One way to obtain an immigrant visa in the United States is to be an outstanding professor or researcher. This classification is known as the EB-1-2 category.[5] Between 2,000 and 3,000 people obtain green cards each year through the EB-1-2 category.[6]

Many practitioners believe that a successful EB-1-2 case is either (1) an unattainable dream for all but the very best scholars or researchers; or (2) simply a matter of providing any evidence that fulfills any two of the six criteria set forth in the relevant regulations of the Immigration and Naturalization Service (INS). The answer lies somewhere in between. Companies and universities should consider the outstanding professor or researcher category as an important option for avoiding labor certification and proceeding to permanent residence for their research staff and faculty. However, each piece of evidence submitted must indicate “international recognition” in the particular sub-field, not just ordinary academic activity such as writing papers, being cited, advising graduate students, joining professional societies, and presenting at meetings.

We have obtained about 40 opinions decided in the past two years (2000-2002) by the INS’ Administrative Appeals Office (AAO) involving appeals of denials of EB-1-2 petitions.[7] These decisions show certain consistent patterns that will assist in deciding whether to use the EB-1-2 category, and in crafting a strong petition. About one-third of the decisions involved universities (including university hospitals); the rest of the petitioners were private corporations. All but two appeals[8] were denied, except for a couple remanded on procedural grounds. This indicates that the law is relatively well-settled.

After a review of the statute, we present the trends in EB-1-2 caselaw.

The EB-1-2 Standard

Section 203(b)(1)(B) of the Immigration and Nationality Act (INA)[9] states that a person qualifies for immigrant visa classification as an outstanding professors or researcher if he or she:

(i)         is recognized internationally as outstanding in a specific academic area,

(ii)        has at least three years of experience in teaching or research in the academic area, and

(iii)       seeks to enter the United States --

            (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, or

            (III)            for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

INS regulations at 8 C.F.R. § 204.5(i)(3) state that a petition for an outstanding researcher or professor must be accompanied by:

(i)           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:

           (A)           Documentation of the individual’s receipt of major prizes or awards for outstanding achievement in the academic field;

           (B)           Documentation of the person’s membership in associations in the academic field that require outstanding achievements of their members;

           (C)           Published material in professional publications written by others about the person’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

           (D)           Evidence of the individual’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

           (E)           Evidence of the person’s original scientific or scholarly research contributions to the academic field; or

           (F) Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

(ii)           Evidence that the person 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 the individual has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized in the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from former or current employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the person.

Issues Regarding the Petitioner

EB-1-2 cases require a company or university to file a petition on behalf of the beneficiary; he or she cannot self-petition. Moreover, the petitioner must have offered the beneficiary a permanent, full-time position. In our experience, the INS regional service centers focus less on the “permanent” nature of the job than does the Department of Labor in the labor certification context. For example, the DOL may question whether positions funded by “soft money” such as grants are really permanent in nature. By contrast, in our experience, an INS regional service center will approve an EB-1-2 petition where the job is labeled as permanent in the offer letter but is still wholly grant-funded.

To sponsor a beneficiary for this category, a private company must have at least three full-time research staff with a proven record of accomplishment in an academic field. The petitioner must qualify at the time of filing.  An intention to expand the number of research staff does not meet the criteria.[10]

The INS service centers and the AAO look particularly hard at start-up companies. Venture capital and smaller firms tend to receive the most scrutiny.[11] Listing venture capital under gross income on the I-140 may satisfy the general “ability to pay” standard for most employment-based immigrant visa petitions, but may lead to a presumption that the corporation has not made significant accomplishments for EB-1-2 purposes. The practitioner should rebut this with strong evidence of research accomplishments during the start-up phase to avoid denial.[12] As one AAO decision stated, “future goals and ongoing projects are not research accomplishments.”[13]

Moreover, it follows that proprietary research cannot satisfy the “documented accomplishment” requirement because, as one decision stated, the research must add to the “global body of basic knowledge in [the] field.”[14] Additionally, the AAO wrote in one decision that “Engineering and product design do not constitute research, but rather the technological application of existing research.”[15]

Three Years of Research Experience

Few of the AAO decisions we reviewed hinged on the regulatory option that pre-doctoral research counts toward the three-year requirement. However, as a practical matter it is hard to prove that a beneficiary with less than three years of post-doctoral research has an international reputation in their field.[16] In such a case, the petition must clearly document the outstanding nature of any pre-doctoral research, and consider a national interest waiver or labor certification if that research is not outstanding. Paid research assistant work for a professor, common to Ph.D. students in many countries, is treated with suspicion, and must be carefully distinguished from the basic research involved in the dissertation.

