience as skilled workers;
    • Professionals with a baccalaureate degree; and
    • Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States

      Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education. The Labor Certification application states the job requirements, which determine whether a job is skilled or unskilled.

      Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.

      Other workers are in positions that require less than two years of higher education, training, or experience. However, due to the long backlog, a petitioner could expect to wait many years before being granted a visa under this category.

    Conclusion

    When it is time to take that final step to permanent residence professors and researchers, and their educational and/or research oriented employers, have several employment based green card options to choose from. They and their counsel must carefully study all the facts of their case to determine which employment based green card categories they may qualify for, and then develop a strategy to reach the ultimate goal – the green card. In some instances the individual will meet the basic requirements for two or more employment based green card categories. In those cases we often recommend that the individual pursue all the options concurrently, but depending on the strength of the application for each option we may suggest that the individual initially seek only the category that they are the strongest in.

    In recent cases, VisaPro has used all of the above options in helping clients. If the university completed a competitive recruitment within the past 18 months, and it is likely that the individual will be remaining with that university for sometime, we would usually recommend that they use the “special handling” labor certification rules because it is the surest route. If the researcher is clearly one of the top people in his field, whose services are highly sought after (i.e., they may change employers), then the extraordinary ability petition would get the nod. If that same person is working on research that will substantially impact his field in the future we would probably suggest a National Interest Waiver petition as well. Again, it all depends on the facts of the case. 


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