Frequently Asked Questions for EB-1B (Outstanding professors and researchers)
EB-1B Overview; Legal Fees of EB-1B; Processing of EB-1B; EB-1B FAQs
Who qualifies as an outstanding professor or researcher?
A non-resident must meet the following three requirements to be eligible for outstanding researcher or professor classification:
International recognition as outstanding in a defined academic area, and
A minimum of three years of research or teaching in this area and
An offer of a tenure-track or tenured teaching position or similar research position, or an offer of a research position with no fixed term limit where the employee expects permanent employment, or an offer of a comparable research position with a private employer that has a minimum of three full-time researchers and documented achievements in the academic area.
Who can file a petition under EB-1B?
An employer must file the application for EB-1B with the USCIS; the non-resident is the beneficiary of the application.
What form is required for an EB-1B application?
All applications of EB-1 need to file Form I-140.
Is a labor certification required before filing a I-140?
A labor certification is not required before filing the I-140 for all groups of EB-1.
Is a job offer required for EB-1B?
The answer is yes. A job offer is required for the EB-1A category and the foreign researcher/professor needs an employer sponsor to file the application.
What are the major advantages of applying for EB-1B Outstanding Professors or Researchers?
Labor certification is not required.
All visas remain current so it is much quicker to obtain a green card in this category.
How difficult is it to have an EB-1B application approved?
The applicant must prove EB-1B cases by providing significant evidence for two out of the six regulatory conditions the non-resident researcher/professor is attempting to fulfill. If the non-resident researcher/professor is qualified, the success of the case will depend on how the case is prepared. If the proof is accurate and organized, and the argument is persuasive, then the outcome of the case should be approval. The approval rate of EB-1B cases has been consistently over 90 percent for the last 5 years. See approval rates 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 Researcher or Professor should include the following:
The application should identify which of the six regulatory conditions the non-resident is attempting to fulfill and the relevant documentation for each individual condition.
Submit documentation that the non-resident has a minimum of three years of experience in research and/or teaching in the academic area.
Provide a copy of the applicant’s actual job offer issued to the non-resident. This contract or letter must list the title, conditions, and terms of the position offered.
Send evidence as outlined above for each job if the non-resident has changed jobs since he/she was originally hired.
What evidence should be included in an EB-1B petition?
Significant evidence must be submitted with an EB-1B application to fulfill the qualifications. An application for outstanding researcher or professor must be supplemented by proof of the six conditions the application is attempting to fulfill and the relevant proof for each individual condition:
Evidence of the applicant’s receipt of key awards or prizes for outstanding accomplishment in the academic area of expertise.
Evidence of the applicant’s membership in organizations in the academic area of expertise which require outstanding accomplishments of their members.
Published material in any language (provided it is translated into English) in professional journals written by peers about the non-resident’s research in the academic area of expertise. This evidence must include the title, date, and author of the material.
Evidence of the non-resident’s participation, either individually or on a team, as a evaluator of the research of peers in the area of expertise or similar academic area of expertise.
Evidence of the applicant’s unique scientific or academic research contributions to the academic area of expertise.
Evidence of the applicant’s authorship of academic books, articles, or academic periodicals with international distribution in the academic area of expertise.
Also, the application should include proof of the foreign resident beneficiary’s minimum of three-year research or teaching experience and tenure or tenure track position.
Can the experience in research and teaching combine together to calculate the three year experience?
The answer is yes, under USCIS guidelines, the requirement of three years of experience can be achieved through a combination of research and teaching.
Does the three year experience of research or teaching include the experience in research or teaching while working on an advanced degree?
Experience in research or teaching while studying for an advanced degree will only be acceptable if the non-resident has since obtained the degree, and if the non-resident had full responsibility for the class taught, or if the research conducted toward the advanced degree has been recognized as outstanding within the academic area of expertise.
How should the application present the evidence of at least three years of experience in research or teaching?
Evidence to prove research and/or teaching experience must be provided in the form of a letter(s) from former or current employer(s) and must provide the name, address, title of the author, and a detailed description of the duties performed by the petitioner.
What jobs qualified as tenure, tenured-track or comparable positions?
Tenured or tenured track job means one that doesn’t have a definite termination date. It can be a research or teaching position at a university, or a comparable research position with a private employer if the employer has a minimum of three full-time researchers and documented achievements in the research field.
Is a permanent research job qualified?
Since many research positions at universities are not tenure-track or tenured, the USCIS rules permit a job offer to qualify for first preference consideration if the university is offering a “permanent research position” to the applicant. A “permanent” position is one that is for a term of unlimited or indefinite length of time, and in which the employee will usually have an expectation of sustained employment unless there is just cause for termination.
