dismissed EB-1B Case: Dna And Protein Structure Research

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: 
 LIN 06 042 5 18 17 
 Office: NEBRASKA SERVICE CENTER 
 Date: JUN 1 6 2008 
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. 5 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
u 
gobert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) remanded the matter back to the director on 
appeal. The director subsequently denied the petition a second time on different grounds. The matter is 
now before the AAO on certification. The director's decision will be affirmed. 
The petitioner is a university. 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. 5 1153(b)(l)(B). 
According to the petition, the petitioner seeks to employ the beneficiary in the United States as a 
research associate. The director initially denied the petition based on a determination that the petitioner 
had not established that it had offered the beneficiary a permanent job as of the date of filing. 
On appeal, the petitioner asserted that it has offered the beneficiary a permanent position as defined at 
8 C.F.R. 8 204.5(i)(2). The AAO concurred with the petitioner that the position offered is permanent as 
defined in the pertinent regulation. Upon review of the record, however, the AAO withdrew the 
director's finding that the beneficiary meets the necessary two regulatory criteria and remanded the 
matter for a full decision on that issue taking into account the considerations set forth at the end of its 
decision. 
On December 19,2007, the director issued a new request for additional evidence to address the AAO's 
concerns. Upon consideration of the petitioner's response, the director concluded that the petitioner 
had not established that the beneficiary had attained the outstanding level of achievement required for 
classification as an outstanding researcher. Thus, the director denied the petition on April 7, 2008 and 
certified that decision to the AAO. The notice advised the petitioner that it was afforded 30 days in 
which to submit a brief or written statement to the AAO. As of this date, more than two months later, 
this office has received nothing from the petitioner addressing the director's final decision. Thus, we 
will review the director's decision based on the record. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 -- 
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(I) 
 for a tenured position (or tenure-track position) within a 
university or institution of higher education to teach in the 
academic area, 
(11) 
 for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(111) 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 
I11-time in research activities and has achieved documented 
accomplishments in an academic field. 
The regulation at 8 C.F.R. 5 204.5(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 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) fiom 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 December 2 1,2005 to classify the beneficiary as an outstanding researcher in 
the field of DNA and protein structure research. 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 within 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 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, 
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199l)(enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). The petitioner claims to have satisfied the 
following criteria. 
Documentation of the alien 's receipt of major prizes or awards for outstanding achievement in 
the academic$eld. 
The petitioner initially asserted that the beneficiary meets this criterion through receipt of a 1985 "High 
Honor Award" from the USSR Academy of Sciences in Applied Sciences while the beneficiary was a 
doctoral student and a travel grant from the Commission of the European Union. The etitioner 
submitted letters from Estonian and Russian professors 
testing to the Russian award and a letter from 
P 
the University of 
Manchester attesting to the travel award. 
 asserts that the "decision to provide support to 
participants was based on the acceptance of papers by the normal scientific review process." The 
petitioner did not, however, submit a copy of either award. In its remand order the AAO noted that 
neither award was in the record. The AAO cited the regulation at 8 C.F.R. 5 103.2(b)(2)(i) for the 
proposition that the petitioner must submit primary evidence or, if relying on secondary evidence, 
submit evidence that primary evidence is either unavailable or does not exist. In addition, affidavits are 
only acceptable if the petitioner establishes that both primary and secondary evidence are unavailable or 
do not exist. 8 C.F.R. 5 103.2(b)(2)(i). 
On December 19, 2007, the director requested copies of the actual awards and evidence of their 
significance. In response, the petitioner sibmitted a-letter from I Head of the 
"Internaional [sic] Affairs Department" of the Russian Academy of Sciences, Siberian Branch. The 
letter confirms that the beneficiary received a 1985 award from the Academy of Sciences of the USSR, 
Siberian Branch in the discipline of Applied Sciences for his work entitled "New Methods for Metal 
Coating of Dielectric Materials." The letter further asserts that the award is an annual major award for 
researchers and scientists from Russian academic institutions and notes that awardees are issued 
diplomas. 
The director noted that, despite the assertion by that awardees receive diplomas, the 
petitioner had not submitted a copy of the award purportedly issued to the beneficiary. The director 
further concluded that the petitioner had not established that the award was a major award. We concur 
with both conclusions. 
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 commentary 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 .) 
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Thus, the standard for this criterion is very hgh. The rule recognizes only the bbpossibility" 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. CJ: 8 C.F.R. 
5 204.5(h)(3)(i) (allowing for "lesser" nationally or internationally recognized awards for a separate 
classification than the one sought in this matter). 
