EB-1, EB-2 & EB-3 Green Card Options for Professors & Researchers (Ⅱ)
A recent review of modern business practices reveals that most employment agreements for professors and researchers provide that a tenure-track teaching position or comparable research position is terminable "at will," even though both the employer and the employee have the expectation that the employee will continue in the employment for an indefinite or unlimited duration. "Good cause for termination" clauses often are not included in such agreements because they raise numerous legal and business issues for employers. In determining whether a petitioning employer has established that a research position is permanent, some USCIS adjudicators have focused solely on whether the language of an actual employment contract (if submitted) or the offer of employment contains a "good cause for termination" provision. 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.
Outstanding Researchers and Professors require an offer of employment as initial evidence in support of a first preference petition filed on their behalf. 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. 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."
For EB-1B researchers and professors, an offer of permanent employment is met when there is intent for ongoing employment. Does an individual whose employment is renewed annually meet the requirement for an offer of permanent employment based upon the mutual expectation the offered employment will be extended on an ongoing basis?
No. In the case of researchers the petitioner must establish that a job is permanent. The regulations require that a petitioner submit evidence that the position is tenured, tenure-tracked or for a term of indefinite or unlimited duration and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination. The mere fact that the petitioner claims that the job may be renewed annually is not sufficient to establish the permanent nature of the job.
Source:Visapro