Evidentiary Issues

Peer Letters of Recommendation

Be sure to include letters from peers who have not collaborated directly with the beneficiary. However, it undermines the claim to an international reputation when the peer reference did not previously know the beneficiary, but is writing the letter simply after reviewing her resume and publications.[17] Therefore, a combination of letters from collaborators and mentors who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for success.

Receipt of Major Prizes or Awards for Outstanding Achievements

The AAO decisions state clearly that this criterion is intended for the “most prestigious associations, such as the National Academy of Sciences, which are extremely restrictive in their membership requirements. The National Academy of Sciences admits a few dozen members each year and these new memberships are decided at the national level rather than by local members.”[18] We offer a short list of awards submitted that held little or no weight in the appeals process because they did not establish international recognition:

•     Student prizes, including graduate fellowships[19]

•     Beneficiary having made the Dean’s List: “The petitioner has submitted nothing to show that Chung-Yuan University dean’s list is the subject of academic attention.”[20]

•     Awards granted by the petitioner[21], including internal research funding awards

•     Travel awards

•     Research fellowships, unless granted on the basis of prior significant achievement

•     Grants for new work[22]

Note that grants do not fall cleanly into any of the six regulatory criteria for EB-1-2 classification. It may be practical to include substantial funding from competitive sources (National Institute of Health, National Science Foundation, etc) in a separate category of your own design. Alternatively, you can document that the reason for funding by the granting agency was based on recognized past accomplishments (e.g., documented either by the peer reviews for the grant or in the peer reference letters for the EB-1-2 petition).

By “major,” the INS standard seems to mean “international.” It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage. “Some degree of international prestige must attach to the given award.”[23]

Membership in Associations in the Academic Field

Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. For example, membership in the Institute of Electrical and Electronics Engineers (IEEE), an association of more than 340,000 members, was cited in multiple appeals as not meeting the standard.[24] The practitioner should submit evidence of selective membership criteria along with evidence of membership in the association.

Published Material about the Person

 To satisfy this criterion, the published material should be at the national or international level. Articles in local newspapers, university publications, or internal company reports do not qualify. Moreover, standard academic citations do not count as published material “about” the beneficiary.[25]

Participation as a Judge of the Work of Others

Reviewing grants or articles can satisfy this criterion if the review request is directed particularly to the beneficiary. Generic “dear colleague” letters, or requests passed down from an advisor or mentor, do not indicate an international reputation in the field.[26]

Original Scientific or Scholarly Research Contributions to the Academic Field

Evidence submitted in this category must address the international reputation standard. Simply publishing or presenting one’s work, or receiving grant funding, is common in research, and does not indicate that the academic community has taken notice of the work. Overall, the AAO has concluded: “To argue that all original research is, by definition, ‘outstanding’ is to weaken the adjective beyond any useful meaning…”[27]

Patents or patent applications also carry little weight unless they demonstrate an international reputation in the field.[28] Practitioners should document the widespread use or application of the patent.

Authorship of Scholarly Books or Articles

The publications must be in peer-reviewed academic journals, preferably those with international circulation. When submitting evidence under this category, the practitioner must demonstrate that the publication record rises above that of the average scholar. One method of doing so is showing that the beneficiary’s papers have been widely cited by independent researchers in the field. It also helps to have the peer recommendation letters include references to specific papers, their impact, and that they appeared in prestigious journals of international circulation. Citations alone demonstrate “academic honesty,” not an international reputation.[29] As a result, citation searches alone carry little weight. The AAO scrutinized the citations in several cases and found that they were “self-citations” by the beneficiary, or citations by collaborators.[30]

Note that the Journal of Citation Reports[31] ranks journals in terms of citation impact and in terms of total number of citations for journals in all scientific fields. However, this ranking alone will carry little weight except in conjunction with a finding that the author’s work has been widely cited or followed.[32]

We also suggest that references note the impact of an article in subjective terms where appropriate. For example, when mentioning a particular article, the reference could write: “From my travel to international meetings and my professional interactions in our field, I also note that Dr. xx’s article is widely discussed, and have been the basis of numerous research proposals.” Any specific details, such as the article sparking discussion at a particular meeting, should also be included. The practitioner should encourage letter writers to take a bit of extra time to come up with details like this if possible.

Other points raised by the AAO include:

·        Published abstracts do not carry the same weight as full-length articles.

·        Articles published in only one country with only domestic circulation (such as many Chinese medical journals) do not satisfy the international reputation standard.

