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Legal Issue Series – How Many Researchers Does it Take?

This is the first of our Legal Issue Series, which will answer hard immigration questions and will attempt to fill in the many holes in the immigration system through legal analysis. The first of these holes is a twist to a common factual scenario: A petitioner-company wants to petition one of its three full-time researchers for an EB-1B visa. However, the full-time researcher in question is currently on a nonimmigrant visa (L-1B, H-1B, etc.).

The EB-1B visa we’ve previously discussed, and can be found here. In the context of our situation at hand,the EB-1B visa can be used for a variety of research institutions or “medical practice/research centers” as defined in the Immigration and Nationality Act (“INA”). Some of these institutions may be small with only two or three full-time researchers. The number of full-time researchers is important for an organization petitioning for an EB-1B visa for a new full-time researcher, because the INA states that a visa is available for a researcher if:

The alien seeks to enter the United States for a comparable position to conduct researcher in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

INA § 203(b)(1)(B)(iii)(III); 8 U.S.C. § 1153(b)(1)(B)(iii)(III) (emphasis added)

The focus of this article will be the bolded portion. The hard immigration question applies in the situation where the petitioner-company has three full-time researchers, but one of the three is on a temporary nonimmigrant visa (L-1, H1-B, etc.) and is now seeking to adjust their status to receive a EB-1B visa.

There is little guidance in the rest of the INA or legislative history to help answer this question. This question could make or break smaller institutions with three full-time researchers because it could potentially bar them from receiving EB-1B visas for future full-time researchers.

On one hand, one could argue that the third nonimmigrant visa researcher would help the petitioner-company qualify as having three full-time researchers. Since the petitioner-company already has three full-time researchers, their visa status should not matter and the nonimmigrant visa researcher can adjust their status to receive an EB-1B visa.

On the other hand, the argument could be made that the institution must have three full-time researchers who are not currently seeking an EB-1B visa. This is from the language of § 203(b)(1)(B)(iii)(III) as quoted above: “seeks to enter” and “employs at least 3 persons full-time” are in the present tense, and thus the petitioner-company must already have three full-time researchers. This is because the third researcher is “seeking to enter” by attempting to receive an EB-1B visa, even though the researcher is in the United States on a nonimmigrant visa. Thus, he may not count as the third anymore for purposes of the EB-1B petition.

The Administrative Appeals Office (“AAO”), a quasi-judicial branch that deals with some types of immigration appeals, addressed this issue in an unpublished decision and agreed with the second argument. Given the present tense of the statutory language and that the Director of the California Service Center used that interpretation, the AAO gave that interpretation deference, as the AAO will typically do as long as the interpretation is reasonable.

In conclusion, a petitioner-company who is attempting to obtain an EB-1B visa for a full-time researcher must have three full-time researchers who are not seeking any visas. Even though one of the three researchers has a nonimmigrant visa (L-1, H1-B, etc.) and is currently employed at the petitioner-company, a petitioner-company cannot adjust that researcher under an EB-1B visa.

Tags: #AAO, #EB-1B, #EB-1B Visas, #immigration law attorney, #immigration law lawyer

Extraordinary and Outstanding Immigrants – the EB-1 Visa

Although the Employment Based (“EB”) categories may change with the new CIR bill introduced just several weeks ago, there is no guarantee that the EB changes or the bill in its entirety will pass. Therefore, it’s necessary to still consider the immigration options as they are. The EB-1 visa is a popular method for highly skilled and educated noncitizens to obtain their green cards, but it may be quite the process for those not in the know.

The EB-1 visa can be split up into three categories: EB-1A is for Aliens of Extraordinary Ability, EB-1B is for Outstanding Researcher or Professors, and EB-1C Managers and Executive Transferees. Under any of these categories, the noncitizen will most likely experience the quickest processing times and avoid the Labor Certification process.

EB-1A – Aliens of Extraordinary Ability

Noncitizens seeking the EB-1A visa must have an extraordinary ability in the sciences, arts, education, business, or athletics with sustained national or international acclaim. The noncitizen must start or continue work in an area that will also substantially and prospectively benefit the U.S. national interest. To prove this, the noncitizen must satisfy at least three of the ten criteria as listed below:

  1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  2. Evidence of your membership in associations in the field which demand outstanding achievement of their members
  3. Evidence of published material about you in professional or major trade publications or other major media
  4. Evidence that you have been asked to judge the work of others, either individually or on a panel
  5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  7. Evidence that your work has been displayed at artistic exhibitions or showcases
  8. Evidence of your performance of a leading or critical role in distinguished organizations
  9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  10. Evidence of your commercial successes in the performing arts

Source: uscis.gov

The benefit of the EB-1A visa is that no permanent position is required; a permanent position is required for EB-1B and EB-1C visas.

EB-1B – Outstanding Researcher or Professor

The EB-1B visa requires international recognition for achievements in a particular academic field. The noncitizen must have at least 3 years of experience in teaching or research in that academic area. The position required must be a permanent, tenure or tenure track teaching or comparable research position at a university or other institution of higher education. To prove this, at least two of the listed documents are required:

  1. Evidence of receipt of major prizes or awards for outstanding achievement
  2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
  3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
  4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  5. Evidence of original scientific or scholarly research contributions in the field
  6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

The strategic benefit of the EB-1B option is that the noncitizen’s particular accomplishments are the focus rather than the field of study thus allowing for more flexibility.

EB-1C – Multinational Manager or Executive

The EB-1C visa is meant for high level executives whose expertise is needed here in a United States branch or office of the same company. Specifically, the noncitizen must be employed for at least one of the three years before the petition and must be entering to continue employment in that same firm or organization. The employment in the United States must be in a managerial or executive capacity and with the same employer, affiliate, or subsidiary of the employer.

For the employer, it must be a U.S. employer who has been doing business for at least one year as an affiliate, subsidiary, or as the same corporation or other legal entity that employed the noncitizen abroad.

If one of these categories works for you, contact our office to schedule an appointment to explore any of these or other immigration options.

Tags: #EB-1 Visas, #EB-1B, #immigration law, #immigration law attorney, #immigration law lawyer




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