dismissed EB-1B Case: Cellular Biology

identifyingdatadel~ to
preventclearlyunwarranted
invasionofpersonalprivacy,
PUBUCCOPy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: LIN 07 110 54245 Office: NEBRASKA SERVICE CENTER Date: HOY 072007
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to
Section 203(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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.
~~?~- Robert P. Wiemann, Chief
1- Administrative Appeals Office
www.uscis.gov
LIN 07 110 54245
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petitioI,l,which is,now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed.
The petitioner is an educational institute. It seeks to classify the beneficiary as an outstanding
researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1153(b)(1)(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 that it had offered
the beneficiary a permanent job as of the date of filing. The director also determined that the petitioner
had not established that the beneficiary had attained the outstanding level of achievement required for
classification as an outstanding researcher. While the director denied the petition on its merits, the
director concluded that no response had been submitted to the notice of intent to deny.
On appeal, counsel resubmits the petitioner's response to the notice of intent to deny. We withdraw the
director's conclusion that no response was submitted and will consider the response on appeal. For the
reasons discussed below, we find that the petitioner has overcome the director's concern that the
petitioner had not offered the beneficiary a permanent job as of the date of filing. We further fmd,
however, that the petitioner did not overcome the director's concerns regarding the beneficiary's
eligibility as an outstanding researcher. Thus, we uphold the director's ultimate conclusion that the
petitioner has not established the beneficiary's eligibility.
Section 203(b) ofthe 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,
LIN 07 11054245
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(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.
Job Offer
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:
(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.
(Emphasis added.) Black's Law Dictionary 1111 (7th ed. 1999) defines "offer" as "the act or an
instance of presenting something for acceptance" or "a display of willingness to enter into a contract
on specified terms, made in a way that would lead a reasonable person to understand that an
acceptance, having been sought, will result in a binding contract." Black's Law Dictionary does not
define "offeror" or "offeree." The online law dictionary by American Lawyer Media (ALM), available
at www.law.com.definesofferas ..aspecificproposaltoenterintoanagreementwithanother.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." (Emphasis
added.)
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In light of the above, we concur with the director that the ordinary meaning of an "offer" requires that it
be made to the offeree, not a third party. As such, regulatory language requiring that the offer be made
''to the beneficiary" would simply be redundant. Thus, a letter addressed to Citizenship and
Immigration Services (CIS) 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 ordinarily
have an expectation of continued employment unless there is good cause for
termination.
On Part 6 of the petition, the petitioner indicated that the proposed employment was a permanent
position. The petitioner submitted a letter from of the petitioner's
Department of Biological Sciences, addressed to Citizenship and Immigration Services (CIS), asserting
that the petitioner anticipated that the beneficiary would "continue full time employment with this
department as a Research Associate." In addition, the petitioner submitted a letter from Betsy Reigle,
Senior Accountant with the petitioner's Department of Biological Sciences, confirming that the
beneficiary was working as a Limited Term Researcher but was promoted to Research Associate nin
January 2007. Neither document constitutes a job offer from the petitioner to the beneficiary. On
March 12, 2007, the director requested evidence that the petitioner had extended a permanent job offer
to the beneficiary.
In response, the petitioner submitted a joint letter dated March 19, 2007 from _and Dr.
~ebeneficiary's supervisor, offering her a Research nposition.
In the notice of intent to deny, issued April 3, 2007, the director concluded that the job offer submitted
on appeal was inconsistent with the original assertions that the beneficiary had been offered the
Research nposition prior to the filing of the petition on March 5, 2007.
In response, counsel explains that the beneficiary was promoted through a memorandum with human
resources without an official job offer letter and that the March 19,2007 letter was prepared to comply
with the director's request for additional evidence. The petitioner submitted the memorandum, dated
November 30, 2006, providing that the department was classifying the beneficiary's
position as a Research Associate n. We are satisfied that this memorandum resolves the
inconsistencies noted by the director.
In promulgating the final regulation, the Immigration and Naturalization Services, now CIS,
recognized that it is unusual for colleges and universities to place researchers in tenured or tenure­
track positions. Thus, the commentary to the final rule accepts that research positions "having no
fixed term and in which the employee will ordinarily have an expectation of permanent employment"
LIN 07 110 54245
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as comparable. (Emphasis added.) 56 Fed. Reg. 60897, 60899 (November 29, 1991). We are
satisfied that the beneficiary, as of the date of filing, was no longer in a fixed term position.
Outstanding Researcher
The regulation at 8 C.F.R. § 204.5(iX3) 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
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.
