Chapter 3 - Outstanding Professor or Researcher
A. Eligibility
A U.S. employer, including a university institution of higher learning or private employer, may petition for a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position or a comparable position to conduct research.[1]
B. Evidence
The regulation describes the evidence that the petitioner must submit in support of an Immigrant Petition for Alien Workers (Form I-140) for an outstanding professor or researcher.[2] The petitioner must submit evidence to demonstrate that the beneficiary professor or researcher (beneficiary) is recognized internationally as outstanding in the academic field specified in the petition. Academic field means "a body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education."[3]
By regulatory definition, a body of specialized knowledge is larger than a very small area of specialization in which only a single course is taught or that is the subject of a very specialized dissertation. As such, it would be acceptable to find the beneficiary is an outstanding professor or researcher in particle physics rather than physics in general, as long as the petitioner has demonstrated that the claimed field is "a body of specialized knowledge offered for study at an accredited United States university or institution of higher education."[4]
In addition, the petitioner must submit evidence of an offer from a qualifying prospective employer of tenured or tenure-track employment (for professors) or permanent employment (which can also include tenured or tenure track positions) in the case of research positions.[5] Finally, the petitioner must provide evidence that the beneficiary has had at least 3 years of experience in teaching or research in the academic field in which the beneficiary will be engaged.[6]
Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for classification as an outstanding professor or researcher.[7]
|
Petition to Classify an Outstanding Professor or Researcher: Overview of Two-Step Evidentiary Review |
|
|---|---|
|
Step 1 |
Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria"). |
|
Step 2 |
Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, in the context of the high level of expertise required for this immigrant classification. |
Officers should apply a preponderance of the evidence standard when making these determinations.
1. Assess Whether Evidence Meets Any Regulatory Criteria
The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition is comprised of at least two of the six regulatory criteria.[8]
For purposes of the first step of the analysis, officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, to the extent the criterion has qualitative requirements.[9] Officers should not yet make a determination regarding whether or not the beneficiary is recognized internationally as outstanding in the academic field.
For example:
-
Participating in the judging of the work of others in the same or an allied academic field alone, regardless of the circumstances, should satisfy the regulatory criteria in step one. However, for the analysis in step two, the beneficiary's participation should be evaluated to determine whether it was indicative of the beneficiary being recognized internationally as outstanding in a specific academic area.
-
Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field alone, regardless of the caliber, should satisfy the regulatory criteria in step one. However, for the analysis in step two, the beneficiary's authorship of books or articles should be evaluated to determine whether they were indicative of the beneficiary being recognized internationally as outstanding in a specific academic area.
The issue of whether the beneficiary is recognized internationally as outstanding in a specific academic area should be addressed in the second step of the analysis (final merits determination), not in the first step where the officer is only required to determine if the evidence objectively meets the regulatory criteria.
The following tables provide details on the limited determinations that officers should make when first evaluating the evidence, including comparable evidence.
|
Criterion 1: Receipt of major prizes or awards for outstanding achievement in the academic field.[10] |
|---|
|
First, USCIS determines if the beneficiary was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus must be on the beneficiary's receipt of the major prizes or awards, as opposed to the employer's receipt of the prizes or awards. Second, USCIS determines whether the prizes or awards received are major ones and are for outstanding achievement in the academic field. Examples of qualifying rewards may include, but are not limited to:
Considerations: Relevant considerations regarding whether the basis for granting the major prizes or awards for outstanding achievement in the academic field include, but are not limited to:
For example, an award available only to persons within a single locality, employer, or school may have little international recognition, while an award open to members of an internationally known and respected institution (including an R1 or R2 doctoral university[11]) or professional organization may be internationally recognized. |
|
Criterion 2: Membership in associations in the academic field that require outstanding achievements of their members.[12] |
|---|
|
First, USCIS determines if the association for which the beneficiary claims membership requires outstanding achievements in the academic field. Examples of associations in the field requiring outstanding achievement of their members may include, but are not limited to:
Considerations: The petitioner must show that membership in the association is based on the beneficiary's outstanding achievements in the academic field. Associations may have multiple levels of membership. The level of membership afforded to the beneficiary must show that it requires outstanding achievements in the academic field for which classification is sought. As a possible example, general membership in an international organization for engineering and technology professionals may not meet the requirements of the criterion. However, if that same organization at the fellow level requires, in part, that a nominee have accomplishments that have contributed importantly to the advancement or application of engineering, science, and technology, and that a council of experts and a committee of current fellows judges the nominations for fellows, that higher, fellow level may be qualifying. As another possible example, membership as a fellow in a scientific society dedicated to artificial intelligence is based on recognition of a nominee’s significant, sustained contributions to the field of artificial intelligence, and a panel of current fellows makes the selection of new fellows. Relevant factors that may lead to a conclusion that the beneficiary's membership in the association was not based on outstanding achievements in the academic field include, but are not limited to, instances where the beneficiary's membership was based:
