dismissed EB-1B Case: Biological Sciences

(b)(6)
Date: NOV 0 4 2014 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U,S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
c;r:c-ZJ~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the 
appeal. 
The petitioner is a higher education and research institution. It seeks to classify the beneficiary as an 
outstanding researcher pursuant to section 203(b)(l)(B) of the hnmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(B). According to information in Part 6, "Basic Information About the 
Proposed Employment," of the Form I-140, Immigrant 
Petition for Alien Worker, the petitioner seeks 
to employ the beneficiary in the United States as a Research Associate of Biological Sciences. The 
director determined that the petitioner had not established that the beneficiary had attained the 
outstanding level of achievement required for classification as an outstanding researcher. In addition, 
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, the petitioner submits a brief and an AAO non-precedent decision for an instrumental 
musician seeking a different visa classification. The petitioner has furnished no evidence to establish 
that the facts of the instant petition are analogous to those in the unpublished decision. Although 
AAO precedent decisions are binding on all U.S. Citizenship and Immigration Services (USCIS) 
employees in the administration of the Act, unpublished decisions are not similarly binding. See 
8 C.F.R. § 103.3(c). 
In addition, the petitioner correctly points out that the standard of proof in this matter is "preponderance 
of the evidence." The "preponderance of the evidence" standard, however, does not relieve the 
petitioner from satisfying the basic evidentiary requirements required by the statute and regulations. 
Therefore, if the statute and regulations require specific evidence, the petitioner is required to submit 
that evidence. In most administrative immigration proceedings, the petitioner must prove by a 
preponderance of the evidence that he or she is eligible for the benefit sought. Matter ofChawathe, 25 
I&N Dec. 369 (AAO 2010). The truth is to be determined not by the quantity of evidence alone but 
by its quality. /d. at 376. In the present matter, the documentation submitted fails to demonstrate by a 
preponderance of the evidence that the beneficiary is recognized internationally as outstanding in her 
academic area. 
For the reasons discussed below, we uphold the director's determination that the petitioner has not 
established the beneficiary's eligibility for the classification sought. 
Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying 
evidence under two of the regulatory criteria as required, judging the work of others and scholarly 
articles pursuant to 8 C.F.R. § 204.5(i)(3)(i)(D) and (F). As explained in our final merits determination, 
however, much of the evidence that technically qualifies under these criteria reflects accomplishments 
in the field that do not, as of the date of filing, set the beneficiary apart in the academic community 
through eminence and distinction based on international recognition, the purpose of the regulatory 
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Page 3 
criteria.1 Employment-Based Immigrants, 56 Fed. Reg. 30703, .30705 (proposed July 5, 1991) 
(enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). 
I. Law 
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 m 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 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. § 204.5(i)(3) states that a petition for an outstanding professor or researcher 
must be accompanied by: 
(ii) Evidence that the alien has at least three years of experience in teaching and/or 
research in the academic field. Experience in teaching or research while working on an 
advanced degree will only be acceptable if the alien has acquired the degree, and if the 
1 
The legal authority for this analyzing the burden of production and persuasion separately will be discussed 
below. 
(b)(6)
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NON-PRECEDENT DECISION 
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 within the academic field 
as outstanding. Evidence of teaching and/or research experience shall be in the form of 
letter(s) from current or former employer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien. 
The Form 1-140 petition was filed on August 5, 2013 to classify the beneficiary as an outstanding 
researcher "in the field of biology/zoology as related to genetics, immunology and virology." 
Therefore, the petitioner must establish that the beneficiary had 
at least three years of research 
experience in the field as of that date, and that the beneficiary's work has been recognized 
internationally within the field as outstanding. The beneficiary received her Ph.D. in Zoology from the 
in India in December 2008. 
The regulation at 8 C.P.R. § 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 the 
following six criteria, of which the beneficiary must submit evidence qualifying under at least two: 
(A) Documentation of the alien's receipt of major prizes or awards for outstanding 
achievement in the academic field; 
(B) Documentation of the alien's membership in associations in the academic field 
which require outstanding achievements of their members; 
(C) 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; 
(D) Evidence of the alien's participation, either individually or on a panel, as the judge 
of the work of others in the same or an allied academic field; 
(E) Evidence of the alien's original scientific or scholarly research contributions to the 
academic field; or 
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly 
journals with international circulation) in the academic field. 
The submission of evidence relating to at least two criteria does not, in and of itself, establish 
eligibility for this classification. See Matter of Chawathe, 25 I&N Dec. at 376 (holding that the 
"truth is to be determined not by the quantity of evidence alone but by its quality" and that USCIS 
examines "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true."); see also Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010) (discussing a two-part 
review where the evidence is first counted and then, if satisfying the required number of criteria, 
considered in the context of a final merits determination). See generally Dir., Office of Workers' 
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Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267, 272-80 (1994) (explaining 
that the term "burden of proof' includes a burden of persuasion). 
II. Analysis 
A. Evidentiary Criteria 4 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement in 
the academic field 
The petitioner initially indicated that it was including exhibits relating to this criterion. In response 
to the director's request for evidence, the petitioner asserted that "the [beneficiary's] department was 
awarded an travel grant of $2,500, a grant from the L 
, and a grant from _ _ ." The director determined that the petitioner did 
not establish the beneficiary's eligibility for this regulatory criterion, noting that the research grants 
fund future research rather than recognize past excellence and that travel grants are typically limited 
to those beginning their careers. The petitioner does not contest these conclusions on appeal. The 
record supports the director's determination. 
The petitioner submitted a June 13, 2013 letter from 
Research, Office of Research and Sponsored Programs, 
,-;;;;:====-=-~ 
Assistant Vice President for 
, stating: 
This is to verify that [the beneficiary] is key personnel on an [sic] 
entitled: . -
7/1/2011 to 6/30/14. She is also [a] co-investigator on a Grant from the 
funded on 10/30/12. 
The petitioner submitted copies of the "Application for Federal Assistance," Form SF-424, that 
submitted to the for research projects entitled ' 
and" 
The application submitted to Nlli for 
anti-HIV gene therapy" lists Dr. !\ssociate Professor of Biological Sciences, WSU, 
Dr. Associate Professor, as a "Co-
principal Investigator" and mentor to the beneficiary; and the beneficiary as a "Post doctoral fellow." In 
addition, the application submitted to for ' 
i lists Dr. as "Project Director/Principal Investigator" and the 
beneficiary as a "Postdoctoral fellow." With regard to the grant from the , the petitioner did not 
submit documentation from the identifying the beneficiary among the personnel named on that 
grant. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. 
Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
4 
On appeal, the petitioner does not claim that the beneficiary meets any of the regulatory categories of 
evidence not discussed in this decision and the record contains no evidence that relates to those criteria. 
(b)(6)
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Page 6 
Regarding the two research grants for which and Dr. applied and received 
funding, as the director stated, research grants are intended to fund scientists' work.5 The petitioner 
does not assert otherwise on appeal or submit evidence demonstrating that either issued 
their research grants in recognition of the beneficiary's outstanding achievement. 
The petitioner submitted an October 26, 2009 e-mail Dr. Editor-in-Chief of 
purportedly to unlisted recipients stating: "A committee of senior scientists 
appointed to evaluate the best papars [sic] published in during 2008-2009 has 
declare [sic] the following results." The e-mail then lists three papers published in the journal, one of 
which the beneficiary coauthored with two others. In addition to the "papars" misspelling and the 
grammatical error, the aforementioned e-mail does not include a "To:" heading identifying the specific 
recipients of the message. The preceding deficiencies in the e-mail diminish its probative value. 
