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Important Issues for EB-1B Green |
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Important Issues for EB-1B Green |
1. The EB-1B Petition for Aliens in the R&D Position
Many qualified applicants may think that they do not qualify for the EB-1B category, because their job titles do not explicitly state that they are researchers. However, it is not the job title of the position that matters as much as the job duties required of the position and the company setting.
For example, if your job title is Product Manager at a company, which technically is a management position, but if you supervise researchers and satisfies all other EB-1B criteria, you still can apply as an Outstanding Researcher.
It is the same for those who have job titles such as Engineer or Associate. Your job title should not deter you from applying under the EB-1B category, if you are truly qualified. However, a Post-doc is generally not considered by USCIS as a permanent job position, and will not qualify for the EB-1B category.
2. The Permanent Position for EB1 Outstanding Researcher or Professor and the Employment "At Will"
According to USCIS, the “good cause for termination” clause has been an important issue when adjudicating EB1-Outstanding Researcher or Professor petitions. This clause should be included in employment offers to ensure that the job is not “at will” employment.
However, USCIS also indicated that EB1-Outstanding Researcher or Professor petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause. Therefore, the employment "at will" is also accepted by USCIS for EB1-Outstanding Researcher or Professor petitions, since USCIS considers it is a common business practice to have such clause in the job offer letters.
If the employment "at will" cause is in your job offer, then in the EB-1B petition, your employer needs to demonstrate that your research position will have “an expectation of continued employment.”3. Can the 3 Years of Teaching or Research Experience Include the Experience While Working on an Advanced Degree?
The alien beneficiary's teaching or research experience during working on an advanced degree is generally not acceptable for EB-1B petition. It will only be acceptable by USCIS if the following conditions could be met:
1) the alien beneficiary has received the advanced degree;
2) for teaching duties, the alien beneficiary had full responsibility for the class taught;
3) for research duties, the research conducted toward the degree has been recognized in the academic field as outstanding.
According to USCIS regulation, the requirement of 3 years of experience could be met through a combination of teaching and research experience. Evidence of teaching or research experience should be provided with letters from current or former employers, and should include the name, address, and title of the writer, and a specific description of the duties performed by the alien beneficiary.
A common misconception is that an alien applicant must graduate, and then work a full three years before they are able to apply as an EB-1B immigrant. Part of the time spent on Ph.D. research can often be counted towards the three year working requirement, if there are research achievements during this period which usually demonstrated by publications.
Usually, research experience after a master degree with documented achievement is recognized as time counting against the three-year experience requirement. In some circumstances, experience in a second master degree program can count as half of their educational experience toward their working experience, if it is supplemented by achievements in a related research field.
It is very possible for an alien applicant who has only worked in a research field for one or two years after completing his post-graduate program to qualify as an EB-1B immigrant. Although the three years of working experience may seem like a rigid rule, it is not as restrictive as one might assume.
4. Alien Applicants Working in Small Research Company
Many people assume that a permanent job offer must come from a large company or a non-profit organization. This is certainly not the case. Small private companies can also qualify as EB-1B sponsors, if there is a team of at least 3 full time researchers with a proven record of research achievements.
For example, a small company hired three researchers in full-time research positions to conduct R&D projects for clients. The research team has published their work in internationally and nationally renowned journals and conference proceedings. Some patent applications were also filed by the company as a result of the discoveries of a team. The company is relatively new and still developing, but they have a strong foundation of recognized achievements. Despite the small size of the company, it can still qualify as an EB-1B sponsor for an alien worker.
Therefore, it is not the size of the company that matters, if they have at least three full-time researchers and a record of achievement in the field.
5. Use the Publication Citations as Strong Evidence for Your EB1-Outstanding Professor or Researcher Petition
When evaluating alien's publication citations and an alien’s research work, U.S. Citizenship and Immigration Services (USCIS) will determine the significance of the alien’s original contribution to the field that resulted in the citations.
To use the citations as strong evidence for EB1-Outstanding Professor or Researcher Petition, the alien applicant should establish the publication's circulation and intended audience. Some citations, especially passing citations, do not suffice. Also, articles that cite the alien‘s work as one of multiple footnotes or endnotes are generally not “about” the alien‘s work. USCIS may not be persuaded that citations of an article authored by the alien beneficiary constitute published material about the alien‘s work.
The alien applicant should include citation report from an online source (GoogleScholar, SciFinder, or the Web of Science). Citation record can help USCIS understand that the field has acknowledged the alien applicant's research, and original research contribution in the field.In some cases, inclusion of a lengthy list of referenced articles that often accompany published articles might be probative of the alien’s ability, because the alien’s contributions served as a significant, original contribution that spurred the subsequent references and citations.
6. How to Organize the Evidence Accompanied with the EB1-Outstanding Professor or Researcher Petition
Follow the tips below for how to organize the evidence:1) Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a Request For Evidence (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.
2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portions that cite the alien's work.
4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.7. How Difficult It Will Be to Get an EB1-B Petition Approved?
The burden of EB1-B application approval rests with the petitioner. The petitioner should provide substantial evidence of at least 2 out of 6 EB-1B criteria the foreign professor and researcher to satisfy. If the professor or researcher is qualified, then the success depends largely on the way the application is presented to USCIS.
