dismissed EB-1B Case: Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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 1 153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
Y~obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is an engineering 1 technical simulation firm. It seeks to classifi 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). The petitioner seeks to employ the beneficiary permanently in the 
United States as a development engineer. While the director framed the discussion as whether the 
beneficiary had three years of qualifying experience, the director, by discussing the evidence as it 
relates to the criteria set forth at 8 C.F.R. 5 204.5(i)(3)(i), effectively determined that the petitioner had 
not established that the beneficiary had attained the outstanding level of achievement required for 
classification as an outstanding researcher. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
uphold the ultimate findings of the director. 
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 -- 
(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 
hgher 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 full- 
time in research activities and has achieved documented 
accomplishments in an academic field. 
The regulation at 8 C.F.R. 9 204.5(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 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 July 12,2007 seeking to classify the beneficiary as an outstanding researcher 
in the field of development engineering. 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. As of the date of filing, the 
beneficiary was a recent Ph.D. graduate. As the petitioner asserts that the beneficiary's three years of 
experience occurred while pursuing his Ph.D., the director examined whether the beneficiary's Ph.D. 
research was recognized as outstanding pursuant to the section of 8 C.F.R. $204.5(i)(3) quoted above. 
In doing so, the director relied on the regulatory criteria for outstanding researchers set forth below. We 
will consider the evidence under those criteria as it relates to the broader question of whether the 
beneficiary qualifies as an outstanding researcher. Nevertheless, we reach the same conclusion that the 
director did, that the petitioner has not established that the beneficiary enjoys international recognition 
as outstanding. 
The regulation at 8 C.F.R. 8 204.5(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 satis@ 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.' 
1 
 The petitioner does not claim that the beneficiary meets any criteria not discussed in this decision and the 
record contains no evidence relating to the omitted criteria. 
Documentation of the alien's membership in associations in the academicjeld which require 
outstanding achievements of their members. 
The petitioner submitted evidence that the beneficiary is a member of the Institute of Electrical and 
Electronics Engineers (IEEE). The petitioner did not provide the general membership requirements 
for IEEE. The director concluded that membership requirements based on employment or an 
activity in a given field, a fixed minimum of education or experience, standardized test scores, grade 
point average, recommendations or the payment of dues were not outstanding achievements. On 
appeal, counsel no longer asserts that the beneficiary meets this criterion. We concur with the 
director's implication that the record lacks evidence that IEEE requires outstanding achievements for 
its general membership. 
Evidence of the alien's participation, either individually or on a panel, as the judge of the work 
of others in the same or an allied academic field. 
The record reflects that the beneficiary has refereed manuscripts for two conferences, one of which was 
organized by Michigan State University, where the beneficiary received his Ph.D. The director 
concluded that occasional participation as a peer reviewer is not indicative of international recognition. 
On appeal, counsel simply reiterates the claim that the beneficiary meets this criterion. 
We cannot ignore that presentations at conferences are peer reviewed and rely on many scientists to 
review submitted manuscripts. Thus, peer review is routine in the field; not every peer reviewer 
enjoys international recognition. Responding to a call for volunteers or being asked to participate as 
a reviewer by the institution where one is a student is not evidence of international recognition in the 
field. Without evidence that sets the beneficiary apart from others in his field, such as evidence that 
he has reviewed an unusually large number of articles, received independent requests from a 
substantial number of journals, or served in an editorial position for a distinguished journal, we 
cannot conclude that the beneficiary meets this criterion. 
Evidence of the alien's original scientific or scholarly research contributions to the academic 
field. 
The director concluded that the record did not establish that the beneficiary's work had contributed to 
the field beyond his immediate circle of colleagues and questioned the "real world applications" of the 
beneficiary's work. Counsel asserts that the letters fiom independent experts and publication of the 
beneficiary's work in top journals demonstrate that the beneficiary's work is recognized outside hs 
circle of colleagues and has real world applications. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects 
and demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior 
research. Research work that is unoriginal would be unlikely to secure the beneficiary a Master's 
degree, let alone classification as an outstanding researcher. Because the goal of the regulatory criteria 
is to demonstrate that the beneficiary has won international recognition as an outstanding researcher, it 
stands to reason that the beneficiary's research contributions have won comparable recognition. To 
Page 5 
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 
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 opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successhl 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 (Comrnr. 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 fiom 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 SofJici, 22 I&N Dec. 158, 
1 65 (Commr. 1 998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 1 90 (Regl. Comrnr. 
1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of recognition and 
vague claims of contributions are less persuasive than letters that specifically identifjr contributions 
and provide specific examples of how those contributions have influenced the field. 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 beneficiary received his baccalaureate and Master's degree in Engineering fiom Huazhong 
University of Science and Technolorn (HUST) in China. The beneficiary began his Ph.D. studies at the 
~niversi& of Iowa under the direct;; bf - T& beneficiary followed Dr. 
