The EB-1B category was created for “Outstanding Professors and Researchers” in order to speed up the process for outstanding professors and researchers to become permanent residents of the United States. One of the requirements for EB-1B is that the alien beneficiary receives a permanent job offer from the sponsoring employer that is filing the petition.  The USCIS has released a memo clarifying the definition of “permanent employment” when considering EB- 1B petitions.  According to the current definition, “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.”

A major concern for many has been research positions that are based on grant money received yearly.  This usually means that the researchers are employed on one-year contracts.  The USCIS says that if the employer petitioning for the alien shows the intention to continue to receive funding and gives a reasonable expectation that funding will continue, then the employment may be considered “permanent.”  The USCIS has asked adjudicators to take into consideration the circumstance of the job and its benefits.  If a research position has a term limit of one year, but evidence is provided that the job will be continued beyond that one year, then it can be considered permanent employment.

This is good news for our clients who employ and wish to sponsor researchers or clients who are researchers and wish to be the beneficiary of an employer-sponsored EB-1B petition.  In the past, researchers may have been reluctant to file an EB-1B petition, since their research positions were technically not permanent, but were instead determined by funding on a yearly basis.  Now, instead of having to file through another process such as a National Interest Waiver (NIW), employers wishing to employ researchers may be able to file through EB-1B, which in some cases has a shorter waiting time than the NIW with regards to visa availability.  This means that the employee can start working for his or her employer sooner.

The “good cause for termination” clause has been an important issue when adjudicating EB-1B 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 for any or no reason at all.  This clause was included to prevent this from happening and to make sure employment was only terminated if there was good cause.

Recently, employers have not been including a “good cause for termination” clause in employment offers, as it raises legal and business issues and may be impractical for them. Some adjudicators of EB-1B petitions for researchers have determined the outcome of the petition simply on the basis of whether the employment offer included this clause.  According to a recent memo from the USCIS, EB-1B petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause.  However, it must indicate that the employment offer is indefinite or unlimited in duration, and that the employee will have an “expectation of continued employment.”

This may be beneficial to many of our clients.  Now, petitions will not automatically be denied because this clause is missing, as long as the employment offer has an “expectation of continued employment.” Also, employers may be more willing to apply through EB-1B if the “good cause for termination clause” does not have to be present. Applying through the EB-1B petition may allow employees to begin working sooner than if applying through a different process, such as an NIW.

Furthermore, for tenured or tenure-track positions, a “good cause for termination” clause is not mandatory, and petitions should not be denied on the basis of the lack of this clause.  The adjudicators of the petition should evaluate the petition by determining the nature of the position – if it is a tenured or tenure track position.  Those positions in which the employee does not have an expectation of long-term employment, such as temporary or adjunct positions and limited duration fellowships, will not be considered tenured or tenure-track positions by the USCIS.