dismissed EB-1B Case: Engineering

'* 
d!deted to 
prevent cIearly unwarranted 
invasion dpeponal privw 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
puimJc COPY 
EAC 06 038 5205 1 
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. 4 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 further inquiry must be made to that office. 
V 
Sobert P. W~emann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision twice on motion. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an electronic materials company. 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)@). The petitioner seeks to employ the beneficiary permanently in the United States as a 
research and development engineer. The director determined that the petitioner had not established that 
the beneficiary had attained the outstanding level of achievement required for classification as an 
outstanding researcher. 
Counsel included a brief statement explaining the basis of the appeal on the Form I-290B. Counsel also 
indicated, however, that he would submit a brief and/or additional evidence to the AAO within 30 days. 
Counsel dated the appeal August 24, 2007. As of March 13, 2008, this office had received nothing 
further. Therefore, on that date, this office contacted counsel by facsimile to inquire whether counsel 
had submitted anythng Mer and to request a copy of any subsequent submission. In response, 
counsel submitted a copy of a November 15,2007 letter to the director advising that counsel would rely 
on the previously submitted evidence and briefs. For the reasons discussed below, we uphold the 
director's decision. 
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, 
Page 3 
( 
 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. $ 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 andor 
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 andfor 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. 
Ths petition was filed on November 4, 2005 to classifjl the beneficiary as an outstanding researcher in 
the field of engineering. Therefore, the petitioner must establish that the beneficiary had at least three 
years of research experience in the field of engineering 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 satisfjl 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, 
199l)(enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). The criteria follow. 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement in 
the academic field. 
As noted by the director, no claim has been presented 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 submitted evidence that the beneficiary is a member of the American Institute of 
Chemical Engineers (AIChE) and the Materials Research Society (MRS). The petitioner submitted 
evidence that AIChE membership is open to those who meet certain education and experience 
requirements. The petitioner failed to submit evidence of the membership requirements for MRS. 
The director concluded in his initial decision that the record does not reflect that these organizations 
require outstanding achievements of their general membership and counsel has never challenged this 
assertion. 
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 noted by the director, no claim has been presented that the beneficiary meets this criterion. 
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. 
As noted by the director, no claim has been presented that the beneficiary meets this criterion. 
Evidence of the alien's original scientzfic or scholarly research contributions to the academic 
field. 
Counsel has asserted that the beneficiary's patents are conclusive proof that the beneficiary's work is 
original and the significance of his innovations are demonstrated by the reference letters. Counsel 
further notes that the beneficiary's patents can be accessed through various Internet websites. The 
record contains no evidence that these websites evaluate various patents and report on those patents 
deemed significant and influential. Rather, the websites would appear to be search engines for patents 
in general. Thus, the petitioner has not established that the ability to access the beneficiary's patents 
through these websites sets his innovations apart from other patented innovations. International 
accessibility does not create a presumption of international recognition. We will consider the 
remaining evidence below. 
The record contains one U.S. patent, two U.S. patent applications and two applications filed with the 
World Intellectual Patent Organization. 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 argue that all original research is, by definition, "outstanding" is 
to weaken that adjective beyond any usehl 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 research or other innovation, in order to be accepted for 
graduation, publication, fimding or a patent, 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. 
Finally, in a decision regarding a lesser classification, this office stated that a patent is not necessarily 
evidence of a track record of success with some degree of influence over the field as a whole. See 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 21 5, 221 n. 7, (Cornmr. 1998). Rather, the 
significance of the innovation must be determined on a case-by-case basis. Id. The evidence before us 
reflects that the beneficiary holds one patent and is listed as an inventor on two additional patent 
applications (the international patent applications are for the same innovations listed in the U.S. patent 
applications). This evidence establishes that the beneficiary has produced original designs, but the very 
existence of the patents does not show that the beneficiary's innovations are more significant than those 
of others in bs field. To establish the significance of the beneficiary's work, we turn to experts in his 
field, whose letters we discuss below. 
At the outset, 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 of Caron International, 19 I&N Dec. 791, 795 (Cornrnr. 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, 165 (Commr. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of international 
recognition 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. In addition, letters fiom independent references who were previously aware of the petitioner 
through his reputation and who have applied his work are the most persuasive. Ultimately, evidence 
in existence prior to the preparation of the petition carries greater weight than new materials prepared 
Page 6 
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 Ph.D. in Engineering from the City University of New York (CUNY) in 
2001 under the supervision of 
 '. The beneficiary then worked as a research 
scientist for Orica USA through July 2003, when he joined the petitioning company. 
discusses the beneficiary's Ph.D. dissertation on surface active agents (surfactants) and 
their use in enhancing the surface mobility of bubbles moving through a liquid. 
 explains 
the problems that arise fiom trace surface active impurities adsorbing onto the surface of the bubble and 
causing it to move as if it were a solid particle. The beneficiary discovered a set of polyethylene oxide 
surfactants that prevent adsorption, allowing the bubbles to move with velocities characteristic of a 
clean system. The beneficiary then "constructed and solved a hydrodynamic model for bubble motion 
in the presence of surfactant adsorption and develo ed criteria for how fast the surfactant exchange 
must be to maintain the surface mobility." hi notes that the beneficiary presented this work 
at conferences and had submitted it for publication. As of the date of filing, this work had yet to be 
published. 
