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: Awards from well-known national institutions or well-known professional associations; Certain doctoral dissertation awards; and Certain awards recognizing presentations at nationally or internationally recognized conferences. 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: The criteria used to grant the major prizes or awards; The number of prize recipients or awardees; and The pool of competitors. 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 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:

Awards from well-known national institutions or well-known professional associations;
Certain doctoral dissertation awards; and
Certain awards recognizing presentations at nationally or internationally recognized conferences.

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:

The criteria used to grant the major prizes or awards;
The number of prize recipients or awardees; and
The pool of competitors.

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: Membership in certain professional associations; and Fellowships with certain organizations or institutions. 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: 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.

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:

Membership in certain professional associations; and
Fellowships with certain organizations or institutions.

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:

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.

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: Professional or major print publications (newspaper articles, popular and academic journal articles, books, textbooks, or similar publications) regarding the beneficiary and the beneficiary’s work; Professional or major online publications regarding the beneficiary and the beneficiary’s work; and Transcripts of professional or major audio or video coverage of the beneficiary and the beneficiary’s work. 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 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:

Professional or major print publications (newspaper articles, popular and academic journal articles, books, textbooks, or similar publications) regarding the beneficiary and the beneficiary’s work;
Professional or major online publications regarding the beneficiary and the beneficiary’s work; and
Transcripts of professional or major audio or video coverage of the beneficiary and the beneficiary’s work.

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: Reviewer of abstracts or papers submitted for presentation at scholarly conferences in the respective field; Peer reviewer for scholarly publications; Member of doctoral dissertation committees; and Peer reviewer for government research funding programs. 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 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:

Reviewer of abstracts or papers submitted for presentation at scholarly conferences in the respective field;
Peer reviewer for scholarly publications;
Member of doctoral dissertation committees; and
Peer reviewer for government research funding programs.

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: Published materials about the significance of the beneficiary’s original work; Testimonials, letters, and affidavits about the beneficiary’s original work; Documentation that the beneficiary’s original work was cited at a level indicative of an original scientific or scholarly research contribution to an academic field; and Patents or licenses deriving from the beneficiary’s work or evidence of commercial use of the beneficiary’s work. 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: 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.^[18] 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; and Detailed letters from experts in the field explaining the nature and significance of the beneficiary’s contribution may also provide valuable context for evaluating whether the original work is a contribution to the academic field, particularly when the record includes documentation corroborating the claimed significance. Submitted letters should specifically describe the beneficiary’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise.

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:

Published materials about the significance of the beneficiary’s original work;
Testimonials, letters, and affidavits about the beneficiary’s original work;
Documentation that the beneficiary’s original work was cited at a level indicative of an original scientific or scholarly research contribution to an academic field; and
Patents or licenses deriving from the beneficiary’s work or evidence of commercial use of the beneficiary’s work.

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:

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.^[18] 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; and
Detailed letters from experts in the field explaining the nature and significance of the beneficiary’s contribution may also provide valuable context for evaluating whether the original work is a contribution to the academic field, particularly when the record includes documentation corroborating the claimed significance. Submitted letters should specifically describe the beneficiary’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise.

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: Publications in professionally-relevant journals; and Published conference presentations at nationally or internationally recognized conferences.^[20] 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.

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:

Publications in professionally-relevant journals; and
Published conference presentations at nationally or internationally recognized conferences.^[20]

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]

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).

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

This appendix provides a general overview of the most common business forms or structures of petitioning employers, agents, or sponsors filing an Immigrant Petition for Alien Workers (Form I-140) or Petition for Nonimmigrant Worker (Form I-129). These forms or structures are also relevant to the new commercial enterprises underlying an Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E).

This appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service (IRS), and basic tax terms. Generally, each business form or structure discussed in this appendix should have an Employer Identification Number (EIN), sometimes also called a Federal Tax Identification Number, or IRS Tax Number.^[1] An EIN is used to identify a business entity for IRS purposes.

State law generally governs the formation, operation, and dissolution of business entities. As each state has its own rules for business entities, an officer should refer to the relevant state statute or state authority’s website (such as the California Secretary of State’s Business Programs Division) if there is a specific question about a particular business entity.

A. Sole Proprietorship

1. Definition

A sole proprietorship is a for-profit business owned by one person (or a married couple, in some cases).^[2] A sole proprietorship is “a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.”^[3] Owners may operate on their own or may employ other people. The sole proprietorship is the simplest business form under which a person can operate a business. It is not a separate legal entity from its owner;^[4] for example, the owner remains responsible for the business debts.