If the submitted evidence to USCIS is well presented, and the provided arguments for the case are persuasive, then the EB-1B application should be approved. Generally, the approval rate of EB1-B case is about 90 percent, according to the USCIS published statistics.To help you obtain U.S. Green Card easily and quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for EB1 Outstanding Professor or Outstanding Researcher Petition, based on our extensive and practical employment immigration experience.
8. The EB1 Outstanding Professors and Researchers Petition for J-1 Visa Holder Subjected to the Two-Year Home Country Residency Requirement
For a J-1 visa holder subjected to the two-year home country residency requirement, you can file the EB1-B petition now, and get your J-1 waiver later. You do not need to have a J-1 waiver before file an Form I-140 petition under the EB1 Outstanding Professors and Researchers category. The two-year home country residency requirement does not allow you to adjust the status from J-1 to U.S. permanent residency.
After your Form I-140 approval based on he EB-1B, you are still subject to the two-year home country residency requirement, and you need to get the J-1 waiver before you can file Form I-485 to adjust your status to U.S. permanent resident.To help you get your J-1 waiver easily and quickly, we provide a high quality and case-proven Complete Do-It-Yourself Package for J-1 Waiver Application, based on our extensive and practical experience. As added value in the Complete Do-It-Yourself Package for J-1 Waiver Application, we provide comprehensive instructions on J-1 waiver application requirements and processing, and we also let you know the required application documents, evidence, procedures, samples of recommendation letter and J-1 program sponsor letter, samples of required forms, and detailed explanation of the J-1 waiver application related forms and issues for different J-1 waiver options.
9. The USCIS Premium Processing Is Available for the EB-1B Category
The USCIS Premium Processing is available for the EB-1B category. With Premium Processing, you may get the I-140 EB-1B application approved in 15 days after the initial filing, and you may get a U.S. green card in a few months.
Given the significant visa number retrogression that many EB-2 category applicants have experienced, it has become increasingly important for people to seek a green card through the EB-1 category. Therefore, even if you have applied for U.S. permanent residency based on a National Interest Waiver, applying under an EB-1B classification would assist you in achieving your U.S. permanent residency goal much faster, especially when the Premium Processing is available for the EB-1B category.
10. Request for Evidence (RFE) Notice, and Responding to an Request for Evidence
When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.
If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.
The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.
Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.11. The Request For Evidence for EB1-Outstanding Professor or Researcher Petition, and Notice of Intent to Deny from USCIS
To process the Form I-140 petition and determine the eligibility for EB1-Outstanding Professor or Researcher petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the EB-1B beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.
An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1B cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for EB1-Outstanding Researcher or Professor Petition". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB1-OR petition, and eventually get your Green Card.
An EB-1B application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB-1B petition is denied by USCIS, you can file an EB-1B petition again, or file in other categories. The immigration law does not restrict the time you can file an EB-1B petition again after the rejection of your previous EB-1B application. A previous rejected EB-1B petition does not bar you from submitting another EB-1B petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
12. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.
If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
* The requested evidence was not material;
* The required initial evidence was submitted with the petition;
* The request for appearance or additional evidence was complied with during the allotted period, or
* The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.13. The Alien Registration Number, and the Consular Processing If Your EB-1B based Form I-140 Petition Is Approved and You Are Outside the U.S.
An alien applicant should receive a A# (or A Number) from USCIS after your Form I-140 immigrant visa application approval. The A Number is the Alien Registration Number. The “A” number is used by the Department of Homeland Security and USCIS for the purpose of identifying aliens. It alone does not serve as employment authorization nor is it evidence of legal status or permanent residency. After your I-140 approval, you will be given an A number by USCIS.
Aliens are also often confused Social Security Numbers (SSN) with alien registration numbers (or “A” number) issued by the Department of Homeland Security. An alien is issued an “A” number when he or she is applying for immigration, is put under removal proceedings, or under other special alien registration programs. The formal “A” number contains eight digits and will occasionally begin with a “0” and have a total of 10 digits. In general, one may only have one formal “A” number. In multiple applications cases, however, an alien may receive multiple “A” numbers.The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. When an immigration visa numbers are available for your classification, the National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation. The supporting documentation may include:
- a copy of Notice of Approval;
- a copy of your filed I-140 petition;
- a copy of Notice of Receipt of the I-140 petition;
- a copy of your valid passport;
- any criminal history records;
- a copy of your birth certificate;
- a copy of your marriage certificate;
- copies of birth certificates of your children and spouse.
After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.
Application Form I-485, application for adjustment of status, is the document you are required to file after your application for immigration based on employment is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.
14. Date For Filing vs. Final Action Date, the Two-Tiered Visa Bulletin
To provide those who are stuck in immigrant visa quota backlog with the benefits of a pending adjustment, and to reduce waiting time where possible, U.S. Department of State’s monthly visa bulletin provides "Date For Filing" and "Final Action Date"
Previously, the monthly visa bulletin has served to update one date for each category of permanent residence applicant - the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application, and whether it was expected that there would be a visa number available, allowing your application to be approved.
Now, the “Date for Filing” determines whether or not you can submit the final immigrant visa application, and the “Final Action Date” indicates whether or not it is expected that an immigrant visa number will be available.
In many cases, the Date for Filing will be well before the Final Action Date, meaning that the alien applicants will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application.
Therefore, those stuck in a backlog can get benefits of a pending adjustment - apply for a combined EAD/AP card, which provides employment and travel authorization. Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit.
Also, earlier filing of the final application means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers, under certain circumstances, without being forced to re-start their permanent residence application from the beginning.
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