In order to qualify to apply for EB-1 as an Outstanding Professor, first, your position must be as a professor in a tenured or tenure-track position. The title of the position does not necessarily indicate whether it is tenured or tenure track or just temporary. For example, at Cornell University, Assistant Professor positions are generally not tenure track and are considered temporary. At the University of Washington, Associate Professor positions are tenure-track, while some Assistant Professor positions are tenure-track and others are not. Each college and university has its own policies regarding job titles and requirements for tenure track and tenured positions, so you need to read the individual college’s policy in detail. Some temporary positions may convert to tenure-track in the future. You are not eligible to apply as an Outstanding Professor if your position will convert to tenure-track at some point in the future. At the time of filing the I-140, your position must already be tenure-track. For example, if at the time of filing an EB-1 I-140, Professor Thinksalot is not in a tenure-track position, even if later on, while the EB-1 is still pending, her position becomes tenure-track, her EB-1 will be denied.

It has become more difficult to qualify for a tenure-track or tenured position. See, for example, The Chronicle of Higher Education, “How to be Strategic on the Tenure Track”,

Aside from whether or not you will qualify for EB-1, there are other immigration considerations in deciding whether to take a non-tenure track position with a nonprofit or public college or university. One extremely important consideration is that you will be eligible for a change of status to H-1B at any time of the year, without have to worry about not getting an H-1B visa number, as there are no restrictions on visa numbers for professional positions with a nonprofit or public university or college. If you were unable to get an H-1B visa number applying through a private firm, then this may be a great option to stay in the US and further your career.  Thus, while the salary may be quite a bit lower in academia than working for a private company, the security of definitely receiving an H-1B visa number and being able to remain in the US legally may outweigh any loss in salary.

Additionally, while you will not qualify as an EB-1 Outstanding Professor if the position is not tenure track, you may still qualify for a green card through a PERM labor certification special handling application as a professor, if you do classroom teaching, or possibly for a national interest waiver.

Of course, there are more considerations than simply immigration is deciding whether to take a position as a non-tenure track professor. Here is a nice article on tenure versus temporary or contract positions in academia, overview of different employment policies colleges and universities may have, and your considerations (outside of immigration) in deciding whether to take a contract position initially.

The other option, the EB-1 Outstanding Researcher, requires an offer of permanent employment, which may be tenured or tenure-track, but is not required to be, as long as it is permanent. However, USCIS has clarified that even though many researchers have employment contracts valid for only one year, because the position depends upon funding from grants received yearly, it still may be considered a permanent position for the purposes of an EB-1 Outstanding Researcher. The university or college would have to show it intends to continue to seek funding and that it is reasonable to expect funding to continue, in order to prove that the Researcher position is permanent.

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