Frequently asked Q & A for "Outstanding Professors or Researchers"
Based upon our numerous years of experience, USCIS’ practice, and decisions from Administrative Appeals Office (AAO), followings are several examples of common misunderstandings between theory and reality for the immigrant petitions based on Outstanding Professors or Researchers.
Question: Can I petition for myself under “Outstanding Professor or Researcher” and no job offer is necessary?
Answer: No. The alien cannot petition for himself or herself. A permanent offer of employment is required. For university professor, the position should be a tenured or tenure-track position.
Question: I was a teaching assistant for one year during my Ph.D. student. Can the one-year teaching experience be considered in the three-year teaching requirement?
Answer: Maybe and maybe not. The requisite three years can include pre-degree teaching experience gained while working on the advanced degree, so long as the alien completed the degree and the pre-degree research experience is recognized as outstanding. In reality, it is very difficult, if not impossible, to provide evidentiary documents to prove that you were recognized as "outstanding" during your university study because USCIS takes the position that outstanding achievements by students are not at the level of those fully engaged in the profession. AAO also argues that it is simply too early to judge alien's accomplishments during his or her academic studies.
Question: I am a post-doc researcher with a university on a three-year H-1 status. Can my job be classified as "permanent offer of employment" offer?
Answer: Depends. If your position is supported by an annual grant on a yearly basis, it is unlikely a "permanent offer of employment". However, if employer can demonstrate its intent to continue to seek funding, a reasonable expectation that funding will continue, prior renewals for extended long-term research projects, and that the position normally continue beyond the term which funding grants are normally renewed, the position may be considered as "permanent". In other words, the petitioning employer must establish that the offer of a researcher's employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment.
Question: My offer letter indicates that my job is under at-will employment contract. Is this position a "permanent offer of employment" offer?
Answer: According to a USCIS' recent memo, a petition should not be denied solely because the actual employment contract or offer of employment does not contain a "good cause for termination" clause. Thus, an offer of employment that is of indefinite duration, but terminable at will, likely satisfies the requirement of permanent employment.
Question: I have won top student paper award. Can it be counted as less major prize or award for outstanding achievement in the field?
Answer: Usually, a major nationally or internationally recognized award, such as Nobel Prize, is sufficient. However, most aliens do not win Nobel Prize. The fact that an alien has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor can be evidenced as one of six enumerated criteria. But remember that USCIS takes the position that prizes for academic achievements or student awards will not be considered for EB-11 and EB-12 adjudication. The based reasoning is that university study is not a field of endeavor and outstanding achievements by students are not at the level of those fully engaged in the profession.
Additionally, USCIS rejected the argument that research grants can be considered as prizes or awards by ignoring the fact that peer-reviewed funding in academia is highly competitive and generally is considered as recognition of alien’s national or international acclaim or achievement. However, those research grants can be considered as evidence of importance of the alien’s contributions to the field.
Question: What kind of membership of professional associations can be qualified to meet legal criterion?
Answer: The alien is a member of professional associations that require outstanding achievements of their members, as judged by recognized national or international experts, such as National Academy of Sciences. However, most recently graduated Ph.D. aliens do not have that kind of membership. Membership in professional associations which only require degree or experience and payment of membership dues will be given little weight by USCIS.
Question: Another criterion is published material about the alien in professional or major trade publications or media by other experts. What is USCIS’ position?
Answer: An unevaluated listing in an index or footnote, or a reference to alien's work without evaluation is insufficient. The articles must, in their content, actually discuss and evaluate alien’s work and not just simply reference it.
Question: If I meet at least two of six enumerated criteria, should my petition be successful?
Answer: Despite the clear language of the regulations which do not require a showing that the alien meets all of the regulatory criteria, merely meeting only two criteria does not guaranty approval of your petition. USCIS will weigh quantitatively and qualitatively on the evidence submitted. It is better to substantiate specific criteria as more as possible.
Question: I heard that USCIS requests advisory opinions from government organizations or research institutions. Since I have difficulty in obtaining reference letters from specific entities, my petition will probably be denied.
Answer: Neither law nor regulations require providing sole evidentiary means to meet specific criteria in any particular manner. Therefore, no reference letters from government organizations or research institutions shall not constitute a detrimental or decisive factor for your petition.
Question: I know many experts very well from my professors, fellow co-workers, and other colleagues. Thus, they are willing to give me full support on their letters. So my petition has better chance for approval since all my references are very strong.
Answer: USCIS frequently takes the position that letters from professors, fellow co-workers, and colleagues of aliens do not constitute convincing evidence of international acclaim or recognition since they are well acquainted with alien and their statements are not fully considered as unbiased. Thus, aliens should submit references as more as possible from disinterested experts as independent advisory opinions.
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