Outstanding Professors and Researchers, EB-1
Section 203(b)(1)(B) of the Immigration and Nationality Act ("INA") permits the issuance of immigrant visas to professors or researchers who are outstanding in an academic field. U.S. employers may seek classification for their foreign national employees as outstanding professors or researchers through filing an I-140 petition. A labor certification is not required. Aliens seeking this classification may not self-petition. “Outstanding Professor or Researcher” I-140s fall under the employment-based first preference category ("EB-1") in the visa bulletin
As with all I-140 petitions, the employer must demonstrate its ability to pay the beneficiary the proffered wage through submission of federal income tax returns, an annual report or audited financial statements. In addition, the petitioner must either be (a) a U.S. university or institution of higher education which is offering the alien a tenured or tenure-track teaching position or permanent research position in the alien's academic field, or (b) a private employer offering the alien a permanent research position in the alien's academic field. If the latter, the employer must also demonstrate that it employs at least three full-time researchers and that the institution has achieved documented accomplishments in the academic field.
Finally, the petitioner must also demonstrate that the professor or researcher is outstanding. This evidence must consist of at least two of the following:
- Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
- Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
- Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
- Evidence of the alien's 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 the alien's original scientific or scholarly research contributions to the academic field; or
- Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
The "Outstanding Professor or Researcher" classification is, by design, very restrictive and limited to those individuals performing at the very top of their field. USCIS significantly narrowed the scope of this classification in a memorandum and through changes to the Adjudicator's Field Manual, in 2010. The memo was based on a federal court case, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which introduced a two-part test for evaluating evidence submitted in support of an I-140/Outstanding Professor or Researcher petition. The first step in this test is to determine whether the petitioner has submitted the required evidence as outlined above. The second step is a "final merits determination" in which the adjudicating officer must determine whether the evidence submitted is sufficient to demonstrate that the beneficiary (or self-petitioner) meets the required high level of expertise for the classification. This standard has proven very difficult to satisfy in practice.