What if the employer is a private employer and they don’t provide a “tenure or tenured-track job”?
USCIS has declared that since private employers do not usually give tenure to employees, a “comparable” position for purposes of this category would be one in which the duties and job description are similar to those of a researcher in an academic setting, i.e., one who is offered a “permanent” position as defined by the rules.
Is a government agency a qualified employer?
Government agencies at the local, state, or federal level do not qualify for the definition of employer for the EB-1B purposes unless the government agency is a U.S. university or institution of higher learning. The petitioner (employer) must prove that they are qualified instead of the beneficiary (the non-resident).
How should a petition present the evidence of being offered employment from a prospective U.S. employer?
Since a labor certification is not required for EB-1B, the employment offer must be in the form of a letter from:
A U.S. university or institution of higher learning offering the non-resident researcher/professor a tenured or tenure-track teaching position in his/her relevant field;
A U.S. university or institution of higher learning offering the non-resident researcher/professor a permanent research position in his/her relevant field; OR
A division, department, or institute of a private employer offering the non-resident researcher/professor a permanent research position in his/her relevant field; the division, department, or institute must prove that it employs at least three persons full-time in research positions, and that it has achieved proven achievements in a relevant field.
Is there any evidence that would present a strong case that the professor or researcher is considered outstanding?
A June 1992 document from the former INS suggested that the following documentation would present a strong case that the researcher or professor is considered outstanding:
Peer-reviewed presentations at academic conferences
Peer-reviewed articles in academic journals
Testimony from other colleagues on the applicant’s contribution to the area of expertise
Several entries in a citation index citing the applicant’s work as authoritative
Participation by the applicant as a reviewer for a peer-reviewed academic journal.
Is the non-resident researcher/professor required to have a Ph.D. degree?
Neither the law nor the USCIS guidelines state that a Ph.D. is required of a researcher/professor although it is usually expected than an outstanding researcher/professor would possess a Ph.D. degree. A non-resident outstanding researcher can be extended an offer of a position as a professor and vice versa.
Does the two-part approach applied to EB-1A also apply to an EB-1B case?
The answer is yes. The kind of evidence stated in the rules only serve as guidelines for the petitioner and the adjudicator. In the end, the evidence must prove that the beneficiary is an outstanding professor or researcher that is recognized internationally. Only proving two of the conditions will not necessarily gain approval since the adjudicator has to evaluate the evidence presented. More evidence may be requested if the USCIS concludes that the presented evidence does not meet the requirements of the visa category.
How many publications are sufficient to meet EB-1B requirements?
There is not a minimum number of publications required. The USCIS decides the number on an individual case basis.
What is the most update two-part approach taken by the USCIS now?
In 2010, the Ninth Circuit U.S. Court of Appeals reexamined the denial of a EB-1A petition, the Kazarian case. The AAO concluded that the Kazarian case utilized a two-part approach: Part One: Counting the Evidence Types Submitted; Part Two: Determination of Final Merits. A USCIS document issued in August, 2010 requires two-step analysis for EB-1A (Alien of Extraordinary Ability), EB-1B (Outstanding Researchers and Professors) and EB-2 (Foreign Nationals of Exceptional Ability).
Part 1: The USCIS adjudicator must decide whether a petitioner has presented enough documentation to meet the requirements for the immigration classification he or she is pursuing as mandated by the USCIS rules.
Part 2: The USCIS adjudicator must examine all of the presented documentation in its entirety in order to make a determination as to whether the non-resident meets the mandatory level of expertise for the category. In this phase, the adjudicator examines all the evidence to determine if, cumulatively, it proves by a preponderance of the evidence that the I-140 petitioner fulfills the general requirements for the category.
Can my employer file EB-1B for me while I file EB-1A and/or NIW simultaneously?
The answer is yes, but each visa category being requested must be filed on a separate Form I-140 application with the appropriate fee and supporting evidence. Multiple categories cannot be checked on one I-140 form.
How can a petition be filed?
I-140 forms can be filed either by mail or electronically. Supporting evidence has to be submitted to service center.
Does the priority date matter in an EB-1B case?
The answer is no because all visas are current.
Can a petition be withdrawn?
The answer is yes, the applicant or the Form G-28 representative can send a request to withdraw the I-140 application to USCIS.
How can a petitioner request the withdrawal of a Form I-140 petition?
The applicant or the Form G-28 representative can send a request to withdraw the I-140 application to USCIS. Requests to withdraw should include:
A statement specifying that the Form I-140 applicant wants to withdraw the application;
The Form I-140 application receipt number;
The name, address and phone number of the applicant;
The name of the non-resident beneficiary;
The non-resident beneficiary registration number, if known; and
The applicant’s signature or the Form G-28 representative’s signature.
