The "Good Cause for Termination" and the Requirement of “Permanent Employment” For EB1-OR Petitions

The “good cause for termination” clause has been an important issue when adjudicating EB1-OR 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 with any or no cause at all. This clause was included to prevent this from happening and making sure employment was only terminated if there was a good cause for it. http://www.greencardapply.com/news/news12/news12_0825.htm

Some employers have not been including a “good cause for termination” clause in the employment offers, as it raises legal and business issues for them and may be impractical for them. Some adjudicators of EB1-OR petitions for researchers have determined the outcome of the petition simply on the basis if the employment offer included this clause. 

According to the USCIS’ memo, EB1-OR petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause. However, it must be indicated 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 petitioners because 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 EB1-OR if the “good cause for termination clause” does not have to be present. Applying through the EB1-OR petition may allow employees begin working sooner than applying through a different process, such as 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 lack of one. The adjudicators of the petition should evaluate the petition by determining the nature of the position – if it is tenured or tenure track position. Those positions in which the employee does not have expectation of long-term employment, such as temporary or adjunct positions and limited duration fellowships will not be considered tenured or tenured-track positions by the USCIS.

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