|
|
Criterion 3: 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.[13] |
|---|
|
First, USCIS determines whether the published material was about the beneficiary's work. Examples of qualifying published material may include, but are not limited to:
Considerations: The published material should be about the beneficiary's work in the field, not just about the beneficiary’s employer or another organization that the beneficiary is associated with. Articles that cite the beneficiary's work as one of multiple footnotes or endnotes are not generally about the beneficiary's work. However, the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field may be considered material about the beneficiary’s work. Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the beneficiary is a member, provided that the material mentions the beneficiary in connection with the work, or other evidence in the record documents the beneficiary’s significant role in the work or research. Evidence may include documentation such as print or online articles in professional publications or a transcript of professional audio or video coverage of the beneficiary’s work. Second, USCIS determines whether the publication qualifies as a professional publication. Evidence of published material in professional publications about the beneficiary should establish the circulation (online or in print) or viewership and the intended audience of the publication, as well as the title, date, and author of the material. |
|
Criterion 4: The beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.[14] |
|---|
|
USCIS determines whether the beneficiary has participated, either individually or on a panel, as the judge of the work of others in the same or an allied academic field. Examples of qualifying judging experience may include, but are not limited to:
Considerations: The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied academic field. For example, a petitioner might document a beneficiary’s peer review work by submitting a copy of a request from a journal to the beneficiary to do the review, accompanied by evidence confirming that the beneficiary actually completed the review. |
|
Criterion 5: The beneficiary's original scientific or scholarly research contributions to the academic field.[15] |
|---|
|
USCIS determines whether the beneficiary has made original scientific or scholarly research contributions to the academic field. Examples of relevant evidence of qualifying contributions may include, but are not limited to:
Considerations: The regulations do not require that the beneficiary's contributions be of major significance. That said, the description of this type of evidence in the regulation does not simply require original research, but an original scientific or scholarly research contribution.[16] Moreover, the description of this type of evidence in the regulation requires that the contribution must be to the academic field, rather than an individual laboratory or institution. The regulations include a separate criterion for scholarly articles.[17] Therefore, contributions are a separate evidentiary requirement from scholarly articles. Possible items that could satisfy this criterion include, but are not limited to:
|
|
Criterion 6: The beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.[19] |
|---|
|
First, USCIS determines whether the beneficiary has authored scholarly articles in the field. Examples of qualifying publications may include, but are not limited to:
Considerations: As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college or university. Scholarly articles are also generally peer reviewed by other experts in the field of specialization. It should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. Second, USCIS determines whether the publication qualifies as a scholarly book or as a scholarly journal with international circulation in the academic field. Evidence of published material in scholarly journals with international circulation should establish that the circulation (online or in print) is, in fact, international, and who the intended audience of the publication is. Scholarly journals are typically written for a specialized audience often using technical jargon. Articles normally include an abstract, a description of methodology, footnotes, endnotes, and bibliography. |
|
Comparable evidence: Comparable evidence to establish the beneficiary's eligibility if the standards do not readily apply.[21] |
|---|
|
USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(i)(3)(i). A petitioner for an outstanding professor or researcher does not need to establish that a particular standard is not readily applicable to the beneficiary's occupation. Instead, the petitioner may submit alternative, but qualitatively comparable evidence, if it establishes that the standards do not readily apply to that evidence. The existing evidentiary standards serve as a roadmap for determining, among other things, the quantity and types of evidence that should be submitted in order for such evidence to be considered “comparable.”[22] |
2. Final Merits Determination
Meeting the minimum requirement by providing at least two types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for classification as an outstanding professor or researcher.[23] Officers also consider the quality of the evidence. In the second step of the analysis in each case, officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary is recognized internationally as outstanding in a specific academic area.[24]
At this step, officers consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence. The officers consider all evidence in the totality. Some evidence may weigh more favorably on its own, while other evidence is more persuasive when viewed with other evidence.