It appears that the 1985 award was issued by the Siberian Branch of the Academy of Sciences of the 
USSR. Thus, the award appears regional rather than national. Moreover, as the award was issued 
while the beneficiary was a doctoral student, it appears that the award was an academic award. 
Academic awards limited to students who have not yet begun their careers cannot serve to meet this 
criterion. In addition, the award was apparently issued for work on metal coatings, which is unrelated 
to the beneficiary's current field of DNA research. Thus, the award is not for achievements in the field 
for which he seeks to be classified as an outstanding researcher. Moreover, implies that all 
Eastern European scientists whose papers were accepted for presentation received travel grants. We are 
not persuaded that travel grants designed to offset the cost of attending a conference are major awards. 
In light of the above, we affirm the director's conclusion that the petitioner has not submitted the 
necessary evidence to demonstrate that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members. 
The petitioner has never asserted that the beneficiary meets this criterion and the record contains no 
evidence relating to it. 
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. 
The petitioner asserted that the beneficiary meets this criterion through articles that cite the beneficiary 
or acknowledge his participation in research at a Ievel below that necessary for authorship credit. The 
director concluded that 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 beneficiary. 
We concur with the director's analysis and conclusion. We further note that authorship of scholarly 
articles is a separate criterion set forth at 8 C.F.R. 8 204.5(i)(3)(i)(F). We cannot conclude that 
participation in research that is at a lower level than the level required for authorship credit can be 
considered sufficient to meet this criterion. 
In light of the above, we affirm the director's conclusion that the petitioner has not established that the 
beneficiary meets this criterion. 
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Evidence of the alien 5 participation, either individually or on a panel, as the judge of the work 
of others in the same or an allied academic field. 
The petitioner has never asserted that the beneficiary meets this criterion and the record contains no 
evidence relating to it. 
Evidence of the alien's original scientiJic or scholarly research contributions to the academic 
field. 
The beneficiary received hs Kandidat Nauk in Chemistry fi-om the Russian Institute of Sold State 
Chemistry in 1989. The beneficiary then worked at that institution through 1993. In 1994, he began 
worlung for Grenon, Ltd. in Estonia. From 1997 through 1999, the beneficiary worked for the 
Department of Plant Biology at the Institute of Experimental Biology in Estonia. He then worked for 
the Department of Biotechnology at the Institute of Molecular and Cell Biology, also in Estonia, 
through 2000. In 2001, the beneficiary began working at Arizona State University and in 2004 he 
joined the petitioning medical center. 
The petitioner initially relied on the beneficiary's patents and letters fi-om the beneficiary's immediate 
circle of colleagues to meet this criterion. Specifically, the beneficiary patented "The Method for 
Preparation of Copper Paste for Metal Coating," patent number "The Method for Production 
of Offset Printing Form," patent number ; "The Composition for Preparation of 
Thennosensitive Material," patent number "The Solution for Metal coating of Dielectric 
atent number ; 'The Method for Metal Coating of Dielectric  ater rial " patent 
number Materialhd '"'The Method for Printed Circuit Production," patent number otably, 
all of the beneficiary's patents appear to derive from his earlier work synthesizing new complex copper 
compounds. They do not relate to the beneficiary's current field of DNA research. 
Obviously, the petitioner cannot satis@ this criterion simply by listing the beneficiary's past projects 
and demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior 
research. Research work that is unoriginal would be unlikely to secure the beneficiary a master's 
degree, let alone classification as an outstanding researcher. Because the goal of the regulatory criteria 
is to demonstrate that the beneficiary has won international recognition as an outstanding researcher, it 
stands to reason that the beneficiary's research contributions have won comparable recognition. To 
argue that all original research is, by definition, "outstanding" is to weaken that adjective beyond any 
useful meaning, and to presume that most research is "unoriginal." 
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. 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 
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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. 
Furthermore, the regulations include a separate criterion for scholarly articles. 8 C.F.R. 
5 204.5(i)(3)(i)(F). Thus, there mere authorship of scholarly articles cannot serve as presumptive 
evidence to meet this criterion. To hold otherwise would render the regulatory requirement that a 
beneficiary meet at least two criteria meaningless. 
In addition, the evidence that the beneficiary holds six patents for his inventions establishes that he was 
a prolific inventor several years ago in a separate field. The very existence of the patents, however, 
does not show that the beneficiary's inventions are more significant than those of others in his field. As 
stated in the AAO's remand order, the significance of a patent must be considered on a case-by-case 
basis. Matter of New York State Dep't of Transp., 22 I&N Dec. 215, 221, n.7 (Cornmr. 1998) 
(involving a lesser classification but discussing the case-by-case evaluation necessary when reviewing a 
patent). To establish the significance of the beneficiary's work, we turn to the evidence submitted in 
response to the director's December 19,2007 request for additional evidence and letters from experts in 
the beneficiary's field. 
