dismissed EB-1B Case: Animal Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
"' * % 
;tr C I U. S. Citizenship 
Bf Ibji.r~.Jd CI i.a'L!f&+&x;$jri : + and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
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. 9 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 
originally decided your case. Any further inquiry must be made to that office. 
$'' Robert P. Wiernann, Director 
Administrative Appeals Office 
i/ 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and 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. 3 1 153(b)(l)(B). According to 
the petition, the petitioner seeks to employ the beneficiary permanently in the United States as a research 
associate. The director determined that the petitioner had not established that it had offered the beneficiary a 
permanent job as of the date of filing or that the beneficiary is recognized internationally as outstanding in his 
academic field, as required for classification as an outstanding researcher. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Pnority 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, 
(11) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
(ID) for a comparable position to conduct research in the area with a 
department, division, or institute of a private employer, if the 
department, division, or institute employs at least 3 persons full-time in 
research activities and has achieved documented accomplishments in an 
academic field. 
The regulation at 8 C.F.R. fj 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An offer 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 offering 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 offering the alien a 
permanent research position in the alien's academic field; or 
(C) A department, division, or institute of a private employer offering 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. 
The regulation at 8 C.F.R. $ 204.5(i)(2), provides, in pertinent part: 
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 submit a job offer. On March 18, 2004, the director requested evidence that the 
petitioner had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted an October 18, 2000 letter fro-ffering the beneficiary 
a "full-time appointment as a Research Associate 1-B/H." The letter indicates that the position "is a twelve -. 
month position." The letter continues that after the initial twelve months, "the position is renewable annually, 
conditional upon satisfactory performance as determined by an annual review and the availability of funds." 
,, ' 
In addition, the petitioner submitted letters addressed to the director from 
etitioner's position is a full-time regular permanent osition. One of the 
Chair of the beneficiary's departmentnotes that the position is for twelve months, not the 
nine months of the academic year. He further asserts that every full-time 
university "is renewed annually, including mine as a Full Professor with 
permanent positions are subject to evaluation for performance and the 
for permanent research staff positions.'' ~inall~a human resources specialist at the petitioning 
university, asserts that the beneficiary "has been employed in a regular, full-time position since November 1, 
2000. This position is considered permanent." 
The director concluded that the petitioner had not met the regulatory evidentiary requirement of submitting a 
letter offering the beneficiary a permanent research position in his academic field. 
beneficiary has been employed in a regula d permanent position since November 1, 2000 and that 
there are no fixed end dates to his position further asserts that the 
to determine the amount of salary to continued funding asserts that the 
petitioning university pays the beneficiary. ates: 
[The beneficiary's] position of Research Associate a B/H is a regular University title that may 
be used for an indefinite period of time, as opposed to "term" or "temporary" appointments that 
have a set end date. 
Page 4 
Please note that all regular University positions are technically year-to-year, at will 
appointments. However, as with any such position in the U.S., continued appointment occurs 
upon satisfactory performance and availability of funding. Aside from those universal 
employment considerations, the University and the individual fully expect the employment to 
continue indefinitely (i.e., "permanently"). 
The use of general words like "permanent" and "indefinite" are not determinative when contradicted by the 
specific terms of employment sometimes in the same letter. We concur with the director that the specific 
employment terms set forth offer letter represent a limited term of employment renewable at 
1.. 
the option of the petitioner. It IS ~ncumbent upon the petitioner to resolve any inconsistencies in the record 
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 
I&N Dec. 582, 591-92 (BIA 1988). The record does not resolve the inconsistencies between the 
characterizations of the beneficiary's job by er any the limited term of 
in the actual offer of employment, a elt renewable at the discretion of 
letter confirms the temporary nature of the employment. ~~ecificallyl 
will."' "Employment at will" is defined as "Employment that is usu. 
may be terminated at any time, by either the employer or the 
employee, without cause." Black's Law Dictionary 545 (7th ed. 2001). 
In light of the above we concur with the director that the record lacks a qualifying job offer from the 
petitioner to the beneficiary. The lack of a permanent job offer is a sufficient basis for denial in and of itself. 
We will also, however, consider the director's other basis for denial below. 
The regulation at 8 C.F.R. 8 204.5(i)(3) states that a petition for an outstanding professor or researcher must be 
accompanied by: 
1 
The petitioner's website, "Letters of Offer for Unclassified Staff' provides: 
Language in letters of offer may create a contract. Because of this, letters should 
not include the following: 
1. References to permanent employment, termination for just cause, 
probationary periods, specific expectations of performance, or salary 
increases. A copy of the position description can be provided to the 
employee after acceptance of the position. 
