1.
The Request For Evidence for an
EB1-Outstanding Researcher or Professor Petition
The
EB1-Outstanding Researcher or Professor petition (EB1-OR or EB1B) is an immigration category for researchers or professors who are internationally recognized as outstanding in a particular scientific or scholarly field.
The EB1-OR petitions are based on job offers, generally, the job is offered by a university or other similar academic or scientific institution, but it can also be offered by a private
employer.
There
are many RFEs of EB1-OR petition regarding the three years research experience, international recognition, and the nature of the position as involving basic research.
However, most of the RFE requests are grounded in the USCIS statute and regulations.
The
petitioner should remember
that the USCIS will not approve an EB1-Outstanding Researcher or Professor
petition simply because the alien beneficiary meets two of the six criteria. To be eligible for this category, an
alien beneficiary must meet the following three requirements also:
1)
Recognized internationally as outstanding in a specific academic field;
2)
Has at least 3 years of experience in teaching or research in the academic
field; and
3)
Seeks to work at a tenured or permanent position for a university, or at a comparable research position for a private employer, if the private employer has at least 3 full-time researchers and has achieved documented accomplishments in the academic field.
2. USCIS'
Policy of "Two-Part Evaluation" for
EB1-Outstanding Researcher or Professor Petition and RFE Notice
On August 18, 2010, U.S.
Citizenship and Immigration Services (USCIS) issued a Policy Memorandum to
provides guidance regarding the analysis that Immigration Service Officers (ISOs)
must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed
for EB1-Outstanding Professors or Researchers.
The purpose of the Policy
Memorandum is to ensure that U.S. Citizenship and Immigration Services (USCIS)
processes Form I-140 petitions filed under these employment-based immigrant
classifications with a consistent standard. USCIS Immigration Service Officers (ISOs)
will follow the amended procedures in the adjudication of all Form I-140
petitions filed for EB1-Outstanding Professors or Researchers. In general, the
petition must be accompanied by initial evidence that:
a) evidence submitted
satisfies the preponderance of the evidence standard and meets at least two
criteria.
b) the alien is recognized
internationally as outstanding in a specific academic area.
The
evidence provided in support of EB1-Outstanding Researcher or Professor
petitions must demonstrate that the alien is recognized internationally as
outstanding in the academic field specified in the petition. In addition, the
petition must be accompanied by an offer of permanent, tenured, or tenure-track
employment (limited to “permanent positions” in the case of research
positions) from a qualifying prospective employer and evidence that the alien
has had at least three years of experience in teaching or research in the
"academic field" in which the alien will be engaged.
The determination in Part One of the analysis is limited to
determining whether the evidence submitted satisfies the preponderance of the
evidence standard and meets at least two criteria. If
such evidence is not exist in the initial filing, an RFE notice will be issued
by USCIS Service Center to the petitioner. Also, meeting
the minimum requirement by providing at least two types of this evidence does
not, in itself, establish that the alien in fact meets the requirements for
classification as an Outstanding Researcher or Professor.
In Part Two of the analysis in each case, ISOs will consider all
of the evidence to make a final merit determination of whether or not the
petitioner has, by a preponderance of the evidence, demonstrated that the alien
is recognized internationally as outstanding in a specific academic area. Again,
if such evidence is not exist in the initial filing to prove that the alien
beneficiary is "recognized internationally as outstanding in a specific
academic area", an RFE notice will be issued by USCIS Service Center to
the petitioner.
3.
How to Prepare a RFE Response for an EB1-Outstanding Researcher
or Professor Petition
The key point to remember in
replying the RFE of an EB1-OR petition is to establish an international reputation. Each piece of evidence should speak to that standard.
Once the international outstanding requirement is met, USCIS also needs to determine whether the
alien beneficiary has at least 3 years of experience in the appropriate academic field. USCIS accepts relevant teaching and researching experiences for this criterion.
Another
requirement is that the alien beneficiary must have a qualified employment. The
alien must have a tenured, tenure-tracked, or permanent teaching or research position at an institution. If the employment is at a private research institution, evidence must present that the private institution has at least 3 full-time researchers and that the private institution has achieved documented accomplishment in the field.
