Outstanding Professors and Researchers: A Closer Look

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Outstanding Professors and Researchers A
Closer Look

• Connie Burk, U. T. Health Science Center
  (cburk_at_utmem.edu)
• Terry Eiesland, Emory University
  (teiesla_at_emory.edu)
• Steve Springer, David Ware Associates
  (steve_at_david-ware.com)
• NAFSA Region VII ConferenceAtlanta, GA
• October 27, 2007

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Presentation Outline

• Overview of the outstanding professor or
  researcher category
• Quick review of EB LPR Process and categories
• Criteria and observations
• Advantages/Disadvantages
• Advising Considerations
• Policies and practices

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Review of Employment-Based LPR

• Some Key Concepts
• With a few exceptions
• Employer petitions USCIS to obtain permanent
  residence for Employee
• So its not the employee who files the petition,
  its the employer
• If labor certification is pursued, the employer
  files that, with
• U. S. Dept. of Labor, too
• Final step in the process requires an application
  (adjustment of status) by the employee
• Spouse and unmarried minor children may join in
  this application
• Full-time job of indefinite duration generally
  required
• Two-step or three-step process, depending on
  category

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• EB LPR Categories
• Each year 140,000 places allocated among five
  categories, called preferences
• First Preference (EB-1)
• Aliens with extraordinary ability
• Outstanding professors and researchers
• Certain multinational executives and managers
• Second Preference (EB-2)
• Members of the professions holding advanced
  degrees
• Aliens of exceptional ability
• Third Preference (EB-3)
• Professionals and skilled workers
• Other workers
• Fourth Preference (EB-4) Certain special
  immigrants

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• Overview Eligibility for OPR Classification
• At least three years of teaching or research
  experience in the field
• Permanent position
• Tenure-track or tenured teaching position
• Comparable research position
• Recognized internationally as outstanding
• Evidence of at least two of the following
• receipt of major prizes or awards for outstanding
  achievement
• membership in organization that requires
  outstanding achievement
• published material about the aliens work
• participation, individually or on a panel,
  judging the work of others

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Experience

• The Statute INA 203(b)(1)(B)(ii)
• The alien has at least 3 years of experience in
  teaching or research in the academic area
• The Regulations 8 CFR 204.5(i)(3)(ii)
• Evidence that the alien has at least three years
  of experience in teaching and/or research in the
  academic field
• Experience in teaching or research while working
  on an advanced degree will only be acceptable . .
  . if he/she had full responsibility for the class
  taught or if the research . . . has been
  recognized within the academic field as
  outstanding
• Evidence . . . shall be in the form of letter(s)
  from current or former employer(s) and shall
  include . . . a specific description of the
  duties performed by the alien

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Experience Observations

• USCIS seems reasonably open-minded about evidence
  of required experience
• Some employers submit only c.v.
• Others submit letter from current supervisor or
  other of employers representative
• Others carefully document with letters from prior
  employers, explaining teaching and research
  duties in a manner to meet the specific
  requirements stated in the regulations
• If relying on experience as graduate student,
  which is not uncommon, its probably best to
  address directly the regulatory requirements that
  the beneficiary had full responsibility for the
  teaching or that the research has been recognized
  as outstanding

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The Position

• Statute INA 203(b)(1)(B)(iii) the alien seeks to
  enter the U.S.
• (I) for a tenured position (or tenure-track
  position) within a university or institution of
  higher education to teach in the academic area
• (II) for a comparable position with a university
  or institution of higher education to conduct
  research in the area
• Regulations 8 CFR 204.5(i)(3)(iii) The offer of
  employment shall be in the form of a letter
  from
• (A) A U. S. university or institution of higher
  learning offering the alien a tenured or
  tenure-track teaching position in the alien's
  academic field, or
• (B) A U. S. university or institution of higher
  learning offering the alien a permanent research
  position in the alien's academic field
• 204.5(i)(2) definitions
• Academic field means a body of specialized
  knowledge offered for study at an accredited U.
  S. university or institution of higher education.
• Permanent, 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

