dismissed EB-1B Case: Academic Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: 
 LIN 04 192 5 1659 ' 
 Office: NEBRASKA SERVICE CENTER 
 Date: JuL 2 5 2008 
IN RE: . Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b)(l)(B) 
ON BEHALF OF PETITIONER. 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
cided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
LIN 04 192 51659 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner is a university. It seeks to classify the beneficiary as an outstanding researcher pursuant 
to section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1 153(b)(l)(B). 
The petitioner seeks to employ the beneficiary in the United States as a "Sr. Research 
Associate/Research Assistant Professor." The director determined that the petitioner had not 
established that it had offered the beneficiary a permanent job as of the date of filing. 
On appeal, counsel asserts that the petitioner does not have to guarantee continued employment and 
that the position offered is comparable to tenure-track. For the reasons discussed below, we find that 
the petitioner has not submitted the initial required evidence, the job offer that predates the filing of the 
petition. Beyond the director's decision, we fUrther find that the petitioner has not established that the 
beneficiary is recognized internationally as outstanding in her academic field, as required for 
classification as an outstanding researcher. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this 
subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific 
academic area, 
(ii) the alien has at least 3 years of experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enter the United States -- 
(I) 
 for a tenured position (or tenure-track position) within a 
university or institution of higher education to teach in the 
academic area, 
(II) 
for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(III) for a comparable position to conduct research in the area 
with a department, division, or institute of a private employer, if 
LIN 04 192 51659 
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the department, division, or institute employs at least 3 persons 
full-time in research activities and has achieved documented 
accomplishments in an academic field. 
Job Offer 
The regulation at 8 C.F.R. $204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An ofer of employment from a prospective United States employer. 
 A labor 
certification is not required for this classification. The offer of employment shall be in 
the form of a letter from: 
(A) A United States university or institution of higher learning ofering the alien 
a tenured or tenure-track teaching position in the alien's academic field; 
(B) A United States university or institution of higher learning offeving the alien 
a permanent research position in the alien's academic field; or 
(C) A department, division, or institute of a private employer ofering the alien a 
permanent research position in the alien's academic field. The department, 
division, or institute must demonstrate that it employs at least three persons full- 
time in research positions, and that it has achieved documented 
accomplishments in an academic field. 
(Emphasis added.) Black's Law Dictionary 11 11 (7th ed. 1999) defines "offer" as "the act or an 
instance of presenting something for acceptance" or "a display of willingness to enter into a contract 
on specified terms, made in a way that would lead a reasonable person to understand that an 
acceptance, having been sought, will result in a binding contract." Black's Law Dictionary does not 
define "offeror" or "offeree." The online law dictionary by Mean Lawyer Media (ALM), available at 
www.law.com, defines offer as "a specific proposal to enter into an agreement with another. An offer 
is essential to the formation of an enforceable contract. An offer and acceptance of the offer creates 
the contract." Significantly, the same dictionary defines offeree as "a person or entity to whom an 
ofer to enter into a contract is made by another (the offeror)," and offeror as "a person or entity who 
makes a specific proposal to another (the ofleree) to enter into a contract." (Emphasis added.) 
In light of the above, we concur with the director that the ordinary meaning of an "offer" requires that it 
be made to the offeree, not a third party. As such, regulatory language requiring that the offer be made 
"to the beneficiary" would simply be redundant. Thus, a letter addressed to Citizenship and 
Immigration Services (CIS) aflming the beneficiary's employment is not a job ofler within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. $ 204.5(i)(2), provides, in pertinent part: 
LIN 04 192 51659 
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Permanent, in reference to a research position, means either 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. 
On Part 6 of the petition, the petitioner indicated that the proposed employment was a permanent 
position. The petitioner did not initially address the issue of a job offer. On July 13,2005, the director 
requested evidence that the petitioner had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted an August 3, 2005 letter addressed to the beneficiary offering to 
"extend" her appointment as a senior research associate. The letter indicates that the position is 
b'unclassified"and that a senior research associate "serves at the will of the appointing authority." 
Finally, the letter indicates that 90 days notice is required for termination unless termination is for 
cause. The petitioner also submitted Internet materials from its own website indicating that all faculty 
appointments are unclassified. 
The director noted that senior research associates serve at the will of the appointing authority and 
concluded that such positions do not enjoy an expectation of continued employment without good 
cause for termination. The director Mer noted that the letter submitted is an "extension," suggesting 
3 that the initial job offer was only for a limited term. 
