dismissed EB-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 18049741 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Outstanding Professors /Researchers) 
The Petitioner, a research and development company in the field of computer science and software 
applications, seeks to classify the Beneficiary as an outstanding researcher. Immigration and 
Nationality Act (the Act) section 203(b)(l)(B) , 8 U.S.C. § l 153(b)(l)(B). This first preference 
classification makes immigrant visas available to noncitizens who are internationally recognized as 
outstanding in their academic field. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that it has documented accomplishments in an academic field, and that the Beneficiary is not 
internationally recognized as outstanding in his field. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(B)(i) of the Act provides that a foreign national is an outstanding professor or 
researcher 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 [for a qualifying position with a university, 
institution of higher education, or certain private employers]. 
To establish a professor or researcher's eligibility, a petitioner must provide initial qualifying 
documentation that meets at least two of six categories of specific objective evidence set forth at 
8 C.F.R § 204 .5(i)(3)(i)(A)-(F) . This, however , is only the first step, and the successful submission of 
evidence meeting at least two criteria does not, in and of itself, establish eligibility for this 
classification. 1 When a petitioner submits sufficient evidence at the first step, we will then conduct a 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of outstanding 
final merits determination to decide whether the evidence in its totality shows that the beneficiary is 
recognized as outstanding in his or her academic field. 8 C.F.R. § 204.5(i)(3)(i). 
In addition, the regulation at 8 C.F.R. § 204.5(i)(3)(ii) provides that a petition for an outstanding 
professor or researcher must be accompanied evidence that the foreign national has at least three years 
of experience in teaching and/or research in the academic field. 
The regulation at 8 C.F.R. 204.5(i)(3)(iv) states that an offer of employment is required from a United 
States university or institution of higher learning offering either a tenured or tenure-track research 
position or a permanent research position in the noncitizen's academic field, or from a department, 
division, or institute of a private employer offering a permanent research position in the noncitizen's 
academic field. Private employers must farther demonstrate that they employ at least three persons in 
full-time research positions, and that they have achieved documented accomplishments in an academic 
field. 
II. ANALYSIS 
At the time the petition was filed, the Beneficiary was employed as a researcher with the Petitioner's 
affiliate in China. He earned a master of science degree in computer science from the University of 
I I in 2014, and a Ph.D. from the same institution in 2017. The Petitioner seeks to employ 
him as a senior research scientist to conduct research in the area of artificial intelligence. 
In his decision, the Director concluded that the Beneficiary met three of the criteria under 
8 C.F.R § 204.5(i)(3)(i), relating to his participation as a judge of the work of others in his academic 
field, his original research contributions to the field, and his authorship of scholarly books and articles. 
Upon review, we agree with the Director, and will therefore tum to the second part of the analysis and 
conduct a final merits determination. 
A. Final Merits Determination 
In its appeal brief, the Petitioner asserts that in his final merits determination, the Director imposed "a 
higher burden beyond the plain meaning of the statute and regulations," and cites to a district court 
decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994). We will first note that in contrast to 
the broad precedential authority of the case law of a United States circuit court, the AAO is not bound 
to follow the published decision of a United States district court in cases arising within the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO; however, the analysis 
does not have to be followed as a matter of law. Id. at 719. 
Further, it is important to note that the controlling purpose of the regulation at 8 C.F.R. § 204.5(i)(3)(i) 
is to establish a beneficiary's 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 
professors and researchers. See 6 USCIS Policy Manual F.3(B)(2), https://www.uscis.gov/policy-manual/volume-6-part­
f-chapter-3 
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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 (July 5, 1991). Therefore, to the extent that the Director first 
determined that the evidence satisfied the plain language requirements of specific evidentiary criteria, 
and then evaluated whether that evidence, as part of the entirety of the record, was sufficient to 
demonstrate the Beneficiary's recognition as outstanding at the international level, his analysis was in 
keeping with the statute, regulations, and policy pertaining to the requested immigrant visa 
classification. 
