The United States Customs and Immigration Service (USCIS) devised employment-based, preference visas for individuals with extraordinary talent. Employment-based (EB) visas are preferred in rank order from one to five. Each classification has specific criteria which must be met. The employment based visas are for university professors, researchers, multinational executives, and account managers. To read more about employment based visas visit our page, Employment Based Visas.
To be considered for an employment-based visa, the foreign worker must have demonstrated extraordinary ability in the fields of science, the arts, education, business, or athletics and sustained national or international recognition. Outstanding professors and researchers must have at least three years of experience in their fields.
Defining “Permanent Employment”
The USCIS defines “permanent employment” as “tenured, tenure-track, or for an indefinite or unlimited duration.” The employee can expect continued employment for the duration of his or her proper performance of duties. The USCIS created an expedited process for outstanding professors and researchers to become permanent residents of the United States. The new process, known as EB-1B, requires proof of a full-time position with a sponsoring employer. The university, or employer, files the EB-1B petition. To learn the full requirements for an EB-1B visa petition, read our informational page, EB-1B Visa Requirements.
The university, or employer, must submit proof that their candidate satisfies the criteria for having extraordinary abilities. Employers can submit awards received by the candidate or an impressive list of his published articles. Evidence of significant contribution to a field of knowledge or evidence of sufficient art work, displayed or showcased, may be submitted as proof of extraordinary ability.
Research positions must be evaluated differently than full-time faculty positions. The problem with research positions is that grant funds are awarded, or budgeted, annually. The funds could end, at the end of a year. Therefore, outstanding researchers sign one-year contracts. If the employer expects the funds to continue beyond one year, the USCIS considers the employment “permanent.” The USCIS adjudicators evaluate the job if the research is of one year duration. If evidence is presented, which demonstrates that the job will last more than one year, the position is regarded permanent employment.
The outstanding achievements of researchers are published, win awards, or leads researchers to publish books, which advance knowledge in their fields. Outstanding researchers review the work of others and belong to organizations, which recognize their achievements. Proof of significant research, books published, or membership in scholarly organizations may be submitted as evidence of extraordinary talent.
If you wish to employ and sponsor foreign-born candidates, who are researchers, you can file an EB-1B petition. Employers were reluctant to file EB-1B petitions for researchers because their positions are not permanent. Instead, their employment was renewed annually, and employers filed a National Interest Waiver (NIW). Now, employers can file EB-1B petitions for researchers. EB-1B petitions are processed faster than NIW petitions, and the employee’s visa is available sooner. The employee can work for you much faster through the expedited service.
The principle of “good cause for termination” has been evaluated while adjudicating EB-1B petitions. Generally, in the United States, employment is “at will.” Either the employer, or employee, can terminate an employment relationship at any time.
Outstanding researchers’ contracts may contain a clause stating, “good cause is required for termination” from the contract, but it could raise practical and legal issues for the employer. Some USCIS adjudicators, who review researcher’s EB-1B petitions, have judged the entire case based on the presence, or absence, of this clause. EB-1B petitions must state that the research position is of indefinite, or unlimited, duration. The employee has the “expectation of continued employment.”
Nature of Employment
Full-time university faculty positions are exempt from the “good cause for termination” standard. The clause is not mandatory in their contracts. The USCIS adjudicators evaluate the nature of the employment when deciding whether to grant the EB-IB status. If the position is temporary, an adjunct position, or a limited duration fellowship, the employee is not eligible for EB-1B status by the USCIS.
Beeraj Patel, Esq.
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