dismissed EB-1B Case: Cancer Research

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U.S. Department of Homeland Sccurity 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER 
EAC 02 291 5279 1 
Date: FEB 2 5 2005 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is an institution of higher learning. 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. 
fj 1153(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a research 
associate. The director determined that the petitioner had not established the significance of the beneficiary's 
research, or that the beneficiary is recognized internationally as outstanding in his academic field, as required for 
classification as an outstanding researcher. 
On appeal, counsel raises several issues and asserrs that he will submit a brief andor additional evidence within 
30 days. Counsel dated the appeal October 10,2003. As of this date, more than 15 months later, this office has 
received nothing further. Counsel's specific assertions will be discussed below. While the director's decision 
fails to discuss the evidence in the context of the regulatory criteria claimed, we concur with the director's 
ultimate conclusion that the record lacks evidence of the beneficiary's international recognition. Moreover, 
while not raised by the director, the record lacks a permanent job offer (or any job offer at all) as required by the 
regulations. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific academic 
area, 
(ii) the alien has at least 3 years of experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enter the United States -- 
(I) for a tenured position (or tenure-track position) within a university 
or institution of higher education to teach in the academic area. 
(II) for a comparable position with a university or institution of higher 
education to conduct research in the area. or 
(III) for a comparable position to conduct research in the area with a 
department, division, or institute of a private employer, if 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 andlor 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 teaching duties were such 
that he or she had full responsibility for tlle class taught or if the research conducted toward the 
degree has been recognized withn the academic field as outstanding. Evidence of teaching 
and/or research experience shall be in tht: form of letter(s) from former or current employer(s) 
and shall include the name, address, and title of the writer, and a specific description of the 
duties performed by the alien. 
This petition was filed on September 13, 2002 to classify the beneficiary as an outstanding researcher. 
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 withn the field as 
outstanding. 
The regulation at 8 C.F.R. $ 204.5(i)(3)(i) 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 lists six criteria, of which the petitioner must satisfy 
at least two. It is important to note here that the controlling purpose of the regulation is to establish international 
recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of 
international recognition. 
Before discussing the individual criteria, we not{: that the assertions of counsel and the references are poorly 
supported in the record. For example, counsel asserts that the beneficiary has been frequently cited and that a 
copy of the beneficiary's cumculum vitae (C.V.) is being submitted. The record contains no evidence of 
citations and the beneficiary's C.V. is not part of the record. In addition, the references imply that the 
beneficiary has presented his work at conferences. Yet, the record does not contain the proceedings from these 
conferences or the programs listing the beneficia~y as a presenter. Further, one of the beneficiary's references 
attests to his graduation from Peking Union Medical College. The record does not contain, however, the 
beneficiary's degree or the transcript of these studies. Finally, several references attest to the beneficiary's 12 
publications, but only two appear in the record. l'he assertions of counsel do not constitute evidence. Matter of 
Ohaigbena, 19 I&N Dec. 533, 534 (BIA 1988); hlafter of Ratrrirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Going on record without supporting documenl.ary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craji ofCalzfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972). 
The petitioner claims to have satisfied the following criteria.' 
Documentation of the alien :s membership in associations in the ucademic field which require 
outstanding achievements of their members 
1 
The petitioner does not claim to meet and does not submit evidence relating to the criteria not discussed 
below. 
The petitioner submitted evidence of his associate membership in the American Society for Biochemistry and 
Molecular Biology (ASBMB), the American Association for Cancer Research (AACR) and the Chinese 
Medical Association. While the director did not specifically address this issue, the record does mt reflect 
that these organizations require outstanding achievements of their membership, let alone their associate 
members. Spec~fically, associate membership in ASBMB is "available to individuals sponsored by a Regular 
member of the Society who can attest to the interest of the candidate in biochemistry and molecular biology." 
The record does not contain the associate mernberships requirements for AACR or the Chinese Medical 
Association. Sponsorship by a member based on one's interest in the field is not an outstanding 
achievement. 
