Immigration for Outstanding Professors and Researchers

Published on 27 June 2014 Hits: 820

Many prominent academic and research positions are now filled by foreign nationals on a temporary basis such as O-1 and H-1B, following many years of study and contribution to their fields. Some of them choose to continue their work in the U.S. and therefore require an immigrant visa. In pursuing immigration, they have several options, including 'aliens with extraordinary ability', 'national interest waiver', 'outstanding professors and researchers', and even 'labor certification'.

Almost always, one of the first three options is more desirable for these individuals as a matter of convenience. In this article, I will specifically explore the 'outstanding professors and researchers' category. Persons qualifying in the 'outstanding professors and researchers' category are granted a waiver of the labor certification. This means an I-140 immigrant petition may be filed directly with the USCIS and the applications for adjustment of status for the beneficiary and his/her family, along with applications for work authorization and travel document, may be filed concurrently with the petition. However, the foreign professor/researcher seeking permanent residence status on this classification must have the requisite job offer with the employer filing the petition on the alien's behalf. To qualify, an applicant must meet three criteria:

1) international recognition as outstanding in a specific academic area; 2) at least three years of experience in teaching or research in the particular area of expertise; and 3) a permanent research or teaching position job offer. First, what evidence is required to show that applicant is recognized internationally as outstanding in his or her field of expertise? USCIS will require the submission of at least two of the following: - Documentation of receipt of major award or prize for outstanding achievement in field of expertise. - Membership in associations in the field that require members to have outstanding achievements. - Public material in professional publications written by others about the alien's work in the academic field. - Evidence of 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 original scientific or scholarly research contributions to the academic field; or, - Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field of expertise.

Second, what kind of experience is accepted as 3 years of experience in teaching and/or research in applicant's field of expertise? Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three-year requirement, but research or teaching during this time must be recognized as outstanding and the applicant must have acquired the degree. Finally, what is considered an acceptable permanent research or teaching position job offer? The employment offer must be made by a university or other similar academic or scientific institution.

Although it can also be offered by a private employer, in such a case, the private employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field. In immigration law, 'permanent' job offer means a job offer without a fixed termination date. If the employer and employee meet all the above three requirements, they might wonder if there are any advantages or disadvantages in filing a petition based on this classification as opposed to the extraordinary ability or national interest waiver categories. Although all these categories are similar in that they are exempt from filing a labor certification and require extensive achievement and ability, there are some differences to consider. The extraordinary ability and national interest waiver categories are subject to more stringent standards; they can apply to more diverse fields other than professors and researchers; and they are self-petitions. Therefore, if the alien has three years experience but not extensive evidence to support extraordinary achievements, the outstanding professor/researcher category is a better choice. On the other hand, if the alien's employer has a policy of not sponsoring an immigrant petition, the alien has no choice but to use the other self-petitioning categories. All these categories, requiring the alien to be extraordinary, exceptional, or outstanding, have a history of being abused by unscrupulous people, who did not quite meet the standard. This has caused the USCIS to tighten up their policy and raise the standard further higher. Any petition under any of these categories is now under increasingly subjective and narrow review and therefore calls for a thorough preparation by an experienced practitioner.

Mario Guevara-MartinezJune 27, 2014