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Regarding Outstanding Professors and Researchersby Joseph P. Whalen
These higher priority visas are very narrowly defined by statute and consequently, are more stringently controlled via their implementing regulations. Those basic facts force USCIS adjudicators to pour over proffered evidence in an extremely critical manner with a fine toothed comb. The first preference visas have perennially been available most rapidly because fewer people will qualify for them and they tend to always have a "current" priority date. Attainment of such a visa is difficult not due to competition from a large pool of qualified individuals but from the high bar to eligibility. All-in-all, the petitioning employer has to qualify; the position has to qualify; the job offer has to qualify; and the beneficiary has to qualify for the position offered. If all the those high standards are satisfied, the qualified employer can skip the protracted labor certification process and the qualified beneficiary gets a visa much quicker than those folks who must apply for one in a less strictly controlled visa preference category. Congress chose to fast-track the highly qualified for the benefit of the United States through a deliberate brain-drain approach. Unqualified pretenders need not apply. Let's review the statute and regulations. INA § 203 [8 U.S.C. § 1153] ALLOCATION OF IMMIGRANT VISAS * * * * *(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows: (1) Priority workers. - Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):* * * * *
8 CFR § 204.5 Petitions for employment-based immigrants .(i) Outstanding professors and researchers .
(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:
(ii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field. >[Proviso:] Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and (iii) An offer of employment from a prospective United States employer. A labor certification is not required for this classification. The offer of employment shall be in the form of a letter from:
It appears that a modified two-part analytic approach as inspired by the Kazarian[1] decision, can be utilized for this particular visa petition adjudication. The first part of this two-part approach is a simple quantitative component followed by a qualitative analysis and evaluation. The adjudicator must first merely determine if the petition is accompanied by the minimum number of pieces of specific evidence from among the choices available, as enumerated in the regulations. If the petition does not contain the bare minimum, then why waste any more time on it? Once crossing the first threshold, the evidence must then demonstrate that the beneficiary meets the crucial statutory requirements of being: (1) recognized internationally (2) as outstanding (3) in a specific academic area; with at least 3 years of "qualifying" experience. The determination of whether or not the evidence demonstrates those three critical factors calls for a judgment on the merits according to the preponderance of the evidence standard. That particular standard of evidence is essentially a judgment call but the judgment called for in this instance is not a very difficult one to make. The "final merits determination" as it was labeled by the Ninth Circuit is what I call the "qualitative analysis and evaluation". While this visa category is restrictive, it does not involve so many possibilities [as in "contexts" or factors] as to "overarching questions" that it would be as overwhelming, by comparison as "extraordinary ability", "exceptional ability", or "national interest waiver" adjudications. That's my two-cents, for now.
Footnotes 1Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
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