Published material in professional publicai'ions 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 
As stated above, counsel references the "frequent: citation of [the beneficiary's] research findings by others in 
their own published work." The record contains no evidence of citations. In fact, while a list of citations ti-om a 
print or electronic index is the most persuasive evidence of citations, we note that none of the beneficiary's 
witnesses claim that the beneficiary's work has been cited. Regardless, articles which cite the beneficiary's 
work are primarily about the author's own work, not the beneficiary. As such, they cannot be considered 
published material about the benefic~ary. 
Evidence of the alien's participation, either individually or on a panel, us the judge of the work of 
others in the same or an allied academicfield 
The beneficiary's witnesses assert that he has trained graduate students at the petitioning university. We cannot 
conclude that the typical evaluation responsibilaties inherent to academic instruction constitute the type of 
judging contemplated by this regulation. Specifically, not every researcher who assists with the training of the 
graduate students in his supervisor's laboratory can be said to enjoy international recognition, the ultimate 
standard of the classification sought. 
Evidence of the alien !s original scienttjic or sc/'iolarly research contributions to the academicfleld. 
At the time of filing, the beneficiary was working for the petitioner in the laboratory o- 
xplains that the beneficiary is investigating how the breast Eancer drug adriamycin kills cancer cells 
develop resistance to this drug. In pursuin this goal the beneficiary is focusing on p53, the 
most commonly mutated gene in breast cancer. Whilgasserts that a manuscript will soon be 
submitted to the Journal of Biologicul Chen~istty reporting the results bf this workdoes not explain 
how this work has already contributed to the field. Another manuscript relating to the beneficiary's work with 
p53 "is in its early stages of development." 
The beneficiary's collaborator on this project asserts that this work "may prove to be a 
valuable model for breast cancer recurrence in confidence that it will, "at a minimum, 
result in a peer-reviewed publication." Another collaborator asserts that this work "will every 
[sic] likely have important implications for attempts to understand the factors that determine a breast cancer 
cell's fate following exposure to these effective therapeutic modalities." an associate 
professor at the University of Pittsburgh, asserts that the beneficiary has made "rapid progress" in this work, but 
fails to identify any specific contributions. 
further asserts that the beneficiary is studying whether interfere with the 
susceptibility of breast tumor cells to drugs, hormones and asserts that this. work 
suggests that Procrit "should be used with caution in patients treated 
however, implies that recent findings by others already suggested the possibility of an interference, which the 
beneficiary is now investigating. 
Finally, the beneficiary is working with a graduate student studying whether vitamin D3 might enhance the 
effectiveness of radiation therapy for breast cancer.oes not indicate that this project has produced 
resultssserts that the beneficiary obwmed, "that vitamin D3 analogs, which confer susceptibility to 
apoptosis jn response to both aharnycin and radiation, su ress MAP kinase activity," which has an "a 
profound radiosensitizing effect in breast cancer cells." doncludes that this observation is important to 
understanding the entire DNAdamage response pathway in breast cancer, is "potentially a critical breakthrough 
in breast cancer research" and "may ultimately have a significant impact on the prevention and treatment of 
breast cancer." 
a professor at the petitioning university and a collaborator witrovides 
the beneficiary's results. Specifically, the beneficiary determined that, in response to 
tumor cells do not undergo classic apoptosis (cell death), but simply cease to 
xplains that these results may provide a basis for why breast cancer recurs in patients. 
These findings serve to identify specific elements of the growth regulatory-growth arrest 
pathway in the breast tumor cell. It should now be possible to focus therapeutic approaches 
directly towards this pathway - with the ultimate result that therapies which are more selective 
towards breast cancer and less toxic towards noml tissue will be developed. 
an Invention Analyst at Flanders Interuniversity Institute for Biotechnology in Belgium, 
aware of the beneficiary's work from a review of literature in the) field and has 
contemplated collaborations with the beneficiary. He provides similar information to that discusskd above. 
