- Overview
- Two Step Analysis
- First Step: In-Depth Analysis and Examples of Each Category
- The Six EB-1B Regulatory Criteria
- Major Awards
- Professional Memberships
- Media Reports
- Judge of Others Work
- Original Contributions
- Scholarly Publications
- Comparable Evidence
- Second Step: Final Merits Determination
- Qualifying Employers
- Qualifying Positions
- Forms and Filing Fees
- Evidence
- Request a Free EB-1A Evaluation from Attorney Diab
- Additional Sources
If you are a researcher or professor who is interested in immigrating to the U.S., EB-1B might be the ideal option, assuming you have a qualifying employer and position. Please read the following sections to learn the basics of EB-1B and its requirements and legal analysis. It will help you assess whether you may qualify. Still, feel free to reach out to me for a free evaluation of your profile.
Overview
The EB-1B, or Employment-Based First Preference Category B, is adjudicated by the U.S. Citizenship and Immigration Services agency (USCIS). It is a U.S. immigrant visa category designed for researchers and professors with outstanding ability and international recognition in their respective fields. The field of expertise is not limited, where it could be in science, business, arts, athletics, education, etc. However, the researcher or professor must have a qualifying employer that is offering the individual a qualifying position.
If you do not have an employer, check out EB-1A or NIW as two possible options that allow you to self-petition. But, note that EB-1B and EB-1A, compared to NIW, generally have a shorter waiting time for green card availability. Also note EB-1B, EB-1A, and NIW do not require labor certification (i.e. PERM).
Two Step Analysis
USCIS strictly applies a 2-step analysis for EB-1B petitions to determine if the individual qualifies as an outstanding professor or researcher with international recognition in their field. USCIS officers frequently conflate the two steps, which results in a request for evidence, and sometimes denial if not handled properly.. Therefore, to avoid this issue, the petition must clearly distinguish between the two steps to guide the officer through the proper analytical structure for EB-1B.
First Step: Three out of Ten Regulatory Criteria
The first step requires petitioners to meet two out of the six criteria established by the EB-1B regulations (“regulatory criteria”). In this step, the USCIS officer must focus on the legal description of each criterion without requiring that it shows international recognition. (Yes, this is not easy to understand nor explain, which is why you need an experienced immigration attorney). Sometimes, USCIS officers request more evidence, or even deny the EB-1B petition, because they misunderstand this legal distinction.
The Six EB-1B Regulatory Criteria
If you look closely at each word within the legal description of each criterion, as described below, you will realize how only very specific types of evidence may qualify to meet at least two criteria. USCIS has attempted to offer objective definitions of the elements of all criteria, but there remains a lot of uncertainty because each EB-1B case can be unique, and one rule cannot fit all. So, this overview will be general in nature, and Attorney Diab will continue to publish more articles providing specific examples for each criterion.
Major Awards
Legal Description: “Receipt of major prizes or awards for outstanding achievement in the academic field.”
The award must meet several elements: 1) the individual must be the person who received the award, 2) the award must be major, 3) the award must be for outstanding achievement, 4) the award must be in the same claimed academic field. USCIS also looks for other factors, such as criteria, number of winners and participants, the competition sponsors/organizers, among others.
Professional Memberships
Legal Description: “Membership in associations in the academic field that require outstanding achievements of their members.”
Professional memberships is a very difficult criterion because only few types of memberships may qualify, and USCIS requests a lot of evidence to support certain elements. Generally, to meet this criterion, you must meet the following: 1) have a membership, 2) in an academic or professional association, 3) that specializes in the same field as the EB-1B individual, 4) and where the membership requires that the applicant has outstanding academic achievements. The last element usually causes the criterion to be rejected.
Media Reports
Legal Description: “Published material in professional publications written by others about the beneficiary’s work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.”
Media reports is also a difficult criterion and USCIS is not very consistent in finding whether a report qualifies for this criterion or not. A report may qualify if 1) it has title, date, and author, 2) it discusses the EB-1B individual’s work in the field, and 3) it was published in a professional media publication. Other factors USCIS looks for are the presence of an editorial committee and whether the publication was paid. The reports can be online or print.
Judge of Others Work
Legal Description: “The person’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied academic field.”
