Advancements in science, technology and the humanities depend on the continuous flow of accomplished, well-trained and motivated individuals into the field. The U.S. has maintained its dominance in academia due to its ability to continue to attract the world’s leading professors and researchers.
The challenge for professors and researchers and the institutions that employ them lies in selecting the appropriate pathway to bring or keep these individuals in the U.S. permanently. We present here an overview of some of the most commonly used US immigrant visa options for professors and researchers.
A. EB-1 Green Card Option #1: The 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.
To qualify for an EB-1 visa as an ‘outstanding professor or researcher’ you must be a foreign national who:
1.Is recognized internationally as ‘outstanding’ in a specific academic area (see below for evidentiary requirements)
2.Possesses at least three years of experience in teaching or research in the academic area
a.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.
b.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.
3.Has a permanent Job offer from the employer and Seeks to enter the U.S. for:
a.A Tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area; or
b.A Comparable position with a university or institution of higher education to conduct research in the area; or
c.A Comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.
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:
- Documentation of receipt of major prizes or awards for outstanding achievement in the academic field; or
- Documentation of membership in associations in the academic field which require outstanding achievements of their members; or
- Published material in professional publications written by others about your work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; or
- Evidence of your participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; or
- Evidence of your original scientific or scholarly research contributions to the academic field; or
- Evidence of your authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
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.
B. EB-1 Green Card Option #2: The EB-1.1 For “Aliens With Extraordinary Ability”
Extraordinary professors and researchers are individuals that have attained a level of expertise indicating that they are one of that small percent of people who have risen to the very top of their field of endeavor.
Their achievements must:
- Have been demonstrated by sustained national or international acclaim
- Be recognized in the field through extensive documentation
While the EB-1 Extraordinary Ability petition may be filed by an employer, it can also be filed by the foreign national professor or researcher without a job offer (in other words, the professor or researcher can “self-petition”).
To be classified as a person with Extraordinary Ability, the professor or researcher must provide documented proof that they have earned a one-time achievement (that is, an internationally recognized award like a Nobel Prize) or at least three of the following:
- Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; or
- Documentation of your 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; or
- Published material about yourself in professional or major trade publications or other major media, relating to your 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; or
- Evidence of your 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; or
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; or
- Evidence of your authorship of scholarly articles in the field, in professional or major trade publications or other major media; or
- Evidence of the display of your work in the field at artistic exhibitions or showcases; or
- Evidence that you have performed in a leading or critical role for organizations or establishments that have a distinguished reputation; or
- Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- 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
No offer of employment required
Although foreign nationals seeking permanent residence under this category can self-petition, 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.
C. EB-2 Green Card Option: The EB-2 For Professionals With Advanced Degrees or Persons With Exceptional Ability
The EB-2 Employment Based Green Card classification includes:
1.aliens who are members of the professions holding advanced degrees or their equivalent
Advanced degree is a Master’s degree or higher or at least a Bachelor’s degree with 5 years of progressive experience.
2.and aliens who have exceptional ability in the sciences, arts, or business.
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:
- 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;
- Letters documenting at least ten years of full-time experience in the occupation being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
- Membership in professional associations;
- 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.
My 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 to remain permanently in the U.S.?
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.
D. The Labor Certification (PERM) And National Interest Waiver
EB-2 Employment based green card petitions generally require a “job offer” from the employer and must 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 a labor certification for a professor and certain researchers can take advantage of “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 can 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 of a job offer if such a waiver would be in the national interest.
USCIS established a three part test for the national interest waiver. You must show that:
- Your proposed endeavor in the U.S. has substantial merit and national importance;
- You are in a position to advance to the proposed endeavor; AND
- On balance, it would be beneficial to the U.S. to waive the labor certification and job offer requirement.
Having met the exceptional ability standard by itself is not sufficient to grant the waiver. 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. 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
DID YOU KNOW?
The main advantage of the EB-1 category is the lack of any retrogression or visa backlogs. This means regardless of the country of birth, applicants are not stuck waiting for an immigrant visa to be issued or to file adjustment of status. Those born in India and China are subject to significant backlogs in the EB-2 and EB-3 categories.
E. EB-3 Green Card: The EB-3 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 significant backlog may exist for visas in the skilled workers, professionals, and “ other” workers category depending on the country of birth of the applicant.
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.
When it is time to take that final step to permanent residence, professors and researchers and their employers have several employment based green card options to choose from. Each of the described categories have benefits as well as drawbacks.
Professors and researchers along with their employers should carefully weigh all the options against the facts before deciding on which immigrant visa category to pursue and developing a course of action. To find the option that’s best for you, contact our experienced immigration attorneys immediately for a FREE Immigration Consultation.
We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys’ near 100% success rates.
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