dismissed EB-1B Case: Dermatology

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: LIN 03 092 50390 Office: NEBRASKA SERVICE CENTER  ate: 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. 9 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 
t riginally decided your case. Any further inquiry must be made to that office. 
' Robert P. Wiemann, Director 
I Administrative Appeals Office 
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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 medical school and research institution. 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(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a research 
assistant professor. 'fie director determined that the petitioner had not established that it had offered the 
beneficiary a permanent job as defined in the regulations. 
On appeal, the petitioner submits a new job offer. 
Section 203(b) of the Act states, in pertinent part, Ihat: 
(1) Pnority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following  subparagraph.^ (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(i) the alien is recognized intanationally 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 positior~ (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. 4 204.5(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; 
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(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 all en'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, tenwe 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 etitioner indicated that the proposed employment was permanent. The petitioner 
submitted a letter hm* Chaimn of the Department of Dermatology and the petitioning 
institution, asserting that the beneficiary had accepted the position of Research Assistant Professor and that the 
beneficiary's "term of employment is continent upon continuous availability of funding." On October 9, 2003, 
the director requested evidence of a permanent jot) offer. 
In response, the petitioner submitted an October 28, 2003 letter from Assistant Dean for 
Faculty Affairs asserting that the beneficiary's appointment as a Research Assistant Professor "ends August 3 1, 
2005."further asserted that the appointment could be renewed "[alt the request of his Department 
Chair." 
The director concluded that the above letters did not evidence a permanent job offer from the petitioner to the 
beneficiary. 
On appeal, the petitioner submits a new letter from 
h 
dated March 4, 2004, asserting that the 
beneficiary's position is "distinct horn research st:rff positions suc as postdoctoral fellows." She further asserts 
that the beneficiary "was initially appointed to the faculty February 1.2002 and 
tn' (Emphasis in original.) She adds that once the beneficiary becomes a permanent 
resident, he will be "&." (Emphasis in original.) 
The October 28, 2003 letter unambiguously states that the beneficiary was working under a contract with a 
definite ending date. Thus, the beneficiary's employment could end without cause, as the petitioner could 
simply fail to renew his contract. Any assertion that, at the time of filing, the beneficiary was working pursuant 
to an indefinite contract is inconsistent with the plain language of the October 28, 2003 letter. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies. absent competent objective evidence pointin to where 
the truth, in fact. lies, will not suffice. Matter ~'Ho, 19 l&N Dec. 582. 591-92 (BIA 1988). If-is 
now asserting that, as of March 4, 2004, the petitioner is legally obligating itself to renew the beneficiary's 
contract indefinitely, that offer was not in place :it thc time of filing. A petitioner must establish eligibility at 
the time of filing; a petition cannot be approved at a future date after the beneficiary becomes eligible under a 
new set of facts. See 8 C.F.R. Ij 103.2(b)(12), klatirr clJ'Katigbrrk, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to 
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make an apparently deficient petition conform to the regulatory requirements. See Matter of lzummi 22 I&N 
Dec. 169, 175 (Cornm. 1998). As the new letter is either inexplicably inconsistent with rior 
letter or confirms a permanent job offer that did not exist at the time of filing, it cannot not overcome the - 
director's conclusion that the record lacks evidence of a qualifying job offer in existence at the time of filing. 
Beyond the director's decision, the regulation at 8 C.F.R. 3 203..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. The petitioner claims to have satisfied the 
following criteria.' 
Documentation of the alien's receipt of major prizes or awards for ou$standzng achievement in the 
acudnnic$eld 
The petitioner relies on fellowships and stipends from the Dermatology Foundation to meet this criterion. 
Specifically, the beneficiary received the following funding from the foundation: 
1. A 1997 Proctor and Gamble Research Fellowship, 
2. A 199w~esearch Fellowship. 
3. A 2001 esearc rant, and 
4. A 2002 Career Development Awiird. 
The submitted materials from the foundation or~ly address the career development award. These materials 
confirm that an applicant's track record in research is an extremely important consideration. Ultimately, 
however, the "award" is designed to fund future research by novice researchers. Specifically, the materials 
indicate that "applications will be accepted from junior investigators in the early stages of their academic 
careers." The purpose of the "award is to "assist in the transition from fellowship to established investigator." 
The funds are disbursed to the institutional fiscal officer and are designated for the direct costs of the proposed 
research only. 
In his request for additional evidence, the direlztor noted that grants and fellowships are "not n 
indicative of national or international acclaim." hz response, the petitioner submitted a letter from 
IExecutive Director of Dermatology Foundation information to that disc- 
We acknowledge that the correct standard for the classification sought is international recognition, not acclaim. 
Nevertheless, the beneficiary's "awards" simply funded his work. Every successful scientist engaged in 
research, of which there are hundreds of thousands, receives funding from somewhere. Obviously the past 
achievements of the principal investigator are a factor in grant proposals. The funding institution has to be 
assured that the investigator is capable of performing the proposed research. Nevertheless, research grants, 
especially those designed for junior investigators, are principally designed to fund future research, and not to 
honor or recognize past outstanding achievements. 
