EB 1-2 Visa:
Outstanding Professors and Researchers
The EB 1-2 visa provides outstanding professors and researchers the ability to obtain permanent residency in the United States. Also known as the EB 1-B or Outstanding Professors and Researchers Visa, the EB 1-2 visa has many strategic advantages, including not requiring a labor certification and the ability to premium process (discussed below).
Who Can Obtain an EB 1-2 Visa?
The EB 1-2 visa is only available to professors and researchers whom the immigration agency deems to be “outstanding.” To qualify, an applicant must be sponsored by a qualifying employer.
What are the Requirements for EB 1-2 Immigrant Status?
The short answer is this:
An applicant must:
- have three years of research or teaching experience,
- must be coming to the United States to work at a qualifying employer and in a qualifying position (see below), and
- must demonstrate that they are internationally recognized as “outstanding” in a particular academic area. To demonstrate being “outstanding” an applicant must demonstrate meeting at least two of six specific factors. The factors include an applicant’s scholarly publications, original research, and receipt of professional awards, among others.
However, the EB 1-2 standard is not as simple as meeting two of six criteria. To understand the standard better, please see a more detailed discussion of the standard below, and contact a knowledgeable immigration lawyer.
Overview of Outstanding Professors and Researcher Visa
Table of Contents
Outstanding Professor and Researcher Visa: Frequently Asked Questions
EB 1-B Visa Process to Gain Permanent Residency
EB 1-B Visa Legal Requirements
EB 1-2 Visa
Outstanding Researchers and Professors:
Frequently Asked Questions
Which family members can an EB 1-2 visa holder help? How?
The principal EB 1-2 visa petitioner can immediately provide permanent residency immigration status to his or her spouse and minor children. A minor child is considered to be an individual under the age of 21 and unmarried. The qualifying spouse and children will be able to work and study in the United States. Additionally, if otherwise qualified, both the spouse and children will be able to become American citizens after five years.
Can an EB 1-2 Visa holder self-petition?
No. Unfortunately, an EB 1-2 applicant cannot self-petition. Only EB 1-1 Visa applicants and National Interest Waiver applicants can self-petition. An EB 1-2 Visa applicant must be sponsored by a university or otherwise qualifying private institution.
Who can be an EB 1-2 Visa Applicant’s Employer?
An EB 1-2 Visa holder’s employer must be:
- A University or Institution of Higher Education,
- A department, division or institute of a private entity that employs at least 3 full-time researchers.
How many Principal EB 1-2 Visas are issued each year?
|
Fiscal Year |
EB 1-2 Visa Total Issued |
EB 1-2 Visa Consular Processing |
EB 1-2 Visa Adjustment of Status |
||
|
2010 |
3990 |
18 |
3972 |
||
|
2009 |
3432 |
20 |
3412 |
||
|
2008 |
4274 |
22 |
4252 |
||
|
2007 |
2261 |
35 |
2226 |
||
|
2006 |
2951 |
121 |
2830 |
||
|
2005 |
5706 |
100 |
5606 |
||
|
2004 |
3113 |
107 |
3006 |
||
|
2003 |
1033 |
174 |
859 |
||
|
2002 |
2737 |
306 |
2431 |
||
|
2001 |
3903 |
581 |
3322 |
||
|
2000 |
2667 |
225 |
2442 |
||
|
1999 |
983 |
51 |
932 |
||
|
1998 |
1835 |
38 |
1797 |
||
|
1997 |
5325 |
784 |
4541 |
||
|
1996 |
2633 |
72 |
2561 |
||
|
1995 |
1617 |
76 |
1541 |
||
|
1994 |
1809 |
116 |
1693 |
||
|
1993 |
1676 |
121 |
1555 |
||
|
1992 |
319 |
24 |
295 |
Does an applicant have to be in the United States to apply for the EB 1-2 Visa?
No. An EB 1-2 visa applicant does not need to be in the United States to apply. However, in a majority of cases, EB 1-1 visa applicants are in the United States on another type of immigration status.
The legal standard for obtaining the visa does not change based upon the location of an applicant.
How long must an EB 1-2 Visa holder wait until becoming a U.S. citizen?