Regardless, there is no supporting documentary evidence showing that the 
best paper honor is a major prize or award for outstanding achievement in the academic field. 
The petitioner submitted a December 3, 2013 letter from Administrative Coordinator, 
stating that the beneficiary received a $500 postdoctoral fellow travel grant to attend the 
. _ In addition, Ms. states: "For 
the 2012 meeting, 143 postdoctoral fellow applications were submitted and a total of 86 travel grants 
were funded." Thus, more than half of the postdoctoral fellows who applied for travel funding received 
the grant. The petitioner also submitted a December 23, 2013 letter from Dr. 
Professor and Chair, Department of Biological Sciences, stating: "Only investigators at the post­
doctoral (Ph.D.) or fellowship (M.D.) level and interested in studying virology are eligible to apply." 
These letters are consistent with the director's conclusion that travel grants are limited to those early in 
their career. There is no supporting documentary evidence showing that the preceding travel 
grant, limited to postdoctoral fellows and physicians in the advanced training phase of their career, is a 
major prize or award for outstanding achievement in the academic field. 
The petitioner submitted the Fall 2012 issue of Research News, a newsletter of the Office of 
Research and Sponsored Programs. Pages 7-22 of the newsletter list numerous faculty and staff 
who received grants and contracts "from September 2011 through March 2012." Page 17 identifies the 
Dr. the beneficiary, and two others who shared an in the amount of 
$2,500. There is no documentary evidence demonstrating that the beneficiary's travel grant 
was recognized beyond the presenting 
organization and her employer at a level commensurate with a 
major prize or award for outstanding achievement in the academic field. 
It is significant that the proposed regulation relating to this classification would have required evidence 
of a major international award. The final rule removed the requirement that the award be 
5 A substantial amount of scientific research is funded by research grants from a variety of public and private 
sources. The past achievements of the principal investigator are a factor in grant proposals. The funding 
institution has to be assured that the investigator and her team are capable of performing the proposed 
research. Nevertheless, a research grant is principally designed to fund future scientific research, and is not a 
major prize or award for outstanding achievement in the academic field. 
(b)(6)
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"international," but left the word "major." The commentary states: "The word 'international' has been 
removed in order to accommodate the possibility that an alien might be recognized internationally as 
outstanding for having received a major award that is not international." 56 Fed. Reg. 60897-01, 60899 
(Nov. 29, 1991.) Thus, the standard for this criterion is very high. The rule recognizes only the 
"possibility" that a major award that is not international would qualify. Significantly, even lesser 
international awards cannot serve to meet this criterion given the continued use of the word "major" in 
the final rule. Compare 8 C.F.R. § 204.5(h)(3)(i) (allowing for "lesser" nationally or internationally 
recognized awards for a separate classification than the one sought in this matter). 
In light of the above, the petitioner has not submitted evidence demonstrating that the beneficiary has 
received any awards rising to the level of a major award as explained in the Federal Register 
commentary to the regulation at 8 C.F.R. § 204.5(i)(3)(i)(A). 56 Fed. Reg. at 60899. Accordingly, the 
petitioner has not established that the beneficiary meets this regulatory criterion. 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members 
The director determined that the petitioner did not establish the beneficiary's eligibility for this 
regulatory criterion, concluding that the record lacks evidence that the bylaws and membership 
requirements for the associations of which the beneficiary is a member are consistent with 
associations that require outstanding achievements of their members. The petitioner does not contest 
this conclusion on appeal and the record supports the director's conclusion. 
The petitioner submitted a June 6, 2013 letter from SecretaLv- reasurer. 
stating: "[The beneficiary] is a current Associate member of the 
, having paid membership dues for the term of 1 January through 31 December 2013." n 
addition, the petitioner submitted a copy of the "Bylaws of the 
Article II, Section 1 of the bylaws states: 
Membership is open to qualified investigators residing in the Americas, or elsewhere, who 
have published original investigations in virology and who are actively involved in virology 
research. To be qualified for regular (full) membership an individual should be at least three 
years past his/her professional degree (Ph.D., M.D., D.V.M., or equivalent). Associate 
membership shall be awarded to individuals in training positions in virology (graduate 
students, postdoctoral fellows, or equivalent) actively engaged in virology research. 
With regard to the beneficiary's "Associate" membership status in the holding a "training" 
position in virology and engaging in virology research do not constitute "outstanding achievements." 
The petitioner also submitted a letter from Dr. President of the Ohio Branch of the 
good standing" with the 
admission) showing that the 
stating that the beneficiary "is a current member in 
There is no documentary evidence (such as bylaws or rules of 
requires outstanding achievements of its members. 
(b)(6)
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Page 8 
The petitioner further submitted a June 10, 2013 letter from 
Administrative Coordinator, 
beneficiary "is currently a Transitional Member" of the 
submitted a copy of the ' _ 
Section 4.2 of the bylaws states: 
Membership and 
stating that the 
In addition, the petitioner 
Article IV, 
(a) Active Members: Individuals who have manifested an interest in any disciplineimportant 
to gene therapy, cell therapy, or manufacturing technologies for gene and cell delivery as 
evidenced by work in the field are eligible for Active Membership. Active Members shall 
pay dues and have all privileges of the Society including, but not limited to, the right to vote, 
serve on committees, hold office, and serve on the Board of Directors. 
* * * 
(d) Transitional Members: Individuals who fulfill the requirements for Active membership 
shall be eligible for Transitional Membership for no more than two (2) years, which status 
provides for the same privileges and member benefits as Active Membership except that 
membership dues shall be at a discounted rate as determined by the Board of Directors. 
Transitional Membership is intended to provide a membership dues discount to individuals 
who are in the early or other transitional stages of their careers. For purposes of Section 4.6 
below, and any and all other provisions of these Bylaws, except as expressly provided in this 
subsection, Transitional Members shall be considered to be Active Members and any 
reference to Active Member shall also be deemed to refer to Transitional Members. 
In regard to the beneficiary's "Transitional" membership status in the demonstrating "an 
interest in any discipline important to gene therapy, cell therapy, or manufacturing technologies for 
gene and cell delivery as evidenced by work in the field" does not constitute "outstanding 
achievements." 
The petitioner submitted a June 6, 2013 letter from Membership Manager, 
, stating that the beneficiary "is a member" of the 
In addition, the petitioner submitted a copy of the ' 
Article I, Section 2 of the bylaws states: 
A. Regular Members. Individuals who hold a Ph.D. or equivalent degree or have equivalent 
experience. 
B. Postdoctoral Members. Individuals who hold a Ph.D. or equivalent degree or have 
equivalent experience, are actively engaged in a training program, and whose 
applications are endorsed by their research advisor. Postdoctoral membership status 
discontinues if not renewed and may be held for a maximum of five consecutive years. 
Regarding the beneficiary's membership in the holding "a Ph.D. or equivalent degree" (or 
having equivalent experience), engaging in a cell biology training program, and receiving an 
endorsement by one's research advisor do not constitute "outstanding achievements." 
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In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
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 
The director determined that the petitioner did not establish the beneficiary's eligibility for this 
regulatory criterion. The petitioner does not contest this conclusion on appeal and the record 
supports the director's findings. 
