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< Back to current issue of Immigration Daily

Regarding Outstanding Professors and Researchers

by Joseph P. Whalen

These higher priority visas are very narrowly defined by statute and consequently, are more stringently controlled via their implementing regulations. Those basic facts force USCIS adjudicators to pour over proffered evidence in an extremely critical manner with a fine toothed comb. The first preference visas have perennially been available most rapidly because fewer people will qualify for them and they tend to always have a "current" priority date. Attainment of such a visa is difficult not due to competition from a large pool of qualified individuals but from the high bar to eligibility.

All-in-all, the petitioning employer has to qualify; the position has to qualify; the job offer has to qualify; and the beneficiary has to qualify for the position offered. If all the those high standards are satisfied, the qualified employer can skip the protracted labor certification process and the qualified beneficiary gets a visa much quicker than those folks who must apply for one in a less strictly controlled visa preference category. Congress chose to fast-track the highly qualified for the benefit of the United States through a deliberate brain-drain approach. Unqualified pretenders need not apply. Let's review the statute and regulations.



INA 203 [8 U.S.C. 1153] ALLOCATION OF IMMIGRANT VISAS

* * * * *

(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows:

(1) Priority workers. - Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
* * * * *
    (B) Outstanding professors and researchers. -An alien is described in this subparagraph if -
    (i) the alien is recognized internationally as outstanding in a specific academic area,
    (ii) the alien has at least 3 years of experience in teaching or research in the academic area, and
    (iii) the alien 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 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

8 CFR 204.5 Petitions for employment-based immigrants

.

(i) Outstanding professors and researchers

.
    (1) Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I-140 visa petition for such classification.
    (2) Definitions. As used in this section:

Academic field means a body of specialized knowledge offered for study at an accredited United States 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.

    (3) Initial evidence. A petition for an outstanding professor or researcher 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 alien's receipt of major prizes or awards for outstanding achievement in the academic field;
    (B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
    (C) 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;
    (D) 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;
    (E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
    (F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

(ii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field.

>[Proviso:] Experience in teaching or research while working on an advanced degree will only be acceptable if the alien 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 within the academic field as outstanding.

Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and

(iii) An offer of employment from a prospective United States employer. A labor certification is not required for this classification.

The offer of employment shall be in the form of a letter from:

    (A) A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien's academic field;
    (B) A United States university or institution of higher learning offering the alien a permanent research position in the alien's academic field; or
    (C) A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.
.

It appears that a modified two-part analytic approach as inspired by the Kazarian[1] decision, can be utilized for this particular visa petition adjudication. The first part of this two-part approach is a simple quantitative component followed by a qualitative analysis and evaluation. The adjudicator must first merely determine if the petition is accompanied by the minimum number of pieces of specific evidence from among the choices available, as enumerated in the regulations. If the petition does not contain the bare minimum, then why waste any more time on it? Once crossing the first threshold, the evidence must then demonstrate that the beneficiary meets the crucial statutory requirements of being: (1) recognized internationally (2) as outstanding (3) in a specific academic area; with at least 3 years of "qualifying" experience. The determination of whether or not the evidence demonstrates those three critical factors calls for a judgment on the merits according to the preponderance of the evidence standard. That particular standard of evidence is essentially a judgment call but the judgment called for in this instance is not a very difficult one to make. The "final merits determination" as it was labeled by the Ninth Circuit is what I call the "qualitative analysis and evaluation". While this visa category is restrictive, it does not involve so many possibilities [as in "contexts" or factors] as to "overarching questions" that it would be as overwhelming, by comparison as "extraordinary ability", "exceptional ability", or "national interest waiver" adjudications. That's my two-cents, for now.


Footnotes

1Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)


About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.< /p>


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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