2. Specific causes for termination or dismissal. 
The prohibition against using the word "permanent" and references to termination for just cause supports our 
determination based on the record that regular positions are not permanent, subject to termination only for 
just cause. 
That characterization is consistent with the information available on the petitioner's own website. 
Specifically, rule 4.20(1) of the petitioner's Appointments Policy provides: "Regular, unclassified 
appointments are at will." 
(ii) Evidence that the alien has at least three years of experience in teaching andor research in 
the academic field. Experience in teaching or research while worlung on an advanced degree 
will only be acceptable if the alien has acquired the degree, and if the teaching duties were such 
that he or she had full responsibility for the class taught or if the research conducted toward the 
degree has been recognized withn the academic field as outstanding. Evidence of teaching 
andor research experience shall be in the form of letter(s) from former or current employer(s) 
and shall include the name, address, and title of the writer, and a specific description of the 
duties performed by the alien. 
This petition was filed on September 24, 2003 to classify the beneficiary as an outstanding researcher in the 
field of animal science. Therefore, the petitioner must establish that the beneficiary had at least three years of 
research experience in the field of animal science as of that date, and that the beneficiary's work has been 
recognized internationally withtn the field of animal science as outstanding. 
The regulation at 8 C.F.R. 8 204.5(i)(3)(i) states that a petition for an outstanding professor or researcher must 
be accompanied by "[e]vidence 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 intemational 
recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of 
intemational recognition. The petitioner claims that the beneficiary has satisfied the following ~ritena.~ 
Published material in professional publicatiorzs 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 
Initially, counsel asserted that Section D of the initial submission included "[d]ocumentation of [the 
beneficiary's] published material in professional publications written by others about [the beneficiary's] work in 
the field of Molecular and Microbiology in Animal Science." Section D, however, is entitled "Letters of 
recommendation submitted in verification of the Beneficiary's outstanding research in [sic] highly significant 
contributions to the fields of Molecular and Microbiology in Animal Science." Recommendation letters are not 
published materials. None of the other exhibits address this criterion. In response to the director's request for 
additional evidence, counsel no longer asserts that the beneficiary meets this criterion. 
The director concluded that the record lacked evidence relating to this criterion. On appeal, counsel does not 
address this criterion, but the petitioner submits five articles that cite the beneficiary's work, only three of which 
were published prior to the date of filing. Articles which cite the beneficiary's work are primarily about the 
author's own work, not the beneficiary. As such, they cannot be considered published material about the 
beneficiary. In light of the above, we concur with the director that the petitioner has not established that the 
beneficiary meets this criterion. 
Evidence of the alien's original scientzfic or scholarly research contributions to the academicfield. 
3 
The petitioner did not claim or submit evidence relating to criteria not discussed in this decision. 
Page 6 
Throughout the proceedings, the petitioner has submitted reference letters in behalf of the beneficiary. All but 
two of these letters are from the beneficiary's collaborators and immediate circle of colleagues. The petitioner 
also submitted evidence of four published articles as of the date of filing and seven published abstracts in 
conference proceedings. The director concluded that the beneficiary's single first-authored article was sufficient 
to meet this criterion. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects, and 
demonstrating that the beneficiary's work was "orignal" in that it did not merely duplicate prior research. 
Research work that is unorignal 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 contnbutions have won comparable recognition. To argue that all orignal research is, by 
definition, "outstanding" is to weaken that adjective beyond any useful meaning, and to presume that most 
research is "unorignal." 
university and chose the beneficia as the only individual to accompan him. The move disrupted the 
beneficiary's work, but ffirrns that it will soon be published.ai1s to explain the 
significance of this work. At the petitioning university, the beneficiary "was instrumental in helping mew 
Morrison] set up the laborato from essentially nothing, an achievement in itself." While this assistance was 
clearly beneficial the record does not establish its importance to the field as a whole. 
ruminant animal products (meat and milk), decreasing the impact of excreted nitrogen on the environment." 
The predictions of future benefit are reiterated in other letters a collaborator at The Rowett 
Research Institute, asserts that the beneficiary's work "will industry" and that 
the beneficiary's key paper "should ultimately provide us with the tools required to accurately measure the 
contribution of protozoa to nitrogen flow at the duodenum and thus optimize the nutrition of both dairy and beef 
animals." 
sserts that the beneficiary has produced reliable methods and anticipates "a long and valuable 
scientific career ahead" for the beneficiary, concluding that he is an "excellent early career scientist, with a 
growing reputation for the quality of his research and technical development of methodology among his peers." 