An immigrant who becomes a lawful permanent resident through an EB 1-2 Visa must normally wait five years before becoming a naturalized U.S. citizen. However, an EB 1-2 visa holder who is thinking about becoming a naturalized U.S. citizen should consult a naturalization attorney to ensure his or her eligibility before applying.
A spouse or child of the primary EB 1-2 visa applicant must also normally wait five years before naturalizing.
What other options might an EB 1-2 Visa Applicant Have?
A person who is eligible for EB 1-2 Visa status may be eligible for other immigrant categories that provide sufficient options to the applicant. Although more difficult to obtain, it may be advantageous for an applicant to file an EB 1-1 Visa. Individuals may also be able to obtain a national interest waiver, or another, less advantageous, immigrant visa.
Applicants may also obtain nonimmigrant visas while continuing to improve their eligibility for an EB 1-2 immigrant visa. For example, an applicant may be eligible for the O-1 Visa or H-1B Visa.
The EB 1-2 Visa is one of the most appealing visas the United States has to offer. However, if you are thinking of applying for an EB 1-2 visa, first sit down with an attorney who can identify the best options for you.
Is the EB 1-2 Visa the same as the EB 1-b Visa?
Yes. The outstanding professor and researcher visa is often called either the EB 1-2 visa or the EB 1-b visa. Both names refer to the outstanding professor and researcher visa. What do they mean? The EB stands for “employment-based” as it is a visa that is based upon a person’s employment. The 1-B refers to where the Immigration & Nationality Act lays out the outstanding researcher and professor visa – INA § 203(b)(1)(B). So, what does the 1-2 refer to? It doesn’t really refer to anything. Instead, it is just a term that has made it into the immigration law nomenclature. Whether you hear an immigration attorney refer to EB 1-2 or EB 1-B – he or she is probably referring to the outstanding professor and researcher visa.
EB 1-B Visa Immigrant Process for Outstanding Professors and Researchers
The process for obtaining permanent residency through the EB 1-B Visa is a multi-stepped process. Obtaining approval of the EB 1-B visa petition does not guarantee permanent residency. Instead, an applicant must pass through another set of requirements before gaining permanent residency.
The exact process depends upon whether an applicant is inside or outside of the United States.
If in the United States
If in the United States, an Eb 1-2 applicant can petition for the outstanding professor and researcher visa and also apply for “adjustment of status” to become a permanent resident. By adjusting status, an applicant will not need to leave the United States before obtaining permanent residency. An adjustment of status application may be submitted either at the same time as the EB 1-2 petition, or after its approval.
The USCIS will review the EB 1-2 visa petition to determine whether the applicant meets the requirements for the visa. If premium processing is requested, the USCIS will make an initial decision within 15 days of the application’s submission. If premium processing is not requested, then the USCIS will not make an initial decision after four to five months (under current processing times).
The USCIS’s initial decision will either be approval of the EB 1-B visa petition, or a request for further evidence (RFE) of an applicant’s eligibility for the visa. If the initial decision is a RFE, an applicant will be provided time to submit additional documentation of eligibility. Once the RFE Response is submitted, the USCIS will make a final determination as to an applicant’s eligibility. If a final determination is unfavorable, it is possible to appeal the decision. Before an appeal is made, it is imperative to discuss the option with an immigration appeals lawyer.
Once the EB 1-B visa petition is approved, the USCIS will adjudicate the “adjustment of status” application. Once approved, the USCIS grants permanent residency to the EB 1-B applicant, and his or her qualifying applicants (if included in the petition).
In certain circumstances, it may be useful (or necessary) for an applicant in the United States to consular process and follow a process very similar to the process for applicant’s outside of the United States.
Before beginning the process, potential applicants should sit down with immigration counsel and map out the best approach for that applicant.
If Outside of the United States
If an applicant is outside of the United States, the process to become a permanent resident is different than the process for applicants within the United States. The process has two distinct steps. First, an applicant must submit an EB 1-2 visa petition to the USCIS. The USCIS will review the petition and determine whether the applicant meets the requirements for the visa. If premium processing is requested, the USCIS will make an initial decision within 15 days of the applications submission. If premium processing is not requested, then the USCIS will not make an initial decision after four to five months (under current processing times).
