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.

Appendix: Outstanding Professor or Researcher Petitions - First Step of Reviewing Evidence [6 USCIS-PM F.3, Appendices Tab] provides details on the limited determinations that officers should make when first evaluating the evidence, including comparable evidence.

Objectively meeting the regulatory criteria in step one alone does not establish that the beneficiary in fact meets the requirements for classification as an outstanding professor or researcher.

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.

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.^[10] Officers must 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.^[11]

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.^[12] 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.^[13]

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.^[14] 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.^[15] In addition, the petitioner must demonstrate that it has the ability to pay the beneficiary’s salary.^[16]

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.^[17]

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.^[18] 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.^[19]

D. Offer of Employment

1. Research Positions

The petitioner must submit evidence to establish that the job offer is for a permanent research position.^[20] 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.^[21] 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.^[22] 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. See Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14, PM-602-0005.1, issued December 22, 2010.

[^ 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(h)(3)(i), it is necessary to consider the level of recognition the award holds to determine whether it is “nationally or internationally recognized,” consistent with the requirements of the criterion. However, evidence that the beneficiary’s work was displayed at an artistic exhibition alone, regardless of caliber or significance, would satisfy the requirements of 8 CFR 204.5(h)(3)(vii).

[^ 10] As described in INA 203(b)(1)(B).

[^ 11] 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. See Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14, PM-602-0005.1, issued December 22, 2010.

[^ 12] As described in INA 203(b)(1)(B).

[^ 13] See INA 204(b).

[^ 14] See 8 CFR 204.5(i)(3)(iv).

[^ 15] See 8 CFR 204.5(i)(3)(iv). See 8 CFR 204.5(i)(2) (defining “permanent”).

[^ 16] See 8 CFR 204.5(g)(2).

[^ 17] See INA 203(b)(1)(B). See 8 CFR 204.5(i)(3)(iii) (which mirrors the language in the Immigration and Nationality Act).

[^ 18] See INA 203(b)(1)(B)(iii).

[^ 19] See INA 203(b)(1)(A). See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].

[^ 20] See 8 CFR 204.5(i)(2).

[^ 21] See 8 CFR 204.5(i)(2).

[^ 22] See 8 CFR 204.5(i)(2).

Resources

8 CFR 204.5(j) - Outstanding professors or researchers

8 CFR 204.5 - Petitions for employment-based immigrants

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(1) - Priority workers

INA 203(b)(1)(C) - Outstanding professors or researchers

INA 203(b)(1), (2), (3) - Preference allocation for employment-based immigrants

INA 204, 8 CFR 204 - Procedure for granting immigrant status

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-140, Immigrant Petition for Alien Worker

I-290B, Notice of Appeal or Motion

I-485, Application to Register Permanent Residence or Adjust Status

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

Step One: Review Evidence Submitted with Petition for Outstanding Professor or Researcher
Criterion^[1]	Scope of Review
Receipt of major prizes or awards for outstanding achievement in the academic field.^[2]	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 his or her employer's receipt of the prizes or awards. Second, USCIS determines whether the beneficiary has received major prizes or awards for outstanding achievement in the academic field. 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: The criteria used to grant the major prizes or awards; and The number of prize recipients or awardees, as well as any limitations on competitors (a prize or award limited to competitors from a single institution, for example, may not rise to the level of major).
Membership in associations in the academic field that require outstanding achievements of their members.^[3]	First, USCIS determines if the association for which the beneficiary claims membership requires outstanding achievements in the academic field. The petitioner must show that membership in the association(s) 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. 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: Solely on a level of education or years of experience in a particular field; or On the payment of a fee or by subscribing to an association's publications.
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.^[4]	First, USCIS determines whether the published material was about the beneficiary's work. 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. 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.
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.^[5]	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. 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: Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the beneficiary to do the review, accompanied by proof that the review was actually completed. Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
The beneficiary's original scientific or scholarly research contributions to the academic field.^[6]	USCIS determines whether the beneficiary has made original scientific or scholarly research contributions to the academic field. 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. 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.^[7] Therefore, contributions are a separate evidentiary requirement from scholarly articles. Possible items that could satisfy this criterion include, but are not limited to: Citation history or patterns for the beneficiary's work, as evidenced by number of citations, as well as an examination of the impact factor for the journals in which the beneficiary publishes. While many scholars publish, not all are cited or publish in journals with significant impact factors. The petitioner may use web tools such as Google Scholar, SciFinder, and the Web of Science to establish the number of citations and the impact factor for journals. Since scholarly work tends to be specialized and expressed in arcane and specialized language, officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the beneficiary's contributions in order to assist in giving an assessment of his or her original contributions. That said, not all expert letters provide such analysis. Letters that specifically articulate how the beneficiary has contributed to the field and the impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value and are not considered to be probative evidence that may form the basis for meeting this criterion.
The beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.^[8]	First, USCIS determines whether the beneficiary has authored scholarly articles in the field. 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. 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 to establish the beneficiary's eligibility if the standards do not readily apply.^[9]	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.”^[10]

Footnotes

[^ 1] In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(i)(3).

[^ 2] See 8 CFR 204.5(i)(3)(i)(A).

[^ 3] See 8 CFR 204.5(i)(3)(i)(B).

[^ 4] See 8 CFR 204.5(i)(3)(i)(C).

[^ 5] See 8 CFR 204.5(i)(3)(i)(D).

[^ 6] See 8 CFR 204.5(i)(3)(i)(E).

[^ 7] See 8 CFR 204.5(i)(3)(i)(F).

[^ 8] See 8 CFR 204.5(i)(3)(i)(F).

[^ 9] See 8 CFR 204.5(i)(3)(ii).

[^ 10] See 81 FR 2068, 2075 (PDF) (January 15, 2016).

Updates

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to align existing guidance on certain first preference immigrants with a recent Policy Manual update relating to nonimmigrants of extraordinary ability.

Version History

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