This petition was filed on March 5, 2007 to classify the beneficiary as an outstanding researcher in the
field of cellular biology. Therefore, the petitioner must establish that the beneficiary had at least three
years of research experience in the field and that the beneficiary's work has been recognized
internationallywithin the field as outstanding as ofthat date.
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 "[e]vidence that the professor or researcher is recognized
internationally as outstanding in the academic field specified in the petition." The regulation lists six
criteria, of which the beneficiary 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. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5,
1991)(enacted 56 Fed. Reg. 60897 (Nov. 29, 1991». The petitioner claims to have satisfied the
following criteria.
Documentation ofthe alien's receipt ofmajor prizes or awards for outstanding achievement in
the academic field.
The petitioner relies on (1) a letter from Empire Who's Who advising the beneficiary that she had been
"appointed as a biographical candidate to represent Newark, DE in the Empire Who's Who Among
Executives and Professionals, and for inclusion in the upcoming 200512006 'Honors Edition' of the
registry" (emphasis in original); (2) two Merit Certificates from the Indian Society for Radiation and
LIN 07 110 54245
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Photochemical Sciences (ISRAPS) certifying the beneficiazy's participation at symposia in Mwnbai in
1998 and 2000 and her inclusion "among the twelve best"; (3) a certificate of participation at the 1997
International Symposium on Free Radicals in Medicine and Biology at ~ Medical College in India;
(4) a certificate confirming the beneficiary's attendance, presentation or lecture at the 1999 National
Symposium on Radiation and Photochemistry at Sambalpur University in India and (5) her results from
the Indian Chemical Society's 1995 aptitude test.
In the notice of intent to deny, the director concluded that the beneficiary's proposed listing "among
thousands of accomplished individuals" in the Empire Who's Who Registry and the certificates for
participation were not major prizes for outstanding achievement. In response, counsel asserted that the
certificates for merit and participation "denote [the beneficiary's] excellent presentation qualities and
her valuable research." Counsel then noted that Empire merged with Cambridge Who's Who, "whose
mission is to recognize successful individuals both nationally and internationally in multiple industries
and professions." The petitioner resubmitted the evidence previously submitted and materials from
Cambridge's website.
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
"international," but left the word "major." The commentazy 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." (Emphasis added.) 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).
Although counsel no longer asserts that the beneficiazy's aptitude test results are relevant under this
criterion, we emphasize that an aptitude test administered to college students is not a major prize or
award and, thus, cannot serve to meet this criterion.
Regarding the certificates fOf presenting one of the top twelve papers and participation in conferences,
we concur with the director that these certificates are not major prizes or awards for outstanding
achievements. Participating in scientific conferences is inherent to the beneficiary's field and is akin to
publishing scholarly articles, which fall under a criterion the director found that the beneficiazy meets. )
Thus, mere confirmation of participating in a conference is not a prize or award for outstanding
achievement, major or otherwise. While we acknowledge that two of the certificates rank the
beneficiary's paper as within the top twelve papers, we are not persuaded that a paper award limited to
I As will be discussed below, we uphold the director's finding that the beneficiary meets the scholarly
articles criterion set forth at 8 C.F.R. § 204.5(i)(3)(i)(F).
LIN 07 110 54245
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researchers who presented their work at this particular symposium is a major prize or award for
outstanding achievement in the beneficiary's field.
Finally, appearing as one of thousands of other successful individuals in a frequently published
directory is not a major prize or award and is not indicative of international recognition as
outstanding.
In light ofthe 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 oftheir members.
The petitioner submitted evidence of the beneficiary's membership in the American Association for
Cancer Research (AACR), the American Chemical Society (ACS), the American Association for the
Advancement of Science (AAAS) and Sigma Xi. The only evidence regarding the membership
requirements of these associations submitted initially was a letter from ACS explaining that ACS had
begun identifying potential members with degrees and academic training "working in academia,
industry, government and other venues" and "pre-nominating" them. This letter does not suggest that
ACS was only pre-nominating individuals with outstanding achievements or that such achievements
were required for membership.
In the notice of intent to deny, the director concluded that the record lacked evidence that the above
associations required outstanding achievements of their members. In response, counsel focused on the
beneficiary's membership in AACR and'Sigma Xi. Counsel notes that AACR requires nomination by
a current member and that Sigma Xi requires "notable achievements" for full membership and boasts
200 Nobel Laureates among its members. The petitioner submitted a letter from Sigma Xi and AACR.
The prestige of the Nobel Prize is not in dispute. It remains, however, that the petitioner is not a
recipient of the Nobel Prize. Thus, its significance is irrelevant. That 200 of Sigma Xi's 65,000 active
members have won the Nobel Prize does not impart that distinction to the vast majority (97 percent) of
its members who have not been so recognized.
