Outstanding Professors or Researchers Requirements
Introduction
In 1990 Congress created the current preference system. The Immigration Act of 1990,
IMMACT90 carved out the first preference for "priority workers," those whose
talents and skills were deemed so important to our nation that they should not
be subject to the rigors of the Labor Certification process.
The three 'priority worker' categories are aliens with extraordinary ability,
outstanding professors and researchers, and multi-national managers and
executives. In order, they are referred to as EB1A, EB1B, and EB1C,
following their designations at Section 203(b)(1) of the Act.
The second category, outstanding professors and researchers (EB1B), is
something of a kid brother to the alien with extraordinary ability. The
eligibility criteria is nearly the same, with the extraordinary alien needing
to qualify in more of the criteria than needed for the outstanding
professor/researcher (OP/R). One critical difference is that the outstanding
professor requires a job offer, that is, be the beneficiary of an employer
petition. 1
The law allows the extraordinary alien to self-petition for the
benefits.
Legal Authority
Section 203(b)(1)(B) of the Immigration and Nationality Act (INA) defines
the outstanding professor and researcher.
8 CFR s. 204.5(i) sets out the eligibility and filing criteria.
Key definitions and concerns
"Permanent"
Recently, many petitions for outstanding researchers/professors where
the petitioner is a university have seen a Request for Further Evidence
or have been denied because of the issue of permanency, specifically as it
is defined by the regulation.2
The regulation states that "[p]ermanent,
in reference to a research position, means either tenured, tenure-
track, or for a term of indefinite or unlimited duration, and in which
the employee will ordinarily have an expectation of continued employment
unless there is good cause for termination." Tenured or tenure-track
generally refers to professors; thus, in the case of an outstanding
researcher, the test for permanency should depend on the latter requirement
of the regulation: that the term of employment be of "indefinite or
unlimited duration."
In the past, USCIS and the AAO have been particularly critical of
post-doctoral research positions because they are not viewed as career
positions but rather a continuation of training. This is true of post-doctoral
positions at a university.
Many researchers, perhaps most, are not tenured or on tenure-track.
Positions that are funded by grants may not meet the "permanent" definition.
Further, many if not most, post-doctoral research positions are, by definition,
of limited duration and, again, may not be 'permanent.' Thus the practitioner
needs to take the time and care to determine if the position is one the
employee can count on indefinitely.
Post docs in private research firms.
Recently "post doc researchers" at private foundations and institutes,
have been tarred with the same brush often applied to those with the same
titles at universities. However, research institutions, which tend to use
similar titles as universities, do not necessarily place limits on the
duration of employment for researchers. Practitioners are advised to
carefully distinguish the private research firm "post-doc" from the
university post doc and to devote time to demonstrate the "unlimited duration"
of the employment and the "expectation of continued employment" by the researcher.
"Three years of experience in teaching and/or research in the academic field"
The lawyer must be careful to not be too hasty. Has the professor achieved
three years experience teaching? Teaching conducted while pursuing the
degree may count toward this criteria as long as the teaching duties,
"…were such that he or she had full responsibility for the class taught..."
Research conducted in pursuit of the degree may also apply ,
"…if the research …has been recognized within the academic field as
outstanding." 8 CFR 204.5(ii).
Private employer. "At least three full time researchers in research division
of a private employer working in a division or department that has achieved
documented accomplishments in an academic field".
Evidence of international recognition that the professor
or researcher is outstanding
"International recognition" must be shown for an OP/R. This contrasts with
the extraordinary alien case which does not mandate international recognition,
rather national or international acclaim .
It is also of interest that
outstanding is not defined in contrast with definitions of extraordinary,
manager, executive in other parts of the EB1 regulations. To demonstrate
international recognition the person is outstanding, the regulations offer
six criteria at least two of which must be met to establish eligibility.
It is important to note that the regulations define these criteria as
"Initial evidence." The client professor or researcher is not automatically
established by providing such evidence.