The USCIS’s initial decision will either be approval of the EB 1-2 visa petition, or a request for further evidence (RFE) of an applicant’s eligibility for the visa. If the initial decision is a RFE, an applicant will be provided about eighty days to submit additional documentation of eligibility. Once the RFE Response is submitted, the USCIS will make a final determination as to an applicant’s eligibility. If a final determination is unfavorable, it is possible to appeal the decision. Before an appeal is made, it is imperative to discuss the option with an immigration appeals lawyer.
Once the USCIS approves the outstanding professor or researcher visa petition, it will forward the approved petition to the State Department. The State Department will complete the process by preparing the petition for transfer to a U.S. consulate where the beneficiary will attend a consular interview. The U.S. consulate can be chosen by the beneficiary when the initial application is submitted, and is ordinarily the U.S. consulate covering the location where the beneficiary resides. At the consulate, the applicant will be interviewed by a consular official to ensure his or her eligibility for entering into the United States.
EB 1-2 Visa Legal Requirements
8 U.S.C. §1153 (INA §203)
(b) Preference allocation for employment-based immigrants
Aliens subject to the worldwide level specified in section 1151 (d) of this title 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):
(B) Outstanding professors and researchers
An alien is described in this subparagraph 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—
(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
(II) for a comparable position with a university or institution of higher education to conduct research in the area, or
(III) 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.
The Regulations
§ 204.5 Petitions for employment-based immigrants.
(i) Outstanding professors and researchers.
(1) 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.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.
Permanent, in reference to a research position, means 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.
(3) Initial evidence. 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 material 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. 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:
(A) A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien’s academic field;
(B) A United States university or institution of higher learning offering the alien a permanent research position in the alien’s academic field; or
(C) 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.
December 22, 2010 PM-602-0005.1
December 22, 2010
Policy Memorandum
SUBJECT: Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual(AFM) Chapter 22.2, AFM Update AD11-14
Purpose
This Policy Memorandum (PM) provides guidance regarding the analysis that U.S. Citizenship and Immigration Service (USCIS) officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140, Immigrant Petition for Alien Worker, filed for:
Aliens of Extraordinary Ability under section 203(b)(1)(A) of the Immigration and Nationality Act (INA);
Outstanding Professors or Researchers under section 203(b)(1)(B) INA; and
Aliens of Exceptional Ability under section 203(b)(2) INA.
The purpose of this PM is to ensure that USCIS processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard.
In addition, this PM revises AFM Chapter 22.2 to clarify that USCIS will make successor-in-interest (SII) determinations in Form I-140 petitions supported by an approved labor certification application if the transfer of ownership took place anytime while such application for labor certification was still pending or after the labor certification was approved by the Department of Labor (DOL).1
Lastly, this PM revises AFM Chapter 22.2 to update the DOL e-mail address for USCIS officers to use when making duplicate labor certification application requests.
Scope
This PM rescinds and supersedes all previously published policy guidance2 issued by USCIS and the legacy Immigration and Naturalization Service (INS) specific to the evaluation of required initial evidence submitted in support of Form I-140 petitions under Title 8 Code of Federal Regulations (8 CFR) sections 204.5(h)(3) and (4), 204.5(i)(3)(i), and 204.5(k)(3)(ii). Unless specifically exempted herein, this PM applies to all USCIS officers adjudicating these petitions.
Authority
The Department of Homeland Security (DHS) has delegated to USCIS the authority to make determinations of eligibility in immigrant petitions filed under INA 203(b) and 8 CFR 204.5. See INA 103(a) generally.
Background
USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability.3 In order to qualify for admission in this classification, an alien must, among other things, demonstrate sustained national or international acclaim and that his or her achievements have been recognized in the alien’s field of expertise in accordance with INA 203(b)(1)(A). Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor.8 CFR 204.5(h)(2).
The regulation at 8 CFR 204.5(h)(3), published in the Federal Register at 56 Fed. Reg. 60897 (Nov. 29, 1991), provides that a petition for an alien of extraordinary ability must be accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise. Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).