- to Michigan State University where he received his Ph.D. in electrical and computer 
engineering in 2006. As of the date of filing, the beneficiary was worlung as a development engineer at 
ANSYS in Austin, Texas. The beneficiary began working for this company as a Ph.D. student when it 
was Fluent, which has since been bought out by ANSYS. 
- lists three contributions by the beneficiary. First, the beneficiary proposed a 
~- - 
novel approach for analyzing scatterin and radiation from periodic structures, characterized as time 
domain Floquet Modes. Dr. -asserts that this method is efficient, elegant, and 
groundbreaking and can be extended to the analysis of practical problems involving layers of materials. 
notes that the beneficiary's paper reporting this work was a finalist in a student 
paper competition at an IEEE symposium. 
We note that the regulation at 8 C.F.R. $204.5(i)(3)(i)(A) provides that a major award or prize can 
serve as evidence indicative of international recognition. Selection as a finalist in a student competition, 
which cannot be considered major as it excludes the most experienced and renowned members of the 
field, carries far less weight. 
Moreover, recognition as a new paper at the time of presentation demonstrates the potential of the work 
rather than its demonstrated impact in the field. Significantly, Dr. -1 a member of the 
beneficiary's Ph.D. thesis committee at Michigan State University, merely speculates that this work 
"will be used to explore the properties of novel synthesized electromagnetic materials that will find use 
in both commercial and defense applications." Dr. - and Dr. both further 
assert that additional papers by the beneficiary on this subject are forthcoming. The petitioner must 
establish that the beneficiary was eligible for the classification as of the date of filing. See 8 C.F.R. $$ 
103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 1971). Work that has yet to 
be published cannot be considered to have already impacted the field at the international level. The 
petitioner also bears the burden of establishing the influence of work that has been published. Dr. 
- does not assert that the beneficiary's time domain Floquet Modes have been applied 
by other independent research groups. 
Second, Dr. - asserts that the beneficiary developed plane wave time domain methods 
for the analysis of transient scattering from electrically large dispersive objects. In this work, the 
beneficiary developed a method that permitted the interplay between two different types of basis 
functions, enabling the optimal analysis of dielectric bodies. Dr. does not explain 
how this work has influenced the field such that it is being used beyond the beneficiary's colleagues. 
Third, the beneficiary pursued a finite difference time domain techni ue on tetrahedral elements to 
solve the problem of stair-casing approximation. Dr. 
 asserts that the beneficiary's 
method successfully simulated fields in a tetrahedral domain, resulting in a conference presentation. Dr. 
does not identify another laboratory that has adopted this approach. 
Product Manager at ANSYS, asserts that whle working for that company, the beneficiary 
was instrumental in implementing a series of new features for the compan 's IceWave product, such as 
simulation restart, sub-cell modeling and 3D far field calculation. Dr. 
r 
asserts that IceWave has 
since undergone two successfbl official releases. In addition, Dr. 
 asserts that the beneficiary 
investigated the company's algorithms for plane wave excitation, reducing errors from greater than 30 
percent to 3 percent. This work, performed while the beneficiary was studying for his Ph.D., resulted in 
the company's subsequent job offer. 
a software manager at ANSYS, provides similar information, asserting that the 
beneficiary's research has improved the company's competitive edge in the scattering analysis 
application areas such as radar cross section and validation of stealth technology and that the 
beneficiary's approach for modeling loss along a wire will enrich the company's offerings to both the 
electronic design automation community and the electromagnetic compatibility industry. 
Page 7 
It is inherent to the position of development engineer to improve existing technology. On page 29 of 
the petitioner's 2006 annual report, submitted by the petitioner, it states that the petitioner "operates in 
an industry generally characterized by rapidly changing technology and frequent new product 
introductions." The record lacks objective evidence of the wider sigmficance of the programs at 
ANSYS on which the beneficiary has worked, such as articles in trade journals noting ANSYS' unique 
mastering of algorithms. Page 14 of the petitioner's 2006 annual report discusses the benefits of 
acquiring Fluent, but the discussion does not single out IceWave or the ground breaking nature of the 
company's plane wave excitation and wire algorithms. 
asserts that Motorola, Xilinx and Texas Instruments have benefited fiom the ANSYS 
projects to which the beneficiary contributed. 
 The record lacks confirmation from any of these 
companies that they use these products and, if they do, when and why they adopted these products. 
The above letters are all from the beneficiary's immediate circle of colleagues. As noted by counsel, 
etitioner also submitted several letters from assistant professors constituting Dr. 
thep coauthors, other members of the field in Texas and more independent members of 
the field. The petitioner submits additional independent letters on appeal fiom more experienced 
members of the field. 
, an assistant professor at the University of Texas, Arlington, asserts that he came to 
know of the beneficiary's work at conferences. We note that 
 was a postdoctoral researcher at 
the University of Illinois, Urbana, where Dr. d previously taught, and coauthored 
several articles with . ~r. praises the beneficiary's conference presentations 
and explains the practical applications of the beneficiary's work. Dr. 
 does not, however, claim to 
have applied the beneficiary's techniques or algorithms in his own work or to have cited the 
beneficiary's work in his own work. 
