dismissed EB-1B Case: Medical Research

identiwg data delM to 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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 further inquiry must be made to that office. 
I 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner is an institution of higher medical education. It seeks to classifL 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 in the United States as a 
research associate. The director determined 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 submits the initial offer of employment, explicitly requested by the director on 
June 8, 2005. For the reasons discussed below, the petitioner has not overcome the director's basis of 
denial. Moreover, we find that the petitioner has not established that the beneficiary is recognized 
internationally as outstanding in his academic field, as required for classification as an outstanding 
researcher. 
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, 
(II) 
 for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(III) for a comparable position to conduct research in the area 
with a department, division, or institute of a private employer, if 
the department, division, or institute employs at least 3 persons 
Page 3 
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)(iii) provides that a petition must be accompanied by: 
An offer of employment fiom 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 acceptance7' 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." ALM's online law dictionary, available at www.law.com, defines offer 
as "a specific proposal to enter into an agreement with another. An offer is essential to the formation 
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. $ 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 proposed employment was a permanent 
position. Counsel indicated that a job offer was included in the initial submission. None of the initial 
evidence, however, discusses the job offered. The petitioner did submit a letter from Dr. - 
of the Finch University of Health Sciences at the petitioner's address indicating he had offered the 
petitioner a chief research associate position in 2003. This letter is addressed to CIS. This document 
does not constitute a job offer from the petitioner to the beneficiary. On June 8, 2005, the director 
requested "a photocopy of the letter signed and dated prior to the petitioner's filing from an 
administrative hiring authority of the university addressed to the beneficiary providing the precise terms 
of employment." The director fiuther requested evidence in the form of a contract or school policies 
demonstrating that the offered position was "permanent" as defined at 8 C.F.R. 5 204.5(i)(2). 
In response, the petitioner submitted a letter dated after the date of filing from 
 Director 
of Human Resources for the petitioner. The letter is addressed "To 
provides that the beneficiary's position has no pre-determined termination date and that the beneficiary 
will be employed as long as fimding remains available unless he is removed for misconduct or 
dereliction of duty. 
The director concluded that the letter was not a job offer issued to the beneficiary prior to the date of 
filing. The director also expressed concern that the beneficiary's job was contingent on finding. 
On appeal, the petitioner submits the initial job offer issued to the beneficiary dated March 24, 2004. 
The letter contains the following language: 
Similar to most employers in Illinois, the University employment relationship is at-will. 
Please note that the right of the employee or the University to terminate the employment 
relationship at-will is recognized and afirmed as a condition of employment. 
The petitioner also submitted a list of faculty employment benefits. The petitioner provides no official 
materials, such as a policy handbook, confirming that those employed in at-will positions with the 
petitioner have an expectation of continued employment absent good cause for termination. 
As stated above, the regulation at 8 C.F.R. 5 204.5(i)(3)(iii) explicitly requires a job offer as part of 
the initial evidence to support a petition under this classification. As quoted above, the director 
explicitly requested the job offer letter issued to the beneficiary prior to the date of filing. The 
purpose of the request for evidence is to elicit firther information that clarifies whether eligibility for 
the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $5 
103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The petitioner was put on 
notice of required evidence and given a reasonable opportunity to provide it for the record before the 
visa petition was adjudicated. 
 The petitioner failed to submit the requested evidence and now 
submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The 
appeal will be adjudicated based on the record of proceeding before the director. 
We recognize that university research positions are typically contingent on continued hnding and find 
that such a contingency is not disqualifjrlng where the petitioner demonstrates an intent to seek future 
hnding and a pattern of funding the position. Nevertheless, the regulations are explicit that a job offer 
is part of the required initial evidence when seeking to classifL an alien pursuant to section 203(b)(l)(B) 
of the Act. Thus, the director did not err in denying the petition for the lack of such evidence. 
In addition, we find that the petitioner has not demonstrated that the beneficiary enjoys international 
recognition as required for the classification sought. An application or petition that fails to comply 
with the technical requirements of the law may be denied by the AAO even if the Service Center 
does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see 
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de 
novo basis). 
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 petitioner 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. 56 Fed. 
