DHS Proposed Rule to Allow Comparable Evidence for EB1B Outstanding Professors or Researchers Petitions

May 8, 2014

The U.S. Department of Homeland Security recently announced that it will publish two proposed rules this week. One of the rules proposes to add comparable evidence to the evidentiary criteria list for EB1B petitions. In a press release dated May 6, 2014, DHS stated, “This proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.”

The Notice of Proposed Rulemaking will soon be published in the Federal Register. DHS will accept public comment on the proposed rules through the following website – www.regulations.gov.

Current Evidentiary Requirements for EB1B Outstanding Professors or Researchers Petitions

In order to qualify as an outstanding professor or researcher, one must satisfy each of the following requirements:

Demonstrated international recognition for outstanding achievements in a particular academic field;
At least 3 years of experience in teaching or research in that academic field; and
Entering the U.S. in order to pursue a tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

EB1B beneficiaries must also demonstrate that they satisfy at least two of the following evidentiary criteria to show that they are an outstanding professor or researcher:

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

How the New Rule Changes the Requirements for EB1B Outstanding Professors or Researchers Petitions

The proposed rule would add comparable evidence to the list of evidentiary criteria that must be satisfied in order to qualify for an EB1B I-140 petition. This addition will bring the regulations for EB1B petitions in line with other employment-based immigrant categories that already permit the submission of comparable evidence (e.g., EB1-A Alien of Extraordinary Ability, EB-2 Exceptional Ability). Examples of comparable evidence include important patents and prestigious, peer-reviewed funding grants.

How the New Rule Benefits Our Clients

The new rule will benefit our clients who are able to meet all the requirements for EB1B but are unable to satisfy at least two of the evidentiary criteria currently listed. If such clients are able to satisfy one of the listed criteria and also provide comparable evidence that is not listed, they may qualify for an EB1B I-140 petition.

However, the beneficiaries still need to show they are internationally recognized as outstanding under the Kazarian test. In our experience, it is not difficult to meet at least two out of six regulatory criteria under EB1B category. It is the “total merits determination” test set by Kazarian v. USCIS that led to most of the EB1B denials. Hence, it is not clear how the standard of law for EB1B will be changed by the proposal.

You can read the full DHS press release here.

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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