The petitioner submitted the Fall 2012 issue of a newsletter of the Office of 
Research and Sponsored Programs. Pages 7-22 of the newsletter list numerous faculty and staff 
who received grants and contracts. Page 17 identifies the D1 the beneficiary, and two others 
who shared an ' in the amount of $2,500. The author of the preceding material was 
not identified and the brief mention of the beneficiary's department's travel grant does not 
constitute published material about her work in the academic field. 
The petitioner also submitted a July 2, 2012 e-mail from Dr. an editor of the 
to Dr. stating that the article she coauthored with the beneficiary entitled 
was "selected by the editors of the for inclusion in 
'Spotlight,' a feature in the Journal that highlights research articles of significant interest from the 
current issue." Dr. five others, and the beneficiary coauthored ~ ======= 
in September 2012. Dr. e-mail further states: 
This section follows the table of contents and includes short descriptions of five especially 
meritorious articles. 
* * * 
If you wish your article to be included in this section, please draft a short, declarative title and a 
brief summary of your manuscript (between 50-100 words) and forward these to me. Please 
compose your summary in general terms, highlighting the broad biological significance of the 
work. 
In addition, the petitioner submitted a January 2, 2014 letter from the Dr. Senior 
Editor of. stating: 
The 
research conducted by [the beneficiary] was selected by the editors of the 
for inclusion . in our "Spotlight" section. This is a feature in the Journal that 
highlights research articles of significant importance and interest from each issue. The 
Spotlight article was published in and 
was entitled ' This was in reference to [the 
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Page 10 
beneficiary's] research publication in that same issue, pages 9244-9254, entitled 
- -
' The selected Spotlight article showcases the high relevance of the 
topic in the field and depicts the utmost quality of [the beneficiary's] research. 
With regard to the brief feature in the "Spotlight" section of in September 2012, the 
petitioner failed to submit a copy of the published material appearing on page 8919. A petition must be 
filed with any initial evidence required by the regulations. 8 C.F.R. § 103.2(b)(1). The nonexistence 
or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b )(2)(i). When relying on secondary evidence, the petitioner must provide documentary 
evidence that the primary evidence is either unavailable or does not exist. /d. The petitioner has not 
established that the published material appearing in the section is 
unavailable or does not exist As such, the petitioner has not complied with the preceding regulatory 
requirements. Moreover, the e-mail from Dr. indicates that the authors of the articles 
whose work is being showcased write the summary material in the "Spotlight" section of the journal. 
As such, these materials more properly fall under the scholarly articles criterion at 8 C.F.R. 
§ 204.5(i)(3)(i)(F). 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Evidence of the alien's participation, either individually or on a panel, as the judge of the work 
of others in the same or an allied academic field 
The director determined that the petitioner had established the beneficiary's eligibility for this 
regulatory criterion. The record supports that finding. 
The etitioner submitted a June 8, 2009 e-mail from Monitoring Editor o 
requesting that the beneficiary review a manuscript entitled 
There is no evidence of the beneficiary's response to the editor or documentary evidence showing that 
the beneficiary actually completed the review. The plain language of this regulatory criterion requires 
"[e]vidence ofthe alien's participation .. . as the judge ofthe work of others." Receiving a request to 
review a manuscript is not evidence of the beneficiary's actual "participation" as a reviewer or judge. 
In addition, the petitioner submitted a December 23, 2013 letter from Dr. Editor-in-Chief, 
' published by the India. Dr. 
states: "[The beneficiary] ... is an editor in our Journal titled ' 
since June of 2013." The petitioner also submitted an internet screenshot from 
webpage listing the beneficiary among eight members of the 
Editorial Board. 
The petitioner also submitted a November 19, 2013 letter from of the Editorial 
Office of stating: "We certify that [the beneficiary] ... reviewed manuscript number 
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entitled ' -
for our journal on September 29, 2012." 
The editorial position and the instance of peer review of a manuscript for meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(D). Accordingly, the evidence 
supports the director's finding that the beneficiary meets this regulatory criterion. 
Evidence of the alien's original scientific or scholarly research contributions to the academic 
field. 
The director determined that the petitioner did not establish the beneficiary's eligibility for this 
regulatory criterion. The petitioner submitted the beneficiary's scholarly articles and presentations, a 
few citations to her published work, two grant applications listing Dr. as "Project 
Director/Principal Investigator," and positive reference letters from members of the beneficiary's field. 
The director acknowledged the petitioner's submission of the preceding evidence, but found that it 
was not sufficient to demonstrate that the beneficiary has made original scientific or scholarly research 
contributions to her field. The plain language of this regulatory criterion requires not only evidence of 
original research, but original "research contributions to the academic field." The phrase 
"contributions to the academic field" is not superfluous and, thus, it has some meaning. Silverman v. 
Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 
F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
On appeal, the petitioner asserts that the beneficiary "is listed among the Senior/Key Personnel" on two 
of grants that list Dr. as "Project Director/Principal Investigator." Again, most if 
not all scientific research receives funding from somewhere. Not all research results in contributions to 
the field as a whole. As a research grant is designed to fund future scientific research, securing 
funding for one's research projects does not, by itself, demonstrate scientific or scholarly contributions 
to the academic field. While funding is essential to a researcher's efforts to pursue studies, funding in 
and of itself does not guarantee that the final results of the study will constitute a contribution to the 
field as a whole. Even if the petitioner were to demonstrate that receipt of the preceding two 
grants was based mainly on the beneficiary's achievements rather than those of Dr. the 
petitioner has not provided evidence showing that the beneficiary's original work on those projects 
affected the field at a level indicative of scientific or scholarly research contributions to the academic 
field. 
With regard to the beneficiary's published and presented work, the regulations include a separate 
criterion for authorship of scholarly articles at 8 C.F.R. § 204.5(i)(3)(i)(F). Because separate criteria 
exist for authorship of scholarly articles and original scientific or scholarly research contributions to 
the academic field, USCIS clearly does not view the two as being interchangeable. To hold otherwise 
would render meaningless the regulatory requirement that a beneficiary meet at least two separate 
criteria. Furthermore, there is no presumption that every published article or conference presentation 
is a contribution to the academic field; rather, the petitioner must document the actual impact of the 
beneficiary's article or presentation. Numerous favorable independent citations for an article 
authored by the beneficiary may indicate that other researchers have been influenced by her work 
and are familiar with it. A minimal citation record, on the other hand, is less probative of the 
beneficiary's impact in the field. 
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In the appeal brief, the petitioner lists seven "citations" to the beneficiary's work as evidence for this 
regulatory criterion as follows: 
1. 
2. 
3. 
4. 
5. 
6. 
7. 
Items 1 and 2 above are not citations to the beneficiary's work by the Instead, they are internet 
screenshots showing that an abstract of the beneficiary's article is available online for viewing through 
a free internet search engine for accessing abstracts on life sciences and biomedical topics 
that is maintained by the With respect to items 3, 5, and 6, these are self-cites by the 
beneficiary to her own articles. Self-citation is a normal, expected practice. Self-citation, however, 
is not probative of the extent of a researcher's influence on other scientists' work. In regard to items 
4 and 7, these articles independently cite to the beneficiary's article entitled ' 
n addition. ite 7 "ndeoendentlv cites to the beneficiarv's article entitled" 
' The submitted documentation reflects an aggregate of three independent cites to t e 
beneficiary's body of published work, and that none of her individual articles was independently 
cited to more than twice. The petitioner has not established that the number of independent cites per 
article for the beneficiary's published work is indicative of scientific or scholarly research 
contributions in the academic field. 
