11/07/2009

USCIS Policy Not Recognizing Government Agency as EB1-Outstanding Professor or Researcher Immigrant Petition

USCIS adopts a policy that federal, state, and local government agencies are not eligible for EB1-Outstanding Professor or Researcher immigrant petition unless the agency is a university or higher learning institution. Accordingly, a government research organization will be unable to sponsor a labor certification waiver EB1-Outstanding Researcher Immigrant Petition unless it is a university or higher learning institution itself. 

There are a large number of public research agencies at federal, state, and local levels that are not part of a public university or government higher learning institution. Under the USCIS policy, The government agencies will be ineligible to file EB1 Outstanding Researcher Petition on behalf of their researchers. 

This new policy is premised on the immigration statute for Outstanding Researcher or Professor that requires that the beneficiary of an EB-12 petition must be seeking a position with a university, institution of higher education or a department, division, or institute of a "private employer," and government agencies do not qualify as "private" employers by any stretch of interpretation of the term of private employer. 

Unlike EB1-Outstanding Researcher or Professor Petition, however, the policy will allow the government agencies to file EB-1 Extraordinary Ability Immigrant Petition or EB-2 National Interest Waiver on behalf of their researchers. 

The basis of the USCIS interpretation of the Outstanding Researcher/Professor Petition provision of the immigration statute is drawn from the "literal" or "plain language" reading of the word "private" employer in the statutory provision. However, such literal reading should be placed under a close microscope from the standpoint of so-called "legislative intent" of the Congress in enacting this law.