Business Solutions

Is Your Foreign National Employee Internationally Recognized as an Outstanding Researcher?

This article originally appeared in the October 2018 edition of Mobility Magazine.

Foreign national employees who are researchers and scientists who meet certain criteria can apply and be sponsored for permanent U.S. resident status in a way not available to others.

U.S. employers can—and should—consider the Employment-Based First (EB-1) preference category to save considerable time[1] and costs in sponsoring their foreign national population for green cards.[2] This article will provide an overview of the requirements for the EB-1B Outstanding Researcher green card category,[3] and provide an assessment that fleshes out the criteria the United States Citizenship and Immigration Services (USCIS) uses to determine whether a foreign national qualifies for the relevant category. While assessing the case, the article also provides best practices and tips for presenting a successful Outstanding Researcher green card case to the USCIS.[4]

Qualifications for an EB-1B Outstanding Researcher Green Card Case

Unlike the standard for an EB-1A Extraordinary Ability applicant, according to which the applicant must have garnered “sustained national or international acclaim in the field of endeavor,” an EB-1B Outstanding Researcher must be recognized internationally as outstanding in a specific academic field—a lower threshold than that required for an Individual of Extraordinary Ability.

To qualify as an Outstanding Researcher, the foreign national must have at least three years of experience in teaching or research in the stated academic field. Experience in research while working on an advanced degree will be acceptable only if the foreign national has acquired the degree, and (1) if the teaching duties were such that he or she had full responsibility for the class taught or (2) if the research conducted toward the degree has been recognized within the academic field as outstanding. In addition, the sponsored position must be a research position with a university or institute of higher education, or with a private employer, assuming the private employer has at least three full-time researchers and documented accomplishments—such as patents—in the research field. Further, to qualify, the foreign national must meet at least two out of eight stated USCIS criteria.

Related: 4 Tips for Cutting the Travel Visa Hassle

Case Assessment and Best Practices for a Successful EB-1B Outstanding Researcher Green Card Case

The Research Company (the “company”) would like to sponsor “Ms. Kapoor,” an Indian national, for permanent residence. Kapoor graduated with a Ph.D. in clinical chemistry in May 2016 and has been working for the company as a research chemist, first in F-1 status with an Employment Authorization Document based on Optional Practical Training and, since 1 October 2017, in H-1B status.

The Research Company is a private employer that has 200 employees, including 15 full-time researchers. The company has various accomplishments in the research field, including more than 35 patents. Kapoor has indicated her interest in remaining with the company long-term. As a result, the company would like to sponsor Kapoor for permanent residence so that it can continue to employ her indefinitely. The company has Kapoor complete an assessment chart to determine whether she qualifies for an EB-1A or EB-1B green card case.

In general, if a company qualifies as a research institution, the inclination is to focus more on an EB-1B green card case, because the threshold is lower than that of an EB-1A green card case. The Research Company qualifies as a research institution because its 15 full-time researchers and more than 35 patents demonstrate accomplishment in the research field. However, while the company may qualify for filing an EB-1B case, Kapoor’s credentials need to be assessed to determine whether she qualifies as an Outstanding Researcher.

Unfortunately, Kapoor graduated in May 2016 and therefore possesses less than the three years of research experience in her academic field required to qualify as an Outstanding Researcher. Kapoor claims, however, that the research work she conducted while obtaining her Ph.D. is recognized in the field as outstanding, and that she can provide evidence as such.

Assuming she can provide evidence such as recommendation letters confirming that her research work while obtaining her degree was recognized as outstanding, the company would be able to pursue an Outstanding Researcher green card case on her behalf. Filing an EB-1B petition is still an option, then, though The Research Company must still evaluate Kapoor’s background to determine whether she possesses at least two of the stated USCIS criteria.

Read the rest of this article in the October 2018 edition of Mobility Magazine.

End Notes

  1. Generally, the EB-1 preference category is a more expedited path to permanent residence over the other preference categories, especially for Indian and Chinese nationals who are subject to visa retrogression.
  2. The employment-based immigrant category is divided into subcategories, the first through the fifth employment-based preference categories (EB-1 through EB-5). Each category requires the foreign national employee to gather and the U.S. employer to submit specific documents demonstrating the foreign national’s qualifications for the sponsored position in relation to the requirements set out by the preference category.
  3. An employer can sponsor a foreign national for a green card petition in the EB-1A category if the employee possesses extraordinary ability in the sciences, arts, education, business, or athletics. Such persons are not required to have a prospective employer (unlike EB-1B cases and EB-1C cases for intracompany transferee managers/executives, and many other preference categories, aside from National Interest Waivers), meaning a foreign national can self-petition in the EB-1A preference category. The EB-1A Extraordinary Ability category has the highest standard of review and is subject to the most stringent review by the USCIS, amounting to the lowest approval rate of all employment-based petitions. To qualify for this category, a foreign national must demonstrate extraordinary ability by sustained national or international acclaim, demonstrating that the foreign national is one of the small percentage of researchers/scientists who have risen to the top of their field. The foreign national must also plan to continue to work in the stated area of extraordinary ability, and his/her contributed work must substantially benefit the U.S. In order to demonstrate that a foreign national has risen to the top of the field, the employer must prove that the foreign national sustained national or international acclaim (1) through a one-time achievement, meaning they received a major internationally recognized award, such as a Nobel Prize or an Academy Award, or (2) on the basis of a career of acclaimed work in the field of endeavor. In most cases, foreign nationals will fall into the latter category and, as a result, must demonstrate a career of acclaimed work in the field, which requires supporting documents that the foreign national meets at least three out of 10 criteria laid out by the USCIS.
  4. The authors of this article do not purport to provide any legal advice. Readers are cautioned not to attempt to resolve issues on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations.
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