- - 
1 This decision only discusses the criteria claimed or for which the petitioner submitted relating documents. 
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Documentation of the alien '7 membership in associations in the academic $eld which require 
outstanding achievements oftheir members 
While counsel did not assert that the beneficiary meets this criterion, the petitioner submitted evidence of the 
beneficiary's membership in the Society of Invcstigative Dermatology and the Association for Research in 
Vision and Ophthalmoloby (ARVO). The materials from these organizations reflect that the Society of 
Investigative Dermatology is open to "any scientist whose work has relation to investigative dermatology or 
cutaneous biology and any physician with an interest in skin diseases or allied subjects." Regular members of 
ARVO must demonstrate "a serious interest in or ~nalung significant contributions to visual science." 
In his request for additional evidence, the director advised that neither the society nor ARVO require 
outstanding achievements of their members. The petitianer's response does not directly address this criterion. 
The record does not reflect that either the society or ARVO require outstanding achievements of their general 
membership. 
Published material in professional publications written by others about the alien's work in the 
academic field, Such material shall include the title, date, and author of the material, and any 
necessary translation 
As evidence to meet this criterion, the petitioner submitted a single article that cites the beneficiary's work, 
mostly in an attempt to explain the discrepancies between the author's results and those reported by the 
beneficiary. In general, articles which cite a rese:archer's work are primarily about the author's own work, not 
the author of the cited article. As such, they cannot be considered published material about the beneficiary's 
work in the field. 
Evidence of the alien's original scientific or scllolarly research contributions to the academic field. 
-, Chair of the Dermatology Department at the petitioning university, discusses the importance of 
the benefici 's area of research and its potential to augment our skin's protection from infectious agents. 
Mil& asserts that the beneficiary has contributed to the field of investigative dermatology and that his 
work willlead to new treatments for gram ne ativr and positive bacterial infections,-oes not identify 
any specific contributions. a professor at the petitioning university, provides similar 
information. 
, Chair of the Dermatology Department at Emory University, asserts that the beneficiary 
was a fellow there. ~hile-attests to the potential benefits and importance of the beneficiary's 
current work and asserts generally that the beneficiary has made past contributions, he does not identify any of 
those contributions or explain their significancr: and influence in the field. -Director of 
Ophthalmic Research at Emory University asserts that the beneficiary provided "the molecular basis of 
understanding the inflammatory cascade that occurs from gram-negative bacterial infections."- 
however, does not provide any examples of how these results have influenced the field in such a manner as to be 
indicative of international recognition. 
In his request for additional evidence, the director found the above letters insufficient evidence of the 
beneficiary's original contributions to the field. In response, the petitioner submitted two more letters from 
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faculty at the petitioning university.asserts that the beneficiary provided molecular proof of 
how neuropeptides, released by nerves, affect the function of skins cells and, thus, relate to inflammatory slun 
diseases. She further attests to the beneficiary's fc~cus on how bacteria signal the 
eyes. She affirms that his work has impacted her own work on multiple sclerosis. asserts 
that the funding awards issued to the beneficiary demonstrate the significance of 
The beneficiary's references all attest to his innoviition and the originality of his work. Obviously, the petitioner 
cannot satis@ this criterion simply by listing !.he 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 
unorignal 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 
contnbutions have won comparable recognition. To argue that all orignal research is, by definition, 
"outstanding" is to weaken that adjective beyond any useful meaning, and to presume that most research is 
"unoriginal ." 
All of the beneficiary's references are from his immediate circle of colleagues. While all of them provide 
general statements about the importance of his work and potential benefits, they provide little discussion of his 
past accomplishments and provide no examples of how this work has impacted the field of dermatology as a 
whole. The record shows that the beneficiary is respected by his colleagues and has made useful 
contributions in his field of endeavor. It can be argued, however, that most research, in order to receive 
funding, must present some benefit to the general pool of scientific knowledge. It does not follow that every 
researcher working with a grant has international recognition. Letters from one's immediate circle of 
colleagues, while important in documenting the nature of the beneficiary's role on various projects, cannot 
demonstrate any recognition beyond his col1eagur:s. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international 
circulation) in the academicjeld. 
The petitioner submitted evidence that the beneficiary has authored 17 published articles. The director's request 
for additional evidence appears to accept this evitlence as sufficient to meet this criterion. We disagree. The 
Association of American Universities' Comrnitttx on Postdoctoral Education, on page 5 of its Report and 
Recomnaendations, March 31, 1998, set forth its recommended definition of a postdoctoral appointment. 
Among the factors included in this definition ar.c 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 and/or research career." This report reinforces CIS'S position that 
publication of scholarly articles is not automatical1.y evidence of international recognition; we must consider the 
research community's reaction to those articles. As stated above, the record includes only a single citation. 
This single citation is not indicative of or consistent with international recognition. 
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the respect of 
his collaborators, employers, and mentors, while securing some degree of international exposure for his work. 
The record, however, stops short of elevating the beneficiary to an international reputation as an outstanding 
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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.