The submitted materials about Sigma Xi reveal that Sigma Xi invites to full membership "those who
have demonstrated noteworthy achievements in research." These achievements must be evidenced by
"publications, patents, written reports or a thesis or dissertation, which must be available to the
Committee on Admission if requested." A noteworthy achievement is not necessarily an outstanding
achievement. In fact, the record reveals that the society does not take a particularly strict view of
noteworthy achievements. Specifically, Philip Carter, the Executive Director of the association,
indicates that the "Committee on Qualifications and Membership interpreted this qualification to
include primary authorship of two papers." In addition, an earned doctoral degree may be substituted
2 While counsel asserts that the nomination must come from an Emeritus or Honorary member, the materials
submitted actually state that any Active member may also nominate new members.
LIN 07 110 54245
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for one paper. We cannot conclude that primary authorship of one or two papers is an outstanding
achievement in the beneficiary's field.
The letter fro~, Director of Membership for AACR, asserts that the beneficiary is an
associate member and that associate membership is "open to graduate students, medical students and
residents; and clinical and postdoctoral fellows who are enrolled in educational or training programs
that could lead to careers in cancer research." These basic academic and training milestones in a typical
scientific career cannot be considered outstanding achievements and do not become more exclusive
merely because a prospective member must seek a nomination from a current member.
In light of the above, the petitioner has not established that the beneficiary meets this criterion.
Published material in professional publications written by others about the alien's work in the
academic field. Such material shall include the title, date, and author ofthe material, and any
necessary translation.
In the notice of intent to deny, the director acknowledged the submission of evidence that the
beneficiary had been cited but concluded that the articles which cited the beneficiary's work were
primarily about the author's own work, not that ofthe beneficiary and, as such, could not be considered
published material about the beneficiary. In response, the petitioner submitted a book chapter and
article that cite the beneficiary's work.
The book chapter is 50 pages and is devoted to the subject of the biological and medicinal properties of
curcumin. The beneficiary's work is cited in the four-page section on the chemical composition of
curcumin. The section devotes only one, five-sentence paragraph to the beneficiary's work. Similarly,
the article, which reports on the work of the authors, devotes only one sentence to the beneficiary's
work. The petitioner did not provide the reference sections for either the book chapter or the article.
Thus, we cannot determine how many other articles were also cited. Regardless, neither the book
chapter nor the article can be considered to be about the beneficiary's work.
While the evidence that the beneficiary has been consistently moderately cited has evidentiary weight, it
is best considered as evidence of the significance of the beneficiary's articles as discussed below. For
the reasons discussed above, the citations cannot serve to meet this criterion.
Evidence ofthe alien's participation, either individually or on a panel, as the judge ofthe work
ofothers in the same or an allied academic field.
The petitioner initially submitted a letter from Associate Dean of Natural Sciences and
Mathematics at the petitioning university, thanking the benefici
undergraduate research. The petitioner also submitted a letter from
the editorial board of Research on Chemical Intermediates, requesting that the
LIN 07 110 54245
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manuscript submitted for publication in that journal. We note that
beneficiary's Ph.D. advisor.
was also the
In the notice of intent to deny, the director concluded that judging the work of undergraduates could not
serve to meet this criterion and that the invitation to review a manuscript seemed to be based solely on
the beneficiary's authorship of an article that appeared in that journal. In response, counsel asserted
that the beneficiary was nominated to judge the oral presentations by "other participating professors and
experts" and that not all authors who publish in Research on Chemical Intermediates are invited to
review manuscripts. The petitioner submitted a new letter from ~serting that a
reviewer is selected "based on his/her knowledge and the publications in the corresponding field" and
that the beneficiary was specifically invited due to her "expertise in the field of free radicals and
antioxidants."
The record contains no evidence regarding the selection process for judging the undergraduate oral
presentations. The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1,3 n.2 (BIA
1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Judging undergraduate oral
presentations at the request of the university where one is employed is not evidence indicative of
international recognition.
Regarding the manuscript review, the petitioner has not demonstrated that being requested to review
a manuscript by one's own Ph.D. advisor is indicative of international recognition as outstanding.
Regardless, we cannot ignore that scientific journals are peer reviewed and rely on many scientists to
review submitted articles. Thus, peer review is routine in the field; not every peer reviewer enjoys
international recognition. Without evidence that sets the beneficiary apart from others in her field,
such as evidence that she has reviewed an unusually large number of articles, received independent
requests from a substantial number of journals, served in an editorial position for a distinguished
journal or other evidence indicative of international recognition as outstanding, we cannot conclude
that the beneficiary meets this criterion.