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The Position Observations

• Note neither statute nor regulations require
  full-time position (institutional policy might)
• Position and function dont have to strictly
  match
• Most petitions based on outstanding research,
  even for professors
• Usually simplest to assert that beneficiary is
  outstanding professor or researcher (as the
  statute and regs. read) and let USCIS decide
  which experience qualifies
• Neither the statute nor the regulations specify
  that an outstanding professor must be offered a
  position as a professor and vice-versa. There
  appears to be nothing to preclude the petitioner
  from offering an outstanding researcher a
  position as a professor and from offering an
  outstanding professor a position as a researcher
  (Skerret Letter 03/02/1994)

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• Problems of permanence
• Dont confuse the criteria for professors with
  those for researchers
• Professor positions only require proof that
  position is tenure-track or tenured
• Job offer letter or contract
• TSC seems willing to accept letter from employer
  to USCIS
• Research positions these are more difficult
• Require employment for a term of indefinite or
  unlimited duration, in which the employee will
  ordinarily have an expectation of continued
  employment unless there is good cause for
  termination (8 CFR 204.5(i) (2))
• Offer of employment shall be in the form of a
  letter from . . . a U. S. university or
  institution of higher learning offering the alien
  a permanent research position in the alien's
  academic field (8CFR204.5(i)(3)(iii) (B))
• NSC interprets to require job offer letter to the
  employee clearly stating that permanent
  employment is offered
• TSC has taken more reasonable approach, realizing
  that such letters generally conflict with
  institutional policies, standard employer
  practices (esp. In employment-at-will states)

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Internationally Recognized

• Statute the alien is recognized internationally
  as outstanding in a specific academic area (INA
  203(b)(1)(B)(i))
• Regulation Evidence that the professor or
  researcher is recognized internationally as
  outstanding in the academic field specified in
  the petition. Such evidence shall consist of at
  least two of the following (8CFR204.5(i)(3)(i))

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Internationally Recognized Observations

• Some commentators believe that the regulations
  were written so that simply submitting evidence
  in any two categories is sufficient
• USCIS seems to be of two minds about this
• Simply performing in the criteria categories
  indicates outstandingness
• 6/30/1992 Weinig Letter . . . peer-reviewed
  presentations at academic symposia or
  peer-reviewed articles in scholarly journals,
  testimony from other scholars on how the alien
  has contributed to the academic field, entries
  (particularly a good number) in a citation index
  which cite the aliens work as authoritative in
  the field, or participation by the alien as a
  reviewer for a peer-reviewed scholarly journal
  would more than likely be solid pieces of
  evidence. We are also inclined to believe that
  thesis direction (particularly of a Ph.D. thesis)
  would demonstrate the aliens outstanding ability
  to judge the work of others.
• The performance itself must be outstanding to
  establish outstandingness
• 6/15/1995 Skerret Letter The overall impression
  should be that the alien fits the classification.
  Mere presentation of evidence which relates to
  two of the listed criteria does not guarantee an
  approval.
• RFEs/NOIDs often indicate that USCIS expects
  evidence in at least two categories showing that
  beneficiary stands out among those in the field
  (they argue that this is implied rather than
  stated in the regulation/statute), so this
  requires outstanding publication, outstanding
  judging, outstanding subject of publications by
  others, etc.
• Safest to assume you must prove beneficiary
  outstanding in at least two categories

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• At least two, means TWO, though many suspect that
  USCIS looks for strong evidence in MORE than two
  categories (see 6/30/1992 Weinig Letter,
  indicating necessity to meet 3 criteria)
• Careful definition of specific academic area is
  crucial
• Definition provided at 204.5(i)(2) is quite
  broad, so be creative
• Easier to show outstandingness and recognition
  among those in a narrowly defined specialty, like
  the plant pathogen genetics than a broadly
  defined one like biology
• Clear explanation of the beneficiarys work,
  which may be easily understood by a layperson, is
  essential, and you may have to assist with this
• Late addition to slides Legal standard
  preponderance of the evidence not beyond a
  reasonable doubt (see 5/3/06 Divine memo)