The statutory provision for the Outstanding Professor or Researcher immigrant classification at INA 203(b)(1)(B) requires that the alien be recognized internationally as outstanding in a specific academic field. Outstanding Professors or Researchers should stand apart in the academic community through eminence and distinction based on international recognition.4 The regulation at 8 CFR 204.5(i)(3)(i) requires a petition for an outstanding professor or researcher to be accompanied by evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. This evidence must consist of at least two out of the six types of evidence listed in the regulation (e.g., major prizes, membership in associations).
The statutory provision for the Alien of Exceptional Ability immigrant classification at INA 203(b)(2)(A) requires that the alien will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States because of his or her exceptional ability in the sciences, arts, or business. The alien must also have a job offer from a U.S.
employer to provide services in the sciences, arts, professions, or business.5 The regulation at 8 CFR 204.5(k)(2) defines exceptional ability in the sciences, arts, or business as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The regulation at 8 CFR 204.5(k)(3)(ii) requires that a petition for this immigrant classification must be accompanied by documentation consisting of at least three out of six types of evidence listed in the regulation (e.g., academic record, professional license, membership in professional associations).
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the Administrative Appeals Office’s (AAO) dismissal of a petitioner’s appeal of a denial of a petition filed under 203(b)(1)(A) of the INA. Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010)th. Although affirming the decision, the Ninth Circuit found that the AAO erred in its evaluation of the initial evidence submitted with the petition pursuant to 8 CFR 204.5(h)(3). Specifically, the Ninth Circuit concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted, those concerns should have been raised in a subsequent “final merits determination” of whether the petitioner has the requisite extraordinary ability. Id. at 1122. The Ninth Circuit further stated that the concerns were “not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.” Id. at 1121.
USCIS agrees with the Kazarian court’s two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3); and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination. By contrast, the approach taken by USCIS officers in Kazarian collapsed these two parts and evaluated the evidence at the beginning stage of the adjudicative process, with each type of evidence being evaluated individually to determine whether the self-petitioner was extraordinary.
The two-part adjudicative approach to evaluating evidence described in Kazarian simplifies the adjudicative process by eliminating piecemeal consideration of extraordinary ability and shifting the analysis of overall extraordinary ability to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). Therefore, under this approach, an objective evaluation of the initial evidence listed at 8 CFR 204.5(h)(3) will continue as before; what changes is when the determination of extraordinary ability occurs in the adjudicative process. USCIS believes that this approach will lead to decisions that more clearly explain how evidence was considered, the basis for the overall determination of eligibility (or lack thereof), and greater consistency in decisions on petitions for aliens with extraordinary ability.
This approach is equally applicable to the evaluation of evidence in the adjudication of petitions for outstanding professors or researchers and aliens of exceptional ability. Similar evidentiary requirements and qualitative analyses apply to these types of petitions. Therefore, a similar adjudication process also should apply.
Policy
In order to promote consistency in decision-making, USCIS officers should use a two-part approach for evaluating evidence submitted in support of all petitions filed for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, and Aliens of Exceptional Ability. USCIS officers should first objectively evaluate each type of evidence submitted to determine if it meets the parameters applicable to that type of evidence described in the regulations (also referred to as “regulatory criteria”). USCIS officers then should consider all of the evidence in totality in making the final merits determination regarding the required high level of expertise for the immigrant classification.
Proof
USCIS officers are reminded that the standard of proof for most administrative immigration proceedings, including petitions filed for Aliens of Extraordinary Ability, for Outstanding Professors or Researchers, and for Aliens of Exceptional Ability is the “preponderance of the evidence” standard. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). Thus, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “more likely than not” or “probably true,” the petitioner has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989); see also U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place).
If a petitioner provides initial evidence (including but not limited to articles, publications, reference letters, expert testimony, support letters) that is probative (e.g., does not merely recite the regulations) and credible, USCIS officers should objectively evaluate such initial evidence under a preponderance of the evidence standard to determine whether or not it is acceptable. In other words, USCIS officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations, but instead should evaluate the evidence to determine if it falls within the parameters of the regulations applicable to that type of evidence by a preponderance of the evidence standard. USCIS officers should then evaluate the evidence together when considering the petition in its entirety to determine if the petitioner has established by a preponderance of the evidence that the self-petitioner or beneficiary has the required high level of expertise for the immigrant classification.