If an EB-1B application gets rejected, how long do I have to wait to file under EB-1B or other categories again?
There are no restrictions regarding when you can file a new EB-1A petition after being rejected on a previous filing. A rejected application does not keep you from submitting another application, regardless of classification. Although you can submit another petition at any time, we do not advise that you reapply unless your circumstances have changed in a way that will increase your chances for approval.
How should evidence accompanied the petition be organized?
Follow these tips for organizing your evidence:
Provide all required evidence and documentation with the application when filed. Form I-140 applications can be denied by USCIS without issuance of a Request for Evidence (RFE) in some cases where the required documentation was not submitted with the application.
If you are providing photocopies of evidence, make sure to include clear legible copies.
Any foreign language evidence must be submitted with a corresponding English translation that must be certified by a competent translator who should certify in writing that “the translation is true and accurate to the best of the translator’s abilities.” The English translation should be stapled to the foreign language document.
If providing the non-resident beneficiary’s citations or publications, the applicant’s name should be highlighted in the relevant articles and publications. The applicant is not required to send a full copy of a thesis, research paper, or dissertation either written by the non-resident beneficiary, or one in which the non-resident beneficiary’s work has been cited. Include the title page and the section(s) that cite the non-resident’s work and the “works cited” or bibliography.
Place tabs and labels at the bottom of the first page of each exhibit submitted, and provide a list of the exhibits and the eligibility standards that each exhibit is submitted to prove for applications supported by a significant amount of evidence. An exhibit that is being provided to meet multiple eligibility standards should be identified as such in the exhibit list.
What is a letter of recommendation?
A letter of recommendation, also called a reference letter, is a letter written by an expert in the non-resident beneficiary’s field or another influential person in a similar field of expertise. Reference letters are vital in application for employment-based benefits. Since officers are seldom experts in your area of expertise, they must use the submitted documentation to decide if you meet the qualifications for having a level of expertise above that which is ordinarily found in the area of expertise. A reference letter is one of the best forms of documentation to assist USCIS officers with deciding your case.
Whom should I contact to obtain letters of recommendation?
The USCIS maintains that an applicant with international notoriety should be able to supply sufficient evidence signifying that recognition. A non-resident beneficiary should acquire convincing letters from both the “inner circle” and “outer circle” of peers. The non-resident’s “inner circle” includes peers that the non-resident has worked directly with either in business or academia. Even though letters from the closest peers are the most complimentary, they are also the most mistrusted since they are likely biased. Therefore, reference letters from outside and independent sources carry more influence because they are evidence of the non-resident’s achievements and international acclaim. However, references from your inner circle of peers can be great endorsements if they are recognized authorities or experts in your area of expertise.
In addition to being a professional in the area of your expertise, if the employer or professor has significant knowledge about your achievements and can provide a strong recommendation, they could be a good candidate for a reference letter. Although a person who has well-known recognition in the area of your expertise will be a better endorsement than a reference from your immediate group of associates, a perfect endorsement will be an expert acquainted with your accomplishments. A reference letter from your prospective or existing employer is also beneficial.
What information should be included in the reference letters?
Things that should be included in a reference letter are:
Qualifications of the reference: A reference letter needs to include a description of the person giving the reference. If the reference comments on the non-resident’s research or accomplishments, a statement should be included with the reference letter that proves the qualifications of the individuals to judge the non-resident beneficiary’s work.
Helpful expert testimonials: Expert testimonials of your achievements are critical to your application. Keep in mind that the expert references should uphold the argument that you meet the standards of the law, i.e., that you have a level of expertise above that usually found in your area of expertise. Evidence that only proves competence or that fails to distinguish you from other individuals in the field does not reinforce your petition because it carries little influence and could actually harm the petition.
Substantive information: A good reference letter should point out the superior level of unique expertise the non-resident beneficiary possesses. If it is a reference letter from a professor or employer of the non-resident beneficiary, it should detail the work the non-resident is responsible for and the requirements of the position. Although a job offer is not required, a reference letter from an employer can refer to a position to prove that only a few individuals are qualified to fill the offered position (i.e., only superior individuals in the relevant area or those with exceptional capability can accomplish the duties required for the position) and the non-resident beneficiary is one of these rare individuals. In addition, reference letters that briefly describe the applicant’s activities and knowledge, but lack detailed information of how the applicant’s contributions had consistently and significantly influenced the relevant area are unsatisfactory.
How many reference letters are needed?