The petitioner's appeal brief points to the letters of support as further evidence that the beneficiary 
meets this criterion. 
l)r. states: 
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This letter is to offer my unqualified and enthusiastic support for [the beneficiary], who has a 
Research Associate position in my laboratory in the Department of Biological Sciences at 
Ohio. 
* * * 
Her findings published in the unequivocally indicate that 
cellular polarity and susceptibility to viral infection go hand-in-hand .... [The beneficiary's] 
work has shown that susceptibility to adenovirus depends largely on the isoform-specific 
expression of CAR. It turns out that a low abundance isoform of CAR can be expressed on 
the apical surface of polarized epithelial cells and that the level of this CAR isoform can be 
increased or decreased under several conditions. For example, her work published in the 
provides new and critically valuable insight into the 
molecular mechanisms behind cigarette smoke-induced increased epithelial susceptibility to 
respiratory viral infections. . . . [The beneficiary] demonstrated that side-stream smoke 
(effectively second-hand smoke) alters GSK3-beta signaling leading to an increase in apical 
CAR expression and increased adenovirus infection. Her data are the first to show a 
molecular mechanism that connects sidestream smoke exposure and increased susceptibility 
of airway epithelia to viral infection. Although we have focused on adenovirus as a pathogen 
due to the significant morbidity and mortality exhibited in both pediatric and military 
populations, these findings may have broad implications for other respiratory viruses .... 
Thus, her findings carry great therapeutic potential for many human cancers. 
* * * 
[The beneficiary] is currently developing novel therapeutics that could protect us all from the 
common cold that is caused by adenovirus, or could help enhance adenovirus-based 
therapeutics that have shown promise in the treatment of a variety of cancers, and we are 
now pursuing patent rights on this discovery. In collaboration with graduate student 
she used a clever yeast screen to identify specific interactions between 
CAR and the cellular scaffolding protein MAGI-1 .... Their elegant work, published in the 
masterfully demonstrated that the apical CAR isoform interacts with 
two dttterent MAUl-l PDZ domains and each of these interactions has opposing effects on 
the susceptibility of cells to adenovirus infection. 
* * * 
fThe beneficiaryl layed a ivotal role in highly innovative work published in, 
_ which showed that CAR can alter the trafficking 
of ASIC3 and rescue its channel activity via an interaction with PSD-95. This work offers a 
mechanism by which PDS-95 is able to transport and concentrate signaling molecules at cell 
junctions. Moreover, CAR-mediated co-transportation and junctional localization of 
signaling molecules, such as ASIC3, had never been shown previously. Together, these 
findings address long standing questions of protein function, transport, and localization. They 
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Page 14 
also open up new lines of research which will have broad implications for diverse fields of 
study from virology and gene therapy to cell biology and neuroscience. 
Finally, [the beneficiary] has played a major role in an on-going collaborative -funded 
effort with the world renowned scientist Dr. from the 
. . . [The beneficiary] has been instrumental in the 
implementation and experimental analysis of directed evolution experiments. Novel AA V 
capsids have been identified that are able to infect, in particular, those cells already infected 
by HIV. She is now highly involved in engineering these vectors to deliver a therapeutic 
gene against HIV. 
Dr. 
findings in 
comments on the beneficiary's collaborative project with Dr. and her research 
and 
but there is no documentary evidence showing that the 
beneficiary's work was heavily cited by independent researchers, has been successfully implemented 
as a medical therapy, or otherwise equates to original contributions to the academic field. In 
addition, Dr. asserts that the beneficiary's "findings carry great therapeutic potential for 
many human cancers," that the beneficiary is "developing novel therapeutics that could protect us all 
from the common cold," and that she is working "to deliver a therapeutic gene against HIV," but Dr. 
does not provide specific examples of how the beneficiary's original work has already 
been utilized to achieve those effects. Dr. expectation regarding the possible future 
impact of the beneficiary's work is not evidence, and cannot establish eligibility for the category of 
evidence at 8 C.F.R. § 204.5(h)(3)(v). Eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
Dr. Professor in Internal Medicine and Director of the Division of 
Pulmonology, Critical Care and Occupational Medicine at the states: 
[The beneficiary] has been working as a member of Dr. research group 
in various capacities - first as a postdoctoral researcher and now as a research associate. [The 
beneficiary's] research publication record demonstrates an exceptionally strong background 
in developmental cell and molecular biology, as well as adenovirus biology. 
(The beneficiary ' s] current research focuses on studying the role of the Coxsackie and 
adenovirus receptor (aka CAR) in: adenovirus infection. These studies also provide critical 
insights into the gene therapeutic potential of this group of viruses. 
[The beneficiary's] most recent publication is in the prestigious international, peer-reviewed 
journal, . As lead author, she is the first scientist 
in the world to provide data that demonstrates that cigarette smoke is able to increase the 
susceptibility of a polarized human airway epithelium to adenovirus infection. . . . This 
publication further describes the molecular mechanism of how smoking creates respiratory 
distress. The paper also sheds light on the · mechanism how passive smokers (i.e. those 
exposed to second hand smoke) become susceptible to respiratory illness. In my opinion, [the 
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Page 15 
beneficiary] designed these experiments meticulously and the results were analyzed with 
impressive thoroughness. 
* * * 
In addition to the above publications, [the beneficiary] has provided further insights into the 
mechanism of how polarized cells can appear immune to adenovirus infection even when the 
cell expresses abundant primary receptor. This study dispels the myth that viral receptor 
abundance is the only issue that affects viral infection and is also significant because the cells 
that were used in this study have widely been used as model system to investigate biology of 
numerous viruses. 
The beneficiary] has also author~d- an article that demonstrates that the 
and suscentihilitv to - mfection 
are differentially regulated by two different J. JJLJ UVUUUU~ V.I. U.V VVUUUu uv~~w•~u•o t''~·-••1 
. Whereas within the cell and reduces 
This work 
suggests that novel therapeutics can be developed to either augment or decrease adenovirus 
infection for either gene therapy approaches to target airway disease or to protect susceptible 
people from adenovirus infection, respective! y. 
Dr. points to the beneficiary's studies regarding the role of the CAR in adenovirus infection, 
the susceptibility of a polarized human airway epithelium to adenovirus infection, the mechanism of 
how polarized cells can appear immune to adenovirus infection, and the eight exon isoform of CAR, 
but he does not provide specific examples of how the beneficiary's work has been utilized to develop 
novel diagnoses, prevention methods, or novel therapeutic treatments for viral infections. Although 
the beneficiary's research has value, any research must be original and likely to present some benefit 
if it is to receive funding and attention from the scientific or academic community. In order for a 
university, publisher or grantor to accept any research for graduation, publication or funding, the 
research must offer new and useful information to the pool of knowledge. Not every scientist who 
performs original research that adds to the general pool of knowledge in the field knowledge has 
inherently made an original contribution to the academic field as a whole. The petitioner has not 
established that the beneficiary's work has impacted the biomedical research community in a major 
way, or that her work was otherwise commensurate with an original contribution to the academic field 
as a whole. 
Dr. 
Bioengineering & 
states: 
Director of the and Professor in the Department of 
[The beneficiary's] research is important due to her novel structure-function approach to 
understanding the biological relevance of the Coxsackievirus and Adenovirus Receptor 
(CAR) in the pulmonary epithelium by assessing both endogenous activity and viral receptor 
activity. She is conducting studies to decipher how CAR and its interacting proteins regulate 
viral infection, a daunting task that demands high expertise, creativity, and technical skill. 
