Basic Information on EB-1B

Introduction

The EB-1B employment-based immigrant classification is for foreign nationals who 1) are internationally recognized as outstanding professors or researchers in a specific academic field, 2) are seeking entry to the United States in order to accept a qualifying job offer, and, 3) have three years of teaching or research experience in the academic field. There is no PERM Labor Certification requirement for the EB-1B category but a foreign national may not self-petition for EB-1B classification and instead must be the beneficiary of a Form I-140 petition filed by his or her prospective employer.

Our firm has successfully represented clients in cases of Outstanding Professor and Researcher petitions, examples of which can be viewed at our Outstanding Professor and Researcher Success Stories page.

Demonstrating International Recognition as Outstanding in the Academic Field

A. The EB-1B Evidence Categories
The first evidentiary requirement for a foreign national seeking EB-1B classification is to demonstrate international recognition as outstanding in a specific academic field. According to USCIS, a foreign national “recognized internationally as outstanding” should “stand apart in the academic community through eminence and distinction based on international recognition.” A foreign national may demonstrate eligibility for EB-1B classification by providing documentation satisfying at least two of the following six categories of evidence:

  • Documentation of the foreign national’s receipt of major prizes or awards for outstanding achievement in the academic field;
  • Documentation of the foreign national’s membership in associations in the academic field which require outstanding achievements of their members;
  • Published material in professional publications written by others about the foreign national’s work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation;
  • Evidence of the foreign national’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
  • Evidence of the foreign national’s original scientific or scholarly research contributions to the academic field; or
  • Evidence of the foreign national’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

B. Defining “Academic Field”
The Regulations define “academic field” as “a body of specialized knowledge offered for study at an accredited United States university or institution of higher learning.” As per USCIS’s Adjudicator’s Field Manual, this definition suggests that the academic field must be “larger than a very small area of specialization in which only a single course is taught or the subject of a very specialized dissertation.”

C. Final Merits Determination
Once USCIS has determined that the foreign national has met this evidentiary threshold by submitting evidence in two of the six categories, USCIS will make a final merits determination regarding whether the evidence, considered as a whole, establishes that the foreign national is “recognized internationally as outstanding” in the specific “academic field.” USCIS has emphasized that the final merits determination for EB-1B petitions pertains only to the EB-1B evidence categories. USCIS utilizes the preponderance of the evidence standard of proof in making this determination, which requires USCIS to evaluate whether the foreign national has submitted relevant, probative, and credible evidence that makes it “more likely than not” that the foreign national has established international recognition as outstanding in the specific academic field. This is set forth in the Federal Court Case Kazarian v. USCIS.

Qualifying Employment Offer

The second evidentiary requirement for a foreign national seeking EB-1B classification is that the foreign national must have a qualifying employment offer. The foreign national’s prospective employer must submit a letter along with the EB-1B petition describing the outstanding researcher or professor’s terms of qualifying employment, including his or her salary.

Qualifying employment offers generally take the form of offers for:

  • A tenure or tenure-track teaching position in a United States university or institution of higher learning.
  • A research position with no fixed term in a United States university or institution of higher learning in a position where the employee would generally have the expectation of permanent employment.
  • A research position in a department, division, or institute of a private employer in the foreign national’s 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.

Employment offers must be “permanent” meaning the foreign national has a continuous expectation of future employment, such as an offer with no fixed duration. Post-doctoral research positions in a United States university or institution of higher learning are not considered by USCIS to be permanent research positions. Positions with titles such as Research Associate, Research Assistant, etc. are typical permanent research positions. A United States university or institution of higher learning sponsoring a foreign national for EB-1B status in a permanent research position may present evidence such as existing grants and prior renewals for extended long-term research projects to indicate that they intend to continue to pursue funding for the foreign national’s research position and that there is a reasonable expectation of continued funding. Relatedly, the foreign national’s employer must also be able to demonstrate its ability to compensate the foreign national.

Three Years of Work Experience

The third and final evidentiary requirement that a foreign national must satisfy in order to qualify as an outstanding professor or researcher is that the foreign national must have three years’ teaching or research experience in the specific academic field. The foreign national must submit letters from previous employers demonstrating three years’ of teaching or research experience. In order for the foreign national to utilize experience gained while in pursuit of an advanced degree, the foreign national must demonstrate that the foreign national had full responsibility for the courses taught while pursuing an advanced degree or that the research conducted while in pursuit of an advanced degree was recognized as outstanding.
Comparing EB-1B Petitions

Throughout the EB-1B petition process, our immigration attorneys consider petitions filed on behalf of foreign nationals that USCIS has already approved or denied. EB-1B approvals provide examples of the type of evidence that USCIS found sufficiently persuasive to demonstrate that the foreign national qualifies as an outstanding professor or researcher. When USCIS denies a foreign national’s petition and that denial is upheld by the Administrative Appeals Office, the published decisions from the Administrative Appeals Office can provide valuable guidance in their descriptions of how the foreign national’s evidence fell short of demonstrating the foreign national’s qualifications for the EB-1B classification. Through extensive analysis and understanding of the types of evidence that have and have not satisfied the various EB-1B categories, employment offer criterion, and prior work experience criterion, our immigration attorneys can accurately assess the strength of a client’s case for submission in the outstanding professors and researchers category and counsel a client on the evidence to be obtained. EB-1B Decisions of the Administrative Appeals Office that have been categorized and summarized by our law firm can be found at our Administrative Appeals Office Virtual Law Library.

EB-1B Processing and Approval

After the foreign national’s employer submits Form I-140 along with the supporting evidence demonstrating the qualifications for the EB-1B classification, USCIS takes approximately four to six months to process the petition. However, Premium Processing is available for EB-1B petitions, meaning that the petitioner may pay $1,225 in exchange for USCIS’s guarantee that it will issue an approval, request for evidence, denial, or notice of intent to deny within 15 days of filing.

As outstanding professors and researchers fall under the employment-based first preference category, the priority date for these petitions is current. Therefore, immigrant visas are immediately available for outstanding professor and researcher foreign nationals, their spouses, and their children from all countries including China and India, permitting them to apply for permanent residence either simultaneously with the filing of the EB-1B petition or upon the approval of the EB-1B petition.

The foreign national need not continue working at the employer that submitted the approved EB-1B petition indefinitely in order to remain in the United States as a permanent resident. While Form I-485 Application to Register Permanent Residence or Adjust Status is pending, the foreign national must continue working for the petitioning employer for at least 180 days after filing. Pursuant to the American Competitiveness in the Twenty-First Century Act of 2000, if the foreign national’s Form I-485 remains unadjudicated for 180 days, the foreign national may change employers “if the new job is in the same or a similar occupational classification as the job for which the petition was filed.” Additionally, after receipt of permanent resident status the foreign national may change employers after a reasonable period of time.

Marco PignoneEB-1B – EB-1/NIW Knowledge Base