A sole proprietorship can operate under the name of its owner or it can elect to do business under a fictitious name. The fictitious name is simply a trade name and does not create a legal entity separate from the sole proprietor owner.^[5]

2. Taxes

Income from the business is included on the owner’s personal income tax return, U.S. Individual Income Tax Return (IRS Form 1040). The profits and losses of the business are recorded and attached to the Form 1040 on Profit or Loss From Business (Schedule C); Supplemental Income or Loss (Schedule E); or Profit or Loss From Farming (Schedule F).

The owner’s adjusted gross income on Form 1040 is used as net income for ability to pay purposes; however, there are no tax forms that list the business’s current assets and liabilities. When determining a petitioner’s ability to pay the proffered wage, USCIS also considers a sole proprietor’s liquefiable personal assets as well as household expenses and other personal liabilities (such as rent, car payments, and child care expenses).

B. Partnership

A partnership is the relationship between two or more persons or entities who join to carry on a trade or business.^[6] Each person or entity contributes to the partnership something of value (for example, money, property, labor, or skill) and expects to share in the profits and losses of the business.^[7]

A partnership is created automatically when two or more persons or entities engage in a business enterprise for profit whether or not the persons or entities intend to form a partnership.^[8] Partners seeking increased accountability, however, may opt to have their arrangement memorialized in a partnership agreement. The following subsections provide an overview of the most common forms of partnerships. The type of partnership is identified at Schedule B, Line 1 of U.S. Return of Partnership Income (IRS Form 1065).

1. General Partnership

A general partnership is the simplest form of partnership, and as such, general partnerships are simply called partnerships.^[9] In a general partnership, all partners or owners may equally share responsibilities and liabilities.

A general partnership has the following characteristics:

A general partnership is created through an express or implied agreement;^[10]
A general partnership has two or more partners;^[11] and
The owners or partners, which may be other types of entities (such as a corporation or limited liability company), are all liable for all legal actions and debts the company faces.^[12]

2. Limited Partnership

A limited partnership^[13] is very similar to a general partnership, except that the partnership is partially owned by one or more limited partners and is managed exclusively by its general partner(s).^[14]

A limited partnership must have at least one general partner. The general partner, often another type of entity (typically a corporation or limited liability company), has management powers, the right to use partnership property, and is personally liable for the debts of the partnership.^[15]

Conversely, limited partners do not participate in the management of the business and are generally liable for the partnership’s debts only to the extent of their contributed investment. Limited partnerships permit a person to invest in a partnership while limiting their liability and involvement in its management. In general, a formal written agreement is required to create a limited partnership.^[16]

3. Limited Liability Partnership

In a limited liability partnership (LLP),^[17] all partners have limited liability similar to that of limited partners in a limited partnership, but without the limitations on control over the company.^[18] Some states limit usage of LLPs to certain professions (for example, lawyers).^[19]

4. Limited Liability Limited Partnership

A limited liability limited partnership (LLLP) is a modification of the limited partnership.^[20] Similar to a limited partnership, the LLLP consists of one or more general partners and one or more limited partners.^[21]

In general, the key features of an LLLP are:

The general partners manage the business operations of the LLLP, while the limited partners typically only maintain a passive financial interest;
It is designed to offer limited liability to all partners in the partnership; and
The partners decide the structure of the organization and the distribution of profits and losses. States usually recommend the partners establish a formal, written partnership agreement.^[22]

Not every state allows the formation of or recognizes LLLPs.

5. Taxes

The IRS generally considers partnerships to be pass-through tax entities, which means that the partnership itself does not pay income taxes and all of the profits and losses of the partnership pass through the business to the partners, who pay taxes on their share of the profits (or deduct their share of the losses) on their individual income tax returns.^[23] Each partner may share in the profits and losses of the partnership equally, or in proportion to their respective contributions to the partnership or as otherwise set out in a written partnership agreement.

Even though the partnership itself does not pay income taxes, it must file U.S. Return of Partnership Income (IRS Form 1065). This form is an informational return the IRS reviews to determine whether the partners are reporting their income correctly.^[24] Net income or loss (notated on tax forms as ordinary business income (loss))^[25] is found on IRS Form 1065 or Schedule K and net current assets are calculated from information on Schedule L.