In light of the above, the petitioner has not established that the beneficiary meets this criterion.
Evidence of the alien's original scientific or scholarly research contributions to the academic
field.
Obviously, the petitioner cannot satisfYthis 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 ofthe 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
LIN 07 11054245
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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."
As stated above, outstanding 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. See 56 Fed. Reg.
30703, 30705 (July 5, 1991). Any Ph.D. thesis, postdoctoral or other research, in order to be
accepted for graduation, publication or funding, must offer new and useful information to the pool of
knowledge. To conclude that every researcher who performs original research that adds to the
general pool of knowledge meets this criterion would render this criterion meaningless.
The benefIciary received her Ph.D. in 2001 from Mumbai University. She then worked as a
postdoctoral fellow for the University of Medicine and Dentistry, New Jersey (UMDNJ) and Thomas
Jefferson University in Pennsylvania before joining the petitioning institution. The petitioner submits
letters from the benefIciary's colleagues, associates of those colleagues and more independent
references.
We will consider the letters in detail below. At the outset, however, we note that the opinions of
experts in the fIeld, while not without weight, cannot form the cornerstone of a successful claim of
international recognition. Citizenship and Immigration Services (CIS) may, in its discretion, use as
advisory opinions statements submitted as expert testimony. See Matter ofCaron International, 19
I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible for making the final
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the
content of those letters as to whether they support the alien's eligibility. See id. at 795. CIS may
even give less weight to an opinion that is not corroborated, in accord with other information or is in
any way questionable. Id. at 795. See also Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter afTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of widespread
acclaim and vague claims of contributions are less persuasive than letters that specifically identify
contributions and provide specific examples of how those contributions have influenced the field.
hI addition, letters from independent references who were previously aware of the petitioner through
his reputation and who have applied his work are far more persuasive than letters from independent
references who were not previously aware of the petitioner and are merely responding to a
solicitation to review the petitioner's curriculum vitae and work and provide an opinion based solely
on this review. Ultimately, evidence in existence prior to the preparation of the petition carries
greater weight than new materials prepared especially for submission with the petition. An
individual with international recognition should be able to produce unsolicited materials reflecting
that recognition.
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In her November 25, 2006 letter, Director of the Bhabha Atomic Research Centre
(BARC) in India and the beneficiary's Ph.D. advisor, asserts that the benefici~ARC
sponsored projects investigating the antioxidants beta-carotene and curcumin. states
that the beneficiary demonstrated the reason behind the unexpected results showing that beta-carotene
actually increases the risk of lung cancer in smokers. _er states that the beneficiary
also demonstrated that the reduced derivative of curcumm IS a more potent antioxidant than the original
molecule and "designed a novel approach for its action." , a research scientist at the
University of Notre Dame who met the beneficiary when visiting BARC, asserts that he has continued
to follow her work. He asserts that she has unique skills. The issue of whether similarly trained
workers are available in the United States, however, is not within our jurisdiction. Matter ofNew York
State Dep't of Transp., 22 I&N Dec. 215, 221 (Commr. 1998).3 While !l!iserts that the
beneficiary proposed novel mechanisms for the protective action of antioxidants. oes not,
however, identify any laboratory, clinic or pharmaceutical company that is pursuing t ese mec anisms.
an associaBerofessor at UMDNJ, asserts that the beneficiary played a key role in
vanous projects at UMDNJ. praises the quality of the beneficiary's training in India (and
the quality of training in India m gener , but the issue is not whether the beneficiary is well trained but
whether her research contributions are indicative of her international recognition as outstanding. Dr.
,-asserts that the beneficiary "explained the mechanism for the specificity of the primer synthesis
during bacterial replication based on the association of helicase and primase enzymes."
explains that this work is significant because MCM helicase is a plausible a~er detectIon
and the beneficiary characterized it for its DNA-dependent helicase activity. ~her states
that the beneficiary also "explored the structural assembly of the DNA elongation enzyme polymerase
alpha and the binding interactions of DNA with Origin recognition complex, a replication checkpoint
control protein."~explains that these results have "implications and direct applications to the
development of ~eutics that utilize DNA replication regulatory proteins as targets."
Director of the Analytical Core Facility at UMDNJ, asserts that, at UMDNJ, the
beneficiary focused on the functional role of enzymes and their interactions during DNA synthesis.
Specifically,_tates that the beneficiary performed proteomic studies in the yeast model that
"revealed the exact structural assembly of the DNA polymerase alpha, a star enzyme of replication."
He also reiterates the significance of the beneficiary's work with MCM helicase and the binding
interaction of the replication initiation protein Origin Recognition Complex (ORC) with ARS of yeast.