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Page 16 
She is also on the forefront of developing novel strategies to advance pulmonary gene 
therapy. Therefore, [the beneficiary] plays a leading role in this cutting-edge field of the 
research and is one of the few scientists who has developed the necessary set of skills to take 
a project from basic biology and further having its impact at clinical stages. 
[The beneficiary] has published in peer reviewed journals. These journals have high rankings 
and show her to be at the forefront of her field and of biomedicine .... [The beneficiary] has 
also presented her work at international conferences such as the . 
in both oral and poster 
formats. 
Dr. comments on the beneficiary's work to decipher how CAR and its interacting proteins 
regulate viral infection, but he does not provide specific examples of how the beneficiary's work has 
impacted the field at a level indicative of a contribution to the academic field as a whole. Dr. 
also points to the beneficiary's scientific and "technical skill." Having a capable skill set is 
not a contribution to the field in and of itself. Rather, the record must be supported by evidence that 
the beneficiary has already used her skills to make an original contribution to the academic field as a 
whole. Furthermore, assuming the beneficiary's skills are unique, the classification sought was not 
designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls under 
the jurisdiction of the U.S. Department of Labor through the alien employment labor certification 
process. See Matter of New York State Department of Transportation, 22 I&N Dec. 215, 221 
(Assoc. Comm'r 1998). In addition, Dr. also mentions the beneficiary ' s journal 
publications and international conference presentations. With regard to the beneficiary's conference 
presentations, many professional fields regularly hold meetings and conferences to present new 
work, discuss new findings, and to network with other professionals. Professional associations, 
educational institutions, employers, and government agencies promote and sponsor these meetings 
and conferences. Participation in such events, however, does not equate to original contributions to 
the academic field. There is no documentary evidence showing that the beneficiary's published or 
presented work has been heavily cited, has impacted the field as a whole, or otherwise rises to the 
level of original contributions to the academic field. 
Dr. , Professor of Pediatrics, Microbiology and Internal Medicine, and Vice-Chair for 
of Medicine, states: 
I can speak to the cutting edge research projects being carried out in Dr. lab, 
where [the beneficiary] is working as a research scientist. Dr. is a leading scientist 
in gene therapy. 
* * * 
[The beneficiary's] initial work, during her Ph.D. studies at the helped unravel the 
cellular and molecular mechanisms involved in lizard tail regeneration. . . . [The 
beneficiary'] landmark work on lizard regeneration resulted in several publications that have 
contributed significantly to this exciting and dynamic field of research. 
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Page 17 
In contrast to the regenerative tissue discoveries made during her Ph.D., [the beneficiary] has 
made crucial discoveries important for our understanding of the basic biology of 
adenovirus:cell and cell:cell interactions while at 
* * * 
[The beneficiary] has been instrumental to our current understanding of CAR 
[Coxsackievirus and Adenovirus Receptor]. . . . She embraced a new field focused on a 
recently discovered alternatively spliced-isoform of CAR known as CAR-Ex8. She 
discovered that CAR-Ex8 is the primary receptor present at the apical surface of polarized 
epithelia and is responsible for the initiation of viral infection. Additionally, in a study which 
is the first of its kind, she has shed light on factors that make individuals exposed to second­
hand smoke potentially more susceptible to adenovirus infection by increasing CAR-Ex8. 
This study is particularly important because little is understood about how adenovirus 
actually initiates infection within the host. It has opened up the possibility of altering the 
susceptibility of the epithelium to viral infections, particularly in populations of people that 
are at high risk for respiratory disease. These findings resulted in a first author paper in 
Subsequent studies by [the beneficiary] have focused on the genetic dissection of the 
domains of CAR and the cellular proteins that interact with CAR. . . . She demonstrated that 
CAR-Ex8 and susceptibility to apical adenovirus (AdV) infection are differentially regulated 
by two different PDZ domains within MAGI-1. ... Importantly, she also found that the 
presence of those MAGI-1 PDZ domains was instrumental to the ability of CAR-Ex8 to 
modulate both the decrease (PDZ3) and increase (PDZI) of viral infections .... These 
findings resulted in a peer-reviewed paper in a top virology journal, 
[The beneficiary] has also investigated the importance of receptor 
accessibility in epithelial cells with intact tight junctions. This work demonstrates an 
influential difference between polarized and non-polarized cells and hence the susceptibility 
of each cell type to AdV infection. This work lead to a first author paper published in 
_J [The beneficiary's] research has improved 
our understanding of AdV infection and I have every expectation that she is on a trajectory to 
continue to illuminate the field. Additionally this work may facilitate drug discovery for viral 
infections and disease. 
Dr. asserts that the beneficiary's "landmark work on lizard regeneration resulted in several 
publications that have contributed significantly to this exciting and dynamic field of research," but 
there is no evidence showing that the beneficiary's published work has been frequently cited by 
independent researchers or otherwise constitutes original contributions to the academic field. In 
addition, while Dr. discusses the beneficiary's findings in 
he does not provide specific examples of how the beneficiary's 
work has been applied by others in the field beyond her research institutions and immediate 
collaborators. Furthermore, the petitioner has not established that the number of independent 
citations to the beneficiary's articles is indicative of a demonstrable influence on the academic field 
as a whole. 
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Page 18 
Dr. Scientist, Infectious Disease Program, New 
Mexico, states: 
[The beneficiary] is one of my valuable collaborators playing an outstanding role in 
advancing our understanding of the initiation of adenovirus infection and identifying factors 
that alter the susceptibility of the airway epithelium to adenovirus entry. Adenoviruses are 
one of the major causes of respiratory infections especially among children under the age of 
5 years and also effective gene therapy tools for the treatment of diseases like muscular 
dystrophy and cancer. 
* * * 
I first met [the beneficiary] during my visit at on April 11, 2011. I 
initiated a research collaboration with the laboratory of Dr. [the 
beneficiary's] advisor. During the past two years, I have found [the beneficiary] to be an 
intelligent, knowledgeable, motivated, hardworking, optimistic, and professional scientist. 
With her involvement, our collaborative project experienced exceptional progression and 
resulted in a 2013 publication in the esteemed journal, 
Dr. comments on her collaboration with the beneficiary and mentions that their work resulted in 
an article in but does not explain how others in the field are applying their results or how 
the beneficiary's work was otherwise commensurate with scientific or scholarly contributions to the 
academic field. 
Dr. Professor, Department of Microbiology and Immunology, 
states: 
I am very familiar with the research in the laboratory of Dr. 
where [the beneficiary] is a Research Associate. I have followed Dr. 
work in adenovirus entry closely because it is so complementary to the work we 
do. [The beneficiary] is one of a well-established and highly regarded group of scientists who 
have done cutting-edge research in the molecular biology of adenovirus receptors in Dr. 
laboratory. [The beneficiary] has done excellent science characterizing the 
primary attachment receptor for adenoviruses and a very different group of viruses, 
Coxsackie viruses. The receptor is known as CAR and has been studied for its basic science 
importance and its clinical importance in adenovirus-mediated gene therapy. 
