公司律所说我不是full-time researcher, 不给办EB1-b. 求问怎么怼回去# Immigration - 落地生根
w*o
1 楼
背景：
湾区硬件小厂（不允许自己申请EB1-b），做光学R&D. EE PhD, paper 14篇，citation
116, review 10, 专利若干，media report若干。
公司律所说我不是full-time researcher，不符合EB1-b outstanding researcher的判
定……感觉他们是真的觉得一定要做纯学术才能申请，不是在拖延我。他们甚至说帮我
申请EB1-a。。。老板倒是很支持我。但遇到搞不清状况的律所也是醉了。
下面是他们不知道从哪里搞来的对researcher的定义。大意就是说一定要是基础研究，
或者一定要有创新发明，而不能只是engineering。不然他们觉得EB1-b会申请不过……
求问有人遇到过这种情况吗？怎么怼回去……？
谢谢！
==========
For EB-1B outstanding researcher petitions, we need to show that the
individual will engage in a full time research position in the academic
field, so I do need an even more detailed job description with percentages
of time from your manager. Please note there is no regulatory definition of
“research” in the immigration regulations but it has been clarified that
research will not include engineering or product design because such
activity is deemed to be the technological application of existing research.
Also, to the extent this can be helpful, here are two definitions of “
research” (“basic research” and “applied research” – both can qualify
as “research” for our purposes) that appear elsewhere in the Immigration
Service’s regulations but may nonetheless be helpful:
• “Basic research is general research to gain more comprehensive
knowledge or understanding of the subject under study, without specific
applications in mind. Basic research is also research that advances
scientific knowledge, but does not have specific immediate commercial
objectives although it may be in fields of present or potential commercial
interest.
• “Applied research is research to gain knowledge or understanding
to determine the means by which a specific, recognized need may be met.
Applied research includes investigations oriented to discovering new
scientific knowledge that has specific commercial objectives with respect to
products, processes, or services.”
Non-precedent and non-binding case law regarding outstanding researchers
provides additional, albeit rough, guidance:
• To qualify as a research position, the beneficiary should be
charged with conducting “scholarly or advanced theoretical research” that
is comparable to that performed at universities. The position should entail
the development of new systems or new theoretical frameworks, rather than
the application of existing systems or frameworks to particular issues or
clients. The position should “involve[] innovation and invention and
transcend[] product design and software adaptation.” Citations omitted.
• Applying existing technology or designs to client specifications
does not constitute research. For example, “[a]n individual whose duties
consist entirely of product design through configuration of existing
technology, or preparation of specialized software using widely available
software packages is not engaging in research.” Likewise, an individual
who “adapt[s] existing software” to the specific needs of a given client
or who uses “existing knowledge to create new software that does not
represent any significant advance in computer programming” does not qualify
as researcher. Citations omitted.
Finally, anecdotally and based on experience, if the petitioning employer
maintains separate departments devoted to research and development, versus
engineering/client services, and there is some objective documentation that
shows this (e.g., shareholder report or similar), and that the beneficiary
will work in said research and development department, this can be helpful
all else being equal to convince the reviewing officer that the person’s
duties are in fact primarily research and not primarily engineering.
湾区硬件小厂（不允许自己申请EB1-b），做光学R&D. EE PhD, paper 14篇，citation
116, review 10, 专利若干，media report若干。
公司律所说我不是full-time researcher，不符合EB1-b outstanding researcher的判
定……感觉他们是真的觉得一定要做纯学术才能申请，不是在拖延我。他们甚至说帮我
申请EB1-a。。。老板倒是很支持我。但遇到搞不清状况的律所也是醉了。
下面是他们不知道从哪里搞来的对researcher的定义。大意就是说一定要是基础研究，
或者一定要有创新发明，而不能只是engineering。不然他们觉得EB1-b会申请不过……
求问有人遇到过这种情况吗？怎么怼回去……？
谢谢！
==========
For EB-1B outstanding researcher petitions, we need to show that the
individual will engage in a full time research position in the academic
field, so I do need an even more detailed job description with percentages
of time from your manager. Please note there is no regulatory definition of
“research” in the immigration regulations but it has been clarified that
research will not include engineering or product design because such
activity is deemed to be the technological application of existing research.
Also, to the extent this can be helpful, here are two definitions of “
research” (“basic research” and “applied research” – both can qualify
as “research” for our purposes) that appear elsewhere in the Immigration
Service’s regulations but may nonetheless be helpful:
• “Basic research is general research to gain more comprehensive
knowledge or understanding of the subject under study, without specific
applications in mind. Basic research is also research that advances
scientific knowledge, but does not have specific immediate commercial
objectives although it may be in fields of present or potential commercial
interest.
• “Applied research is research to gain knowledge or understanding
to determine the means by which a specific, recognized need may be met.
Applied research includes investigations oriented to discovering new
scientific knowledge that has specific commercial objectives with respect to
products, processes, or services.”
Non-precedent and non-binding case law regarding outstanding researchers
provides additional, albeit rough, guidance:
• To qualify as a research position, the beneficiary should be
charged with conducting “scholarly or advanced theoretical research” that
is comparable to that performed at universities. The position should entail
the development of new systems or new theoretical frameworks, rather than
the application of existing systems or frameworks to particular issues or
clients. The position should “involve[] innovation and invention and
transcend[] product design and software adaptation.” Citations omitted.
• Applying existing technology or designs to client specifications
does not constitute research. For example, “[a]n individual whose duties
consist entirely of product design through configuration of existing
technology, or preparation of specialized software using widely available
software packages is not engaging in research.” Likewise, an individual
who “adapt[s] existing software” to the specific needs of a given client
or who uses “existing knowledge to create new software that does not
represent any significant advance in computer programming” does not qualify
as researcher. Citations omitted.
Finally, anecdotally and based on experience, if the petitioning employer
maintains separate departments devoted to research and development, versus
engineering/client services, and there is some objective documentation that
shows this (e.g., shareholder report or similar), and that the beneficiary
will work in said research and development department, this can be helpful
all else being equal to convince the reviewing officer that the person’s
duties are in fact primarily research and not primarily engineering.