On appeal, counsel focuses on the funding for the beneficiary's position. The petitioner submits 
materials about its 
 materials reflect that the petitioner assigns "permanent base 
budget 
 Vice President, Human Resources, explains that 
permanent base 
 for over one year and 
who have an expectation of continued employment. 
 the beneficiary's 
position is a base budget position and that 
 [a expectation of 
continued 'permanent' employment. "" 
Evidence of the petitioner's intent must be evaluated in the context of the actual job offer extended 
prior to the date of filing. See 8 C.F.R. 103.2@)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. 
Comm. 1971). The job extension offer is dated after the date of filing. Thus, the petitioner has not 
established that the beneficiary's position was a base budget position at that time. Moreover, the 
petitioner has not established that the initial primary evidence required, the job offer itself, is 
unavailable or does not exist. As such, the petitioner cannot rely on secondary evidence of the terms of 
the job offer. 8 C.F.R. § 103.2(b)(2). In light of the above, we must uphold the director's decision that 
the petitioner has not established that it had offered the beneficiary a permanent job as of the date of 
filing the petition. 
International Recopnition 
LIN 04 192 51659 
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An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). 
The regulation at 8 C.F.R. 5 204.5(i)(3)(i) states that a petition for an outstanding professor or 
researcher must be accompanied by "[elvidenee that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the petition." The regulation lists six 
criteria, of which the petitioner must satisfy at least two. It is important to note here that the controlling 
purpose of the regulation is to establish international recognition, and any evidence submitted to meet 
these criteria must therefore be to some extent indicative of international recognition. More 
specifically, outstanding professors and researchers should stand apart in the academic community 
through eminence and distinction based on international recognition. The regulation at issue provides 
criteria to be used in evaluating whether a professor or researcher is deemed outstanding. 56 Fed. 
Reg. 30703,30705 (July 5, 1991). The petitioner claims to have satisfied the following criteria. 
Documentation of the alien 's receipt of major prizes or awards for outstanding achievement in 
the academic field. 
While the petitioner has not claimed that the beneficiary meets this criterion, some of the beneficiary's 
references discuss her Core Research for Evolutional Science and Technology (CREST) fellowship in 
1997 sponsored by the Japan Science and Technology Corporation. The petitioner did not submit a 
certificate or other confirmation &om the Japan Science and Technology Corporation confirming the 
fellowship and its significance. 
The record does not establish that the fellowship was anythmg other than a competitive job offer. A job 
offer, even a competitive one, is not an award or prize. Thus, the petitioner has not established that the 
beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members. 
The petitioner has never asserted that the beneficiary meets this criterion. It is acknowledged that the 
beneficiary lists four memberships on her cuniculum vitae, but the record contains no evidence of these 
memberships or the membership criteria for the associations. Thus, the petitioner has not established 
that the beneficiary meets this criterion. 
Published material in professional publications written by others about the alien's work in the 
academic field. Such material shall include the title, date, and author of the material, and any 
necessary translation. 
LIN 04 192 51659 
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As evidence to meet this criterion, the petitioner submits six articles that cite the beneficiary's work, 
two of which are articles by coauthors of the beneficiary. In general, articles which cite the 
beneficiary's work are primarily about the author's own work, not the beneficiary's work. The citations 
submitted do not appear to deviate from this general rule; the articles by the beneficiary are cited along 
with numerous other articles, mostly as one example of results obtained using similar techniques and 
not even as the foundation of the author's work. As such, they cannot be considered published material 
about the beneficiary's work. 
Evidence of the alien j. participation, either individually or on a panel, as the judge of the work 
of others in the same or an allied academicjield. 
The record reflects that the beneficiary has refereed articles for Crystallography Reports and the New 
Journal of Chemistry. We cannot ignore that scientific journals are peer reviewed and rely on many 
scientists to review submitted articles. Thus, peer review is routine in the field; not every peer 
reviewer enjoys international recognition. Without evidence that sets the beneficiary apart from 
others in her field, such as evidence that she has reviewed an unusually large number of articles, 
received independent requests fiom a substantial number of journals, or served in an editorial 
position for a distinguished journal, we cannot conclude that the beneficiary meets this criterion. 
Evidence of the alien's original scientiJic or scholarly research contributions to the academic 
field. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects, 
and demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior 
research. Research work that is unoriginal would be unlikely to secure the beneficiary a master's 
degree, let alone classification as an outstanding researcher. Because the goal of the regulatory criteria 
is to demonstrate that the beneficiary has won international recognition as an outstanding researcher, it 
stands to reason that the beneficiary's research contributions have won comparable recognition. To 
argue that all original resmh is, by definition, "outstanding" is to weaken that adjective beyond any 
usehl meaning, and to presume that most research is 'bnoriginal." 