C. Corporation

A corporation is a created by filing articles of incorporation with a state. In the eyes of the law, a corporation is a distinct body separate from its owners and management. Accordingly, a corporation is entitled to all legal rights afforded to individual persons, such as the ability to bring and defend lawsuits or to buy and sell property. The corporation’s most notable feature is that, subject to narrow exceptions, it protects its owners (shareholders) from personal liability for its debts and obligations.^[26] A corporation also has directors and officers who run the business.

A corporation has perpetual life. When a shareholder dies or otherwise elects to leave a corporation, the shareholder can transfer their stock to others. Corporate shareholders own the corporation, the board of directors manages the corporation through their direction and control of its officers, and, in almost all cases, the officers oversee the day-to-day operations of the corporation. The shareholders elect the directors, who in turn appoint the corporate officers. Often, particularly in smaller corporations, the same person might serve multiple roles within a corporation: shareholder, director, and officer.^[27]

A corporation’s shareholders, directors, and officers must observe particular formalities in a corporation’s operation and administration.^[28] For example, corporations must, on at least an annual basis, make decisions regarding a corporation’s management by formal vote and must record those votes in the corporate minutes. Meetings of shareholders and directors must be properly noticed and must meet quorum requirements. Finally, corporations must meet annual reporting requirements in their state of incorporation and in states where they do significant business.^[29]

1. Subchapter C Corporations

Corporations that have not elected to be taxed as a subchapter S corporation are by default taxed as a C corporation under Subchapter C of Chapter 1 of the Internal Revenue Code (IRC) where the general tax rules affecting corporations and their shareholders are located.^[30]

Taxes^[31]

A C corporation files U.S. Corporation Income Tax Return (IRS Form 1120). C corporations (and other entities electing to be taxed as C corporations) are the only type of businesses that must pay income taxes on profits.^[32] The subsections below discuss how other corporations file and pay their taxes.

Generally, a C corporation’s taxable profits consist of money kept in the company to cover expenses or expansion (called retained earnings) and profits that are distributed to the owners (shareholders) as dividends. These dividends are taxed twice, as the shareholders also pay taxes on these amounts.^[33] Net income (taxable income before net operating loss deduction and special deductions) appears on the IRS Form 1120 or 1120-A, while net current assets are calculated from information on Schedule L of IRS Form 1120 or 1120-A.

To reduce taxable profits, a C corporation can deduct many of its business expenses that the C corporation spends in the legitimate pursuit of profit.^[34]

2. Subchapter S Corporations

The subchapter S corporation is a variation of the standard subchapter C corporation. The rules for subchapter S corporations are found in the IRC^[35] and provide many of the benefits of partnership taxation while at the same time giving the owners limited liability protection from creditors.

An S corporation has the same corporate structure as a standard C corporation. It is a legal entity, chartered under state law, separate from its shareholders and officers, and there is generally limited liability for corporate shareholders. The difference is that the S corporation files an election on Election by a Small Business Corporation (IRS Form 2553), to be treated differently for federal tax purposes.

As with partnerships, the income, deductions, and tax credits of an S corporation flow through to shareholders annually, regardless of whether distributions (dividends) are made. Therefore, income is taxed solely at the shareholder level and not at the corporate level. To qualify for S corporation status, the corporation must meet certain requirements.^[36]

Taxes

An S corporation files U.S. Income Tax Return for an S Corporation (IRS Form 1120-S). The corporate income flows through and is reported on the shareholders’ individual tax returns. The corporation completes and files a Shareholder’s Share of Income, Deductions, Credits, etc. (Schedule K-1) with IRS Form 1120-S for each shareholder. The Schedule K-1 tells shareholders their allocable share of corporate income and deductions.

Shareholders must pay tax on their share of corporate income, regardless of whether it is actually distributed. Net income or loss, notated on tax forms as ordinary business income (loss),^[37] appears on the IRS Form 1120-S or its Schedule K, while net current assets are calculated from information on Schedule L.