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(1)Receipt of major prizes or awards for outstanding achievement
in the field.
This is a difficult criteria to use unless the award is so significant
that it is known to the general public. It is often difficult proving
the fact an award is "major." The lawyer may end up spending more time
proving an award is major than is necessary. In my experience this category
can be used as a second level of evidence after the two or three criteria
used to support the petition by having those who write in support of the
petition mention the prestige of the award.
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(2)Membership in associations requiring outstanding achievement.
This is another criteria difficult to meet. Many associations have
distinguished reputations yet are not difficult to join. It is worth
asking your client if there are memberships in associations requiring
recommendation from a peer. If so, advise your client to become a member.
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(3) Published material about the alien's work.
Any article or chapter that mentions your client and her research by name
is a gold mine. Note that citations to the Science Citator, for example,
are not "about" the aliens work. Nevertheless, an extensive citation history
should not be ignored, though it might be better employed to use in support
of other criteria - authorship of scholarly articles, for instance.
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(4) Participation as the judge of work of others.
This is often a fruitful area. Has he/she been on a PhD or Masters panel?
Has he/she edited articles for journals?
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(5) Original or scholarly research contributions to academic field
This and the following criteria are used in most EB1 cases.
It is important to specify accurately and clearly the nature of the contribution.
Create a "handle." Have your client explain to you the nature of her
contributions. Make sure you "get it." The contribution may indeed be
impressive but if it cannot be conveyed in succinct English, you may not be
able to meet this criteria.
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(6) Authorship of scholarly books or articles in scholarly journals with
international circulation.
Few, if any (none in my experience) OP/R petitions are submitted without
establishing the person meets this criteria. My personal ranking of importance
is (1) books, (2) chapters in books, (3) articles in journals. In the "real"
world the articles may be far more important at times. However, not all
professors or researchers are going to have books or chapters in books.
In reviewing the person's publication history, it is important to look for:
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1. The number of articles.
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2. The number of times the client has been first author.
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3. The prestige of the journal in which the article is published.
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Regarding the latter, the prestige of the journal, a useful site is
http://www.surgery.gr/imfact.pdf where the "impact factors" of
journals are assessed.3 A scientist with few articles published
in highly regarded journals is no doubt more outstanding than the scientist
whose many articles are in mediocre journals.
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Documenting your case
Unless the client has highly significant awards and is a member of an
unassailably exclusive association, the case will rest upon supporting
letters from peers in the field of endeavor. The writers must provide their
curriculum vitas in order to demonstrate their capacity to write on behalf
of the client. When the CVs are voluminous, request the short form CV from
the professor. Even CIS has a limit on the amount of paper it accepts.
Exhibit A is a sample of a documentation request.
Filing
All I-140 petitions now are filed with the Nebraska Service Center.
Exhibit B is a sample cover letter to CIS filing a concurrent I-140/485 case.
Exhibit C is a sample list of supporting exhibits.
1 8 CFR 204.5(i)(3)(iii)
2 8 CFR 204.5(i)(2) Definitions
3 Impact Factor is a measure of importance of
scientific journals. It is calculated each year by the Institute for
Scientific Information for those journals which it tracks, and are
published in the Journal Citation Report. Impact Factors have a huge,
but controversial, influence on the way published scientific research
is perceived and evaluated.
Calculation
The Impact Factor is generally calculated based on a 3 year period.
For example, the 2004 Impact factor for a journal would be calculated
as follows:
A = Number of times articles published in 2001-2 were cited in tracked
journals during 2003
B = Number of articles published in 2001-2
2003 Impact Factor = A/B
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There are some nuances to this: ISI exclude certain article types
(e.g. news items, correspondence, errata) from the denominator. Also,
for new journals, ISI will sometimes calculate an Impact Factor with
just 2 years of data.
Cited from
http://www.starrepublic.org/encyclopedia/wikipedia/i/im/impact_factor.html
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