Could Einstein Get a Green Card? Proposed DHS Changes Signal New Opportunities for American Colleges and Universities

by Obermayer Rebmann Maxwell & Hippel LLP
Contact

The U.S. Department of Homeland Security (DHS) is proposing to expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to include a “comparable evidence provision.” The “comparable evidence provision” is significant, especially in more current or less established fields of endeavor, such as internet design or extreme sports, where more conventional kinds of evidence may not be available. For example, a twenty-something Swedish web designer who is well-known among the tech community could have considerable difficulty meeting the current out-of-date evidentiary requirements, such as finding a major trade journal in his field. The “comparable evidence provision” builds flexibility into the regulations so that such stars can benefit and contribute to the U.S. economy as immigrants. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

The Immigration Act of 1990 (IMMACT90), among other things, reorganized immigrant classifications and created new employment-based immigrant classifications intended to cultivate a more competitive economy by encouraging increased immigration of skilled workers to meet our nation’s economic needs. These IMMACT90 provisions were enacted to address the need of American businesses for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which qualified U.S. workers could not be found. The need for high-skilled workers was based on an increasing skills gap in current and projected U.S. labor pools.

In order to attract the best and the brightest workers to the United States, our immigration system has established employment-based immigrant visa categories, meaning that qualified individuals may become permanent residents (green card holders) of the United States based upon their job skills, as opposed to requiring, for example, relatives to sponsor them.  In the first preference category (EB-1) are “Aliens with Extraordinary Ability,”  “Outstanding Professors and Researchers,” and Certain Multinational Executives and Managers.” EB-1 immigrants are so highly prized and sought after that Congress has waived the requirement that they first receive what is known as a “labor certification” from the Department of Labor. A labor certification is a process by which a prospective employer demonstrates that it has tried and failed to find a minimally qualified U.S. worker for a proposed position. The Department of Labor then certifies this to the U.S. Citizenship and Immigration Service and the employer is then free to hire the prospective foreign worker. The labor certification process, known as Programmed Electronic Records Management or PERM, is long and tedious, and can act as a deterrent for many employers to look overseas for much needed skilled workers. For EB-1 immigrants, the PERM process is waived, so the process by which they can get a green card and contribute their talent is much faster.

On May 12, 2014, a significant change was proposed by the Department of Homeland Security for EB-1 “Outstanding Professors and Researchers.” For these individuals the process for obtaining an immigrant visa has been further simplified. The current regulations state that a petitioner must submit 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:

  • Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
  • Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
  • 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;
  • 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;
  • Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
  • Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

8 CFR 204.5(i)(3).

These six categories contain no “comparable evidence provision” so that no matter how outstanding a scholar may be, if she does not have evidence of two or more of the above, then the path to a green card will stop at a red light. Such rigidity in the regulations governing the visa process for outstanding researchers or professors, if in place in the 1930s, may have precluded Albert Einstein from immigrating to the United States.

In the regulations implementing IMMACT90, the legacy INS recognized the importance of providing petitioners with some flexibility in the documentation that could be submitted to establish a beneficiary’s eligibility. The regulations therefore included a “comparable evidence provision” for EB-1 aliens of extraordinary ability and the employment-based second preference (EB-2) aliens of exceptional ability. This provision is a simple clause stating that “if the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.”

For example, to be classified as an alien of extraordinary ability the beneficiary must submit evidence of either a one-time major, international award (i.e., Nobel Prize) or submit evidence of three out of ten other kinds of evidence (i.e., receipt of lesser awards, published material about the alien in a major trade publication). With the “comparable evidence provision” an alien of extraordinary ability who may not have evidence that fits squarely within the ten enumerated types of evidence listed in the provisions may provide “comparable evidence” and still qualify for this classification.

However, under current regulations, the “comparable evidence provision” does not exist for outstanding researchers and professors. The initial evidentiary requirements are stated in the regulations and must be adhered to. Stakeholders in the educational and research arena have long expressed concern that current regulations—that do not allow petitioners to submit comparable evidence that the beneficiary is recognized internationally as an outstanding professor or researcher (as is allowed for aliens of extraordinary ability)—are out-of-date. In response to the request to harmonize the regulations and make them more consistent within the EB-1 category, DHS has agreed that amending 8 CFR 204.5(i)(3) to include a comparable evidence option is appropriate in order to attract eligible professors and researchers to emigrate to the United States. Under the new rule a petitioner may submit “comparable evidence” that demonstrates that the professor or researcher is internationally recognized as outstanding, if the categories of evidence listed in the current regulation do not readily apply. Examples might include important patents and prestigious peer reviewed funding or grants, which do not fit neatly into the enumerated list of initial evidence currently required.

It is anticipated that by introducing the “comparable evidence provision” into the outstanding researcher or professor category, U.S. colleges and universities will be able to attract more foreign scholars, especially in those areas where traditional or conventional methods of evaluation may be less in evidence. The example above of the Swedish web designer is apt: the field of internet technology is rapidly growing and scholars in this field may well prize and recognize one another’s contributions in ways not captured by current regulations. And yet, it is precisely in the field of internet technology that the U.S. stands to dramatically benefit economically. The proposed DHS rule changes are a welcome indictor that the U.S. continues to prize the contributions of foreign scholars, like Albert Einstein, who see the United States as a place that encourages intellectual inquiry.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

Written by:

Obermayer Rebmann Maxwell & Hippel LLP
Contact
more
less

Obermayer Rebmann Maxwell & Hippel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.