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Employer Requirements in EB-1(b) Petitions

BY Zhang Associates P.C. [ June 02, 2009 at 11:57:48 ]

EB-1 (b) is a subcategory under Employment-Based First Preference Immigration for an Outstanding Professor or Outstanding Researcher. In order to be considered as an Outstanding Professor or Researcher the individual must be internationally recognized as outstanding in a particular academic field and have at least three (3) years of relevant research or teaching experience. Additionally, EB-1(b) petitions require that individuals be sponsored by an employer, with a demonstrable track record, from whom the individual has a permanent job offer.

In order to sponsor an EB-1(b) Petition an employer must fulfill three major requirements:

1. Sign the I-140 Form

In an EB-1(b) petition, the employee acts as the petitioner and, therefore, has to sign the I-140 form.

The employer is the legal entity that pays one’s salary every month. It is important to distinguish the employer from a supervisor or the Department Chair. If you look at a pay check the employer’s name will be listed as the entity that is issuing the check, such as the University or Institution. The I-140 must be signed by an individual, such as the HR Director, International Office Director or Vice President, who is authorized to sign for the employer.

2. Permanent Research or Teaching Job Offer

In order for an employer to petition for an individual under EB-1(b) the employer must provide a letter stating that the individual holds a permanent job offer as a tenure or tenure track teacher or researcher at a university or other institution of higher education.

A permanent job offer is any job without a defined termination date or duration. Most jobs are permanent jobs and job salaries or titles are of no relevance.

For example:
-An individual with a 10 year contract, making $100,000/year would not be considered to have a permanent job offer, because their contract is set to expire in 10 years.
-An individual who has been hired making $9/hour is considered to have a permanent job offer because there is no defined date or duration to their position and continued employment can be reasonably expected.

The EB-1(b) petition requires the employer to provide a letter which should include the researcher or professor’s job title, job duties, salary, and a statement indicating that the position has no fixed expiration term. As was the case with the I-140 form, this letter must be signed by the employer. Examples of permanent researcher job offer letters can be found here.
3. Solid Track Record or Institute of Higher Education
In order to sponsor an Outstanding Researcher or Professor on an EB-1(b) Petition the employer must also have a solid track record established in research or academic activities relevant to the individual researcher or professor’s field.

Universities and higher education institutions all have established track records and therefore automatically meet the USCIS criteria for this requirement. Therefore, an individual with a tenure or tenure track teaching position, or comparable position to conduct research, at a university or institute of higher education would pass muster.
Private employers, unlike universities or institutes of higher education, are required to employ at least three people engaged full time in research activities and must have achieved documented accomplishments in an academic field. Small employers may also sponsor an Outstanding Researcher or Professor for an EB-1(b) provided they meet the same threshold of having three full time researches and documented accomplishments.
Alien Employee’s Role in EB-1(b):

If you think that your employer meets these requirements, and that you might have the qualifications as an Outstanding Researcher or Professor, an EB-1(b) petition can be a good option to expedite your status situation.

With an EB-1(b) the immigrant visa number is currently available worldwide, and you can file the I-140 and I-485 forms concurrently. This visa number benefit for EB-1(b) petitions is especially relevant for individuals born in China or India as these countries currently have visa number retrogression in EB-2 that can result in your having to wait as long as 5 years or more to get status.

While EB-1(b) petitions do require a permanent job offer and a letter signed by your employer, this type of petition offers you flexibility in preparing your application, changing your job, and payment options. Unlike in a PERM application, your employer does not need to pay the EB-1(b) fees and you may make the payment yourself. Also, after 180 days have passed from the filing date of your I-485, or once your I-140 is approved (so your employer can no longer withdraw the I-140), you may change your employer, for a same or similar position job, with no negative effect on your I-485 application.

Additionally, EB-1(b) petitions and PERM applications may be filed concurrently with no ramifications. There is no conflict between the EB-1(b) petition and the PERM because the EB-1(b) seeks to classify an individual as outstanding, while PERM certifies a specific labor position. Therefore, even if you already have a pending PERM application, or your employer is planning to file one, you may also submit an EB-1(b) petition.
EB-1(b) petitions also allow you to take a more proactive role in the application process. Even if your employer does not authorize your own attorney as the attorney for the EB-1(b) petition (for which your employer is the petitioner), but is willing to use documents prepared by your attorney, you may personally retain an attorney and prepare the documentation for your employer to sign as your sponsor.

You can email our attorney at info@hooyou.com for a free evaluation. Our attorney will reply to you within 24 hours.


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