* * * 
[The beneficiary 's] independent and creative work on CAR and human adenovirus infections 
has addressed fundamental questions about how CAR contributes to efficient gene 
transduction by adenovirus gene therapy vectors and how it participates in trafficking of cell 
proteins such as ion channels. That research has led to a first author paper in the top 
European virology journal, , and a middle author paper in a 
biochemistry journal, Most 
recently, [the beneficiary] is first author on a paper in the prominent open access journal, 
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Page 19 
Dr. 
in which she used her considerable training and skills in cellular and molecular 
biology to examine an important hypothesis .... [The beneficiary's] work showed that there 
are differences in epithelial response to sidestream smoke compared to mainstream smoke 
exposure. Only the former increases expression of the CAR molecule, and this leads to 
increased entry of the adenovirus. This is high impact research, providing a mechanistic 
understanding of the consequences of cigarette smoke exposure on increased susceptibility to 
respiratory virus infections. Moreover, her studies suggest a possible therapeutic 
intervention that can be further investigated. 
oints to the beneficiary's articles in the 
~ _ Again, there is no evidence showing that 
the beneficiary's journal articles were frequently cited by others in the biomedical field, that her 
findings have improved treatment methodologies available for viral infections, or that her work 
otherwise equates to original contributions to the academic field. In addition, although Dr. 
states that the beneficiary's "studies suggest a possible therapeutic intervention that can be further 
investigated," she does not point to specific examples of how the beneficiary's work has already 
resulted in an effective therapeutic intervention. Again, an expectation of a possible future impact of 
the beneficiary's work is not evidence, and cannot establish eligibility for this regulatory criterion. 
8 C.P.R.§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Dr. _____ _. Professor, Department of Biology, states: 
I have known [the beneficiary] since 2008 when she was investigating the possibility of 
pursuing postdoctoral training in the Dayton area. 
* * * 
Her Ph.D. research focused on elucidating factors involved in reptilian regeneration. In order 
to conduct the study she developed and standardized molecular biology protocols specific for 
the reptilian system. To my understanding, her doctoral work provided unique evidence that 
prostaglandin E2 (PGE2) can regulate the rate of caudal regeneration in reptiles. The results 
from these studies were very novel as amphibians, urodeles (tailed amphibians) are 
extensively studied for their regenerative ability, however, caudal regeneration in reptiles is 
still remain largely unexplored. Nevertheless these finding [sic] will provide a platform to 
further extrapolate and understand whether the process of regeneration is evolutionary 
conserved or not. [The beneficiary] published several peer reviewed articles as a part of her 
Ph.D. work. 
* * * 
[The beneficiary's] impressive pre-doctoral training was identified by Dr. and 
under Dr. mentorship [the beneficiary] has developed in to an outstanding, 
independent researcher. Her research is focused on the understanding of molecular events 
involved in the pathogenesis of adenovirus infection and the regulation of its receptor, 
Coxsackie adenovirus receptor (CAR). 
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Page 20 
* * * 
[The beneficiary's] recent publications 
_ have been published 
in some of the top peer reviewed journals in the field of virology. [The beneficiary's] 
outstanding research qualities are further evident by the fact that she has also attended and 
presented in a number of international conferences - impressive for a young scientist at this 
career stage. 
Dr. asserts that the beneficiary's "doctoral work provided unique evidence prostaglandin E2 
(PGE2) can regulate the rate of caudal regeneration in reptiles" and that her findings "will provide a 
platform to further extrapolate and understand whether the process of regeneration is evolutionary 
conserved or not." Dr. does not explain the extent to which the beneficiary's results are being 
utilized in the academic field. In addition, Dr. mentions the beneficiary's published and 
presented work on the pathogenesis of adenovirus infection and the regulation of its receptor, CAR, 
but there is no documentary evidence showing that the beneficiary's findings have been heavily 
cited, applied by a number of other researchers in the field, or have otherwise risen to the level of 
contributions to the academic field. 
Dr. Associate Professor, Department of Neuroscience, Cell Biology, and Physiology, 
, states: 
I have had the opportunity to know [the beneficiary] and her research projects during our 
group meetings .... We have a long-standing collaboration on a grant which is funded by 
the 
* * * 
Our collaborative work is focused on the discovery of methods and mechanisms that will 
improve the targeting of HIV -infected cells. We are doing this by exploring and exploiting 
cellular membrane composition changes associated with HIV infection. We are utilizing a 
directed evolution approach in order to develop new adeno-associated virus (AA V)-based 
gene therapy vectors specifically directed against HIV-1 infected cells. [The beneficiary] has 
been instrumental in the discovery of several novel AA V variants with improved gene 
transfer to HIV -infected T cells and we are currently testing the efficacy of these MV 
vectors, carrying an anti-HIV payload, on the elimination of HIV infection. 
* * * 
[The beneficiary's] particular focus has been on adenovirus infection of lung epithelia. [The 
beneficiary's] article published in beautifully describes how a 
cell, which has been used for years as a model system to study adenovirus infections, can 
express CAR but still be highly resistant to adenovirus infection. Her research provides 
valuable insights into the mechanism of adenovirus infection of cells and has advanced the 
field of adenovirology forward in an important way. 
(b)(6)
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Page 21 
* * * 
[The beneficiary] is developing novel therapeutics that could protect us all from the common 
cold that is caused by adenovirus, or could help enhance adenovirus-based therapeutics that 
have shown promise in the treatment of a variety of cancers. 
Dr. asserts that the beneficiary was "instrumental in the discovery of several novel AA V 
variants with improved gene transfer to HIV -infected T cells," and points out that she and the 
beneficiary "are currently testing the efficacy of these MV vectors." Dr. does not provide 
specific examples of how the beneficiary's work has been implemented as a treatment protocol for 
HIV with corresponding improvement in patient outcomes, or was otherwise indicative of scientific 
or scholarly contributions to the academic field. In addition, Dr. comments that the 
beneficiary's research in "provides valuable insights into the mechanism 
of adenovirus infection of cells and has advanced the field of adenovirology forward in an important 
way," but there is no evidence showing that the beneficiary's article has been frequently cited or has 
otherwise contributed to the academic field. Furthermore, although Dr. asserts that the 
beneficiary "is developing novel therapeutics that could protect us all from the common cold that is 
caused by adenovirus, or could help enhance adenovirus-based therapeutics that have shown promise 
in the treatment of a variety of cancers," there is no evidence demonstrating that the beneficiary's 
work has already had this effect. Again, eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Dr. Associate Professor, Department of Zoology, MSU, and Dr. Dean of the 
Faculty of Science, , states: 
[The beneficiary] worked in the division of Developmental Biology, Department of Zoology, 
Faculty of Science, at the _ India, as a 
Research Fellow. [The beneficiary's] duties included performing molecular and cellular 
biology experiments, including fluorescence and scanning electron microscopy with imaging 
analysis, cell culture, and biochemistry relating to tail regeneration in Hemidactylus 
flaviviridis, handling of animals, training undergraduate and master's degree students and 
writing, submission, and publication of research communications in peer reviewed journals. 
[The beneficiary] worked from August 2005 to July of 2008. 
During her tenure as a research fellow, [the beneficiary] was essential for the introduction of 
new molecular, cellular and biochemical techniques previously not performed in our 
institution. [The beneficiary] was found to be a sincere, hardworking, and technically gifted 
team player. 
Dr. and Dr. comment on the beneficiary's work at but they do not provide specific 
examples of how the beneficiary's work has influenced the academic field as a whole. A contribution 
to the beneficiary's research institution is not necessarily an original contribution to the academic 
field as a whole. 
(b)(6)
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Page 22 
The petitioner submitted letters of varying probative value. We have addressed the specific assertions 
above. Generalized conclusory assertions that do not identify specific contributions or their impact in 
the field have little probative value. 1756, Inc. v. The Attorney General of the United States, 745 F. 