This is one of the few EB-1B criteria that straightforward elements. More specifically, it requires that the EB-1B individual 1) participated either along or with other experts, 2) in judging or reviewing the work of other people, 3) who work in the same or related field. Not that the review must be academic in nature. USCIS does not accept every instance of review or judging of the work of others as qualifying for this criterion. Sometimes, the event or object being reviewed may be too simple to be used for EB-1B purposes (e.g., judging high school students’ papers).
Original Contributions
Legal Description: “The person’s original scientific or scholarly research contributions to the academic field.”
Original contributions is one of the most common criterions used for EB-1B. It has three elements: 1) original contribution, 2) that is scientific or scholarly in nature, and 3) in the field of the EB-1B individual. Often, USCIS rejects this criterion because of the last element. The originality of a contribution can be proved with a patent, published book, support letters, citations, etc. Note, a scholarly or research publication alone does not qualify; you must also show that the findings or ideas within such publication are original in the field.
Scholarly Publications
Legal Description: “The person’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.”
Another deceivably simple criterion, showing apparently straightforward elements: 1) authored, 2) an article, 3) that is scholarly, 4) with a topic within the field, 5) and has been published, 6) in a scholarly journal with international circulation. Elements 3 and 6 are the common reasons for USCIS’s rejection of this criterion. Not everything you write qualifies as scholarly for people in your field, and not every publication meets the definitions of scholarly and international circulation.
Comparable Evidence
Legal Description: “Comparable evidence to establish the person’s eligibility if the standards do not readily apply.”
If you talk to an immigration attorney, and they tell you this is an easy criterion, run away. Over the decades, only a handful of evidence met its requirements. This criterion is basically used to allow individuals who have evidence that does not fit in any of the above criteria, but is very similar to one of them. However, the legal analysis has a different structure and strict requirements to even consider the evidence.
Second Step: Final Merits Determination
In this step of analysis, only upon meeting 2 of the 6 criteria, the USCIS officer performs a qualitative review of all the evidence you submitted, including evidence submitted for rejected criteria, and even evidence that does not belong to any of them. The officer assesses whether the totality of the evidence shows that 1) you are outstanding, 2) you are internationally recognized as such.
Qualifying Employers
First, the employer must have the ability to pay the salary listed in the offer letter. Ability to pay can be proven through tax returns or audited financial statements, showing net profits, net current assets, or pay records of the EB-1B individual if they are working at the employer. The pay records can be combined with either net profits or net assets, not both.
Second, the employer must either be 1) a university, 2) institution of higher education, or 3) a department, division, or institute of a private employer. Only specific private employers may qualify to petition under the EB-1B category. One requirement is that the employer, or the division within the employer where the EB-1B employee will work, must have three full-time researchers. The other requirement is that the employer has achieved documented accomplishments in an academic field. Neither the regulations nor USCIS provide definitions of such accomplishments. However, it is agreed upon that the accomplishments must be academic, scholarly, or research-based.
Qualifying Positions
The individual must have a job offer for a job position from a qualifying employer. The position must either be 1) permanent research petition, or 2) tenure or tenure track position. For research positions, the permanent nature of the offer is determined by the intent of the employer and the likelihood that the position will be long-term. As for tenure or tenure track, USCIS does not consider positions that are temporary, adjunct, limited duration fellowships, or similar positions where the employee has no reasonable expectation of long-term employment with the university, to be tenured or tenure-track positions.
Forms and Filing Fees
EB-1B, like most other employment-based categories, requires Form I-140, Immigrant Petition for Alien Worker. As of April 1, 2024, the fee for Form I-140 is $715.
As for expediting the USCIS response to the EB-1B petition, the petitioner has the option to use Form I-907, Request for Premium Processing. As of February 26, 2024, the fee for Form I-907 for EB-1B is $2,805.
Evidence
EB-1Bs are evidence-intensive immigration petitions. Once you review the basic descriptions of the criteria mentioned above, including the several elements within each criterion, you should have realized that you will need a lot of time and organization to submit all the required documentation to your attorney.
One of the most common pieces of evidence are support letters from experts in the field, which are sometimes not required, depending on the level of your achievements. However, submitting 3-5 letters along with the evidence may help fill and explain many gaps in the supporting documents.
Request a Free EB-1B Evaluation from Attorney Diab
Please feel free to email me at gdiab@huimmigration.com for a free evaluation. I will respond to you with an evaluation (or many questions) within 48 hours. Please send me the following along with the request:
- CV/Resume
- Google Scholar link (if applicable)
- A paragraph describing your work plans in the U.S. upon receiving a green card.
Additional Sources