dismissed EB-1B Case: Food Science

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
IN RE: 
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 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
sobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employrnent-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner is a cheese and whey-based food 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)(B). The petitioner seeks to employ the beneficiary in the United States as a 
research scientist. The director determined that the petitioner had not established that it had offered the 
beneficiary a permanent job as of the date of filing. The director fbrther determined that the petitioner 
had not established that the beneficiary is recognized internationally as outstanding in his academic 
field, as required for classification as an outstanding researcher. 
On appeal, counsel challenges both conclusions. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) 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 
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 
hll-time in research activities and has achieved documented 
accomplishments in an academic field. 
Job Offer 
The regulation at 8 C.F.R. 5 204.5(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; 
(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 alien's academic field. The department, 
division, or institute must demonstrate that it employs at least three persons hll- 
time in research positions, and that it has achieved documented 
accomplishments in an academic field. 
(Emphasis added.) Black's Law Dictionary 11 11 (7th .ed. 1999) defines "offer" as "the act or an 
instance of presenting something for acceptance" or "a display of willingness to enter into a contract 
on specified terms, made in a way that would lead a reasonable person to understand that an 
acceptance, having been sought, will result in a binding contract." Black's Law Dictionary does not 
define "offeror" or "offeree." The online law dictionary by American Lawyer Media (ALM), available at 
www.law.com, defines offer as "a specific proposal to enter into an agreement with another. An offer 
is essential to the fonnation of an enforceable contract. An offer and acceptance of the offer creates 
the contract." Significantly, the same dictionary defines offeree as "a person or entity to whom an 
offer to enter into a contract is made by another (the offeror)," and offeror as "a person or entity who 
makes a specific proposal to another (the offeree) to enter into a contract." (Emphasis added.) 
In light of the above, we concur with the director that the ordinary meaning of an "offer" requires that it 
be made to the offeree, not a third party. As such, regulatory language requiring that the offer be made 
"to the beneficiary" would simply be redundant. Thus, a letter addressed to Citizenship and 
Immigration Services (CIS) afirming the beneficiary's employment is not a job offer within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 5 204.5(i)(2), provides, in pertinent part: 
Permanent, in reference to a research position, means either tenured, tenure 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 petitioner indicated that the proplosed employment was a permanent 
- - 
position. The petiboner submined a letter from 
 Human Resource ~ana~er for the 
petitioner, addressed to Citizenship and Lmmigration Services (CIS), asserting that the petitioner 
employed the beneficiary in good standing in a full-time regular position. This document does not 
constitute a job offer from the petitioner to the beneficiary. On May 10, 2005, the director requested 
evidence that the petitioner had extended a permanent job offer to the-beneficiary. 
The petitioner's response did not include the original job offer letter as requested. Rather, the petitioner 
submitted a letter from Director of Research and Development for the petitioner, 
addressed "To Whom it May Concern." asserts that upon the beneficiary's completion of 
his Ph.D. program, the petitioner "immediately offered him a permanent position." The director 
concluded that the record lacked initial required evidence, the job offer. On appeal, counsel asserts that 
the beneficiary's job is permanent, with no specified end date and that the job is not contingent upon 
the availability of research funding. 
The initial required evidence is the job offer issued to: the beneficiary. The petitioner has not complied 
with the regulation at 8 C.F.R. 5 103.2(b)(2) regarding the submission of secondary evidence. 
Specifically, the petitioner has not demonstrated that the primary evidence required, the initial job offer 
letter issued to the beneficiary, is unavailable or does not exist. As such, we need not accept secondary 
evidence discussing the terms of a document the petitioner has failed to submit. Once the initial 
required evidence is submitted, letters from the petitioner to the director explaining any terms and 
conditions in that document are valuable evidence. Counsel has not persuasively explained, however, 
why we must accept a description of a document instead of the document itself. 
In light of the above, we uphold the director's first basis of denial, the lack of a job offer letter issued to 
the beneficiary. 
International Recognition 
The regulation at 8 C.F.R. fj 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 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. 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. 56 Fed. 
Reg. 30703, 30705 (July 5, 1991). The petitioner claims to have satisfied the following criteria.' 
Evidence of the alien's original scientzfic or scholarly research contributions to the academic 
field. 
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 
useful meaning, and to presume that most research is "unoriginal." 
In a similar vein, the patent application for the beneficiary's innovation establishes that his work is 
claimed to be original, but the very existence of a patent application does not show that the 
beneficiary's inventions are more significant than those of others in his field. To establish the 
significance of the beneficiary's work, we turn to experts in his field, whose letters we discuss below. 
and Head Emeritus of Dairy Science a 
 ota State University, discusses the beneficiary's 
Master's work at that institution. While 
 characterizes the beneficiary work as "truly great" 
he does not identi@ specific contributions made by the beneficiary or explain their significance. 
, a professor of Dairy Science at South Dakota State University, asserts that the 
beneficiary's "work on increasing Cheddar cheese yield by homogenizing only the 
beneficial to the U.S. cheese industry." Noting the prevalence of osteoporosis, Professor 
asserts that the beneficiary's current work utilizing milk ingredients will benefit human health. 
a Senior Scientist at Grande Cheese Company in Wisconsin who previously instructed 
the beneficiary in India, asserts that the beneficiary's work on Mozzarella and Cheddar cheeses "greatly 
benefited the US cheese industry." 
