Employer Requirements for EB-1(b)

Posted on 7月 24, 2007 by Warren Wen | Category: Immigration

The Requirements for Employers and Position of EB-1(b)

As mentioned in the last article, a job offer for a permanent or tenured position from employer is also required for EB-1(b) besides the requirements for the applicants themselves.  Then, can all employers qualify for EB-1(b) applications? How is the job offer in relation to EB-1(b) applications defined?

Because EB-1(b) application is designed for outstanding professors and researchers, some restrictions are applied to the sponsoring employers.  If the position offered by the employer is irrelevant to the applicant’s field of endeavor, the applicant is not able to obtain their lawful permanent resident status through EB-1(b), even if he or she meets the individual qualification requirements.  However, it does not mean that the employer is limited to an institute or research organization only.  According to the law, the research departments of some private enterprises are also able to file EB1-(b) petitions provided that they can prove the fact that they have hired at least three researchers, such as in medicine research organization of some medical enterprises.

Meanwhile, the INA also has requirements for the position provided by employers.  First, the position should be “permanent”, which means “lifelong” or has no expiration date.  Moreover, the employee could expect to continue working in the position unless fired for some specific reasons. Therefore, the position is not limit to being a “full-time” position or to having the quality of “permanency” in the position itself, and a position without a specific expiration date is still acceptable.  It is worth noting that the position should be regarded as “permanent” although the employment contract could be terminated “at will”, as long as the employer can prove that the agreement of employment has ever been renewed.

For those professors or researcher whose financial support is not stable, what can they do to prove that their position is permanent?  In practice, the employers can prove its permanency by offering some evidences that no specific expiration date has been set for the financial support.  Moreover, the renewal of the financial support can also be used to prove the permanent nature of the job.

Under certain circumstances, even if an expiration date has been set for the offered position in the employment contract, the position won’t be regarded as “non-permanent,” as long as the employer can prove that the expiration date of the position will be extended.

Finally, EB-1(b) is a good choice for both employers and the applicants as long as they meet the relevant qualification requirement, since EB-1(b) does not require the applicants to go through the PERM procedure.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.