The following are examples of situations where evidence in the record may help officers evaluate the quality of the initial or comparable evidence to determine whether, in a totality analysis that considers all of the evidence, the beneficiary is internationally recognized as outstanding:[25]
-
The record demonstrates that the beneficiary has published articles in highly-ranked journals relative to other journals in the field, as demonstrated by, for example, evidence the petitioner provides regarding the journal’s impact factor.[26] Depending on the level of recognition of the journals in question, as demonstrated by evidence in the record, there may be a high level of recognition associated with publication in such journals, especially if the beneficiary is the most significant contributor to the publication, a senior author, or the sole author of the article;
-
The petitioner provides evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field, such as the beneficiary has a high h-index[27] for the field. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary enjoys international recognition as outstanding;[28]
-
The petitioner documents the beneficiary’s employment or research experience is with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education,[29] foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings[30]). Such employment or experience can be a positive factor toward demonstrating that the beneficiary enjoys international recognition as outstanding;
-
The record establishes that the beneficiary has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field. Although such a role for the conference may not rise to the level of a leading or critical role, this type of invitation is generally indicative of a person’s recognition for achievements in the field; and
-
The record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for science, technology, engineering, and mathematics (STEM) research. This type of evidence can be a positive factor indicating a beneficiary is recognized internationally as outstanding in the beneficiary’s field.
In all cases, the petitioner must provide sufficient context regarding the above evidence and considerations to demonstrate that the evidence meets the relevant criteria and to establish the beneficiary’s international recognition in the totality of the circumstances. This means that the petitioner must explain the significance of the submitted evidence, and how it demonstrates that the beneficiary is internationally recognized as outstanding.
When requesting additional evidence or denying a petition, if the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is an outstanding professor or researcher.[31] As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[32]
C. Qualifying Status of Employer
Although a permanent labor certification is not required for the outstanding professor or researcher classification, the petitioner must provide an offer of employment as initial evidence in support of the petition.[33] The offer of employment must be in the form of a letter from the prospective U.S. employer to the beneficiary and the offer must state that the employer is offering the beneficiary employment in a tenured or tenure-track teaching position or a permanent research position in the beneficiary’s academic field.[34] In addition, the petitioner must demonstrate that it has the ability to pay the beneficiary’s salary.[35]
The beneficiary of a petition for outstanding professor or researcher must be seeking to work for a university; an institution of higher education; or a department, division, or institute of a private employer if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.[36]
In general, positions with government agencies at the federal, state, or local level do not fit within the statutory framework unless the government agency is shown to be a U.S. university or an institution of higher learning.[37] Therefore, USCIS may only approve a petition for outstanding professor or researcher in instances where the offer of permanent employment is from a government agency if that agency can establish that it is a U.S. university or an institution of higher learning. Government agencies do not qualify as private employers.
Government agencies that do not fit the statutory framework may have other available immigration avenues for offers of permanent employment to professors or researchers. For example, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may file a petition for the person under the extraordinary ability classification.[38]
D. Offer of Employment
1. Research Positions
The petitioner must submit evidence to establish that the job offer is for a permanent research position.[39] Officers should not deny a petition where the employer is seeking an outstanding researcher solely because the actual employment contract or offer of employment does not contain a “good cause for termination” clause. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment.
For example, many research positions are funded by grant money received on a yearly basis. Researchers, therefore, are sometimes employed under employment contracts that are valid in 1-year increments. If the petitioning employer demonstrates, however, the intent to continue to seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research projects), such employment can be considered permanent within the meaning of the regulation.[40] Officers should also consider the circumstances surrounding the job offer as well as the benefits attached to the position. A position that appears to be limited to a specific term, such as in the example above, can meet the regulatory test if the position normally continues beyond the term (that is, if the funding grants are normally renewed).
2. Tenure or Tenure-Track Positions
The determination as to whether a position qualifies as a tenured or a tenure-track position is not linked to the regulatory requirement that the position be permanent.[41] The definition of permanent applies only to research positions. Officers do not need to evaluate whether the employment contract for a tenured or tenure-track position has a “good cause for termination” clause and should not deny a petition seeking an outstanding professor for a tenured or tenure-track position on that basis alone.
However, officers should evaluate whether the overall nature of the position is tenured 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.
Footnotes
[1] See INA 203(b)(1)(B). See 8 CFR 204.5(i).
[2] See 8 CFR 204.5(i)(3).
[3] See 8 CFR 204.5(i)(2).
[4] See 8 CFR 204.5(i)(2) (definition of academic field).
[5] See 8 CFR 204.5(i)(2), defining “permanent, in reference to a research position” as “either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”
[6] See 8 CFR 204.5(i)(3)(iii) and 8 CFR 204.5(i)(3)(iv). See 8 CFR 204.5(i)(2) for definitions for permanent and academic field.