The beneficiary received her Ph.D. in Physical Chemistry from the Karpov Institute of Physical 
Chemistry in Moscow. She has worked at the Institute of Crystallography in Moscow, the Ecole 
Centrale Paris and the Nagoya Institute of Technology in Japan and now works for the petitioner. The 
vetitioner relies on reference letters to meet this criterion. Most of the letters are &om the beneficiary's 
immediate circle of 
member of the benefi 
Institute of Crystallography in Moscow, provide similar statements. 
LIN 04 192 51659 
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We do not presume that colleagues, esteemed professionals in their field, are biased. The statutory 
standard, however, is that the alien is recognized internationally as outstanding. We do not understand 
this standard as requiring merely that the alien has colleagues in more than one country, as would be 
typical of many alien researchers. Rather, we understand this standard as requiring international 
recognition beyond the alien's immediate circle of colleagues. ~hrle evidence other than letters from 
independent sources, including but not limited to international media coverage or evidence that the 
alien is widely and frequently cited, could establish international recognition, letters from colleagues by 
themselves, without additional evidence of wider recognition, are insugcient. 
Moreover, the opinions of experts in the field, while not without weight, cannot form the cornerstone 
of a successful claim of international recognition. Citizenship and Immigration Services (CIS) may, 
in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of 
Caron International, 19 I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible 
for making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795-796. CIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; See also Matter ofSofJici, 22 I&N ITec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Crap of California, 14 I&N Dec. 190 (Reg. 
Cornrn. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of international 
recognition or outstanding ability and vague claims of contributions are less persuasive than letters 
that specifically identify contributions and provide specific examples of how those contributions 
have influenced the field. In addition, letters from independent references who were previously 
aware of the petitioner through her reputation and who have applied her work are far more 
persuasive than letters from independent references who were not previously aware of the petitioner 
and are merely responding to a solicitation to review the petitioner's curriculum vitae and work and 
provide an opinion based solely on this review. Ultimately, evidence in existence prior to the 
preparation of the petition carries greater weight than new materials prepared especially for 
submission with the petition. An individual with international recognition should be able to produce 
unsolicited materials reflecting that acclaim. 
discusses the beneficiary's work as it relates to understanding breast cancer and 
ecifically, the beneficiary has applied "low temperature X-ray difiaction methods in 
examining the sub-molecular electronic details of estrogenic molec 
understand fundamental steps in the initiation of breast cancer." Whil 
has presented this work at leading meetihgs and publish 
does not explain how this work has already impacted the field, such as leading to new 
dm 
directions in treating breast cancer. 
 research associate professor at the petitioning 
university, speculates that the ben 
 s the "possibility of intelligently designing 
better drugs for breast cancer treatment based on solid physical evidence." The record lacks letters 
LEN 04 192 51659 
Page 8 
from high-level officials (or anyone else) at a pharmaceutical company ex ressin an interest in 
applying the beneficiary's work. While the petitioner did submit a letter hm 
% 
Abrm'ov, a 
former classmate of t4e beneficiary's' currently working as a senior research sclen IS or Pfizer, he 
does not assert that Pfizer has expressed any interest in applying the beneficiary's work. 
Regarding explosives, the beneficiary is "currently evaluating this problem fiom the energy density 
- - 
diskibution in such molecules using a cutting edge extension of her pervious crystallographic studies." 
while asserts that the Office of Naval Research, which bds this work, considers it to be 
"of major strategic importance," the record lacks letters from a high-level oflicial (or anyone else) at the 
Office of Naval Research explaining how the beneficiary's work has already impacted the military. 
Professor 
 explains that the beneficiary has 
 ise in newly developed two- 
measuring electron density distrib 
 multi ole refinement and then 
analyzing tlie data with a method "proposed by Prof. 
 ssor bassert s that the 
beneficiary has contributed to EDD measurements 
 tion and speculates that the 
beneficiary's contribution "is expected to be 
 eater to characterize the nano-materials fi-om atomic and 
electronic point of view." Finally, Professo hserts that the beneficiary is unique in applying 
her techniques to organic compounds. 
ae beneficiary's supervisor and coauthor in Russia, asserts that the beneficiary 
- approach which relates the electron energy density with properties of organic 
compomds.' 
 characterizes these results as "highly important for the development of the 
understanding the nature of the intmolecular interaction in biological 
- - 
systems and [the] search for new energetic materials." 
Professor 
 the University of Buffalo is the only independent reference; he met the 
beneficiary a a co erence. We asserts that her contributions include "the derivation of physical 
properties important for the interactions between molecules in solid materials and in biological 
macromolecules such as proteins, and the analysis of the electronic structure of estrogen hormones, 
which are important in cancer prevention." He does not, however, assert that he has applied the 
beneficiary's work in his own work or explain how the beneficiary's work has already impacted the 
field. 