The USCIS does not list a specific number of required reference letters, but there should generally be three to seven reference letters in an EB-1 petition.
What assistance does your firm provide concerning drafting reference letters?
Letters of reference are hard to write but effective letters of reference will significantly increase your chance for a successful case. After our firm is retained, we will help you obtain effective reference letters using these steps:
Our firm will provide detailed advice concerning reference letters and assist you with the content, purpose, and format of reference letters.
Our firm will confer with you about prospective candidates for writing reference letters.
You will need to provide us with detailed evidence pertaining to the expertise and authority of the references, your connection to the references, the relationship between your research and theirs, etc.
After receiving the documentation you provide, our attorneys and legal team will write the reference letter for you.
You will send the recommendation letters to the references for their review and signature.
Before our firm submits the application, our attorneys will review the substantially revised reference letters to determine if it is necessary to ask the reference to sign an updated version.
What if I change jobs while my EB-1B application is pending?
If the non-resident beneficiary changes jobs while the I-140 is pending, a new application must be filed.
What is the real difference between EB-1B and NIW applications? Is it possible to file two petitions such as an EB-1B and a NIW at the same time?
The requirements of NIW and EB-1B are different, and the preparation process is substantially different for these two applications. For example, a non-resident trying to obtain NIW classification can self-petition while EB-1B pursuers need an employer sponsor. Once the I-140 is approved, there is not a significant difference between the two classifications for the I-485 application.
It is feasible to file two petitions such as an EB-1B and a NIW concurrently. Some non-residents file two I-140 applications simultaneously in EB-1 and NIW. The law does not prohibit multiple filings, and in fact, this could increase your chances for approval.
What is the difference between EB-1A and EB-1B applications? Is it possible to file two petitions at the same time?
Unlike the EB-1A extraordinary ability category, the EB-1B outstanding researchers and professors category requires an employment offer. Therefore, outstanding researchers and professors cannot self-petition. Their applications must be submitted with an employment offer from a U.S. employer.
In spite of the additional job offer requirement, the standard for outstanding researchers and professors is less than that of extraordinary ability non-residents who must show a major internationally recognized prize or award, or evidence from a minimum of three out of ten specified categories. On the other hand, outstanding researchers and professors are only required to prove that they have obtained international recognition as outstanding in their specific area of expertise by meeting a minimum of two of the six conditions from above.
In addition, non-residents can also qualify for the outstanding researchers and professors’ category much easier since the experience gained as a student can be utilized. These researchers and professors can qualify even if the three years of qualifying experience was received while enrolled as a Ph.D. student if they taught courses which were under their full control. Additionally, outstanding researchers can also count any “outstanding” research experience which was gained as part of their education.
If I do not have published articles in journals within my field, can my employer still petition for me under EB-1B?
The answer is yes, you can apply for an EB-1B since there is not a specific requirement that you have published articles in order to apply or obtain approval of an EB-1B petition. Print media can help to prove the non-resident beneficiary’s original scholarly or scientific research offerings to the academic area of expertise. You can also prove your case by providing documentation that proves the other prongs listed by the law.
If I do not have any awards in my field, can my employer still petition under EB-1B?
You can still apply for an EB-1B even if you do not have any awards in your field. There is not a specific requirement regarding awards in order to apply or obtain approval of an EB-1B application, although awards do improve the chances of approval. You can prove your case by providing documentation that proves the other prongs listed by the law.
I am a J-1 holder subjected to the two-year foreign country residency requirement. Can I apply under EB-1B now, and get my J-1 waiver later?
The answer is yes, you can apply for the EB-1B now, and get the J-1 waiver later. Even with I-140 approval, you are still bound by the two-year foreign residency requirement, and must get the J-1 waiver before adjusting your status to permanent resident.
You are not required to have a J-1 waiver before submitting an I-140 application. The two-year foreign residency requirement does not allow adjusting the status from J-1 to permanent residency, but it does not prevent the submission of an I-140 application. Also, you can prepare your case for I-140 and J-1 waiver simultaneously. If you receive the I-140 approval before the J-1 waiver, you must wait for the J-1 waiver before submitting the I-485 petition for status adjustment.
What is the legal fee for EB-1B cases for your firm?
Our firm charges a flat attorney fee of $4,800 for I-140s eligible for the “Approval or Refund” service. Even with the complete service provided, Aria Law Group still keeps the attorney fees reasonable and affordable. Our firm’s objective is to provide an affordable option to help every qualified non-resident beneficiary attain their American dreams. Answer submitted by Aria Law Group.
What is the filing fee of an I-140?
The filing fee of an I-140 is $580.