Reg. 30703, 30705 (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. 
Counsel has never asserted that the beneficiary's awards can serve to meet this criterion. Rather, 
counsel references the beneficiary's awards as "other evidence of international recognition of [the] 
beneficiary's ability and contributions." The regulations relating to the classification sought do not 
permit the submission of comparable or "other" evidence. Rather, they indicate that evidence of 
eligibility "shall" consist of evidence relating to at least two of the regulatory criteria. The regulations 
include an awards criterion specifying which awards can serve as evidence of international recognition. 
As such, if awards are to serve as evidence of international recognition, they must be major prizes or 
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. 
awards for outstanding achievement in the academic field. Lesser awards cannot serve to meet a 
nonspecific criterion not included in the regulations.2 Thus, we will evaluate the beneficiary's awards 
under this criterion. 
The petitioner submitted a letter confirming that the beneficiary was the recipient of a travel grant from 
the European Behavioural Pharmacology Society in 2004. The record is absent evidence of how many 
conference attendees receive such grants and whether the pool of competitors is open to the most 
renowned members of the field or limited to those at the beginning of their careers who may have fewer 
hnds to travel to conferences. 
The record lacks evidence that this travel award is a major prize or award. As such, the petitioner has 
not established that the beneficiary meets this criterion. 
Evidence of the alien's particpation, either individually or on a panel, as the judge of the work 
of others in the same or an allied academic field. 
Counsel did not initially assert that the beneficiary meets this criterion, although ~rserts that 
the beneficiary participated in peer-review for journals such as Neuropsychopharrnacology. In 
response to the director's request for additional evidence, counsel asserted for the first 
beneficiary meets this criterion. At that time, the petitioner submitted a letter fro 
ditor of Neuropsychopharmacology, confirming that the beneficiary "regularly m reviews or 
our journal." 
 The petitioner has not established whether the journal directly requested that the 
beneficiary review the manuscripts or whether the request was passed on to the beneficiary from his 
supervisor. 
 Being requested to review an article by one's own supervisor is not evidence of 
international recognition. Moreover, ~r-does not assert that the beneficiary had reviewed 
manuscripts as of the date of filing. We cannot consider any review responsibilities after that date. See 
8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. ~omm. 1971). 
Regardless, we cannot ignore that scientific journals are peer reviewed and rely on many scientists to 
review submitted articles. Thus, peer review is routine in the field; not every peer reviewer enjoys 
international recognition. 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 scientzfic or scholarly research contributions to the academic 
field. 
2 
 If directly relevant to another criterion, awards could bolster the evidence submitted to meet that criterion. For 
example, a significant award recognizing an alien's scholarly articles could be considered as part of the 
evidence submitted to meet the scholarly articles criterion at 8 C.F.R. tj 204.5(i)(3)(i)(F). 
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." 
The beneficiary obtained his Ph.D. in 2001 from the University of Malta. The beneficiary then worked 
as a postdoctoral fellow at Albany Medical College through July 2004, after which he began working as 
a research associate for the petitioning university. The beneficiary had been working for the petitioner 
onlv three months when the ~etition was filed. The beneficiarv has also worked as a lecturer at the 
, 
Training and Research Institute in Albany. Initially and in response to the director's 
evidence, the petitioner submitted several letters from colleagues and others in 
the field. 
Dr. 
 a professor at Albany Medical College, discusses the beneficiary's work in 
Malta and at Albany Medical College. 
 In Malta, the beneficiary confirmed that IFN-a-induced 
anhedonia, one of two compulsory attributes for the diagnosis of a major depressive episode in humans, 
could be reversed through the use of two antidepressants, desipramine and fluoxetine. Dr. 
explains that this work is important because little research had explored the mechanisms w!! o 
behavioral effects of interferon administration. Finally, ~r.sserts that this work resulted in 
two publications and a conference presentation but the record contains no evidence that the articles or 
presentation have been widely cited or otherwise influential. 
a retired professor in Canada who met the beneficiary at a conference in 1997, asserts 
th 
 ary uses an electrical technique called voltammetry to measure the amount of a 
neurotransmitter. 