The petitioner's field, like most science, is research-driven, and there would be little point in 
publishing research that did not add to the general pool of knowledge in the field. To be considered 
a contribution indicative of international recognition in the field of science, it can be expected that 
the results would have already been reproduced and confirmed by other experts and applied in their 
work. Otherwise, it is difficult to gauge the impact of the beneficiary's work. 
does not acknowledge any previous connection with the beneficiary, his curriculum 
vitae ' re 
 btained his Ph.D. at the Karpov Institute of Physical Chemistry in Moscow one year 
after the beneficiary graduated from this institute with the same degree. 
LIN 04 192 51659 
Page 9 
beneficiary's, assert that the 
fers to citations in a "citation 
index," the petitioner did not submit the index itself, the primary evidence of citations. The petitioner 
has not established that the citation index is unavailable or does not exist. As such, we need not accept 
secondary evidence of the beneficiary's citations. 8 C.F.R. $ 103.2(b)(2). Moreover, without the 
citation index, we cannot determine the number of citations for an individual article and how many of 
the citations are self-citations by the beneficiary or a coauthor. Assuming 62 citations for a total of 24 
articles as claimed, the beneficiary averages less than three citations per article.* 
Regardless, the petitioner only provided six citations, two of which are self-citations by coauthors. This 
citation record is not indicative of original contributions that have garnered international recognition. 
Several references assert that the beneficiary has been an invited speaker at important conferences. The 
petitioner did not submit the invitation letters. As such we cannot determine whether the beneficiary 
was personally solicited to prepare a presentation based on her own recognition in the field, as opposed 
to the recognition of her collaborators, or merely collaborated with a solicited speaker or had a 
submitted manuscript accepted for presentation. 
While the beneficiary's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive fbnding and attention from the 
scientific community. Any research, in order to be accepted for graduation, publication or fknding, 
must offer new and useful information to the pool of knowledge. The record does not establish that 
the beneficiary's work, producing original results with techniques proposed by others, has garnered 
international recognition. Thus, the petitioner has not established that the beneficiary meets this 
criterion. 
Evidence of the alien's authorship of scholarly booh or articles (in scholarly journals with 
international circulation) in the academicBeld. 
While several references attest to the beneficiary's authorship of 24 published articles, the petitioner 
submitted evidence that the beneficiary has authored 14 published articles and one abstract. The 
Association of American Universities'Comrnittee on Postdoctoral Education, on page 5 of its Report 
and Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral 
appointment. Among the factors included in this definition are the acknowledgement that "the 
This office reviewed the beneficiary's citation record as available at www.scholar.google.com. This review 
revealed no more than eight citations for any one of the beneficiary's articles and seven of those citations 
were self-citations by the beneficiary or coauthors. The most independent citations for any one article was 
five. While Google Scholar is not comprehensive, it is the petitioner's burden to establish the beneficiary's 
eligibility. We note this information not as derogatory evidence in this matter, but in support of our 
contention that 62 citations in the aggregate, some of which may be self-citations or duplicates of a single 
article citing multiple articles by the beneficiary, are not indicative that any individual article has been widely 
and frequently cited by independent research groups. 
LIN 04 192 51659 
Page 10 
appointment is viewed as preparatory for a full-time academic andtor research career," and that "the 
appointee has the freedom, and is expected, to publish the results of his or her research or scholarship 
during the period of the appointment." Thus, this national organization considers publication of one's 
work to be "expected," even among researchers who have not yet begun "a full-time academic and/or 
research career." This report reinforces our position that publication of scholarly articles is not 
automatically evidence of international recognition; we must consider the research community's 
reaction to those articles. 
As discussed in more detail above, the beneficiary's references attest to a total of 62 citations for 24 
articles. Moderate citation could bolster the petitioner's claim that the beneficiary meets this criterion. 
The record, however, does not support this number of citations. The petitioner only provided six 
citations, two of which are self-citations by coauthors. Self-citation, while normal and expected, cannot 
establish recognition beyond one's collaborators. The citation record as submitted is not indicative of 
international recognition. 
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the 
respect of her collaborators, employers, and mentors, while securing some degree of international 
exposure for her work. The record, however, stops short of elevating the beneficiary to an international 
reputation as an outstanding researcher or professor. Therefore, the petitioner has not established that 
the beneficiary is qualified for the benefit sought. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. The burden of proof in these proceedings rests solely with the petitioner. 
Section 291 of the Act, 8 U.S.C. g 1361. The petitioner has not sustained that burden. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed.