The EB-1(b) petition is an immigration category for researchers or professors who are internationally recognized as outstanding in a particular scientific or scholarly field. EB-1(b) petitions are based on job offers, generally, the job is offered by a university or other similar academic or scientific institution, but it can also be offered by a private employer.
Compared to NIW, another employment-based immigration category widely used by researchers, EB-1(b) has a big advantage when visa availability is concerned. EB-1(b) is in the first-preference category, while NIW is in the second-preference category; as such, immigrant visa numbers are available for all EB-1(b) applicants, whereas there are long visa backlogs for NIW applicants born in India or Mainland China in the recent visa bulletin. Unfortunately, many aliens are unnecessarily frightened away from this option by the “permanent job offer” requirement.
Definition of a “Permanent” Job Offer
EB-1(b) requires that the alien beneficiary receives a permanent job offer from the sponsoring employer. USCIS has released a memo clarifying the definition of “permanent employment” when adjudicating EB-1(b) petitions. According to current definitions, “permanent” is defined as “either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”
For Professors
Based on this definition, a position of tenured or tenure-track professor is generally considered a permanent job. However, not all teaching positions in a university with the title of “professor” are automatically considered permanent jobs. For example, a one-year “visiting professor” or fellowship position is not considered a permanent job. Also, some community colleges do not have tenure systems, so professorship in these colleges is not automatically considered a permanent job, either.
For Researchers
There is more confusion about the definition of “permanent” job for researchers. Many research positions are based on grant money that is received yearly. USCIS says that if the employer petitioning for the alien shows the intention to continue to get funding and gives a reasonable expectation that funding will continue, then the employment may be considered “permanent.” If a research position has a duration limit, but evidence is provided that the job will be continued beyond that duration, then it can be considered a permanent job.
For example, Dr. Lee is now working as a postdoctoral research associate in a bioinformatics lab in an established university. This lab has been receiving million-dollar grants each year for the past several years, and past research projects in this lab have generated significant scientific findings. The employer can reasonably expect that it will receive more funding to support Dr. Lee’s employment. Thus, Dr. Lee’s job can be considered “permanent.”
The “Good Cause for Termination” Clause
The “good cause for termination” clause has been an important issue when adjudicating EB-1(b) petitions. This clause is to be included in employment offers to ensure that the job is not “at will” employment. “At will” employment means that the employer can terminate an employee at any time with any cause or no cause at all. The “good cause for termination” clause is included to prevent this from happening and ensure employment will only be terminated if there is a good cause for it.

However, employers have often not been including a “good cause for termination” clause in their employment offers, as it raises legal and business issues and may be impractical for them. Fortunately, the recent memo from USCIS states that EB-1(b) petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause; however, the offer of employment must indicate that it is indefinite or unlimited in duration, and that the employee will have an “expectation of continued employment.”

This may be beneficial to many potentially qualified aliens. According to this memo, petitions will not automatically be denied because the “good cause for termination” clause is missing, as long as the employment offer has an “expectation of continued employment.” Also, employers may be more willing to file EB-1(b) petitions on behalf of their employees, or potential employees, if the “good cause for termination clause” does not have to be present.
Who Can Make the Job Offer
It is important for potential EB-1(b) applicants to know who can officially make the job offer for their EB-1(b) petitions. For applicants who work for private companies, an HR manager, vice president, or director is usually sufficient.
This issue can be more complicated for applicants who work for universities. USCIS requires that the person who makes the job offer represents the university or institute as a whole. Therefore, professors or supervisors without official titles of this nature do not have the authority to make job offers for EB-1(b) petitions. In this case, a college dean or equivalent leader should be suitable.
Is EB-1(b) Right for You?
If the requirement of a “permanent” job offer is not a concern, EB- (b) might be a good immigration category for many aliens. However, since each individual alien’s situation is unique, we still suggest you consult an experienced attorney if you are considering filing an EB-(b) application.

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In an EB-1 petition, the attorney must successfully convince the immigration officer that the alien possesses outstanding credentials. Zhang & Associates has a collaborative team of experienced attorneys dedicated to providing high-quality client services. In the past 12 years, we have successfully helped numerous clients obtain green cards in the EB-1(a) and EB-1(b) categories.

Please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation to see if EB-1 is a good choice for you.

Zhang & Associates, PC.
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