dismissed EB-1B Case: Cancer Biology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
FILE: LIN 04 076 50601 Office: NEBRASKA SERVICE CENTER Date: NOV 1 5 2005 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(IXB) of the lmmigration and Nationality Act, 8 U.S.C. 4 I1 53(b)(lXB) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that ofice. 
* 
! Administrative Appeals Office 
{J 
LIN 04 076 50601 
Page 2 
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 research institute. 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. $ 1153(bXl)(B). According to 
the petition, the petitioner seeks to employ the beneficiary 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. On appeal, the petitioner submits the beneficiary's initial job offer and letters purporting to 
explain the terms and conditions of the beneficiary's employment. We uphold the director's decision and 
further find that the petitioner has not established that the beneficiary is recognized internationally as 
outstanding in her academic field, as required for classification as an outstanding researcher. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific academic 
area. 
(ii) the alien has at least 3 years of experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enter the United States -- 
(I) for a tenured position (or tenure-track position) within a university 
or institution of higher education to teach in the academic area, 
(11) 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 hll-time in 
research activities and has achieved documented accomplishments in an 
academic field. 
The regulation at 8 C.F.R. § 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: 
LIN 04 076 50601 
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(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. 
The failure in the regulations to require a job offer "addressed to the beneficiary" does not imply that a letter 
to the director can be considered a job offer. Such language would be redundant as an offer can only be 
made to an offeree. 
On Part 6 of the petition, the pe ' t the position of research fellow was permanent. The 
petitioner submitted a letter from 
Illmn..l*.r.Mth. 
Administrator for the Department of Cancer Biology, 
stating that the beneficiary "is em e Research Associate." The letter further states that the 
beneficiary's "appointment started March 2000 and it continues successfully." This document does not 
constitute a job offer from the petitioner to the beneficiary. On February 11, 2005, the director requested "a 
copy of the offer of employment made to the beneficiary." 
Manager of lnternati In response, the petitioner submitted a letter fro 
asserting that "all staff7 at the petitioning foundat~on are grven annual contracts." M 
these positions "are permanent fulltime positions r an indefinite period of time until one or 
both parties decides to end the relationship." - Dr hair of the Department of Pathobiology, 
attests to the beneficiary's "permanent" employme 
The director concluded that the petitioner had not met the regulatory evidentiary requirement of submitting a 
letter offering the beneficiary a position for a term of indefinite or unlimited duration. 
On appeal, counsel asserts that the director's decision is inconsistent with prior approvals in the same 
classification of petitions filed by the petitioner for other beneficiaries employed under similar terms and 
conditions. The records of proceeding of those petitions are not before us. Regardless, Citizenship and 
Immigration Services (CIS) is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology Internarional, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Eng. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987)' cert. denied, 485 U.S. 1008 (1988). 
LIN 04 076 50601 
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The petitioner submits the original offer of employment issued to the beneficiary and additional letters 
discussing the terms and conditions of the beneficiary's employment. Finally, the petitioner submits 
materials about research staff positions with the petitioning foundation, defining them as "more closely 
related to faculty positions in university settings." 
The initial job offer letter to the beneficiary, dated July 1, 2002, references "benefits and prerequisites 
provided to you." The letter itself does not provide the terms and conditions of employment. Contrary to 
counsel's assertion, we cannot conclude that the polite closing wishing the beneficiary "continuing success" 
creates a pres at the position is "permanent" as defined in the regulation quoted above. The new 
letter from Dr dated April 5,2005 and addressed to the beneficiary, provides: 
The expectation for this position includes an indefinite term of unlimited duration. Contracts 
are subject to annual renewal for all faculty at the [petitioning foundation] including chairs of 
Departments as myself, as there is no tenure for anyone. However, your employment here is 
hlly expected to extend well beyond the duration of each of the renewable contracts, as it is for 
all of our faculty, and would only be terminated for good cause. 
The evidence submitted on appeal does not overcome the director's determination that the beneficiary's 
position is not "permanent" as defined in the regulations quoted above. While the beneficiary may have an 
expectation of continued employment, the use of the word "and" in the regulation at 8 C.F.R. 5 204(i)(2) 
indicates that such an expectation is required in addition io an offer for a job with a term of indefinite or 
unlimited duration. Moreover, we cannot ignore the regulatory requirement that termination can only be for 
"good cause." The prior lett uousty stated that renewal is at the discretion of the petitioner. The 
record does not reconcile Dr. decision not to renew a contract must be for good 
cause with the contradictory in orma lon from Ms. that one or both party can simply decide to end the 
employment relationship. It is incumbent upon th er 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. Maffer ofHo, 19 
I&N Dec. 582, 591-92 (BIA 1988). The record does not resolve the inconsistencies regarding whether the 
decision not to renew a research associate contracts is discretionary or can only be for good cause. Thus, the 
petitioner has not overcome the director's basis of denial. 
