What is Permanent Employment for Outstanding Professors and Researchers under the EB-1 Visa Category?

This article discusses the EB-1 visa category vis-a-vis outstanding professors and post-graduate researchers (EB-1-2 or EB-1-B) at U.S. colleges and universities, specifically addressing what is considered a “permanent” offer of employment under EB-1-B.

Under the EB-1 visa category, one of the greatest advantages of filing an employment-based green card application under the first preference (EB-1) category is the exemption from the labor certification process. Qualified outstanding postgraduate researchers and professors whose work has been internationally recognized can obtain a “fast-track” green card under the EB-1-2 visa category.

However, an obstacle in obtaining this green card is the requirement that the employment be one of the following:

1. A tenure or tenure-track teaching position; or
2. A “permanent” research position in the alien’s field of expertise.

Post-graduate researchers or professors that are not tenured or tenure-track must submit evidence that the position is permanent. This raises difficulties for the alien under EB-1 as often times their position is renewable based on the availability of federal funding and grants to the department in which they are employed. In this situation, the offer letter will show that the job is only valid for say one year. This doesn’t look like a “permanent” job offer now does it?

Luckily, USCIS understands this scenario and offers a method of proving that the proferred position is permanent. This article looks at what USCIS will consider a “permanent” job offer and provides concrete examples of how you can ensure success under the EB-1 program if you are a non-tenured researcher or professor.

The EB-1 category is available to an individual who is one of that small percentage who have risen to the very top of the field of endeavor, as shown by sustained national of international acclaim and recognized achievements. The Outstanding Professor/Researcher EB-1-2 category is for a professor or researcher who is recognized internationally as outstanding in the academic field, and who has at least 3 years of teaching or research experience in the field.

A professor or researcher must show that he/she is recognized internationally as outstanding through evidence of at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement;
2. Membership in an organization that requires outstanding achievement;
3. Published material about the alien’s work;
4. Participation, individually or on a panel, judging the work of others;
5. Original scientific or scholarly contributions to the field;
6. Authorship of scholarly books or articles recognized internationally as outstanding

Under modern business practices, many institutions rely on grants, renewed on a yearly basis, to continue to employ outstanding professors and researchers. This common budgetary scenario created problems with the United States Immigration and Citizenship Service (“USCIS”) to show that the position is truly permanent. AAO case law in 2005 significantly affected EB-1 petitions for professors and researchers.

Under current Federal Regulations, a permanent research position requires a job offer 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. Today, many employers often have “at will” contracts that do not include “good cause” provisions and that are year-to-year even though the employer and employee expect that the employee will continue in the employment for an indefinite or unlimited duration.

In showing that the research position will have “an expectation of continued employment,” USCIS will no longer deny an EB-1-2 petition where the employment contract or offer letter does not contain a “good cause for termination” clause. USCIS will accept other evidence from the employer that the researcher will continue to be employed that demonstrates there is intent to continue to seek funding and a reasonable expectation that funding will continue. For example, an employer may submit evidence that there is an ongoing pattern of renewals for extended long-term research projects.

Moreover, USCIS will consider the circumstances surrounding the job offer as well as the benefits attached to that position in determining whether the position is truly permanent under the Regulations. A position that appears to be limited to a specific term (due to yearly budget renewals) can meet the requirements of a permanent offer if the position normally continues beyond the term (i.e., if the funding grants are normally renewed).

It may seem difficult to show that your position is truly permanent in light of the modern practices of U.S. institutions to renew employment contracts based on funding. However, USCIS maintains that it will accept these contracts as permanent if the above conditions are met. It will be necessary to show that such contracts are routinely renewed and that the funding will be ongoing. Meeting the other requirements of the EB-1-2 category are a matter of evidentiary concern. But the most important part is to show up front that the position is truly permanent. The experienced lawyers at The Law Firm of Shihab & Associates understand these issues and innovative representation and proven results in obtaining green cards under the EB-1-2 visa category.

If you think you are eligible for a “fast-track” green card based on the EB-1-2 category, contact the Law Firm of Shihab & Associates, Co., LPA. We are attorneys versed with the current issues affecting your EB-1-2 petition. Our slogan is “Innovative Representation….Proven Results.” We fight for our clients. Call us today at (888) 915-5057.