In a final merits determination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has established that the Beneficiary is recognized internationally as outstanding 
in a specific academic field. Here, the Petitioner has not offered sufficient evidence that the 
Beneficiary meets that standard. 
In its brief: the Petitioner first asserts that the Director did not consider several types of evidence 
regarding his activity as a reviewer of the work of others, including his service on the program 
committee for several scientific conferences and invitations to serve on the editorial boards for two 
scientific journals and as a grant proposal reviewer for the.__ ______________ ............ 
We first note that the Director did acknowledge the Beneficiary's role as a reviewer for conferences 
and journals in his field, and that the evidence does not indicate that his role as a program committee 
member for some of those conferences exceeded that of a peer reviewer. While his service as a peer 
reviewer demonstrates that he is seen as qualified to review the work of his peers in the field of 
computer graphics and artificial intelligence, the Petitioner has not shown that it is indicative of 
recognition as outstanding at the international level. 
Regarding the invitations to serve as a member of the editorial boards for two journals, the Director 
noted that the record lacked evidence that the Beneficiary accepted the invitations and served in this 
role for either publication, despite having received them more than two years prior to the petition being 
filed on his behalf Beyond this analysis, which is more appropriately applied to the evidentiary 
criterion at 8 C.F.R. § 204.5(i)(3)(i)(D), we add that neither email specifies the duties of this position. 
The first, from the Journal of Autonomous Intelligence, states only that in this position, the Beneficiary 
"may publish your new academic researches and review advanced articles within your research area," 
and makes no mention of duties commonly associated with the position of editor. In addition, the 
record lacks evidence concerning either of the inviting journals, such as information about their 
prestige in the field and the size and structure of their editorial boards, which would shed light upon 
the extent or quality of any recognition shown by these invitations. Similarly, concerning the two 
invitations from NCN to review what appears to be the same research grant proposal, the record lacks 
evidence regarding the organization or the Beneficiary's overall role in the grant review process. 
Although we acknowledge that the invitations froml khow some level of international recognition 
of his expertise, it is not sufficient to establish that the Beneficiary's peer review activities as a whole 
set him apart from his peers in the academic field. 
The Petitioner next focuses on the Beneficiary's scholarly :ublications and the evidence of their 
recognition by thd I learning andl lprocessing field. The evidence shows 
that he has published approximately 30 papers in his field, and is listed as the first author on 4 of them. 
In his decision, the Director stated that although the evidence shows that the Beneficiary's published 
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work has been cited by other researchers in their own work on hundreds of occasions, the record did 
not include evidence to show that this level of citation reflects standing and recognition above his 
peers in the field. The Petitioner argues on appeal that the number of citations to these publications 
should be viewed together with other evidence such as invitations to conferences, requests for 
information, and the reference letters from experts in the field to determine whether the Beneficiary 
and his work has been recognized as outstanding. The reference letter highlighted by the Petitioner 
on appeal was written byl I of University! 12 I I 
states that the Beneficiary "has made a major breakthrough which have greatly advanced the 
technology inl !Leaming andl I Processing," and also describes the Beneficiary's 
research published in IEEE Transactions on Visualization and Computer Graphics in 2016, noting 
that the approach taken in the paper benefits users of computer graphics applications. But he does not 
specifically identify what the breakthrough he mentions is or how it has affected the field, or explain 
how the results of this research supports his conclusion that the Beneficiary is "a top researcher and 
scientist in our field."I !additionally writes that he has cited many of the Beneficiary's 
papers in his own work, however his letter lacks a description of how the Beneficiary's work 
influenced his own, and the record does not include his citing articles. 
Another reference letter was submitted by.__ ____________ __. of the University of 
I lwho also indicates that he cited to two of the Beneficiary's papers in his work. Like 
I I he describes the research presented as a "breakthrough" and states that the papers 
introduce improved methods of I I I analysis and generation in computer graphics. He then 
concludes by repeating language from the regulations for the requested immigrant visa classification 
as well as that reserved for noncitizens of extraordinary ability. However, repeating the language of 
the statute or regulations does not satisfy the Petitioner's burden of proof. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, No. 95 CIV. 10729, *l, *5 (S.D.N.Y. Apr. 18, 1997). 
