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DHS Proposed Rule to Allow Comparable Evidence for EB1B Outstanding Professors or Researchers Petitions

2014-05-08, BY WeGreened

May 8, 2014

The U.S. Department of Homeland Security recently announced that it will publish two proposed rules this week.  One of the rules proposes to add comparable evidence to the evidentiary criteria list for EB1B petitions.  In a press release dated May 6, 2014, DHS stated, “This proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.” 

The Notice of Proposed Rulemaking will soon be published in the Federal Register.  DHS will accept public comment on the proposed rules through the following website – www.regulations.gov.

 

Current Evidentiary Requirements for EB1B Outstanding Professors or Researchers Petitions

 

In order to qualify as an outstanding professor or researcher, one must satisfy each of the following requirements:

1.       Demonstrated international recognition for outstanding achievements in a particular academic field;

2.       At least 3 years of experience in teaching or research in that academic field; and

3.       Entering the U.S. in order to pursue a tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

EB1B beneficiaries must also demonstrate that they satisfy at least two of the following evidentiary criteria to show that they are an outstanding professor or researcher:

·         Evidence of receipt of major prizes or awards for outstanding achievement

·         Evidence of membership in associations that require their members to demonstrate outstanding achievement

·         Evidence of published material in professional publications written by others about the alien's work in the academic field

·         Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

·         Evidence of original scientific or scholarly research contributions in the field

·         Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

How the New Rule Changes the Requirements for EB1B Outstanding Professors or Researchers Petitions

 

The proposed rule would add comparable evidence to the list of evidentiary criteria that must be satisfied in order to qualify for an EB1B I-140 petition.  This addition will bring the regulations for EB1B petitions in line with other employment-based immigrant categories that already permit the submission of comparable evidence (e.g., EB1-A Alien of Extraordinary Ability, EB-2 Exceptional Ability).  Examples of comparable evidence include important patents and prestigious, peer-reviewed funding grants.

How the New Rule Benefits Our Clients

The new rule will benefit our clients who are able to meet all the requirements for EB1B  but are unable to satisfy at least two of the evidentiary criteria currently listed.  If such clients are able to satisfy one of the listed criteria and also provide comparable evidence that is not listed, they may qualify for an EB1B I-140 petition.

However, the beneficiaries still need to show they are internationally recognized as outstanding under the Kazarian test. In our experience, it is not difficult to meet at least two out of six regulatory criteria under EB1B category. It is the “total merits determination” test set by Kazarian v. USCIS that led to most of the EB1B denials.  Hence, it is not clear how the standard of law for EB1B will be changed by the proposal.

 

 

You can read the full DHS press release here.


The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 10,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor) and EB-2 NIW (National Interest Waiver) approvals, our firm has acquired substantial information about USCIS decisions, which gives us substantial advantage over firms that only handle a small number of cases. 

Based on hundreds of approvals every month and our close track of USCIS internal memoranda, AAO decisions, and judicial review decisions, we have unique insight into the USCIS adjudication trends. Not only do we apply this insight into our approaches to our clients' cases, but we also take the time and energy to carefully review all RFEs (Requests for Evidence), NOIDs (Notices of Intent to Deny), approvals, and denials issued on our cases so that we can further increase our understanding of USCIS strategies and decision-making processes so that we can advise our clients on the best ways to proceed with their petitions.

While other petitioners and attorneys may still use templates to draft recommendation letters or petition letters, our clients' recommendation letters and petition letters are tailored to their individual credentials to best persuade a USCIS officer that our clients meet the requirements of the category they are applying under and therefore their petitions deserve to be approved. To provide the best EB-1 and EB-2 NIW services, our law firm only selects attorneys who have received their professional Juris Doctor degrees from the top law schools in the U.S. and who have garnered rigorous analytical skills through years of experience.


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