The petitioner did not submit evidence to support the assertions of ~rofessomnd, such as 
letters from major cheese manufacturers confirming the beneficiary's influence on increasing Cheddar 
or other cheese yield. For example, Site Manager and Director of Culture & Media 
Research and Development at DSM Food Specialties, asserts only that DSM has "followed" the 
1 
While the director addressed additional criteria that the petitioner has never claimed, on appeal, counsel 
does not challenge the director's conclusion that the petitioner submitted no evidence to meet those criteria. 
This decision only addresses those two criteria claimed initially, in response to the request for additional 
evidence and on appeal. 
beneficiary's work. 
 that DSM actually increased their yield based on the 
beneficiary's work. Similarly, 
 of Brewster Dairy affirms that his company offered the 
beneficiarv a iob and Predicts that the beneficiarv's research of casein micelle "will change what we 
.I J 
have always believed be structure to be." - does not, however, indicate that- 
has already been impacted by the beneficiary's work. 
Professor , Head of the Dairy Sciencm ment at South Dakota State University, 
praises the beneficiary's academic abilities. Professo 
 notes that the beneficiary presented his 
work with Cheddar yield at the American Dairy Science Association's annual meeting and published 
this work in Le Lait. ~rofessor further asserts that the beneficiary expanded this work, which 
originally applied only to cheese, to dairy products more generally. 
's mentor at Utah State University, praises the Professor , the beneficim 
beneficiary's work at that institution. Professor 
 notes that the beneficiary presented his work 
at conferences and asserts that "images of casein micelle structure from his work are being published in 
the latest textbooks on dairy food chemistry." The petitioner did not submit copies of pages of any 
textbooks crediting the beneficiary as 
 author. - Professor explains that while the 
beneficiary's field has been studied for many years, the benefici 
 rovided the first "answer on the 
supramolecular structure of the casein micelles." Professor 
 concludes, however, only that 
this research has the "potential" to make a "lasting contribution to our understanding of dairy foods." 
while studying for his Ph.D., the beneficiary was assigned a project for the 
the petitioner resolved a gelling problem encountered by the petitioner with its 
starter cultures. "Through [the beneficiary's] research, we were able to gain a clear understanding of 
the casein hydration properties that allowed us to solve the problem and we have been using secondary 
starter media for several years now without issue." After coming to work for the petitioner, the 
beneficiary "was a key driver on the team that developed GelMax, a yogurt ingredient for Asia to give 
smooth bodied, non-syneresing yogurt." The beneficiary also "developed two methods for 
concentrating the ACE inhibitory peptide from inactive peptides," "managed a project looking at new 
up-flow chromatography for improved isolation of lactoferring," and "developed a method for 
obtaining a crystal clear protein solution that can be heated at pH 7 without protein precipitation." The 
beneficiary also created a computer model to allow the petitioner "to see the changes in cheese yield 
and the economic outcome of such changes." As part of the petitioner's Connect & Develop program, 
the beneficiary linked two products developed by the petitioner before the beneficiary arrived to 
research programs on bone health. 
Head of Research and Development for the petitioner, asserts that the beneficiary 
participated "in top-tier EU and US peer-based think tank committees designed to leverage the 
exuertise of commercial and academic leaders in the areas of food research. Protein chemistrv and 
2 L 
refationships between diet and well-being." does not identify the committees and the record 
does not include invitations from these committees to participate, the agenda for these committees or 
evidence of the selection process for these committees. 
The director concluded that most of the beneficiary's work was done as a graduate researcher and that 
the witness letters did not establish any recognition beyond his circle of mentors and collaborators. On 
appeal, counsel quotes from several letters, noting the number of years of experience in the field for 
each author. Counsel hrther asserts that not "all" of the authors are mentors or collaborators, noting 
that was only a prospective employer. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful claim of sustained national or international acclaim. 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 (Comm. 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 795-796. 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 79.5; See also 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of widespread 
acclaim 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 from independent references who were previously aware of the beneficiary 
through his reputation and 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 
especially for submission with the petition. An individual with international recognition should be 
able to produce unsolicited materials reflecting that acclaim. 
We acknowledge that the beneficiary has presented and published his work. Publication of scholarly 
articles, however, is a separate criterion. The proposition that an alien who submits evidence directly 
relating to one criterion also presumptively meets a second criterion with the same evidence 
undermines the requirement that an alien meet at least two criteria. The record lacks evidence that 
these presentations or publications have been widely and frequently cited to the extent that would be 
expected of a published contribution consistent with international recognition. The record also lacks 
other evidence of the impact of these articles, such as industry letters affirming the impact of the 
beneficiary's presentations or publications on their industry practices, such as improving their yields. 
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 other 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 garnered any international recognition. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
The petitioner submitted evidence that the beneficiary had authored four published articles and eight 
abstracts. References attested to conference presentations. The director concluded that the publication 
was inherent to the research profession and that the beneficiary's publication record was minimal 
compared with that of his references. The director also noted the lack of evidence of any international 
attention garnered by the beneficiary's published work. 
On appeal, counsel references the witness letters as evidence of the significance of the beneficiary's 
published work. The petitioner submits evidence of the international circulation of the journals that 
included the beneficiary's articIes. Counsel notes that the witnesses have been in the field longer than 
the beneficiary. Counsel quotes Professor 
hP 
ssertion that publishing 1 1 papers between 2001 
and 2004 "is outstanding by any standards in t e Dairy Science area." The majority of those "papers," 
however, are abstracts. 
The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its 
Report and Recommendations, March 3 1, 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 hll-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 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. The record contains no evidence that any independent researchers have cited 
the beneficiary's work or comparable evidence of the impact of the beneficiary's work. Even if we 
were to conclude that the beneficiary meets the basic requirements of this criterion, it is only one 
criterion. The evidence 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 an international 
reputation 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.