SUMMARY OF THE LAW ON EB-12
              (Outstanding Researchers/College Professors)

The Immigration and Naturalization Act (INA), 203(b)(1)(B) provides for the immigration of an alien as an outstanding researcher and a college professor if "(i) the alien is recognized internationally as outstanding in a specific academic area, (ii) the alien has at least 3 years of experience in teaching or research in the academic area, and (iii) the alien seeks to enter the United States" for a tenured (or tenure-track) position or " for a comparable position to conduct research 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."

8 CFR 204.5(i)(1) provides that "any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I-140 visa petition for such classification." Subsection (2) defines Academic field to mean "a body of specialized knowledge offered for study at an accredited United States university or institution of higher education" and Permanent to mean, "in reference to a research position, . . . 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."

As to the initial evidence required for such a petition, subsection (3) provides that a "petition for an outstanding professor or researcher must be accompanied by:
(i)   Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
      (a)   Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
      (b) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
      (c) Published materials in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
      (d) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
      (e) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
      (f) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
(ii)   Evidence that the alien has at least three years of experience in teaching and/or research in the academic field . . . [omitted from summary]
(iii)   An offer of employment from a prospective United States employer . . . in the form of a letter from . . . a department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field."

Subsection (5) further provides that no offer of employment [but the employment letter in (iii) above is still required.] and no labor certification [This is an entirely different and complicated process with the Department of Labor.] are required for this classification. But the alien must provide clear evidence that s/he will continue work in the area of expertise and such evidence may be in the form of a letter from a prospective employer, employment contract or beneficiary's statement of detailed plan on how s/he intends to continue his/her work in the U.S.

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Jian X. Kang
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