[7] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true”). See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to outstanding professor and researcher petitions.
[8] See 8 CFR 204.5(i)(3)(i). The regulation at 8 CFR 204.5(i)(3)(ii) allows a petitioner to submit comparable evidence to establish eligibility if the standards in 8 CFR 204.5(i)(3)(i) do not readily apply.
[9] For example, in evaluating an award submitted under 8 CFR 204.5(i)(3)(i)(A), it is necessary to consider the level of recognition the award holds to determine whether it is a major award, consistent with the requirements of the criterion. However, evidence that the beneficiary participated as a judge of the work of others in the same or allied field alone, regardless of the caliber or significance of such judging experience, would satisfy the requirements of 8 CFR 204.5(i)(3)(i)(D).
[10] See 8 CFR 204.5(i)(3)(i)(A).
[11] The Carnegie Classification of Institutions of Higher Education recognizes R1 and R2 doctoral universities as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[12] See 8 CFR 204.5(i)(3)(i)(B).
[13] See 8 CFR 204.5(i)(3)(i)(C).
[14] See 8 CFR 204.5(i)(3)(i)(D).
[15] See 8 CFR 204.5(i)(3)(i)(E).
[16] See 8 CFR 204.5(i)(3)(i)(E).
[17] See 8 CFR 204.5(i)(3)(i)(F).
[18] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[19] See 8 CFR 204.5(i)(3)(i)(F).
[20] While many articles accepted for presentation at conferences do not result in publication, there are conferences that peer review and publish accepted presentations in professional journals (sometimes called proceedings), such that they may qualify as scholarly articles under this criterion.
[21] See 8 CFR 204.5(i)(3)(ii).
[22] See 81 FR 2068, 2075 (PDF) (Jan. 15, 2016).
[23] As described in INA 203(b)(1)(B).
[24] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.”). See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to outstanding professor and researcher petitions.
[25] Not all cases will have such evidence, nor is such evidence required for the petitioner to demonstrate eligibility. Additionally, the examples provided are a non-exhaustive list. While the listed factors may be especially relevant to beneficiaries in STEM fields, the guidance applies to all professors and researchers.
[26] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[27] The h-index is an example of a tool for measuring a researcher’s output and impact. It is based on the highest number of the researcher’s publications that have been cited at least that same number of times. For example, if a researcher has an h-index of 10, it means the researcher has 10 publications that have 10 or more citations each (but not 11 publications with at least 11 citations each). See Hirsch, J, An Index to Quantify an Individual’s Scientific Research Output, Proceedings of the National Academy of Sciences of the United States of America, Vol. 102, Iss. 46, p. 16569 (2005). Other indices for measuring output and impact are also used. When relying on any of these tools, a petitioner should explain its methodology and significance with supporting documentation because the sources for the data and the duration of time involved in the calculation can impact the actual h-index value.
[28] This factor is less relevant for beneficiaries early in their career, as such persons have had less time to accumulate citations but may nevertheless have garnered acclaim and risen to the small percentage at the top of the field as demonstrated by other evidence in the record. As stated above, none of the listed factors are required to demonstrate eligibility.
[29] The Carnegie Classification of Institutions of Higher Education uses the R1 and R2 doctoral university designations to recognize institutions as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[30] QS is a British analytics company specializing in global higher education. See the QS About Us webpage. The QS World University Rankings annually evaluate universities according to a methodology based on six consistent and empirical metrics: academic reputation (40 percent), employer reputation (10 percent), faculty to student ratio (20 percent), citations per faculty (20 percent), international faculty ratio (5 percent), and international student ratio (5 percent). These metrics are used to rank universities, as well as capture and assess university performance. See the QS World University Rankings Methodology webpage.
[31] As described in INA 203(b)(1)(B).
[32] See INA 204(b).
[33] See 8 CFR 204.5(i)(3)(iv).
[34] See 8 CFR 204.5(i)(3)(iv). See 8 CFR 204.5(i)(2) (defining “permanent”).
[35] See 8 CFR 204.5(g)(2).
[36] See INA 203(b)(1)(B). See 8 CFR 204.5(i)(3)(iii) (which mirrors the language in the Immigration and Nationality Act).
[37] See INA 203(b)(1)(B)(iii).
[38] See INA 203(b)(1)(A). See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].
[39] See 8 CFR 204.5(i)(2).
[40] See 8 CFR 204.5(i)(2).
[41] See 8 CFR 204.5(i)(2).