What Counts as a Permanent Job Offer for an EB-1B Petition?

More EB-1B petitions fail on the job offer than on the researcher. The regulation requires a permanent position, and USCIS reads that word strictly: a position that is tenured, tenure-track, or of indefinite duration with an expectation of continued employment. Whether a job offer is permanent for an EB-1B petition is a question about the offer letter, the funding structure and the employer’s own description of the role, and it can usually be answered before anyone spends a dollar on the petition. Our outstanding professor and researcher green card page lists the three qualifying position types; this post explains how each one is tested.

The three qualifying positions

Under 8 CFR 204.5(i)(3)(iii), the offer must be one of:

• A tenured or tenure-track teaching position at a university or institution of higher education.
• A comparable position at a university or institution of higher education to conduct research.
• A comparable position to conduct research at a department, division or institute of a private employer, if the department employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.

The word comparable in the second and third options points back to the first: the research position must be permanent in the way a tenured or tenure-track position is permanent. The regulation’s definition, at 8 CFR 204.5(i)(2), says a permanent position is one that is tenured, tenure-track, 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.

What makes a job offer permanent for an EB-1B petition

Tenure and tenure-track

These qualify by definition. The offer letter should state the title, the tenure status or tenure clock, and the department. An assistant professor on a tenure track qualifies even though tenure itself has not been granted.

Research scientist and staff scientist positions

These are the common case for research universities, university-managed laboratories and medical schools. They qualify when the appointment has no end date and the institution’s policies treat the position as continuing. The offer letter should say the position is of indefinite duration, describe the expectation of continued employment, and avoid any language tying the appointment to a project period. A letter that says the position is renewable annually invites an RFE.

Grant-funded positions

Grant funding is not disqualifying. Many permanent research positions at universities are funded by external grants, and USCIS policy treats funding source and position duration as different questions. What matters is whether the position itself is indefinite and whether the institution expects to continue employing the researcher when one grant ends and another begins. The offer letter and a letter from the department should address this directly, and evidence that the institution has historically retained researchers across funding cycles helps.

Postdoctoral appointments

These usually fail. A postdoctoral fellowship has a defined term and a training purpose, and the institution’s own policies typically cap how long someone may hold it. Postdoctoral years count toward the three years of experience, but the petition needs an offer of a different, continuing position. A researcher who is currently a postdoc should ask the department whether a research scientist appointment is available; often it is the same work with a different title and a different letter.

Fixed-term and visiting positions

Visiting professor, adjunct, lecturer on a one-year contract and project-based research roles with end dates do not qualify, even if renewal is likely.

The private employer test

Companies can sponsor EB-1B petitions, but two extra elements apply. The department, division or institute that will employ the researcher must have at least three persons working full time in research activities, documented through organizational charts, job descriptions and payroll or HR records. And it must have achieved documented accomplishments in an academic field, shown through peer-reviewed publications, patents, conference presentations or similar output from the group. A corporate research lab with a publication record qualifies readily; a product team that does applied development and never publishes may not, even if the researcher’s own record is excellent. The position must still be permanent in the regulatory sense, which for private employers usually means an at-will, indefinite research role described as continuing.

Drafting the offer letter

The offer letter is evidence, and it should be written with the regulation in view. It should state the title, start date and department; describe the duties as research or teaching in the academic area; state that the position is permanent, tenured, tenure-track or of indefinite duration with an expectation of continued employment; state the salary; and for private employers, identify the research unit. Avoid words like temporary, fellowship, term, project period or contingent on funding unless they are explained. If the institution’s standard letter template uses language that creates a problem, a supplemental letter from the department chair or HR can clarify the position’s status.

The employer must also show its ability to pay the offered wage from the priority date, under 8 CFR 204.5(g)(2), through annual reports, federal tax returns or audited financial statements; an employer with 100 or more employees may instead submit a statement from a financial officer. For institutions new to sponsorship, our post on how to sponsor an employee for a green card and our business and employment immigration page cover the employer’s side generally.

If the offer does not qualify

A researcher without a permanent offer is not out of options. The EB-1A and the EB-2 National Interest Waiver require no job offer at all, and many researchers file one of those while waiting for a continuing appointment. Researchers on H-1B status through a university have time within the six-year limit to wait for the position to mature, and an approved I-140 in any category can extend that limit. For the full set of requirements beyond the job offer, see our post on who qualifies for the EB-1B, and for the filing sequence once the offer is in hand, our step-by-step EB-1B process.

If your institution is preparing an EB-1B and you are unsure whether the position qualifies as permanent, Capitol Law Partners can review the offer letter before anything is filed. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our EB-1B outstanding researcher page or schedule a consultation.