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Prizes and Awards

• Documentation of the alien's receipt of major
  prizes or awards for outstanding achievement in
  the academic field (8 CFR 204.5(i)(3)(i)(A))
• Observations
• AAO decisions have indicated that student prizes,
  awards, and fellowships do not meet this
  criterion teaching assistant awards, deans
  list, elected student leadership positions,
  examination scores, travel grants, and even
  research grants
• USCIS reads major to mean international
• Rare for those young enough in their career
  that they would be seeking permanent residence
• Grant awards
• Dont fall neatly into any of the categories of
  evidence, but can be powerful evidence
• Some argue that receiving a large sum of money is
  even more indicative of an outstanding reputation
  than other awards
• Many are based on prior achievements and
  carefully peer-reviewed

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Memberships

• Documentation of the alien's membership in
  associations in the academic field which require
  outstanding achievements of their members (8 CFR
  204.5(i)(3)(i)(B))
• Observations
• NOT simply professional associations in which
  membership is granted for the payment of a
  membership fee (save your paper)
• AAO decisions indicate that this criterion
  includes the most prestigious associations, such
  as the National Academy of Sciences, which are
  extremely restrictive in their membership
  requirements
• . . . while a meritorious distinction based on
  peer recommendations, it has no been demonstrated
  that only those with outstanding achievements are
  eligible . . . (recent NOID)
• Still, submit proof of membership in any
  organization which requires nomination and
  election or any kind of achievement
• MUST show criteria for membership, even if they
  should be obvious to USCIS

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Publications about the Alien

• 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 (8 CFR 204.5(i)(3)(i)(C))
• Observations
• USCIS seems to believe that they must be at the
  national or international level, rather than in
  community newspapers or the universitys
  publications, but even articles in major regional
  newspapers may be unusual enough to be
  influential
• Standard academic citations (especially passing
  citations) do not suffice
• The record indicates that the beneficiarys work
  has been cited 24 times. While this shows a
  small level of recognition, this citation record
  does not reflect that the beneficiarys
  publication history is indicative of or uniquely
  consistent with international recognition
  (recent NOID)
• small level of recognition does not satisfy
  regulation that simply requires recognition?
• What about, say, 200 citations, 100 citations to
  one article?
• Many petitioners include them, regardless, since
  they are often impressive
• Articles based on or dealing with the authors
  work in any detail may be powerful
• Organized list of citations and copies of
  articles or at least title and citation pages

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Judging the Work of Others

• 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 (8 CFR 204.5(i)(3)(i)(D))
• Observations
• USCIS seems to be pretty open-minded and
  reasonable in accepting a wide variety of
  evidence, even informal
• Thank you letters and even e-mail messages from
  journals or grant-funding institutions
• Dont forget conference panels, conference
  organizing panels (reviewing submissions/proposals
  ), editorial boards
• Recent RFEs indicating that reviewing journal
  submissions is not necessarily indicative of
  international recognition, as this is an activity
  in which many academics routinely engage.
• Reviewing dissertations is probably not useful
• Although the regulation, standard practice, and
  common sense would indicate that simply being
  asked to review the work of peers would satisfy
  this criterion, USCIS does not always agree
• A vast majority of published researcher (sic.)
  perform such duties peer-review for journals .
  . . and there is nothing to indicate that the
  beneficiarys participation . . . Exceeds that of
  other researchers or reflects international
  recognition . . . (recent NOID)
• 6/30/1992 Weinig Letter indicates that judging
  dissertations would qualify (dont count on it)

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Original Contributions

• Evidence of the alien's original scientific or
  scholarly research contributions to the academic
  field (8 CFR 204.5(i)(3)(i)(E))
• Observations
• Generally, this is best established through
  expert opinion letters
• Careful to avoid standard recommendation letters
• Often very helpful for scholar to propose a draft
  for the writer (if not the qualitative part, at
  least the facts)
• Writer should include c.v. or a biographical
  paragraph or two in the letter
• Obviously letters from other countries can be
  useful (international recognition)
• Need not be only from academics
• Writers not closely associated are considered
  most objective, but those closely associated
  often provide best information (avoid having only
  local letters)
• Whats the magic number???