It
is important to prepare a RFE response of I-140 petition according to
the USCIS statutory and regulatory guidelines, in order to avoid a denial of the I-140
petition after the Request for Evidence:
a)
Ensure that all requested evidence and documents listed in the RFE are
submitted;
b)
Clearly document in a RFE response cover letter how the
alien beneficiary is qualified for this eminent category, and answer all the
questions listed in the USCIS' RFE letter;
c)
Ensure that the alien applicant meets at least two of the required six
criteria. Although meeting two of the six criteria would not guarantee that
the alien beneficiary will qualify as an individual of outstanding ability, if an alien
applicant can not satisfy at least two of the six criteria, it may be wise to
consider other immigrant categories.
To
replying the RFE requests, the petitioner should make sure to include
additional letters from experts in the field who have not collaborated directly
with the alien. A combination of additional letters from experts and
collaborators who describe the beneficiary’s reputation in the field, along
with a few other letters from independent references who know the
beneficiary’s work via their conference presentations or publications, is the
strategy for RFE success.
Although the
criteria for EB1-Outstanding Researchers and Professors are relatively clear, it is important to note that USCIS will not approve a petition that minimally satisfies each of the
two criteria. To be approved as an outstanding researcher or professor, there must be sufficient and proper evidence to convince USCIS that the
alien beneficiary is indeed outstanding and has international recognition.
4.
An Often Raised Question in RFEs - Permanent Job Position
The
EB1-OR petition requires that the alien beneficiary receives a permanent job offer from the sponsoring employer. USCIS has released a memo clarifying the definition of “permanent employment” when adjudicating
EB1-OR petitions. According to the USCIS definition, “permanent” is defined as
“either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”
Based on this definition, a position of tenured or tenure-track professor is
generally considered a permanent job. However, not all teaching positions in a university with the title of “professor” are automatically considered permanent jobs. For example, a one-year “visiting professor” or fellowship position is not considered a permanent job. Also, some community colleges do not have tenure systems, so professorship in these colleges is not automatically considered a permanent
job either.
There is more confusion about the definition of “permanent” job for researchers. Many research positions are based on grant money that is received yearly. USCIS says that if the employer petitioning for the alien shows the intention to continue to get funding and gives a reasonable expectation that funding will continue, then the employment may be considered “permanent.” If a research position has a duration limit, but evidence is provided that the job will be continued beyond that duration, then it can be considered a permanent job.
5.
An Often Raised Question in RFEs - The International Reputation and the Three Years of
Research Experience
Few of the
RFE hinged on the regulatory option that pre-doctoral research counts toward the three-year requirement. However, as a practical matter it is hard to prove that an
alien beneficiary with less than three years of post-doctoral research has an international reputation in their field. In such a case, the
RFE response must clearly document the outstanding nature of any pre-doctoral
research. The paid research assistant work for a professor, common to Ph.D. students, is treated with suspicion, and must be carefully distinguished from the basic research involved in the dissertation.
According to USCIS regulations,
research experiences attained while working towards an advance degree may be included if the advanced degree was completed, or if the research was recognized as being outstanding in the field. Similarly, teaching experiences during the attainment of the advanced degree may be included if the
alien beneficiary had full responsibility for the class taught.
Evidence of teaching
or research experience shall be in the form of letter from former or current employer, and shall include the name, address, and title of the writer, and a specific description of the duties performed by the
alien beneficiary.
6.
Other Questions often Raised in RFEs
1)
Published material about the person: to satisfy this criterion, the published material should be at the national or international level. Articles in local newspapers, university publications, or internal company reports do not qualify. Moreover, standard academic citations do not count as published material “about” the beneficiary.
2)
Published abstracts: published abstracts do not carry the same weight as full-length
articles, and an unpublished manuscript is not published material.
3)
Articles published in one country: Articles published in only one country with only domestic circulation,
such as many native language medical journals, do not satisfy the international reputation standard.
7.
Get Help for Your RFE Response, and Eventually Obtain Your Green Card
If
you get a Request For Evidence (RFE) notice for your EB1-OR petition from
an USCIS Service Center, it is necessary that you must work hard to
provide requested evidence in a short time, and persuade the USCIS
adjudicators to approve your case. It is critical to appropriately
and proficiently reply the Request For Evidence. Incorrect response of the
RFE will directly result in your I-140 petition rejection.
To help you replying
the RFE, we provide the high quality and case-proven "Complete
Do-It-Yourself Package of Request For Evidence for EB1-Outstanding
Researcher or Professor Petition". In the RFE package, we present methods of analyzing RFE questions, RFE
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