, an assistant professor at the University of Texas at Austin, indicates that he obtained his 
Ph.D. at the University of Illinois at Urbana-Champaign in 2005. Dr. 
 also asserts that he has 
attended the beneficiary's conference presentations. Dr. 
 characterizes the beneficiary's work as 
creative and an important breakthrdugh, but fails to provide examples of how the beneficiary's 
algorithms are being used in the field. Rather, Dr. - speculates that the beneficiary's Floquet 
mode techniques "may have many diverse applications in radiation fiom periodic dipole antennas, 
scattering fiom periodic structures and signal integrity analysis for high-speed interconnects, especially 
for wide-band excitations." 
an assistant professor at the University of Siena in Italy and an adjunct assistant 
profess& at the University of ~oiston, asserts that he w& introduced to the beneficiary's work at a 
symposium. Dr. speculates that the beneficiary's work "may suggest significant performance 
improvement in real-world a lications, such as the scanning accuracy and speed in modeling phased- 
array antennas." Dr. does assert that the beneficiary's model for scattering kom dispersive 
media in time domain "is a great contribution to the existing time domain integral equation solvers and 
the Electronics Design Automation industry" but does not identify any company using this model or 
claim to use the model himself. 
One of the letters submitted on appeal provides an example of the application of the beneficiary's work 
beyond his colleagues. Dr. , Director of Engineering for Zeland Software in California, 
asserts that he contacted the beneficiary for "further information'' regarding his IEEE presentation. Dr. 
used the beneficiary's algorithm to compute the scattering for dispersive materials and validate the 
responses already obtained at Zeland Sohare. Clearly, another company in the United States has 
found the beneficiary's work useful, but novel research that contributes to the general pool of 
knowledge is not necessarily indicative of international recognition. Moreover, as stated above, the 
beneficiary's contributions must have been recognized internationally as outstanding as of the date of 
filing. See 8 C.F.R. 58 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. Dr. in his letter 
dated May 3 1, 2008, does not confirm that he had already used the beneficiary's work to validate his 
own as of July 12,2007, when the petition was filed. 
The remaining letters submitted on appeal are more s eculative regarding the potential for the 
beneficiary's work to be widely utilized. Dr. d, an engineer at Continental in Michigan, 
asserts that he is "seriously considering to use [sic] [the beneficiary's] idea in our compan 's own 
design of the high power (200 kW - 1 MW) solar inverters and mobile Microgrids." Dr. h 
Director of ~ngine&n~ at Ethertronics in California, asserts that his company "has taken a great interest 
in [the beneficiary's] research." More specifically, speculates that the beneficiary's techniques 
for antenna array will accelerate the development process and that the beneficiary's Floquet models 
"can lead to enormous development cycle reduction because of its drastic improvement on the 
computation efficiency." Finally, , Professor of Power Engineering at Nanyang 
Technology University, asserts that he became award of the beneficiary's work as part of his efforts to 
keep abreast of development and advances made by fellow research teams. 
 While - 
characterizes the beneficiary as an "expert," he characterizes the benefici 
 's work as only "detailed 
and comprehensive" showing "some degrees [sic] of innovation." 
 Dr. 
 concludes that the 
beneficiary is a "careful and competent researcher" with "the excellent analytical skills which are 
essential for the making of a successful engineer." 
As noted by counsel on appeal, the beneficiary is also a published author. The record contains copies of 
five published articles and a manuscript bearing no pagination or journal title. The beneficiary has also 
presented his work at various conferences. The relevant regulations includes a separate criterion for 
scholarly articles. 8 C.F.R. 8 204.5(i)(3)(i)(F). Thus, the 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. Rather, the petitioner must 
demonstrate that the beneficiary's published work is sufficiently influential in the field such that the 
published work can be considered a contribution recognized as outstanding in the field. We 
acknowledge that the beneficiary's work was considered to have potential when it was selected as a 
finalist for a best paper award. The record, however, lacks evidence of it subsequent impact in the field, 
such as evidence that the beneficiary's work has been widely and fi-equently cited. 
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 fiom the 
scientific community. Any Ph.D. thesis or doctoral 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 is internationally recognized as outstanding. Thus, the 
petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic$eld. 
The petitioner submitted evidence that the beneficiary has authored five published articles and has 
presented his work at conferences. 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 full-time academic 
andlor research career," and that ''the appointee has the fieedom, and is expected, to publish the results 
of his or her research or scholarship during the period of the appointment." Thus, this national 
organization considers publication of one's work to be "expected," even among researchers who have 
not yet begun "a full-time academic andlor research career." This report reinforces 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 stated above, the record contains no evidence that the beneficiary's published work has been cited. 
Even if we were to conclude that the mere authorship of published scholarly articles was sufficient to 
meet this criterion, and we do not, for the reasons discussed above, the record falls far short of 
establishing that the beneficiary meets 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, whlle 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. 5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.