Supp. 9, 15 (D.C. Dist. 1990). In addition, uncorroborated assertions are insufficient. See 
Visinscaia v. Beers, --- F. Supp. 2d ---, 2013 WL 6571822, ·at *6 (D.D.C. Dec. 2013) (upholding 
US CIS' decision to give limited weight to uncorroborated assertions from practitioners in the field); 
Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (holding that an agency "may, in 
its discretion, use as advisory opinions statements ... submitted in evidence as expert testimony," 
but is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought and "is not required to accept or may give less weight" to evidence that is "in any 
way questionable"). The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the beneficiary's eligibility. /d. See also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting 
that expert opinion testimony does not purport to be evidence as to "fact"). 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
beneficiary's research, while original, can be considered scientific or scholarly research contributions 
to the academic field. Accordingly, the petitioner has not established that the beneficiary meets this 
regulatory criterion. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
The petitioner submitted documentation of the beneficiary's authorship of scholarly articles in journals 
such as 
Accordingly, the evidence supports the director's finding that the beneficiary meets this regulatory 
criterion. 
Summary 
In light of the above, the petitioner has submitted evidence that meets two of the criteria that must be 
satisfied to establish the minimum eligibility requirements for this classification. Specifically, the 
petitioner submitted evidence demonstrating that the beneficiary meets the criteria set forth at 8 C.F.R. 
§ 204.5(i)(3)(i)(D) and (F). 
B. Final Merits Determination 
The next step is a final merits determination that considers whether the evidence is consistent with the 
statutory standard in this matter, being recognized internationally as outstanding in the academic area. 
Section 203(b )(1 )(B)(i) of the Act. In addition, the controlling purpose of the regulation at 8 C.F.R. 
§ 204.5(i)(3)(i) is to establish that the researcher is recognized internationally as outstanding in the 
academic field, and 
any evidence that meets the preceding categories of evidence must therefore be 
commensurate with 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 
(b)(6)
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Page 23 
whether a professor or researcher is deemed outstanding. Employment-Based Immigrants, 56 Fed. 
Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). On 
appeal, the petitioner asserts that the director failed to consider all of the evidence, including that 
evidence that does not satisfy the given criteria. We will consider all of the evidence below. 
With regard to the category of evidence at 8 C.P.R. § 204.5(i)(3)(i)(D), the nature of the 
beneficiary's judging experience is a relevant consideration as to whether the evidence is indicative 
of the beneficiary's recognition beyond her own circle of collaborators in the final merits 
determination. See Kazarian, 596 F. 3d at 1122. As previously discussed, the e-mail from the 
Monitoring Editor of was unaccompanied by documentary evidence 
showing that the beneficiary actually completed the review. In addition, while the petitioner submitted 
documentation identifying the beneficiary among eight members of the 
Editorial Board, the petitioner did not provide documentary evidence establishing the specific duties 
of the editor position or the selection criteria and process for editors at this journal. Submitting a 
webpage reflecting that the beneficiary served on an editorial board without documentary evidence 
showing the significance of the position is not probative of the beneficiary's international 
recognition as outstanding. Notably, the petitioner did not submit any evidence documenting the 
prestige or impact factor of to demonstrate its international standing. 
The petitioner has also not established that performing a single manuscript review for as 
of the petition's filing date is commensurate with being internationally recognized as outstanding in the 
field. We note that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Normally a journal's editorial staff will enlist the assistance of numerous 
professionals in the field who agree to review submitted papers. It is common for a publication to 
ask multiple reviewers to review a manuscript and to offer comments. The publication's editorial 
staff may accept or reject any reviewer's comments in determining whether to publish or reject 
submitted papers. Thus, peer review is routine in the field and not every peer reviewer enjoys 
international recognition. Without evidence that sets the beneficiary apart from others in her field as 
of the petition's filing date, such as evidence that she completed numerous manuscript reviews for a 
substantial number of distinguished journals or served in an editorial position for a distinguished 
journal as a judge of the work of others, the petitioner has not established that the beneficiary's 
judging experience is indicative of or consistent with being internationally recognized as 
outstanding. 
Regarding the beneficiary's original research submitted for the category of evidence at 8 C.P.R. 
§ 204.5(i)(3)(i)(E), it does not rise to the level of contributions to the academic field. Demonstrating 
that the beneficiary's work was "original" in that it did not merely duplicate prior research is not useful 
in setting the beneficiary apart in the academic community through eminence and distinction based on 
international recognition. 56 Fed. Reg. at 30705. Research work that is unoriginal would be unlikely 
to secure the beneficiary a master's degree, let alone classification as an outstanding researcher. To 
argue that all original research is, by definition, "outstanding" is to weaken that adjective beyond any 
useful meaning, and to presume that most research is "unoriginal." 
Although the beneficiary has coauthored eight journal publications with her superiors at and 
that meet the plain language requirements of the criterion at 8 C.P.R. § 204.5(i)(3)(i)(F), the U.S. 
Department of Labor's Occupational Outlook Handbook (OOH), 2014-15 Edition provides information 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
about the nature of employment as a postsecondary teacher (professor) and the requirements for such a 
position. See http:Uwww .bls. gov /ooh!education-training-and-library!postsecondary-teachers.htm#tab-3, 
accessed on October 27, 2014, copy incorporated into the record of proceeding. The handbook states 
that faculty members are pressured to perform research and publish their work and that the professor's 
research record is a consideration for tenure. In addition, doctoral programs require graduate students 
to prepare "a doctoral dissertation, which is a paper presenting original research in the student's field 
of study." See http:Uwww.bls.gov/ooh/education-training-and-library/postsecondary-teachers. 
htm#tab-4, accessed on October 27, 2014, copy incorporated into the record of proceeding. This 
information reveals that original published research, whether arising from research at a university such 
as or a private employer, does not set the researcher apart from faculty in that researcher's field. 
Moreover, the beneficiary's citation history is a relevant consideration as to whether the evidence is 
indicative of the beneficiary's recognition beyond her own circle of collaborators. See Kazarian, 
596 F. 3d at 1122. The citation evidence submitted for the beneficiary's research articles indicates that 
none of them have been cited to more than twice by independent researchers as of the petition's filing 
date. As the petitioner has not established that the beneficiary's research findings have been heavily 
cited and the record contains no other evidence demonstrating the impact of the beneficiary's scholarly 
articles, the petitioner has not demonstrated that the beneficiary's citation record is consistent with 
international recognition. 
Regarding the remaining categories of evidence at 8 C.F.R. § 204.5(i)(3)(i)(A), (B), and (C), the 
deficiencies in the documentation submitted for those categories have already been addressed. The 
petitioner has not established that the beneficiary meets the plain language requirements of those 
categories, or that the evidence submitted is indicative of, or consistent with being internationally 
recognized as outstanding in the academic field. Although the beneficiary claims various prizes and 
awards, the petitioner has not submitted evidence showing that her travel grants and best paper honor 
are major prizes or awards for outstanding achievement in the academic field. In addition, the two 
grant applications list Dr. as "Project Director/Principal Investigator" and the 
beneficiary as her subordinate. Moreover, the petitioner did not submit evidence showing that the 
associations in which the beneficiary holds membership require outstanding achievements. 
Furthermore, the published material the petitioner submitted did not identify the author and was not 
indicative of the beneficiary's international recognition. The ' summary appeared the 
same volume as the beneficiary's article featured in the summary, and, thus, garnered the beneficiary 
no exposure in the field beyond that afforded by the dissemination of the article itself. 
