The I-140 Petition for Alien Worker

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 instructed 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 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.

This permanent category is very similar to the non-immigrant/temporary L-1A category, but there are important differences. Just because a foreign national has an L-1A visa does not mean that they will automatically qualify for the Multinational Executive or Manager Employment-Based First-Preference category.

Like the L-1A category, the EB-1 permanent Multinational Executive or Manager category requires that the foreign national has worked for one out of the last three years for a company abroad which is related to the U.S. company (parent company, subsidiary, affiliate, or joint venture) as a manager or executive, and be coming to the U.S. to work in an executive or managerial capacity for the U.S. sponsoring company. The definitions of “Related Company” as well as “Executive” and “Manager” are similar for both the L-1A non-immigrant visa and the permanent Multinational Executive or Manager category. One difference is an exception to the requirement that the one year which the foreign national must have worked for the corporate entity abroad have been in the last three years. Generally, a foreign national seeking permanent residence through the multinational executive or manager path must meet the one year out of the last three requirements. However, if the foreign national has come to the U.S. to work for the related U.S. corporate entity and has worked exclusively for the related U.S. corporate entity since entry, then the three years that count are the three years before entry into the U.S. For instance, a foreign national who worked for the foreign entity of Company A for the entire calendar year 2010, then came to the U.S. to work for the U.S. entity of Company A on January 1, 2011 (or soon after, allowing time for petition approval/L-1A stamp issuance), could apply for permanent residence through a Multinational Executive or Manager petition…even in 2016. Although the person’s work for the foreign entity of Company A was more than three years ago, they would fit under this exception since they have worked exclusively for the U.S. entity of company since coming to the U.S. This would not be true if the foreign national took 2003 off to work for another employer and then returned to Company A.

Yes, if this person came over on an L-1A (as is likely). For an L-1A where the beneficiary is an owner of the company, USCIS takes the position that the owner must have the intent to return abroad at the end of a limit-duration assignment with the US company – that they must intend to come here only to get the company off the ground and then to return abroad. So, an L-1A isn’t truly “dual intent” in the context of an owner as it would normally be for an L-1 visa. Obtaining an L-1A and entering on it would be viewed as inconsistent with an intent to file for permanent residence, and the act of applying for permanent residence may cause a recent L-1A petition or entry to be viewed as fraudulent. Of course, sometimes – long after an L-1A petition or entry – circumstances may change causing an L-1A owner’s plans with regard to returning home to then change.

Generally, it does not matter. However, there was a period of time when an individual entering under a blanket petition in some circumstances need only have worked for the related company abroad for only six months before becoming eligible for L-1 status. Even though people entering under this provision could enter legally on an L-1, they would not have been eligible for the permanent Multinational Executive or Manager category without one full year working for the overseas entity.

To fall under the Employment-Based Second Preference classification, the job being petitioned for must require at least an advanced degree – normally a Master’s Degree or the equivalent – or the foreign national can be demonstrated to possess “exceptional ability” in his or her field. An Employment-Based Second Preference case will normally – but not always – require a job offer (recall that an Employment-Based First Preference – EB-1 – case requires a job offer only in the Outstanding Professor or Researcher and Multinational Executive or Manager categories but not always in the Extraordinary Ability category).

Exceptional Ability refers to a degree of expertise significantly above what would be considered typical, and is accepted by USCIS to be a level of achievement somewhat less than the First Preference (EB-1) Extraordinary Ability standard. While the method of proving exceptional ability is similar to the method used to demonstrate extraordinary ability in that three elements out of a longer list must be exhibited, the criteria themselves are slightly easier to meet:

• The foreign national has a degree relating to the area of exceptional ability;
• Letters from current and former employers confirming that the foreign national has at least ten years of work experience in the field;
• The foreign national has a license to practice his or her profession;
• The foreign national has commanded a high salary for services rendered;
• The foreign national is a member of a professional association in his or her field; or
• The foreign national has received recognition for achievements and contributions of significance to the field by peers, government entities, or professional or business organizations.