_ concludes that the beneficiary's discoveries "have tremendous applications in the drug
discovery for cancer cure [sic]." Neither ~nor however, identifies another
laboratory, clinic or pharmaceutical company pursuing therapeutic agents based on the beneficiary's
work at UMDNJ.
In his January 3,2007 letter, the beneficiary's supervisor, asserts that the beneficiary has
made major contributions to the research efforts of his laboratory at the petitioning institution.
3 While this case involved a lesser classification, it does stand for the proposition that it is the Department of
Labor that has jurisdiction over issues of skill shortages.
•
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Specifically, states that the beneficiary has addressed "several important questions that
have strong relevance both to the understanding of the initiation step of DNA replication and to the
development of therapeutics against rapidly growing tumors." He concludes that the beneficiary is
indispensable to his projects.
As noted by counsel, the petitioner also submitted more independent letters. an
associate professor at the University at Buffalo, asserts that he knows of the beneficiary "through my
collaborations and scientific interactions with " Thus, does not appear to
have learned of the beneficiary's work through her own reputation. Moreover, iscusses
the importance of the beneficiary's area of research without explaining how the beneficiary has already
impacted the field beyond simply "expanding our knowledge."
Similarly, professor at Tufts University, asserts that he knows of the beneficiary
"through my review of her publications and via my association with also
discusses the importance of the beneficiary's area of research and asserts that she has utilized novel
techniques. He asserts that the beneficiary's work has appeared in prestigious journals and notes that
laboratory is "renowned for discoveries related to the initiation of DNA replication."
He does not assert that the beneficiary is similarly renowned. We will not presume the significance of
the beneficiary's work from the prestige of the journals in which it appears or the laboratory in which
she works. Rather, the petitioner must demonstrate that the beneficiary's individual work is indicative
of her own international recognition as outstanding.
, a lecturer at the National University of Ireland, Galway, asserts that he
knows of the beneficiary through her published articles in their common field of DNA replication. In
response to the director's notice of intent to deny, the petitioner submitted a new letter from Dr.
_ffirming that he has no personal or professional interest in the beneficiary and asserting that
his initial letter was "based on [a] review of her internationally published peer-reviewed articles." In
his initial letter, reviews the beneficiary's research and concludes that the beneficiary's
research ''will certainly help the development of the human replication model and eventually would
help to understand the neoplastic process in cancer." Finally, predicts that the
beneficiary's future work will be significant. He does not assert that he personally has been influenced
by the beneficiary's work or, in fact, that he was aware of her work prior to being contacted for a
reference letter.
Finally,_ a professor at the University of Pittsburgh, asserts that he is aware of the
benefici~o our common research interest in [the] SV40 tumor virus." In response to
the director's notice of intent to deny, the petitioner submitted a new letter from _advising that
he has no personal or professional interest in the beneficiary and based his initial letter on a "review of
her valuable research in [the] DNA replication field." In his initial letter, ~serts that the
beneficiary has made important observations and has contributed to the general knowledge about
helicases and their interactions with other replication factors. He asserts that the importance of the
beneficiary's work is apparent from the publications in which her articles appear. He does not assert
· "
LIN 07 110 54245
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that he personally has been influenced by the beneficiary or, in fact, that he was aware of her work prior
to being contacted for a reference letter.
We acknowledge that the petitioner has submitted evidence that the beneficiary is moderately cited.
The record only contains the text of two of those citations, neither of which single out the beneficiary's
work as unusually significant. While we will consider the beneficiary's citations below as evidence
that she meets the scholarly articles criterion pursuant to 8 C.F.R. § 204.5(i)(3)(i)(F), the beneficiary's
citation record is not documented as sufficiently significant to also meet this criterion without more
specific examples of how the beneficiary's work has already impacted the field. We emphasize that the
requirement that an alien met at least two criteria would be meaningless if evidence sufficient to meet
the scholarly articles criterion set forth at 8 C.F.R. § 204.5(i)(3)(i)(F) is always considered presumptive
evidence of meeting the original contributions criterion set forth at 8 C.F.R. § 204.5(i)(3)(i)(E).
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. The record does not establish that the beneficiary's research contributions are
consistent with international recognition as outstanding.
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with
international circulation) in the academicfield.
The petitioner submitted evidence that the beneficiary has authored several· articles that have been
consistently moderately cited. Thus, we uphold the director's finding that the beneficiary meets this
criterion.
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the
respect of her collaborators, employers, and mentors, while securing some degree of international
exposure for her work. The record, however, stops short of elevating the beneficiary to the level of an
alien 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.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.