Lastly, we note that many of the beneficiary's references' qualifications far outweigh those of the 
beneficiary. Their achievements are far more consistent with international recognition than the 
beneficiary's achievements. For example, Dr. states: 
I am currently serving as the Chief of Pulmonary and Critical Care at 
I am also the Vice Chair of the 
As a 
clinician scientist, I have authored of more than 140 peer-reviewed articles in many in high 
profile journals, such as -I also hold a number of 
(b)(6)
NON-PRECEDENT DECISION 
Page 25 
patents. Currently, I am principal investigator for a number of federally funded grants 
for cystic fibrosis, gene therapy and epithelial biology. I serve as a reviewer for numerous 
leading journals including 
and also serve as an reviewer for different study sections at 
the I am on the editorial board of the 
... I 
have also been honored with numerous honors and awards such as admission to the 
With regard to his qualifications, Dr. states: "I am now the Director of the 
I have been heavily 
involved in research and I have published more than 170 scientific papers and several books." 
According to his Curriculum Vitae, Dr. scientific papers have been cited to more than 3,350 
times. In addition, Dr. has served on seven editorial boards, reviewed grants for numerous 
research foundations and government agencies, and served as a peer reviewer for more than 50 journals. 
Regarding his qualifications, Dr. 
Current! y 
I am the director of 
Professor in the Department of 
states: 
and hold joint appointments as a 
I am currently serving as a member of Editorial Board for several international journals, 
including _ 
_ _ Since in 2004, I have been active in 
several scientific advisory boards for international companies and scientific communities, 
such as 
and the .... I was recently elected the Treasurer and a 
member of the Board of the Directors for the 
positions I will hold until 2014. 
In discussing his qualifications, Dr. states: 
I am presently a Professor of Pediatrics at the of Medicine and 
participate in clinical service, teaching, and research. I direct a translational research 
laboratory and am actively involved in training undergraduate and graduate students, post­
doctoral fellows, and junior faculty in their research experiences. I also serve as the Vice 
Chair for Research in the Department of Pediatrics. 
According to his Curriculum Vitae, Dr. is an Associate Editor for 
and has been an invited reviewer for twenty journals. In addition, he has authored more than 175 
research publications. 
With regard to her qualifications, Dr. states: 
(b)(6)
NON-PRECEDENT DECISION 
Page 26 
I am a newly tenured professor in the Department of Biological Sciences at _ 
. 
. . My work is internationally recognized and the work I initiated during my 
Ph.D. studies, and for which I hold a patent, has recently become the first clinically approved 
gene therapy in the Western world. I have published 34 peer-reviewed manuscripts m 
esteemed journals such as 
- -
(cited over 1500 times). I have served as a grant reviewer on 
a study section panel for the _ _ and the 
virology journals .. -~--
Regarding her qualifications, Dr. 
and I review manuscripts for various microbiology and 
etc.). 
states: 
I am a tenured Associate Professor at where I have served for the 
past 18 years as Principal Investigator on projects related to HIV/AIDS, gene therapy, viral 
vector safety, and biodefense. I currently serve on the 
(one of only 21 members selected in the United States) reviewing cutting-edge 
research protocols for clinical trials involving gene therapy . . .. I serve on the editorial board 
for Applied Biosafety and have reviewed manuscri ts for prestigious journals including 
- -
I have published 30 articles in scientific journals and 44 abstracts at 
national and international scientific conferences. 
In light of the above, our final merits determination reveals that the beneficiary 's qualifying 
evidence, serving as an editor of a journal with undocumented significance, participating once in the 
widespread peer review process and publishing articles that have not garnered significant citations or 
other response in the academic field, does not set the beneficiary apart in the academic community 
through eminence and distinction based on international recognition, the purpose of the regulatory 
criteria. 56 Fed. Reg. at 30705. 
III. Conclusion - International Recognition as Outstanding 
The petitioner has shown that the beneficiary is a talented research associate, who has won the respect 
of her collaborators and supervisors, while securing a small degree of international exposure for her 
work. The record, however, stops short of elevating the beneficiary to the level of an individual who is 
internationally recognized as an outstanding researcher or professor. Therefore, the petitioner has not 
established that the beneficiary is qualified for the benefit sought. 
IV. Job Offer 
The director determined that the petitioner did not submit an offer of employment in the form a letter 
from the petitioner to the beneficiary. 
The regulation at 8 C.F.R. § 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
(b)(6)
Page 27 
NON-PRECEDENT DECISION 
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. 
Black's Law Dictionary 1189 (9th ed. 2009) defines "offer" as "[t]he 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" and defines "offeree" as "[ o ]ne to whom an offer is 
made." In addition, Black's Law Dictionary 
defines "offeror" as "[o]ne who makes an offer." Id. at 
1190. The online law dictionary by American Lawyer Media (ALM), available at 
http://dictionary.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 offer 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 offeree) to enter into a contract." 
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 USCIS affirming the beneficiary's employment is not a job offer within the 
ordinary meaning of that phrase. 
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 ordinarii y have an expectation of continued employment unless there is 
good cause for termination." 
In Part 6 of the Form I-140 petition, the petitioner indicated that the proposed employment was a 
permanent position. The petitioner submitted an April 29, 2013 letter from General 
Counsel, addressed to USCIS, stating that "proposes to employ [the beneficiary] 
permanently in the United States in the position of Research Associate on a permanent, full-time basis." 
This letter does not constitute an offer of employment from the petitioner to the beneficiary. On 
October 25, 2013, the director requested evidence that the petitioner had extended a permanent offer of 
(b)(6)
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Page 28 
employment to the beneficiary. The director's request for evidence advised the petitioner that the "offer 
of employment must be a copy of the actual letter from [the petitioner] to the alien, dated at the time 
[the petitioner] made the offer .... " 
In response, the petitioner submitted a letter from Human Resources Operations Analyst, 
_, stating: "We affirm the terms of employment as set forth in our letter to Immigration dated 
04/29/13. Those terms of employment existed before that filing and were effective at the time of the 
filing of the I-140." 
On appeal, the petitioner focuses on what constitutes a qualifying permanent research position rather 
than what constitutes an offer of employment. The petitioner has not submitted the primary required 
initial evidence, the original offer of employment to the beneficiary predating the filing date of the 
petition. Confirmations after the fact are not evidence of eligibility as of the date of filing. See 
generally 8 C.P.R. § 103.2(b)(12); Matter of Katigbak at 49. The petitioner has not complied with the 
regulation at 8 C.P.R. § 103.2(b)(2) regarding the submission of secondary evidence. Specifically, the 
petitioner has not demonstrated that the original offer of employment does not exist or is unavailable. 
Although we do not question the credibility of those who have confirmed the beneficiary's 
employment, the petitioner has not sufficiently explained why we should accept attestations about the 
terms and conditions in a document in lieu of the document itself. 
We affirm the director's finding that the petitioner has not submitted the required primary initial 
evidence, the original offer of employment to the beneficiary. A petition must be filed with any initial 
evidence required by the regulation. 8 C.P.R.§ 103.2(b)(1). Without evidence of the initial job offer 
to the beneficiary, we cannot consider the petitioner's explanations about the terms and conditions set 
forth in that job offer. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. 
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. The AAO conducts appellate review on a de novo basis. See Siddiqui v. Holder, 
670 F.3d 736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 
891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.