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Publications by the Alien

• Evidence of the alien's authorship of scholarly
  books or articles (in scholarly journals with
  international circulation) in the academic field
  (8 CFR 204.5(i)(3)(i)(F))
• Observations
• As in other categories, USCIS looks for
  distinction
• Expert opinion letters can discuss significance
  of publications and record
• Seminal articles and widely used books especially
  powerful
• Citation record can help establish distinction
• ISI ranks journals, and many journals rank most
  downloaded articles
• Because the goal of the regulatory criteria is
  to demonstrate that the beneficiary has won
  international recognition . . . it stands to
  reason that the beneficiarys research would have
  won comparable recognition. (recent NOID)
• The Association of American Universities
  Committee on Postdoctoral Education . . . set
  forth in its definition of a postdoctoral
  appointment that the appointment is viewed as
  preparatory for a full-time academic and/or
  research career . . . and that the appointee is
  expected to publish the results of his or her
  research or scholarship during the period of
  appointment. Since it indicates that
  publication is expected this report reinforces
  the Services position that scholarly publication
  is not automatically evidence of international
  recognition. (recent NOID)

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General Observations

• Although the statute and regulations would
  indicate that simply presenting evidence in
  several categories would add up to outstanding,
  USCIS seems to require clear proof in at least
  two categories that beneficiary stands out among
  peers
• Although it shouldnt be, it may be more
  difficult to establish outstandingness in
  humanities than sciences
• Dont assume any knowledge on the part of USCIS
  concerning academia, criteria for memberships or
  publication, prestige of organizations, etc.
• Assume that if you have not provided documentary
  proof, you have not established a fact simply
  by stating it (USCIS trusts documents more than
  petitioner statements)
• Expert opinion letters are among most powerful
  evidence, but scholars will need guidance in
  obtaining them and in necessary content (they
  will get general job recommendation letters if
  you dont advise otherwise)
• A summary letter or memo (along with table of
  contents and tabbed exhibits) can be extremely
  helpful and allow you to emphasize evidence you
  consider most useful, but this labor-intensive
• Other?

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Advantages / Disadvantages

• Advantages
• Bypass labor certification process
• Recent DOL rule requires employer to pay all
  costs associated with labor certification
• Especially professional occupation process for
  researchers
• For extremely focused scholar, can be quickly
  prepared and filed in case of emergency to
  protect work authorization
• Can be good option for professor if special
  handling criteria not met
• EB-1 rarely backlogs
• Especially scholars from India and China may have
  reason to prefer EB-1
• Disadvantages
• Extensive documentation required

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Advising Considerations

• The decision to/not to pursue the outstanding
  route
• May not be good first choice for those eligible
  for special handling labor certification
• For professors, labor certification is relatively
  quick and simple
• Collection of evidence for outstanding petition
  can take longer than labor certification
• Missed 18 month window, failed to run print ad,
  institution or professor refuses re-recruitment?
• Outstanding route may require much more
  advising than special handling route
• For researchers, labor certification more
  difficult, but unlikely to have many applicants
• EB-2 backlogs and actual vs. perceived need to
  rush
• Scholars with aging-out children may find EB-1
  attractive as filing AOS may gain protections
  provided by Child Status Protection Act
• In emergencies, may be possible to file
  concurrently I-140 and I-485, with applications
  for EAD and advance parole, to protect work
  authorization

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November Visa Bulletin
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Institutional Policies and Practices

• Institutional Policies
• Who may be sponsored
• All positions, only faculty positions, etc.?
• Driven by IO staffing and ability to use outside
  counsel, financial constraints, shortages of
  employees
• Institutional Practices
• Some institutions mandate or prefer either EB-1
  or EB-2
• Again, may be driven by IO staffing and ability
  to use outside counsel, financial constraints,
  shortages of employees, willingness of HR to
  re-recruit for position that has already been
  filled
• New DOL rule preventing employee from paying
  legal fees/costs for labor certification may
  cause some employers to require researchers to
  pursue the outstanding process rather than
  labor certification
• Processes for deciding to pursue EB-1, gathering
  evidence, etc.

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