Finally, we do not contest the petitioner's prestige and distinguished reputation or its sincerity in wishing to 
employ the beneficiary. As an adjudicatory body, however, we are bound by the statute and the regulations. 
Whether or not the statute and regulations are conducive to the petitioner's personnel policies is not a 
consideration for us. It remains, the lack of a permanent job offer from the petitioner to the beneficiary is 
sufficient grounds for denial of a petition seeking the classification sought in this proceeding. 
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary enjoys 
international recognition in her field. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identify all of the 
grounds for denial in the initial decision. See Spencer Enterprises. Inc. v. United Sta&es, 229 F. Supp. 2d 
1025, 1043 (E.D. Cat. 20011, afld. 345 F.36 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 
9 (26 Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
LN04 076 5060 1 
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The regulation at 8 C.F.R. 5 204.5(iX3Xi) states that a petition for an outstanding professor or researcher must 
be accompanied by "[elvidence that the professor or researcher is recognized internationally as outstanding in 
the academic field specified in the petition." The regulation lisl six criteria, of which the petitioner must satisfy 
at least two. It is important to note here that the controlling purpose of the regulation is to establish international 
recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of 
international recognition. More specifically, outstanding professors and researchers should stand apart in the 
academic community through eminence and distinction based on international recognition. The regulation at 
issue provides criteria to be used in evaluating whether a professor or researcher is deemed outstanding. 56 
Fed. Reg. 30703,30705 (1991). The petitioner claims to have satisfied the following criteria-' 
Documentation of the alien 's receipt oJ major prizes or awards for oufsimding achievement in the 
academic field 
The petitioner submitted a 1990 award issued to the beneficiary from the Committee of Science and Technology 
of Shanghai, another 1990 award issued to Cancer Hospital and Shanghai Medical University from the 
government of Shanghai, a 1991 award issued to Huashan Hospital, Cancer Hospital and the Cancer Research 
Ministry from the Chinese Ministry of Public Health and a 1994 certificate issued to the beneficiary by the 
Chinese Committee of National Science and Technology. The petitioner also submitted evidence that the 
beneficiary received the Shi and Li Scholarship in 1985 and recognition as an "outstanding student" in 1984. 
Scholarships and outstanding student awards are generally based on past academic achievement, not for 
accomplishments in a field of endeavor. While 8 C.F.R. 3 204.5(i)(3)(A) references outstanding achievements 
in one's academic field, 8 C.F.R. 5 204.(i)(2) defines "academic field" as "a body of specialized knowledge 
offered for study." The definition does not include typical bases for scholarships, such as grade point average 
and class standing. It remains, academic study is not a field of endeavor, academic or otherwise. Rather, 
academic study is training for a future career in an academic field. As such, scholarships in recognition of 
academic achievement, such as grade point average, are insufficient. Moreover, the beneficiary only competed 
against other students at the university at that time for the scholarship. Thus, scholarships and the beneficiary's 
student award are simply not evidence of international recognition in the field. Rather, they represent high 
academic achievements in comparison with her fellow students. 
In addition, we will not consider awards issued to institutions where the beneficiary worked as evidence of the 
beneficiary's receipt of awards or prizes. Thus, the 1990 and 1Wl awards issued to hospitals where the 
beneficiary worked are not sufficient evidence to meet this criterion. 
Moreover, the 1990 award fiom the Committee of Science and Technology of Shanghai is a local award. 
Provincial or regional awards are not indicative of or consistent with international recognition. 
Thus, the only award that we can consider is the 1994 award from the Chinese Committee of National Science 
and Technology. The commentary to the final regulation explains that the removal of the word "international" 
from the awards requirement from the proposed rule is "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." 
I 
The petitioner does not claim that the beneficiary meets any criteria nor discussed in this decision and the 
record contains no evidence relating to the omitted criteria. 
LRJ 04 076 50601 
Page 6 
56 Fed. Reg. 60899 (November 29, 1991). Thus, the absence of the word "international" does not imply that 
every national award will serve to meet this criterion. Rather, the commentary envisions the "possibility" that 
there exist "major" awards that, while not international in scope, are still indicative of international recognition. 
Counsel asserted in her initial brief that the beneficiary's 1994 award "is the top academic reward for science 
studies in China." The record contains no evidence to support this assertion. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Regardless, for the reasons discussed above, an academic award cannot serve to meet this criterion. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members 
The petitioner submitted evidence that the beneficiary is a member of the American Thoracic Society (ATS), the 
American Physiological Society (APS) and the Shanghai Anti-tumor Association. The materials submitted 
reflect that ATS has 13,500 members and is dedicated to reducing morbidity fiom respiratory disorders and that 
APS is a "professional scientific organization" where "membership conveys a degree of recognition and certain 
advantages and privileges." The record contains no information about the Shanghai Anti-tumor Association. 
