(2) E12 Outstanding Professors and Researchers - Section 203(b)(1)(C) of the INA.
(A) Evaluating Evidence Submitted in Support of a Petition for an Outstanding Professor or Researcher. 8 CFR 204.5(i) describes the evidence which must be submitted in support of an I-140 petition for an outstanding professor or researcher. The same general guidelines discussed in the preceding section relating to the adjudication of a petition for an alien of extraordinary ability apply to the adjudication of a petition for an outstanding professor or researcher. However, unlike the requirement for the E11, alien of extraordinary ability petition, that the alien must have garnered sustained national or international acclaim in the field of endeavor, the evidence that must be provided in support of E12, outstanding professor or researcher petitions must demonstrate that the alien is recognized internationally as outstanding in the academic field specified in the petition. See 8 CFR 204.5(i)(3)(i). In addition the petition must be accompanied by an offer of permanent, tenured, or tenure-track employment (in the case of research positions, the offer must be for a "permanent" research position) from a qualifying prospective employer and evidence that the alien has had at least three years of experience in teaching or research in the "academic field" in which the alien will be engaged. 8 CFR 204.5(i)(3)(ii) and (iii). The definitions for "permanent" and "academic field" can be found in 8 CFR 204.5(i)(2).
(B) Employment Offer. Although a labor certification is not required for the E12 classification, 8 CFR 204.5(j)(3)(iii) requires that the petitioner provide an offer of employment as initial evidence in support of a first preference petition filed on behalf of an outstanding professor or researcher. The offer of employment may be in the form of a letter from the petitioning employer (i.e., U.S. university or institution of higher learning or a department, division, or institute of a private employer) stating that the employment is a tenured or tenure-track teaching position or a “permanent” research position in the alien’s academic field. See 8 C.F.R. § 204.5(i)(3)(iii)(A)-(C).
The word “Permanent”, in reference to a research position, 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.”
8 C.F.R. § 204.5(i)(2).
Note: Many research positions may be permanent, but not be tenure-track. As noted below, such a position may still qualify for E12 classification.
(C) “Permanent” for Research Positions. Adjudicators should not deny a petition where the employer is seeking an outstanding researcher solely because the actual employment contract or offer of employment does not contain a “good cause for termination” clause. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment. For example, many research positions are funded by grant money received on a yearly basis. Researchers, therefore, are employed pursuant to employment contracts that are valid in one year increments. If the petitioning employer demonstrates, however, the intent to continue to seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research projects) such employment can be considered “permanent” within the meaning of 8 CFR 204.5(i)(2). Adjudicators should also consider the circumstances surrounding the job offer as well as the benefits attached to the position. A position that appears to be limited to a specific term, such as in the example above, can meet the regulatory test if the position normally continues beyond the term (i.e., if the funding grants are normally renewed).
(D) Tenure or Tenure-Track Positions. The determination as to whether a position qualifies as a tenured or a tenure-track position is not linked to the regulatory requirement that the position be “permanent” as defined in 8 C.F.R. 204.5(i)(2). 8 C.F.R. 204.5(i)(2) applies only to “research positions.” Adjudicators do not need to evaluate whether the employment contract for a tenured or tenure-track position has a “good cause for termination” clause, and should not deny a petition seeking an outstanding professor for a tenured or tenure-track position on that basis alone. Adjudicators, however, should continue to evaluate whether the overall nature of the position is tenured or tenure-track. Note, USCIS will not equate tenured or tenured-track positions with those that are temporary, adjunct, limited duration fellowships or similar positions, where the employee has no reasonable expectation of long-term employment with the university.