Dr. F 
fkther asserts that the beneficiary is one of a small group of 
"internationally recognize experts" in this technique. 
 Other references note that the beneficiary 
combined this technique with an electrophysiological technique. 
 This office has concluded that 
exposure to technology is not necessarily a sufficient ground to warrant a national interest waiver of the 
job offer for advanced degree professionals or aliens of exceptional ability, a lesser classification than 
the one sought in this matter. Matter of New York State Dep't of Transp., 22 I&N Dec. 215, 221 
(Cornrn. 1998). 
In ~raboratory, the beneficiary measured the release of dopamine and assessed the 
responses dopamine has on brain circuits. Dr. discusses the importance of this general area 
of research and predicts that the beneficiary's results "will" have a strong impact on the current 
understanding of the mechanisms regulating brain circuit activity and have implications for drug 
addiction and schizophrenia. Dr.ndicates that he and the beneficiary were, as of July 22, 
2004, preparing a manuscript that he anticipated would "have an enormous impact in the scientific 
community." Predictions of hture contributions are insufficient to meet this criterion. 
, Director of the Sidney Albert Training and Research Institute, asserts that 
she contracted the beneficiary to provide lectures to the staff at the institute. She praises his ability to 
present the information in a comprehensible fashion to professionals who are not medical researchers. 
While valuable for the staff, the record does not indicate that these lectures contributed to the 
beneficiary's academic field of neurology as a whole. 
Dmraises the beneficiary's abilities and concludes that he is a "virtually irreplaceable component 
of the on-going research in the field." ~rredicts that the beneficiary will contribute to new 
medications for Parkinson's disease and schizophrenia. The beneficiary's work is also "likely" to 
benefit patient-, a1 and psychiatric disorders. Another collaborator at the petitioning 
university, Dr. Vice Chair of the petitioner's Department of Neuroscience, claims 
generally that the beneficiary has "advanced significantly and shed light on the 
mechanisms of interferon-induced depression." however, provides no examples of work 
influenced by the beneficiary's results other beneficiary's work "has tremendous 
potential to identifjr novel therapeutic targets" for treating neurological disorders. 
~r. a professor at the University of Pittsburgh, asserts that he met the beneficiary at a 
scientific confer 
 that the beneficiary subsequently presented his work on a visit to Dr. 
laboratory. Dr. 
 ndicates that the beneficiary's presentation was well received and 
stayed in touch 
 beneficiary based on their mutual interests. 
 explains that the 
beneficiary used a unique and innovati 
 roach to study the neural 
 s thought to be 
dysfunctional in schizophrenia. While Drm concludes that the beneficiary has made original and 
important contributions he provides no examples of how the beneficiary's work, including his 
presentation for D- laboratory, has influenced the research being conducted in Dr. 
laboratory or the work of other researchers. 
The remaining letters provide similar information to that discussed above and general assertions of 
international recognition. The opinions of experts in the field, while not without weight, cannot fonn 
the cornerstone of a successful claim of sustained national or international acclaim. 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 795; See also Matter of SofJici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Page 9 
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 from independent references who have applied his work are far more 
persuasive than letters providing general praise. To be considered a contribution indicative of 
international recognition in the field of science, it can be expected that the results would have already 
been reproduced and confirmed by other experts and applied in their work. Otherwise, it is difficult 
to gauge the impact of the petitioner's work. None of the independent experts claim to have been 
impacted by the beneficiary's work and the petitioner submitted no evidence that the beneficiary has 
been widely and frequently 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 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. 
By publishing and presenting his work the beneficiary, like most researchers, has gained some 
international exposure. The record does not establish that the beneficiary's work represented an 
original contribution indicative of international recognition. 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 field. 
The petitioner submitted evidence that the beneficiary had authored eight published articles and 
abstracts as of the date of filing and had presented his work at two conferences. The beneficiary's 
subsequent articles, presentations and book chapters cannot be considered as evidence of his eligibility 
as of the date of filing. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. 
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 full-time academic andlor 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 fill-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 stated above, the petitioner provides no evidence that his articles have had 
a notable impact in his field. Specifically, the petitioner submitted no evidence that independent 
researchers have cited the beneficiary's work. 
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. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. 
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.