3. Personal Service Corporation

A personal service corporation is a corporation where the employee-owners are engaged in the performance of personal services. The IRC defines personal services as services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, and consulting.^[38]

To qualify as a personal service corporation, substantially all the corporation’s activities must involve the performance of personal services, and a percentage of the corporation’s stock must be owned by employees performing the personal services.^[39]

Taxes

A personal service corporation pays tax on its profits as a corporate entity. However, a personal service corporation is not allowed to use the graduated tax rates for other C corporations. Instead, it is subject to a flat tax based on the highest corporate tax rate. Because of the high tax rate, personal service corporations generally distribute their profits as wages to the employee-shareholders. In turn, the employee-shareholders pay personal taxes on their wages.^[40]

The personal service corporation files its taxes on IRS Form 1120. This form contains a box for the business to indicate that it is a personal service corporation.^[41] Net income or loss is notated on IRS Form 1120 or 1120-A as taxable income before net operating loss deduction and special deductions, while net current assets are calculated from information on IRS Form 1120 Schedule L.

D. Limited Liability Company

A limited liability company (LLC) is a hybrid entity, combining some of the most advantageous features of partnerships and corporations.^[42] LLCs were created to provide business owners with the liability protection that corporations enjoy without the double taxation. Under the default tax standard, earnings and losses of an LLC pass through to the owners and are included on their personal tax returns.^[43]

LLCs are similar to S corporations, except that LLCs are not limited in the number of owners or types of members.^[44] LLCs may be either member-managed (managed by each of its members) or manager-managed (managed by specified managers who may or may not be members of the LLC).^[45] The LLC’s operating agreement may distinguish between members and managing members. Generally, if such a distinction is made, managing members of the LLC are allowed a full participatory role in the business’s operation. However, depending on the operating agreement, even regular members may have a role in the business’s operation.

To set up an LLC, organizers file articles of organization with the secretary of state in the state where the LLC is formed. Some states also require the filing of an operating agreement, which is similar to a partnership agreement. LLCs do not necessarily have perpetual life and can be set up to dissolve after a set period of time, such as a specific number of years, upon the occurrence of a triggering event, such as the death or withdrawal of a member, or as otherwise provided in the operating agreement.

The IRS does not recognize an LLC as a classification for federal tax purposes and by default treats multi-member LLCs as a partnership and single-member LLCs as a disregarded entity (similar to a sole proprietorship) for tax purposes. As with other entities, however, an LLC may file an election to be taxed differently (such as a corporation).^[46]

1. Taxes

For federal income tax purposes, LLCs with two or more members are treated by default as partnerships (a pass-through entity) and must file the IRS Form 1065, discussed above under Section B, Partnership. Each partner receives a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) for their share of income or losses to be reported on that partner’s individual tax return.

If there is only one member in the LLC, it is treated as a disregarded entity (similar to a sole proprietorship) for tax purposes, and the owner reports the LLC’s income on the owner’s personal individual tax return on Schedules C, E, or F to the IRS Form 1040, discussed above under Section A, Sole Proprietorship.

As an option, LLCs may also elect to be taxed like a corporation by filing Entity Classification Election (IRS Form 8832). They can be treated as a regular C corporation (taxation of the entity’s income before any dividends or distributions to the members and then taxation of the dividends or distributions once received as income by the members), or as an S corporation. These corporations file IRS Form 1120 or 1120-S, discussed above under Section C, Corporation.

E. Non-Profit Organization

1. Overview

A non-profit organization (NPO) is an entity that serves some public purpose and therefore enjoys special treatment under the law, including often having tax-exempt status and the protection of directors, officers, and members from personal liability.^[47] Typically, NPOs are engaged in charitable, educational, religious, or artistic activities of public or private interest.^[48] Unlike a for-profit business entity, an NPO does not distribute profits to its owners.^[49] Instead, any profits must ultimately go back into the organization.

In general, an NPO is formed and governed under state statutes the same as other entity types, and often takes the form of nonprofit corporations or LLCs. Whether incorporated or unincorporated, an NPO must keep records, prepare minutes of meetings, and have a separate bank account.

The board of directors typically makes collaborative decisions regarding the operation of the NPO. The board defines the mission and the policies of the NPO, creates budgets and oversees finances, and hires an executive director. If the NPO has an executive director, the director carries out the daily functions of the NPO under the management of the board. The executive director’s job is also to advise and report information to the board about activities and programs, and to monitor finances.

2. Taxes

An incorporated or unincorporated NPO can qualify for tax-exempt status if it meets certain conditions. In most states, if an NPO qualifies for a federal tax exemption it also automatically qualifies for a state tax exemption. The federal government offers many different types of tax exemptions for non-profits under IRC 501(c).^[50] The most popular kind of NPO is called a 501(c)(3).^[51] Under this code section, the NPO is exempt from paying federal income taxes and contributions made to the non-profit are generally tax-deductible for the donors.

