EB1B Employer Requirements

EB1B outstanding professor or researcher classification requires a qualifying U.S. employer. Unlike EB1A and the National Interest Waiver, the beneficiary cannot self-petition for EB1B.

The employer files Form I-140 and must establish both the beneficiary’s qualifications and the employer-side requirements of the classification.

For the general classification, review EB1B outstanding professor or researcher.

Who Can Sponsor an EB1B Petition?

Depending on the offered position, the petitioner may be:

• a U.S. university;
• an institution of higher education; or
• a qualifying department, division or institute of a private employer.

Universities and Institutions of Higher Education

A U.S. university or institution of higher education may sponsor:

• a professor for a tenured teaching position;
• a professor for a tenure-track teaching position; or
• a researcher for a permanent research position in the academic field.

Private Employers

Private employers can sponsor outstanding researchers, but additional statutory and regulatory requirements apply.

The qualifying department, division or institute must generally employ at least three persons full time in research activities and must have achieved documented accomplishments in an academic field.

Review the private-employer requirements.

The Employer Files Form I-140

The employer is the petitioner and the professor or researcher is the beneficiary.

The petition must be filed by the qualifying U.S. employer rather than by the beneficiary personally.

Offer of Employment

The EB1B petition must include an offer of employment from the prospective U.S. employer.

The offer should identify:

• the employer;
• the beneficiary;
• the position;
• the academic field;
• the principal duties; and
• the nature of the qualifying employment.

Teaching Positions

For a professor sponsored by a university or institution of higher education, the position ordinarily must be tenured or tenure track.

A visiting, adjunct or other temporary teaching appointment should be evaluated carefully rather than assumed to qualify.

Research Positions

A university or qualifying private employer may sponsor a researcher for a permanent research position.

For immigration purposes, permanent research employment generally means an indefinite or unlimited appointment with an ordinary expectation of continued employment unless there is good cause for termination.

Review the EB1B permanent research position requirement.

Does EB1B Require PERM?

No. A Department of Labor permanent labor certification is not required for EB1B outstanding professor or researcher classification.

The employer files the I-140 directly with USCIS.

Employer Requirements Do Not Replace Beneficiary Requirements

A qualifying employer and job offer do not establish that the professor or researcher is internationally recognized as outstanding.

The petition must separately establish:

• international recognition as outstanding;
• the required evidentiary criteria;
• at least three years of qualifying teaching or research experience; and
• the qualifying job offer.

Three Years of Experience

The employer should provide or submit evidence establishing the beneficiary’s qualifying teaching or research experience.

Review the three-year experience requirement.

Ability to Pay the Offered Wage

Employment-based I-140 petitioners may need to establish their continuing ability to pay the offered wage under the applicable I-140 regulations.

Depending on the employer and evidence, relevant documentation may include federal tax returns, annual reports, audited financial statements, payroll records or other evidence permitted by USCIS rules.

Large established employers may have different practical documentation issues from small private research companies.

University Documentation

Useful university-side evidence may include:

• an appointment or offer letter;
• evidence identifying the university or institution;
• documentation of tenure-track status where applicable;
• human resources documentation;
• evidence concerning the permanent nature of a research position; and
• other institutional records relevant to the offered employment.

Private Employer Documentation

Private research petitioners often need additional evidence concerning:

• the organizational structure;
• the relevant department, division or institute;
• full-time research employees;
• the unit’s academic accomplishments;
• the permanent research position; and
• the employer’s ability to pay.

Can a Startup Sponsor EB1B?

There is no general rule barring a startup or smaller private company from filing an EB1B petition.

However, the company must actually satisfy the private-employer requirements. A very small company without three full-time researchers in the relevant unit may have difficulty meeting the statutory structure.

Can a Nonprofit Research Organization Sponsor?

The classification depends on whether the petitioner fits within the qualifying employer structure and whether all employer and position requirements are satisfied. The legal form of the organization alone does not establish eligibility.

Can the Employer Be Changed After Filing?

Changing employers can create important immigration consequences because EB1B is an employer-sponsored classification tied to the petitioning employer and offered position.

The impact depends on the stage of the immigration process and the particular facts. Employer changes should therefore be evaluated carefully.

Employer Letter Quality Matters

A vague letter can create avoidable questions.

The petition should clearly explain why the position qualifies rather than providing only a job title and salary.

Common Employer-Side Problems

• filing through an entity that does not satisfy the private-employer rules;
• failing to document the permanent nature of the research position;
• using a temporary faculty appointment for the professor route;
• failing to submit an adequate employment offer;
• failing to address ability to pay where required;
• failing to document the private research unit’s accomplishments; and
• assuming the beneficiary’s strong CV cures an employer-side defect.

Primary Legal Sources

• USCIS Policy Manual, Outstanding Professors and Researchers
• 8 C.F.R. § 204.5

Evaluate the Sponsor Before Filing

An EB1B case can fail even when the beneficiary has an excellent research record if the petitioner or offered position does not meet the employer-side requirements.

Contact The Messersmith Law Firm to request an EB1B evaluation.

This page provides general immigration information and is not legal advice.