These qualifications of the beneficiary's status in the field are not persuasive evidence that the beneficiary 
already enjoyed international recognition as of the date of filing. 
senior research associate at the petitioning university, asserts that the beneficiary "is the 
and sequencing to examine the protozoan diversity in rumen." Any research must be 
shown to be ori inal and present some benefit if it is to receive funding and attention from the scientific 
community. blso states that the beneficiary's molecular ecology tools "should advance our 
fundamental understanding of ruminal protozoal ecology. This knowledge would explain how protozoa 
affect ruminant nutrition and, when coupled with quantitative approaches like real-time PCR, should allow 
for a more accurate prediction of the microbial protein flow to the duodenum of high producing dairy cows." 
These statements are highly speculative. While the letters submitted on appeal reference additional work in 
this area that will soon be published, this work does not relate to the beneficiary's eligbility as of the date of 
filing. See 8 C.F.R. fj 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Comrn. 1971). We are unable to 
gauge the impact of work that has yet to be subject to peer review and dissemination in the field for 
application and citation. 
The remaining letters from collaborators and fellow researchers formerly at the University of Nebraska and 
the petitioning university provide similar information. The record contains two independent references that 
we will now consider. 
bf the College of Veterinary Medicine at Kansas State University notes the "highly 
ciary's area of work and his training in both veterinary science and animal 
eiterates that the beneficiary is the first researcher to utilize certain methods, 
s work "will ultimately lead to increased productivity of dairy or beef cattle." 
Once again, speculation as to the ultimate impact of the beneficiary's work is not persuasive. 
Finally, on appeal, the beneficiary submits a letter from at the National 
Institute for Agricultural Research in 
work wit otes the 
beneficiary's work and concludes "innovative young scientists like him can improve Animal Production 
without adverse effects on the environment." 
The record shows that the petitioner is respected by his colleagues and has made useful contributions in his 
field of endeavor. It can be argued, however, that most research, in order to receive funding, must present 
some benefit to the general pool of scientific knowledge. As stated above, it does not follow that every 
researcher producing "original" work has produced original contributions indicative of or uniquely consistent 
with international recognition. 
In light of the above, we withdraw the director's finding that a single first-author article is sufficient evidence to 
meet this criterion without evidence of that article's impact in the field. The letters, all but two of which are 
from the beneficiary's immediate circle of colleagues (current and former) are not indicative of or consistent 
with international recognition. The two independent letters are not persuasive that the beneficiary's 
contributions are more notable than the progressive increase in knowledge typical in the sciences. Thus, we find 
that the petitioner has not established that the beneficiary meets this criterion. Even if we were to uphold the 
director's contrary finding, the beneficiary would meet only one criterion. A beneficiary must meet two in order 
to be eligible for the classification sought. 
Evidence of the alien :F authorship of scholarly hooks or articles (in scholarly journals with international 
circulation) in the acudemic$eId. 
The petitioner submitted evidence that the beneficiary had authored four published articles and had presented 
his work at seven conferences, resulting in seven published abstracts. The Association of American 
Universities' Committee on Postdoctoral Education, on page 5 of its Report and Recomrne~zdations, March 3 1, 
1998, set forth its recommended definition of a postdoctoral appointment. Among the factors included in this 
definition are the acknowledgement that "the appointment is viewed as preparatory for a full-time academic 
andlor 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. 
Initially, the petitioner submitted "copies of email and [a] letter verifying international requests for reprint of 
beneficiary's publication." This evidence consists of a single e-mail request from abroad and a single postcard 
request addressed to "Dear Colleague" from the University of Washington. 
In response to the director's request for additional evidence, the petitioner submitted a fifth published article and 
a journal ranlung indicating that the beneficiary's work has been published in high-ranking journals. The 
director concluded that the beneficiary's publication record was minimal compared with his references and that 
the record lacked citation evidence demonstrating the significance of the beneficiary's work. 
On appeal, the petitioner submits five articles that cite the beneficiary's articles, abstracts and articles submitted 
for publication. Only three of the articles citing the beneficiary's work were published prior to the date of filing. 
Two of those are self-citations by the beneficiary's coauthor. 
We will not presume the impact of an article from the journal in which it appears. Rather, we look for evidence 
of the article's actual impact. A single independent citation as of the date of filing is not indicative of 
international recognition. 
The two additional post-filing citations are also not significant. Regardless, a petitioner must establish 
eligbility as of the date of filing. See 8 C.F.R. 3 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. As 
such, we will not consider the post-filing citations or the beneficiary's articles and abstracts published or 
submitted for publication after the date of filing. 
In light of the above, we concur with the director's conclusion that the beneficiary's publication record is not 
indicative of or uniquely consistent with international recognition. 
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the respect of 
his collaborators, employers, and mentors, while securing some degree of international exposure for his 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
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Page 9 
ORDER: The appeal is dismissed.