Most NPOs are required to file an annual informational return, called a Return of Organization Exempt From Income Tax (IRS Form 990 or IRS Form 990EZ), if the organization’s gross receipts exceed $50,000 from sources other than the exempt purpose.^[52] Some religious organizations are not required to file IRS Form 990 or 990EZ.^[53]

IRS Form 990 provides an analysis of an NPO’s revenue and expenses, and net income is stated on the form as revenue less expenses. The abbreviated balance sheet on IRS Form 990 does not identify which assets and liabilities are current and therefore is not useful for calculating net current assets.

Footnotes

[^ 1] See IRS’s Employer ID Numbers webpage. For an explanation of what types of business structures require an EIN, see IRS’s Do You Need an EIN webpage.

[^ 2] For an explanation of married couples and sole proprietorship, see IRS’s Frequently Asked Questions for Entities webpage.

[^ 3] See Black’s Law Dictionary (11th ed. 2019).

[^ 4] See Matter of United Investment Group (PDF), 19 I&N Dec. 248 (Comm. 1984).

[^ 5] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 3. For a general overview of sole proprietorships, see Jeffrey F. Beatty and Susan S. Samuelson, Business Law and the Legal Environment (Cengage Learning, 2006), p. 755. See the U.S. Small Business Administration’s (SBA’s) Choose a business structure webpage.

[^ 6] See Section 101 of the Uniform Partnership Act (1997). The Uniform Partnership Act is a uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships. It has been amended several times since its promulgation, most recently in 2011 and 2013. The Uniform Partnership Act has been enacted by most U.S. states.

[^ 7] See the IRS’s Tax Information For Partnerships webpage.

[^ 8] See Section 202(a) of the Uniform Partnership Act (1997).

[^ 9] See IRS’s Instructions for Form 1065.

[^ 10] A partnership can also be formed by estoppel (where a party is held out to be a partner and can be held liable for debts or damages incurred by the partnership). See definition of “partnership by estoppel,” Black’s Law Dictionary (11th ed. 2019). A written general partnership agreement usually identifies the names of the partners; the amount and type of contribution made by each partner; each partner’s initial percentage of ownership; the business activities conducted by the partnership; whether and how partnership interests can be transferred; and the conditions allowing dissolution of the partnership. See Section 103 of the Uniform Partnership Act (1997).

[^ 11] See the IRS’s Tax Information For Partnerships webpage.

[^ 12] See Section 306 of the Uniform Partnership Act (1997).

[^ 13] See the Uniform Limited Partnership Act (2001). The Uniform Limited Partnership Act is another uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships.

[^ 14] See Angela Schneeman, Law of Corporations and Other Business Organizations (Cengage Learning, 2009), p. 114.

[^ 15] See Sections 201 and 404 of the Uniform Limited Partnership Act (2001).

[^ 16] The elements identified in these written agreements include the names of partners, the amount and type of contribution made by each partner, whether the partners hold a limited partnership interest, each partner’s initial percentage of ownership, the business activities of the limited partnership, whether and how partnership interests can be transferred, and the conditions allowing the dissolution of the limited partnership. See IRS Publication 541, Partnerships.

[^ 17] See IRS’s Instructions for Form 1065. See Section 1001 of the Uniform Partnership Act.

[^ 18] See the U.S. SBA’s Choose a business structure webpage.

[^ 19] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 20] For an example of limited partnerships and LLLPs, see page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 21] State law created and governs LLLPs. See, for example, page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF), and State of California Franchise Tax Board’s Limited liability limited partnership webpage.

[^ 22] For a discussion of one state’s LLLP provisions, see pages 21 to 23 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 23] See IRS’s Tax Information For Partnerships webpage.

[^ 24] The partnership must also provide a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) to the IRS and to each partner, which breaks down each partner's share of the business's profits and losses. In turn, each partner reports this profit and loss information on Schedule E of the partner’s individual IRS Form 1040. See IRS’s Instructions for Schedule E.

[^ 25] Negative values are represented in parentheses on tax forms.

[^ 26] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 27] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 28] See William Meade Fletcher, Cyclopedia of the Law of Private Corporations, Vol. 1, section 41.31 (Sept. 2021 Update). See DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681 (4th Cir. 1976) (court properly ignored the existence of a corporate entity where there was a failure to follow corporate formalities).