While these materials address the reputation of the societies, they do not provide the basic requirements for 
general membership. 
As the record does not reflect that these organizations require outstanding achievements of their general 
membership, the petitioner has not established that the beneficiary meets this criterion. 
Published material in proJessional publications written by others about the alien's work in the 
academic jeld Such material shall include the title, date, and author of the material, and any 
necessary translation 
While counsel has n&er specifically asserted that the petitioner meets this criterion, we acknowledge the 
submission of minimal citations of the beneficiary's articles. Articles which cite the beneficiary's work are 
primarily about the author's own work, not the beneficiary's work. As such, they cannot be considered 
published material about the beneficiary's work. Thus, the petitioner has not established that the beneficiary 
meets this criterion. 
Evidence 01 the alkn 5 participation, either irtdividwdiy or on a panel, as the judge of the work of 
others in the same or an allied academic field 
The record reflects that the beneficiary has refereed articles for UIrrasound in Obstetrics and Gynecology. In 
addition, the beneficiary volunteered to judge a competition of high school students. The e-mail providing 
details about the volunteer service notes: "we are still short of judges in many categories (everything except 
Engineering, Chemistry and Biochemistry). If you have a friend or colleague with whom you would like to 
share this rewarding and exhilarating experience, it is not too late to sign up." The petitioner also reviewed the 
work of her students while an associate professor in China. 
LM 04 076 50601 
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We cannot ignore that scientific journals are peer reviewed and rely on many scientists to review submitted 
articles. Thus, peer review is routine in the field; not every peer reviewer enjoys international recognition. In 
addition, volunteering to judge the work of high school students is not judging the work of others in the same or 
an allied academic field. Without evidence that sets the beneficiary apart from others in his fieid, such as 
evidence that he has reviewed an unusually large number of articles, received independent requests from a 
substantial number of journals, served in an editorial position for a distinguished journal or was requested to 
serve as an external thesis examiner, we cannot conclude that the beneficiary meets this criterion. 
Evidence of the alien's original scientiJic or scholarly research conb-ibutions to the academic field. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects, and 
demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior research. 
Research work that is unoriginal would be unlikely to secure the beneficiary a master's degree, let alone 
classification as an outstanding researcher. Because the goal of the regulatory criteria is to demonstrate that the 
beneficiary has won international recognition as an outstanding researcher, it stands to reason that the 
beneficiary's research contributions have won comparable recognition. To argue that all original research is, by 
definition, "outstanding" is to weaken that adjective beyond any useful meaning, and to presume that most 
research is "unoriginal." 
We will consider the reference letters below. We note, however, that the opinions of experts in the field, 
while not without weight, cannot form the cornerstone of a successful claim of sustained national or 
international acclaim. Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter of Caron Inrernatzonal, 19 I&N Dec. 791, 
795 (Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id The submission of letters from experts supporting the petition is 
not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795-796. C1S may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; See also Matter of 
Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafr of Calgornia, 14 I&N Dec. 
190 (Reg. Comm. 1 972)). 
The beneficiary received her Master of Medicine degree from Shanghai Medical University in 1988. The 
beneficiary then worked at the university as a resident, attendant and associate professor from 1988 to 2000, 
spending six months in 1996 working as a research fellow at the University of Kuopio in Finland. The 
beneficiary began working as a research fellow for the petitioner in 2000 where she was promoted to research 
associate in 2002. 
who attended medical school with the beneficiary, praises the beneficiary's abilities as a 
the projects on which the beneficiary has worked since graduation, such as early detection of 
breast cancer. ~rldoes not explain how the beneficiary's work has impacted the field beyond the 
importance of the beneficiary's area of research. 
Dr. Director of the Breast Cancer institute at Fudan University, claims personal knowledge of 
the beneficiary's work at Shanghai Medical University. ~r.x~lains that the beneficiary's work 
LtN 04 076 50601 
Page 8 
focused on the mechanism underlying cancer and early detection. M. further notes that the 
beneficiary's work was supported by the China National Science Foundation and that her publications, many 
of which listed the beneficiary as the principle author, appeared in highly ranked international and Chinese 
journals and "have been widely cited." The best evidence of citations, however, is a listing in a science index 
or the citations themselves. The petitioner has not submitted evidence of more than two citations for any one 
of the beneficiary's article While ~r notes the government recognition received by the beneficiary 
for her work in China, D does not identify any specific breakthrough or explain how the beneficiary's 
work has impacted the field. 