In response to the director's request for additional evidence, the petitioner submitted two documents to 
demonstrate the impact of the beneficiary's patents. The first is a 1990 "Conclusion of the Leading 
TechnoIogicaI Organization." The original foreign language document is not on letterhead and does 
not appear to have been copied from an internal report or a published journal. The translation of th~s 
document is not certified as required under 8 C.F.R. 5 103.2(b)(3). The second document, entitled 
"Energostroikomplekt," is downloaded from an Internet website. The translation, however, is also not 
certified as required under 8 C.F.R. tj 103.2(b)(3). As noted by the director, neither document identifies 
the beneficiary's patents by number or the beneficiary himself. Moreover, as stated above, they do not 
relate to the beneficiary's current field. Thus, they cannot be considered contributions to that field. 
In considering the opinions of experts in the field, we note that while not without weight, these 
opinions 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 of Caron International, 19 I&N Dec. 791, 795 (Commr. 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 of Soflci, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Regl. Cornrnr. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of widespread 
recognition and vague claims of contributions are less persuasive than letters that specifically 
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identify contributions and provide specific examples of how those contributions have influenced the 
field. In addition, letters from independent references who were previously aware of the beneficiary 
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 beneficiary 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. 
The petitioner submitted five letters fkom the beneficiary's collaborators and colleagues. 
 One 
reference,, a professor in Arizona State University's Department of Physics and 
Astronomy, does not appear to be an expert in any of the beneficiary's fields, past or present. The 
beneficiary's current supervisor at the petitioning medical center, - lists all of the 
beneficiary's current projects and asserts that the results are important and have been published or 
presented. But he does not indicate that any of this work has resulted in contributions that have already 
been internationally recognized as outstanding. In general, the references praise the beneficiary and 
note the unique nature of his experience. While they assert that he has contributed to the general pool 
of knowledge in the field, they do not provide concrete examples of how the field has been impacted by 
the beneficiary's work. 
As stated above, the regulations include a separate criterion for scholarly articles. 
 8 C.F.R. 
9 204.5(i)(3)(i)(F). If the regulatory requirement that an alien meet at least two criteria is to have any 
meaning, meeting the scholarly articles criterion does not create a presumption that the alien also meets 
this criterion, especially in fields where publication of one's research results is inherent to the field. 
The record contains evidence that the beneficiary's published work in his current field has been 
moderately cited in the aggregate. The citation level for individual articles, however, is not consistent 
with contributions that have been recognized internationally as outstanding. 
While the beneficiary's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication or funding, must offer new and useful information to the pool of knowledge. 
The record does not establish that the beneficiary's work represented a groundbreaking advance in 
DNA research. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
At the outset, we note that the petitioner responded to the director's December 19, 2007 request for 
additional evidence with articles by the beneficiary and citing the beneficiary published after the date of 
filing. The petitioner must establish the beneficiary's eligibility as of the date the petition was filed, 
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December 2 1,2005. See 8 C.F.R. 4 4 103.2(b)(l), (1 2); Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. 
Cornmr. 1971). Moreover, we cannot "consider facts that come into being only subsequent to the 
filing of a petition." Matter of Izummi, 22 I&N Dec. 169, 176 (Commr. 1998)(citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981)). Thus, we will only consider the published articles and 
citations that had been published as of the date of filing. 
The petitioner submitted evidence that the beneficiary has authored several published articles. The 
Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report 
and Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral 
appointment. Among the factors included in this definition are the acknowledgement that "the 
appointment is viewed as preparatory for a hlI-time academic and/or research career," and that "the 
appointee has the fi-eedom, and is expected, to publish the results of his or her research or scholarship 
during the period of the appointment." Thus, ths national organization considers publication of one's 
work to be "expected," even among researchers who have not yet begun "a full-time academic and/or 
research career." This report reinforces our position that publication of scholarly articles is not 
automatically evidence of international recognition; we must consider the research community's 
reaction to those articles. 
As of the date of filing, the beneficiary's articles had been moderately cited. While the moderate 
number of citations does not rise to a level indicating that the beneficiary's contributions have been 
internationally recognized as outstanding, we are persuaded that he meets this criterion. For the reasons 
discussed above, however, the beneficiary falls far short of meeting any other criterion. 
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 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. !j 1361. The petitioner has not sustained that burden. Accordingly, the decision of the 
director denying the petition will be affirmed. 
ORDER: 
 The director's decision of April 7,2008 is affirmed; the petition is denied.