[^ 29] See Wachovia Securities, LLC v. Jahelka, 586 F.Supp.2d 972, 1002 (N.D.I.L. 2008) (disregarding a corporation’s existence when it failed to observe required corporate formalities such as holding regular meetings, taking minutes, and maintaining corporate records).

[^ 30] For instructions on electing a different taxation structure, see IRS’s S Corporations webpage and IRS’s Instructions for Form 1120.

[^ 31] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 32] S corporations, partnerships, sole proprietorships, and limited liability companies (LLCs) are not taxed on business profits unless they elect otherwise; instead, the profits pass through the businesses to their owners, who report business income or losses on their personal tax returns.

[^ 33] See IRS Publication 542, Corporations.

[^ 34] In addition to start-up costs, operating expenses, and product and advertising outlays, a C corporation can deduct the salaries and bonuses it pays and all of the costs associated with medical and retirement plans for employees. See IRS’s Instructions for Form 1120.

[^ 35] See 26 U.S.C. 1361.

[^ 36] See IRS’s S Corporations webpage. A subchapter S corporation must be a domestic corporation; have only allowable shareholders (may include persons, certain trusts, and estates, but may not include partnerships, corporations, or non-resident shareholders); have no more than 100 shareholders; have only one class of stock (for example, no preferred stock allowed); and not be an ineligible corporation (such as certain financial institutions, insurance companies, and domestic international sales corporations).

[^ 37] Negative values are represented on tax forms by parentheses.

[^ 38] See 26 U.S.C. 448(d)(2).

[^ 39] See IRS Publication 542, Corporations.

[^ 40] See IRS’s Instructions for Form 1120.

[^ 41] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 42] See the U.S. SBA’s Choose a business structure webpage.

[^ 43] While the default tax treatment for an LLC is pass-through taxation, as with all entities, it may elect to be taxed differently.

[^ 44] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 45] The powers and duties of members and managers are typically outlined in the LLC’s operating agreement. See U.S. SBA’s Basic Information About Operating Agreements webpage.

[^ 46] See IRS’s Limited Liability Company (LLC) webpage. A professional limited liability company (PLLC) is an LLC organized for the purpose of providing professional services, such as a doctor, chiropractor, lawyer, accountant, architect, landscape architect, or engineer. Some states permit LLCs to engage in the practice of a licensed profession through PLLCs. Exact requirements of PLLCs vary from state to state. Typically, a PLLC's members must all be professionals practicing the same profession. In addition, the limitation of personal liability of members does not extend to professional malpractice claims.

[^ 47] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, sections 1:1, 4:1, and 7:1 (Oct. 2022 Update).

[^ 48] See IRS’s Exempt Organization Types webpage.

[^ 49] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, section 1:2 (Oct. 2022 Update).

[^ 50] See 26 U.S.C. 501.

[^ 51] To qualify, the non-profit organization must be organized and operated exclusively for the exempt purposes set forth in IRC 501(c)(3)—charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals—and no part of their net earnings “may inure to any private shareholder or individual.” See 26 U.S.C. 501(c)(3). See IRS’s Exemption Requirements – 501(c)(3) Organizations webpage.

[^ 52] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax.

[^ 53] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax and IRS’s Tax Guide for Churches and Religious Organizations (PDF).

Updates

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify how USCIS evaluates evidence to determine eligibility for extraordinary ability and outstanding professor or researcher first preference employment-based immigrant visa classifications.

Archived Content

This content has been superseded by the current version available in the Guidance tab. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The historical versions are provided for research and reference purposes only. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures.

The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at: https://archive.org

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Chapter 3 - Outstanding Professor or Researcher

A. Eligibility

B. Evidence

1. Assess Whether Evidence Meets Any Regulatory Criteria

2. Final Merits Determination

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Appendices

A. Sole Proprietorship

1. Definition

2. Taxes

B. Partnership

1. General Partnership

2. Limited Partnership

3. Limited Liability Partnership

4. Limited Liability Limited Partnership

5. Taxes

C. Corporation

1. Subchapter C Corporations

2. Subchapter S Corporations

3. Personal Service Corporation

D. Limited Liability Company

1. Taxes

E. Non-Profit Organization

1. Overview

2. Taxes

Footnotes

Updates

Archived Content

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