·        “An unpublished manuscript is not published material.”[33]

Interestingly, the AAO acknowledged that the beneficiary does not have to be the first author on an article to claim credit for it. This is because of “the inherently collaborative nature of modern scientific inquiry, in which researchers rarely labor in isolation.”[34] In our experience, the INS service centers do send requests for further evidence (RFEs) asking for proof that the beneficiary is a key independent researcher in a group project. Therefore, practitioners should clearly document the role of the beneficiary in a research team, especially if the beneficiary is not first author on any articles that result from the work.

Practice Tips

First and foremost, screen your cases carefully. Discuss the standard with the beneficiary and, if possible, with her supervisor or mentor, to evaluate whether the outstanding researcher classification applies and whether the necessary evidence can be gathered. Detailed initial intakes will help manage expectations, avoid delays due to RFEs, and reduce the chance of a denial. Careful screening not only weeds out weak cases, but also may help identify a case for the self-effacing researcher. In some cases talking to a supervisor has led us to suggest filing where the beneficiary’s initial modesty about his or her accomplishments might not.

Tailor your petition to the correct audience. Not all INS examiners are college educated, and none are likely to be experts in your client’s specialized field. Additionally, INS examiners have a very limited amount of time to read all the materials in each petition (less than 30 minutes in most cases). Present the beneficiary’s accomplishments and qualifications in laymen’s terms. This is especially important in the peer recommendation letters and in the cover letter. A clear and easy to read cover letter should make the petition more easily navigable for someone who is not familiar with the material.

As a practical matter, include only the first page of each journal publication, and the first few pages of each peer letter-writer’s CV. For example, each publication and each CV could be 10 pages long (or more!), which can make the package quite unwieldy. We have been told that INS examiners are not impressed by the volume of material submitted; in fact, the examiner might be more likely to set aside a particularly large submission in favor of a shorter one. Be selective and include only the strongest evidence. Do not “pad” the petition with documentation that does not clearly make your point. Meeting two of the six categories with strong evidence is probably better than marginal evidence for additional categories.

The key point to remember in crafting an EB-1-2 petition is to establish an international reputation. Each piece of evidence should speak to that standard. The AAO concluded in one decision that “even if the entire faculty of the [university where the beneficiary received his doctorate] and the entire management structure of the [petitioning company] were to provide letters attesting to the beneficiary’s skill as a researcher, these statements could not provide evidence that the beneficiary enjoys an international reputation . . . , or that researchers with no direct connection to the beneficiary share the opinion.”[35] Therefore, remember to seek independent references, and to document that the beneficiary has been not only published and cited, but noticed in his or her field.

Conclusion

In our experience, the AAO has raised the bar higher than the INS service centers for obtaining classification as an EB-1-2 outstanding professor or researcher. However, the AAO decisions remain consistent over the past few years, and stick clearly to the statute and regulations. It does appear that the outstanding researcher category may be moving toward a higher standard of review, paralleling similar patterns in national interest waiver and EB-1-1 adjudications in the past.[36]

We have also reviewed EB-1-2 cases filed by our two law firms and have surveyed some major universities and other immigration practitioners working in this area. In general, we have found that the INS service centers are not scrutinizing cases quite as carefully as the AAO.[37] Specifically, there have been fewer RFEs in practice regarding the three years’ research experience, international recognition, and the nature of the position as involving basic research than one might expect by reading the AAO decisions. However, all of the AAO decisions are firmly grounded in the statute and regulations. Therefore, we stress the importance of carefully screening potential beneficiaries for eligibility, and presenting a strong petition for the service center to approve.

Some practitioners have reported that they follow a “play for the kickback” strategy of submitting a basic petition, holding back some evidence, and waiting for the RFE. We recommend against that because of the relatively low level of denials in practice, and the issue of submitting documentation dated after the initial filing.[38]

If an EB-1-2 petition fails, the AAO decisions argue against filing an appeal. Appeals to the AAO take a year or longer to be decided. They are very unlikely to lead to reversal. Suggested alternatives are:

•     File the I-140 again, with whatever additional publications or other materials are available, and addressing the reasons for the initial denial.

•     Consider filing an EB1-1 or national interest waiver petition if the beneficiary is one of the top few in his or her field, or if he or she has made a significant accomplishment in a field of national interest.

•     Consider traditional labor certification, which allows restrictive requirements based on business necessity, and can help focus on the beneficiary’s particular skills required by the petitioner.

•     Finally, do not forget to ask about other paths to permanent residence, including family-based sponsorship, spouse’s employment-based options, the diversity visa lottery program, or asylum.