Obtaining Legal Permanent Residency Through the EB-1B Outstanding Researcher Petition

A foreign national may obtain legal permanent residence in the US as an outstanding professor or researcher through the employment-based first category (EB-1B). This process bypasses the PERM labor certification application, which is the usual first stage of an employment-based application for legal permanent residency (“the green card”) and thereby circumvents the requirements of obtaining a prevailing wage determination and running recruitment to determine if there are any minimally-qualified US workers. According to INA §203(b)(1)(B), in order for the beneficiary to be eligible for an immigrant visa (Form I-140) in this classification, the beneficiary must meet all of the following criteria:

1. Be recognized internationally as outstanding in a specific academic area;
2. Have three years of experience in teaching and/or research in that field; and
3. Be offered a tenure or tenure-track position at a university or other institution of higher education in the US to teach in the academic area; or in a comparable position conducting research in the academic area at a university or institution of higher learning; or in in the department, division, or institute of a private employer, which employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

The regulations further define the third prong stating that a research position may be tenured, tenure track or a permanent offer, that is, an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination. 8 CFR §204.5(i)(2). USCIS will accept evidence of permanency as the employer’s intent to indefinitely seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research).

The regulations at 8 C.F.R. 204.5(i)(3) define an alien as “internationally recognized as outstanding in a specific academic field” if the applicant can provide evidence of at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien’s work in the academic field;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.

Furthermore, the Administrative Appeals Office (AAO) applies a two-step approach following Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) by first “counting” the evidence to see if it meets two or more of the necessary criteria and then considering the evidence as a whole.

Most foreign nationals filing as outstanding researchers provide the following documentation in support of their petition:

1. Recommendation letters from experts in the field;
2. Publications and presentations;
3. Citations to their work from Google Scholar;
4. Evidence as serving as a reviewer for journals or on an editorial board;
5. Competitive awards;
6. Membership in groups requiring outstanding achievement; and
7. Patents.

Since USCIS expects a scientist to have obtained much of this evidence, such as publications, presentations and citations, it is the recommendation letters that must be particularly strong and make the applicant shine. A letter from at least one objective recommender should be filed, to wit, an expert who has not taught, supervised or worked or studied with the foreign national. While the attorney cannot write the letter for the foreign national, she can certainly provide detailed and comprehensive and review the letters to enhance the foreign national’s track record.

It is also extremely important to write a clear, cogent and thorough legal memo in support of the petition, discussing each of the criteria that are applicable to the foreign national with great detail and care. Elucidating a scientist’s esoteric research and its practical significance in a way that presents the foreign national’s achievements as impressive while remaining clear to the lay person is also critical. USCIS does not have resident scientists with Ph.Ds. in different areas on staff reviewing these petitions and the petition is a form of marketing involving persuasion.