Dr.a professor at the University of Kuopio, asserts that while visiting that university, the 
beneficiary contributed to a major research project on ovarian cancer, published in top clinical cancer 
journals. Drassens that these studies "have had a great prognostic significance in [the] clinical 
practice of ovarian malignancies," but does not explain the actual results of these studies or how they are - 
being applied in clinical practice. 
~r.iscusses the beneficiary's work at the petitioning foundation, concluding that the beneficiary 
has "ma e original contributions to the field of gene transcription and regulation, especially in the [sic] 
Asthma." More specifically, the beneficiary focused on the "transcription reguIation of [the NOS2 ene 
which is associated with inflammatory tissue damage 
beneficiary's results reveal "an interesting and novel mechanism of this 
phenomena on the molecular basis that augments the 
predicts that the beneficiary will promote understanding of the 
fundamental problems with this condition and develop new 
explain, however, how the 
in the field of scientific research. Dr beneficiary's work is "widely cited" and that 
he has received requests recent article. As stated above, however, the 
record lacks corroborating evidknce that the beneficiaj is widely cited. 
~rhairman of the Department of Cancer Biology and the petitioning foundation, asserts 
tha ene ~clat-y IS "centrally involved in developing and directing several ongoing key projects related to 
Asthma and the diagnosis and treatment of lung cancer, the number one cause f cancer deaths in the USA." 
~rasserts that the beneficiary is "vital" to these efforts. h.aborates: 
Alterations in nitric oxide levels have been found in pulmonary diseases such as Asthma and 
also play an important role in the development of cancer. [The beneficiary's] recent studies 
on cooperative transcriptional activation of Nitric Oxide Synthase 2 through STAT-] and c- 
Fos proteins interaction are important to our understanding of the mechanisms of gene 
transcription and regulation in Asthma and lung cancer. The ongoing goal of these projects 
will be to address important fundamental problems as well as develop new therapeutic 
approaches for prevention and treatment of lung disease. 
~r. concludes that the beneficiary's publication record demonstrates that she has "clearly 
established herself as an important contributing scientist in the field of medicine." 
LIN 04 076 50601 
Page 9 
~rhief of the Pulrnonaly-Critical Care Medicine Branch of the National Heart, Lung and Blood 
Insti te, in icates that he has collaborated with Dr. laboratory on studies in which the beneficiary 
participated. ~rasserts that the beneficiary eted important research on the transcriptional 
regulation of the nitric oxide synthase gene." While Dr. Moss discusses the projected benefits of the 
beneficiary's projects and notes that her work has been published, he does not assert that the beneficiary's 
work has already impacted the field. 
an associate professor at Baylor College of Medicine, asserts that the beneficiary's book 
he edited "is highly im ortant to our understanding of the mechanisms of Nitric Oxide in 
airway inflammation in asthma." Dr.asserts that the beneficiary's "unique" studies have 
"demonstrated the important response elements in transcriptional regulation of the NOS2 gene and multiple 
mechanisms function coordinately to support Nitric Oxide Synthesis in healthy airways and high-Ievel Nitric 
Oxide Synthesis in the inflamed airway." &scribes this work as "helpful" and concludes that the 
beneficiary "will be an important asset to our me Ica scientific community." 
While the beneficiary's research is no doubt of value, it can be argued that any research must be shown to be 
original and present some benefit if it is to receive funding and attention from the scientific community. Any 
research, in order to be accepted for graduation, publication or funding, must offer new and useful 
information to the pool of knowledge. The record does not establish that the beneficiary's contributions are 
consistent with international recognition in the field. Thus, the petitioner has not established that the 
beneficiary meets this criterion. 
Evidence ofthe alien's authorship of scholarly book or arricles (in scholarly journals with international 
circulation) in the acudernicJield 
The petitioner submitted evidence that the beneficiary has authored several published articles and a book 
chapter and presented her work at scientific conferences. The Association of American Universities' 
Committee on Postdoctoral Education, on page 5 of its Report and Recommendations, 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 ful I-time academic andor 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 articIes. 
The citations submitted by the petitioner reflect no more than two citations of any one of the beneficiary's 
articles. Such minimal citation is not indicative of or consistent with international recognition. Thus, the 
petitioner has not established that the beneficiary meets this criterion, 
The petitioner has shown that the beneficiary is a talented and pro1ific researcher, who has won the respect of 
her collaborators, employers, and mentors, while securing some degree of international exposure for her work. 
The record, however, stops short of elevating the beneficiary to an international reputation as an outstanding 
researcher or professor. Therefore, he petitioner has not established that the benefkiary is qualified for the 
benefit sought. 
LIN 04 076 50601 
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For the above stated reasons, considered both in sum and as separate grounds for denial, the petition may not 
be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.