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Unlike the Extraordinary Ability category, a job offer from a prospective employer is always required for this type of petition. There are three possible types of employment situation which are appropriate for an Outstanding Professor or Researcher petition. These are:
A tenure-track teaching position;
A similar research position if at a University or institution of higher education (“similar” here can mean tenured, tenure-track, or an offer of unlimited duration where – absent cause for termination – the foreign national can expect ongoing employment); or
A similar research position with a private employer, if the employer has an established research department, division or institution which has already achieved documented success in the academic field.
The foreign national must be recognized internationally as outstanding in a specific academic area. Further, the foreign national must have at least three years of experience in teaching or research in the academic area (this can include research or teaching performed while working on an academic degree, if recognized as outstanding). While there is no specific degree requirement written into the law, as a practical matter it is virtually impossible to meet the requirements for this category without an advanced degree.
The job itself must be described in a letter from the employer in such a way that it is clear that the position meets one of the three types of qualifying positions described above. To demonstrate that the foreign national has attained the required level of international recognition as outstanding in the academic field, it needs to be demonstrated that at least two of six possible “tests” are met (here, there is some overlap with the Extraordinary Ability category):
Receipt of major prizes or awards for outstanding achievement;
Membership in associations which require outstanding achievements as a prerequisite to membership;
Published material in professional publications about the foreign national’s work;
Published books or articles by the foreign national about his or her work in the academic field;
Evidence of original scientific research; or
Evidence of the foreign national’s participation as a judge of the work of others (such as peer review for journals or academic competitions).
Testimonial letters can be used to demonstrate that the foreign national possesses the required three years of experience (if from prior employers), as well as compliance with two of the possible “tests” listed above and perhaps also the international recognition of the foreign national as outstanding in the academic field/having sustained national and international acclaim and recognition.
Actually, meeting at least two of the required tests is only a first step. There is an additional inquiry by USCIS after they determine that at least two of the Outstanding Professor or Researcher requirements have been met. This is the result of a case known as “Kazarian” – formally, Kazarian v. USCIS, 2010 WL 725317 (9th Cir. 2010). Mr. Kazarian’s Extraordinary Ability case (not, notice, and Outstanding Professor or Researcher case) had been denied although on paper he met at least the mandated three of the requirements. USCIS essentially said that although he technically did, his accomplishments weren’t really all that impressive and that congress wanted this category to be for the truly impressive when they created the law that permitted it. The Kazarian decision said that USCIS was to examine whether at least three of the criteria were met or not…without determining how impressive these accomplishments actually were. However, the court referenced the concept of a “final merits determination” where the quality of a subject individual’s standing would be analyzed. USCIS then interpreted this as a requirement that they needed, as part of adjudicating not only Extraordinary Ability Petitions but also Outstanding Professor or Researcher petitions and Exceptional Ability petitions, to perform a formal “final merits determination.” In other words, they first needed to decide whether the individual had received “sustained national or international acclaim” and whether the individual “is one of that small percentage who has risen to the very top of the field of endeavor” after they had determined that at least three of the original criteria had been met. So, a petition submitted since the Kazarian ruling in this category now needs to address both whether the individual meets at least three of the core criteria, and whether the individual has received sustained national or international acclaim/is one of that small percentage who has risen to the very top of the field of endeavor.