Implementation
Effective December 22, 2010, USCIS officers are to follow the amended procedures in this update of the AFM, AD11-14, in the adjudication of all Form I-140 petitions filed for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, and for Alien of Exceptional Ability pending as of that date, as follows:
F 1. Paragraph (1)(A) of Chapter 22.2(i) of the AFM is revised to read as follows:
(A) Evaluating Evidence Submitted in Support of a Petition for an Alien of Extraordinary Ability. 8 CFR 204.5(h)(3) and (4) describe the various types of evidence that must be submitted in support of an I-140 petition for an alien of extraordinary ability. In general, the petition must be accompanied by initial evidence that: (a) the alien has sustained national or international acclaim; and (b) the alien’s achievements have been recognized in the field of expertise. This initial evidence must include either evidence of a one-time achievement (i.e., a major international recognized award, such as the Nobel Prize), or at least three of the types of evidence listed in 8 CFR 204.5(h)(3).
USCIS officers should use a two-part analysis to evaluate the evidence submitted with the petition to demonstrate eligibility under 203(b)(1)(A) of the INA. First, USCIS officers should evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description applicable to that type of evidence (referred to as “regulatory criteria”). Second, USCIS officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.
Part One: Evaluate Whether the Evidence Provided Meets any of the Regulatory Criteria. The determination in Part One is limited to determining whether the evidence submitted with the petition is comprised of either a one-time achievement (that is, a major, internationally recognized award) or at least three of the ten regulatory criteria listed at 8 CFR 204.5(h)(3) (as discussed below), applying a preponderance of the evidence standard.
Note: While USCIS officers should consider the quality and caliber of the evidence when required by the regulations to determine whether a particular regulatory criterion has been met, USCIS officers should not make a determination regarding whether or not the alien is one of that small percentage who have risen to the very top of the field or if the alien has sustained national or international acclaim in Part One of the case analysis. See the table below for guidance on the limited determinations that should be made in Part One of the E11 analysis: PM-602-0005.1: Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2,AFM Update AD11-14 Page 6 Part One Analysis of Evidence Submitted Under 8 CFR 204.5(h)(3) and (4)
Note: In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(h)(3).
Regulation Limited Determination 8 CFR 204.5(h)(3)(i): Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 1. Determine if the alien was the recipient of prizes or awards. The description of this type of evidence in the regulation provides that the focus should be on the alien’s receipt of the awards or prizes, as opposed to his or her employer’s receipt of the awards or prizes. 2. Determine whether the alien has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to:
The criteria used to grant the awards or prizes;
The national or international significance of the awards or prizes in the field; and
The number of awardees or prize recipients as well as any limitations on competitors (an award limited to competitors from a single institution, for example, may have little national or international significance).
8 CFR 204.5(h)(3)(ii): Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their 1. Determine if the association for which the alien claims membership requires that members have outstanding achievements in the field as judged by recognized experts in that field. The petitioner must show that membership in the associations is based on the alien being judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. For example, admission to membership in the National Academy of Sciences as a Foreign Associate requires individuals to be nominated by an academy member, and membership is ultimately granted based upon recognition of the individual’s distinguished achievements in original research. See
1 See USCIS memorandum, Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5) (AD09-37), dated August 6, 2009. It is noted on page 7 of that memorandum that SII determinations could only be made in cases where the labor certification application had been approved prior to the transfer of ownership.
2 AFM sections that have not been updated by this memo shall remain in effect.
3 See House Report 101-723, 1990 U.S.C.C.A.N. 6710. (Sep. 19, 1990), 56 FR 60897 (Nov. 29, 1991).
4 See 56 Fed. Reg. 30703 (July 5, 1991).
5 No job offer is required for an alien of exceptional ability under INA 203(b)(2) if a waiver of the job offer in the national interest (NIW) is granted under INA 203(b)(2)(B).