Chair of Johns Hopkins University's graduate program in the Department of 
Chemical and Biological Engineering, asserts that she had "the opportunity to observe" the beneficiary 
in 1998 at CUNY and that she consulted with him "on several occasions." She Wher asserts that her 
own research group has attempted to exploit the beneficiary's use of surfactants to facilitate the 
movement of bubbles through a liquid and that she will include "these results in a plenary lecture at an 
international conference this August." Although that conference would have already occurred as of the 
date the etition was filed, the petitioner did not submit a copy of the presentation or other evidence 
that I& cited the beneficiary's work. Regardless, the fact that a researcher fi-om John Hopluns 
visitinm's laboratory found the beneficiary's work useful, while a favorable factor, is not 
evidence that the beneficiary's work is internationally recognized as outstanding. 
. a senior research scientist at Onca. indicates that he supervised the beneficiarv at 
that company. 
 indicates that the beneficiary's first projeci for Orica resulted in- an 
intellectual property disclosure for two new commercial explosives that would save Orica $1.7 million. 
While asserts that this innovation "is being considered for patenting," the record does not 
include a patent application for this product. 
fbrther asserts that the beneficiary's work with surfactants improved water resistance by 
three times at Orica, providing a major economic benefit for the company. Finally, serts 
that the beneficiary "took charge of a project to improve the quality of Orica's Magnafi-ac line of gassed 
emulsion packaged products." Through laboratory tests, the beneficiary "succeeded in improving the 
product quality proved by the results on trial products." notes that Orica is implementing 
the beneficiary's process improvement, resulting in an annual savings of $700,000. Suresh 
Subrarnanian, former Director for Global Product Development at Orica, provides similar information. 
Clearly, the beneficiary performed useful services for lus employer. The record, however, lacks 
evidence that the beneficiary's work at Orica garnered any international attention. For example, the 
record contains no evidence that trade journals or other media reported on the improvements at Orica 
derived from the beneficiary's work. 
, Manager for Pad Engineering Research at the petitioning company, discusses the 
beneficiary's work there on characterizing the surface texture of chemical mechanical polishing (CMP) 
polislung pads. notes that the beneficiary has presented some of this work at 
conferences. The record contains evidence that the petitioner has filed U.S. and international patent 
applications based on the beneficiary's work there. 
With the exception of the letter from 
 letters are all fi-om the beneficiary's 
immediate circle of collaborators and 
 e appears to at least have spent some time in 
s laboratory such that she observed the beneficiary's work there. Contrary to the 
assertions of prior counsel and the petitioner's current counsel in response to the director's request for 
additional evidence, as of the date of filing, the beneficiary had yet to publish any of his workin peer- 
reviewed journals and the record contains no evidence of any citations. We acknowledge that the 
beneficiary presented his work at some conferences. The record, however, lacks evidence that these 
presentations have been widely influential. Furthermore, the regulations include a separate criterion for 
scholarly articles. 8 C.F.R. 5 204.5(i)(3)(i)(F). Thus, the mere authorship of scholarly articles or the 
generally comparable act of presenting one's work orally at a distinguished conference cannot serve as 
presumptive evidence to meet the contributions criterion at 8 C.F.R. 5 204.5(i)(3)(i)(E). To hold 
otherwise would render the regulatory requirement that a beneficiary meet at least two criteria 
meaningless. 
While the beneficiary is listed as an inventor on patent applications and a patent, the record lacks 
evidence that these patents have garnered any international attention let alone that they are 
internationally recognized 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 or a patent. The record does not establish that the beneficiary's work has been 
internationally recognized as outstanding. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
Initially, prior counsel characterized the beneficiary as a "Published and Widely Cited Author." In 
response to the director's request for additional evidence, counsel asserted that "the record shows that 
[the beneficiary] has authored numerous original peer-review research articles published in journals 
with international circulation" and that "his work is cited often by peers in the field." The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,534 n.2 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1 980). The record does not support either assertion. 
The petitioner submitted evidence that, as of the date of filing, the beneficiary has authored two articles 
that were either "in press" or had been submitted for publication. In his brief on motion, counsel 
asserted that the beneficiary's papers have undergone peer review, that he has authored patents and that 
the reference letters attest to the significance of the work to be published. The petitioner must 
demonstrate the beneficiary's eligibility as of the date of filing. See 8 C.F.R. §$ 103.2@)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Comrnr. 1971). 
 The regulation at 8 C.F.R. 
204.5(i)(3)(i)(F) requires evidence of authorship of articles in internationally circulated journals. The 
purpose of the regulatory criteria is to demonstrate international recognition. Articles that have yet to 
appear in internationally circulated journals cannot meet the plain language of the regulatory criterion. 
Moreover, they are not indicative of or consistent with international recognition as they have not yet 
even been disseminated in the field. 
The petitioner is listed as an innovator on one U.S. patent, two U.S. patent applications and two 
international patent applications. Patents are not articles and are not published in internationally 
circulated scholarly journals. No provision in the regulation at 8 C.F.R. § 204.5(i) would even permit 
the consideration of comparable evidence for the classification sought; thus, we need not consider 
whether patent applications are comparable to articles in peer-reviewed scholarly journals. 
We acknowledge that the beneficiary or one of his colleagues presented hs work at several 
conferences. The record, however, lacks evidence supporting prior assertions that the beneficiary is 
widely cited or even that he has been cited at all. The petitioner has simply not established that the 
beneficiary's publication record, which consists of conference presentations only, is indicative of 
intemational recognition in the field or suggests that the beneficiary stands apart in the academic 
community through eminence and distinction based on international recognition. 56 Fed. Reg. at 
30705. 
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 a very limited degree of 
intemational 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. $ 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.