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“Debunking Misconceptions about the EB-1B Category” Joe Jian Zhou (jzhou@hooyou.com) The "Outstanding Researcher or Professor" EB-1(b) petition is for those applicants who are internationally recognized as outstanding in a particular scientific or scholarly field. There are three main criteria to qualify for this classification: (1) you must have international recognition in a specific academic and research field; (2) you must have at least three years of relevant research or teaching experience; and (3) you must have a permanent job offer in a research or teaching position. Due to the conditions of this category, it is far more restrictive than the EB-1(a) or NIW categories. Not only does one need significantly outstanding achievements, one also needs an employer to sponsor the immigration petition. As a result, the pool of EB-1(b) applicants is relatively small and highly selective. However, if an alien qualifies for an EB-1(b), it is in their interest to take advantage of this type of immigration petition. This is primarily because visa numbers are current for China and India-born aliens under the EB-1 category. Due to the selectivity of the category, some people may feel that they do not qualify as an Outstanding Researcher or Professor when they actually do. Below are some popular misconceptions about the EB-1b petition.
Most people assume that a permanent job offer must come from a large research facility or non-profit organization. This is certainly not the case. Small private companies can also qualify as EB-1(b) sponsors so long as there is a team of at least 3 full time researchers with a proven record of research achievements. For instance, a university professor set up his own R&D company and hired three of his former Ph.D. graduates in full-time research positions to conduct R&D projects for clients. Together, his team has published their work in internationally and nationally renowned journals and conference proceedings. Some patent applications were also filed by the company as a result of the research team’s discoveries. The company is relatively new and still developing, but they have a strong foundation of recognized achievements. Despite the small size of the company, it can still qualify as an EB-1(b) sponsor for an alien worker. To reiterate, it is not the size of the company that matters so long as they have at least three full-time researchers and a record of achievement in the field.
Another common misconception is that beneficiaries must graduate and then work a full three years before they are able to apply as an EB-1(b) immigrant. Half of the time spent on Ph.D. research can often be counted towards the three year working minimum so long as there are associated research achievements during this period (usually demonstrated by publications or conferences). Please note, research experience after a master’s degree with documented achievement is usually recognized as time counting against the three-year experience requirement. In some circumstances, experience in a second master’s degree program can count as half of their educational experience (of the 2nd master’s degree) toward their working experience so long as it is supplemented by achievements in a related research field. It is very possible for someone who has only worked in a research field for one or two years after completing his post-graduate program to qualify as an EB-1(b) immigrant. Although the three years of working experience may seem like a rigid and exclusionary rule, it is not as restrictive as one might assume.
Many qualified applicants may think that they do not qualify for the EB-1(b) category simply because their job titles do not explicitly state that they are researchers or professors. However, it is not the title of one’s position that matters as much as the job duties required of the position and the company’s setting. For example, a beneficiary is officially known as a “Section Manager” at a R&D company. Although he is technically in a management position, so long as he supervises researchers and satisfies all other EB-1(b) criteria, he can certainly apply as an Outstanding Researcher or Professor. It is the same for those who have titles such as “Engineer”, “Associate”, and “Scientist”. Your title should not deter you from applying under the EB-1(b) category if you are truly qualified. However, a Postdoc is generally not considered by USCIS as a permanent job offer and will not qualify for the EB-1(b) category.
Although potential EB-1(b) applicants may find the category daunting due to its requirements, there is some leeway with regard to qualified employers, years of employment, and job titles. As such, it behooves you to discuss your chances of approval with an experienced attorney. The right attorney will guide you through the petitioning process, discuss your options and tactics, and recommend the appropriate channels on your road to permanent residency. *Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe has a proven record of 9 years practice in employment based immigration with focusing on EB-1, NIW, PERM, and non immigrant worker visas including H-1B and L. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com . ------ (08/04/2009) For more immigration news, please click here |
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