by: Nigel D. James and Alexander Magalli
Classification as an EB-1B Outstanding Researcher/Professor is often subject to highly variable interpretation by adjudicators, which can make the preparation of the petition appear intimidating to foreign nationals. However, this ambiguity can actually be used in the foreign national’s favor; it presents a great opportunity to structure an EB-1B petition for success by presenting compelling arguments. Whether strengthening an already strong case or pushing a case into viability, this opportunity to convince the adjudicator to interpret the documents in a specific way is a key step to increasing the likelihood of an EB-1B approval.
One ambiguous regulatory requirement for an EB-1B petition is the requirement of three years of experience. The ambiguous nature of this requirement is particularly important for early-career scholars who do not have three years of post-graduate professional experience. If a petition demonstrates satisfaction of the EB-1B criteria while the foreign national has less than three years of professional experience, there is often an intuitive path to illustrating that the foreign national’s recent scholarly work is considered outstanding.
This post breaks down this three-year experience requirement and provides considerations to keep in mind when exploring a potential EB-1B Outstanding Researcher/Professor petition for those early in their professional careers.
Using Experience During Degree Completion for EB-1B Outstanding Researcher/Professor Petition
Experience gained during the pursuit of an advanced degree such as a Master’s or Doctorate can satisfy the three years of experience requirement provided certain qualitative thresholds are satisfied. The regulations state in part:
Experience in teaching or research while working on an advanced degree will only be acceptable if the [foreign national] 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. (8 CFR 204.5(i)(3)(iii)).
When considering teaching experience, time spent teaching graduate or undergraduate courses will count towards this requirement if the foreign national had sole authority over grading and evaluations. The collegiate course taught must be generally associated with the field of expertise claimed and does not need to be specifically within the foreign national’s precise area of expertise. This means that generalized definitions of Computer Science, Pharmaceutical Science, or Supply Chain Management, for example, may be used to describe fields rather than a focus-specific or sub-specialty definition.
On the other hand, examining research experience that may count is less straightforward as the definition of “outstanding” is vague within the regulations. This requires a review of published work the foreign national has within their field of expertise, but also whether the foreign national has presented their work in other venues that may not have led to publication. Other factors that should be examined are citations, institutional distinctions, media attention, and even awards. While student awards do not typically satisfy the EB-1B criterion for receipt of major prizes or awards, they help demonstrate that the foreign national’s research has been recognized as outstanding. Further, if the initial research was awarded grant funding or if the results of the research were leveraged to secure funding for further research, these can be used as indicators of the outstanding nature of the research.
Documentation of Experience is Critical for a Successful EB-1B Outstanding Researcher/Professor Petition
Determining the relevant documentation to support experience gained during an advanced degree is a critical step to maximize success. The regulations specifically state:
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 [foreign national]. (8 CFR 204.5(I)(3)(III)).
Documenting teaching experience can be accomplished in several ways, such as including a contract or syllabus describing the course, in combination with a signed letter from leadership at the university confirming the nature and duration of teaching experience. If all these requirements have been met, and the appropriate documentation is provided, then months spent teaching as a Ph.D. candidate, for example, can then be added to months spent teaching after the degree was awarded. These years are not required to be within the same institution or continuous, however, it will be important to document this employment history if it spans multiple institutions.
For research experience, it is important to obtain a signed letter from a department chair or principal investigator who oversaw the research performed. It is also advantageous to obtain additional signed letters attesting to the outstanding level of the foreign national’s research. For example, if the foreign national is not the first author on a publication with multiple authors, a signed letter from the lead author explicitly outlining the foreign national’s contributions to the publication and the significance of the work can be extremely beneficial. In cases where research was presented instead of published, a signed letter from experts in the field affirming the outstanding nature of this research can be beneficial in the presentation to the adjudicator. One important factor to consider is that the ‘recognition of prior research’ is not only important for satisfying the experience requirement but also for demonstrating qualification for the EB-1B classification overall.
If a petition can provide significant documentation that the research has been recognized as outstanding (such as publication of, citation to, or utilization of), then minimal testimonial support will be needed. If a petition can show little professional experience and very little evidence that the research has been recognized, then a much greater volume of expert support will be needed. As testimonial support is often given the least weight by adjudicators, this approach will see greater scrutiny applied to it compared to an experience-heavy or document-rich approach.
Final Thoughts
In most cases, three years of professional, post-graduate research or teaching experience will satisfy the requirement directly. While this is the most straightforward and least burdensome route to satisfying the experience requirement for EB-1B classification, there are multiple methods available to satisfy this requirement through either teaching or research achievements. The Klasko EB-1 attorney team has had success employing creative alternate routes to demonstrate satisfaction of the regulatory criteria and the three years of experience requirement. This is significant when the visa bulletin traditionally shows the EB-1 category as having a shorter wait time for most foreign nationals to obtain their green cards and more employers are considering sponsorship for classification as an Outstanding Researcher/Professor.
For specific advice on your EB-1B petition, schedule a consultation with a member of Klasko’s EB-1 attorney team.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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