The petitioner also submitted a the beneficiary's supervisor at the Institute of 
Basic Medical Sciences in China. the beneficiary's work at the institute, the 
beneficiary's only published work as of the date of filing. The beneficiary "was involved in cloning, expression 
and regulation of stem cell factors in E. [Cloli and mechanistic studies on the influence of oint mutation of 
CCMC box on activity of d-globin gene in human leukaemia (sic cells.' While Dsse"sh 
with the beneficiary's work, he does not explain its significance or ~mpact on t e field. 
another professor at the Institute of Basic Medical Sciences, explains that this work relates to 
sickle cell disease. Specifically, the beneficiary used a novel technique "to find a new gene therapy strategy to 
cure sick cell disease and osteoporosis for the futu,re." 
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 
Page 6 
beneficiary has won international recognition as an outstanding researcher, it stands to reason that the 
beneficiary's research contributions have won cornparable 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." 
While the petitioner's research is no doubt of va.lue, 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. It 
does not follow that every researcher who performs original research that adds to the general pool of 
knowledge enjoys international recognition. Most of the beneficiary's references focus on the importance of 
his cancer research. The record, however, contains no evidence that the beneficiary had authored 
manuscripts on his cancer research published as of the date of filing or that he had presented this work at 
conferences. The breast cancer research community cannot evaluate or apply the beneficiary' s work in this 
area until it is published or at least presented. While the beneficiary's research at the Institute of Basic 
Medical Sciences was published, the record con.tains little evidence of its impact, such as citations or letters 
from independent sick cell or osteoporosis researchers who have incorporated this work in their own studies. 
Evidence of the alien's authorship of scholarb books or articles (in scholarly journals with international 
circulation) in the academicj?eld. 
While some of the beneficiary's witnesses assert that he had published 12 articles and presented his work at 
"numerous" national and international conferences, the record establishes only that the beneficiary had authored 
two published articles. It is insufficient merely to submit evidence relating to a criterion; the evidence must be 
indicative of or consistent with not merely international exposure, but international recognition. The 
Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report and 
Recommendations, March 3 1, 1998, set forth -1ts recommended definition of a postdoctoral appointment. 
Among the factors included in this definition ar-e the acknowledgement that "the appointment is viewed as 
preparatory for a full-time academic and/or 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 andlor research career." 
This report reinforces Citizenship and Immigration Services' position that publication of scholarly articles is not 
automatically evidence of international recognition; we must consider the international research community's 
reaction to those articles. As stated above, the record contains no evidence that the beneficiary has been cited at 
all. As his publication record is not indicativu of international recognition, we cannot conclude that the 
beneficiary meets this critkrion. 
'he pet~tioner has shown that the beneficiary is a productive researcher, who has won the respect of his 
collaborators, employers, and mentors. The record, however, stops short of elevating the beneficiary to an 
international reputation as an outstanding researcher or professor. Therefore, the petitioner has not established 
that the beneficiary is qualified for the benefit sought. 
Beyond the decision of the director, the regulation at 8 C.F.R. fj 204.S(i)(3)(iii) provides that a petition must be 
accompanied by: 
An offer of employment from a prospective United States employer. A labor certification is not 
required for this classification. The offer of employment shall be in the form of a letter from: 
(A) A United States university or institution of higher learning offering the alien a 
tenured or tenure-track teaching position in the alicm's academic field; 
(B) A United States university or iristitution 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. 9 204.5(i)(2), provides, in pertinent part: 
Permanent, in reference to a research position, means either tenured, tenure track, or for a term 
of indefinite or unlimited duration, and in which the employee will ordinarily have an 
expectation of continued employment unless there is good cause for termination. 
On Part 6 of the petition, the petitioner indicated that the proposed employment was a permanent position as a 
research associate. The regulations, however, require an offer of employment in the form of a letter. None of 
the letters from faculty at the petitioning university constitute a job offer. In addition to not being addressed to 
the beneficiary, they do not discuss an offer of employment or the terms of that employment. The lack of a 
permanent job offer from the petitioner to the beneficiary is sufficient grounds for denial. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.