The Petitioner also highlights that the 2016 paper discussed above led to a U.S. patent application on 
which the Beneficiary is listed as one of three inventors. The patent application was assigned td I 
I l where the Beneficiary was erployld as an intern, and the Petitioner 
asserts that the method for producing al I from a use which is the subject of the patent 
application was incorporated into Adobe's Photoshop software. Although some of the reference letters 
discuss both the paper and the patent application, none of them confirm the assertion that the 
Beneficiary's innovation was applied to an existing and widely used product. More importantly, the 
Petitioner has not established that an innovation which the patent application describes as I I 
.__~-~~----------~~~----' has garnered international recognition for the 
Beneficiary in his academic field. 
After review, we conclude that the totality of the evidence in the record demonstrates that the 
Beneficiary has made scientific achievements in his field and is acknowledged as an expert qualified 
to review the work of others, but does not establish that he and his work have been internationally 
recognized as outstanding in his field. 
2 All of the reference letters in the record have been reviewed, including those not specifically mentioned in this decision. 
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B. The Petitioner's Documented Accomplishments 
As noted above, the regulation at 8 C.F.R. § 204.5(i)(3)(iv)(C) requires that a petitioner who is a 
private employer establish, among other requirements, that it has achieved documented 
accomplishments in an academic field. In his decision, the Director concluded that the evidence of 
papers written by researchers employed by the Petitioner, and of a service contract with a client, were 
not sufficient to meet this requirement. On appeal, the Petitioner asserts that its researchers' 
publications do meet this requirement, as the company cannot publish papers as an entity, and submits 
copies of approval notices for two of its researchers who were previously approved under the same 
immigrant visa classification. 
Regarding the previously approved petitions, USCIS must decide each case on its own facts with 
regard to the sufficiency of the evidence presented. Matter of Frentescu, 18 I&N Dec. 244, 246 (BIA 
1982); Matter of Serna, 16 I&N Dec. 643, 645 (BIA 1978). In addition, we are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 
597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
Furthermore, we are not bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), ajj'd, 248 F.3d 
1139 (5th Cir. 2001). 
The evidence concerning the publication of papers at conferences consists of the online profile of one 
of the researchers employed by the Petitioner, as well as copies of the first page of eleven papers 
authored by that researcher. The online profile indicates that the researcher had formerly taught at the 
University ofl l and that all but three of the papers included co-authors from that institution. 
This indicates that the research reported on in these papers was initiated not by the Petitioner, but by 
researchers at the University o~ I and other academic institutions. Of the remaining three 
papers, only one includes more than one author affiliated with the Petitioner, and all were co-authored 
by researchers from other companies and academic institutions. As such, this evidence does not show 
that the papers can be considered to be the Petitioner's accomplishments, but rather the result of a 
continuation of research began at the University otl lor in collaboration with other companies 
or academic institutions. 
In response to the Director's notice of intent to deny, the Petitioner also submitted a copy of a service 
contract between it and a client, and its 2019 Form 1120 federal tax return showing sales of more than 
$11 million, all of which the Petitioner attributes to this service contract. Although this evidence 
shows that the Petitioner is successfully generating revenue, it does not establish that in the course of 
doing so, it has also made accomplishments in an academic field. We also note that the contract 
indicates only that the Petitioner will perform "technology development services," and does not further 
specify the nature of the services by which a particular academic field can be identified. Accordingly, 
we agree with the Director and conclude that the Petitioner has not shown it has documented 
accomplishments in an academic field. 
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III. CONCLUSION 
The Petitioner has established that the Beneficiary meets at least two of the evidentiary criteria, but 
has not shown that, based upon the totality of the evidence, he is internationally recognized as 
outstanding in his academic field. In addition, the Petitioner has not established that is has documented 
accomplishments in an academic field. 
ORDER: The appeal is dismissed. 
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