dismissed EB-1B Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
NEBRASKA SERVICE CENTER Date: OC~ 0 3 ~08 
LIN 06 007 54097 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Imrmgration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
'3 
9 Robert P. Wiemann, Chief 
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 a hospital and research institute. 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. 
tj 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 a statement and evidence that the beneficiary was reappointed after 
the date of filing. For the reasons discussed below, we uphold the director's decision. Further, 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 
(HI) 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)(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 ofSering 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 full- 
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 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 offeeree) to enter into a contract." (Emphasis 
added.) 
In light of the above, 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) afJirming 
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. The original list of exhibits listed an employment offer letter, but such letter was not 
included. On December 1, 2005, the director requested evidence that the petitioner had extended a 
permanent job offer to the beneficiary. 
In response, the petitioner submitted a March 1,2005 letter offering the beneficiary an appointment as a 
research associate "effective March 1, 2005, through February 28,2006." The petitioner also submitted 
a July 12,2005 letter addressed to the beneficiary advising of an increase in salary. 
The director concluded that the position had a finite end date and, thus, did not meet the definition of 
permanent. On appeal, the petitioner asserts that it has "a policy to renew every employee's 
appointment annually, for the purpose of updating the benefits provided to all employees." The 
petitioner submits evidence that the beneficiary was reappointed on January 6, 2006, after the date of 
filing. The petitioner also received a raise on the same date. 
In promulgating the final regulation, the Immigration and Naturalization Service, now CIS, 
recognized that it is unusual for colleges and universities to place researchers in tenured or tenure- 
track positions. Thus, the commentary to the final rule accepts that research positions "having no 
Jixed term and in which the employee will ordinarily have an expectation of permanent employment" 
as comparable. (Emphasis added.) 56 Fed. Reg. 60867,60899 (November 29, 1991). 
The petitioner provides no evidence that renewal of one-year term positions is automatic or expected 
unless notice of termination is provided. The record does not support the petitioner's assertion that the 
fixed term appointments merely allow for a review of benefits. The beneficiary's first raise occurred in 
July 2005, between his initial appointment and his first reappointment. While the renewal in 2006 may 
begin to demonstrate a pattern consistent with an expectation of indefinite employment, this first 
renewal took place after the date of filing. The petitioner must demonstrate that the beneficiary enjoyed 
a reasonable expectation of continued employed as of the date of filing. See 8 C.F.R. § 103.2(b)(12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comrn. 1971). Finally, the petitioner did not submit 
evidence that research associates at the petitioning institute are ordinarily renewed indefinitely such that 
the beneficiary might have a reasonable expectation of being renewed himself. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). 
In light of the above, the petitioner has not overcome the director's basis for denial. 
Beyond the decision of the director, the petitioner has also not established that the beneficiary is 
recognized internationally as outstanding in his academic field. 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), afd. 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. 5 204.5(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 criteria follow. 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement in 
the academic field. 
In the initial cover letter, the petitioner asserted that the beneficiary's postdoctoral fellowship and 
promotion to research associate in less than the typical four years constitute "recognized awards for 
excellence." We cannot agree. Competition for postdoctoral appointments is limited to other recent 
graduates. Experienced experts in the field are not seeking postdoctoral appointments. Moreover, a 
job offer, even a competitive one, cannot be credibly characterized as a prize or award for excellence. 
Thus, the beneficiary's employment history cannot serve to meet this criterion. 
The beneficiary graduated fiom thein 2001. The first and 
third prizes listed above ai awards. The record contains no evidence 
regarding the significance of th such as the pool of competitors and the number 
of awards issued. 
It is significant that the proposed regulation relating to this classification would have required evidence 
of a major international award. The final rule removed the requirement that the award be 
"international," but left the word "major." The commentary states: "The word 'international' has been 
removed in order to accommodate the possibility that an alien might be recognized internationally as 
Page 6 
outstanding for having received a major award that is not international." (Emphasis added.) 56 Fed. 
Reg. 60897-01,60899 (November 29,1991 .) 
Thus, the standard for this criterion is very high. The rule recognizes only the "possibility" that a major 
award that is not international would qualify. Significantly, even lesser international awards cannot 
serve to meet this criterion given the continued use of the word "major" in the final rule. CJ 8 C.F.R. 
fj 204.5(h)(3)(i) (allowing for "lesser7' nationally or internationally recognized awards for a separate 
classification than the one sought in this matter). The record contains no evidence that the Peng- 
Yingang award is a major national award. 
In light of the above, the petitioner has not established 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 International Society for 
Interferon and Cytokine Research (ISICR) and the American Society for Cell Biology (ASCB). The 
petitioner failed to submit evidence of the membership requirements for these associations. It is noted 
that the beneficiary was first elected as a postdoctoral member of ASCB and that the letter indicates 
that his membership would be converted to regular membership after four years, suggesting that ASCB 
exercises little review over its regular members. 
The record does not reflect that the above organizations require outstanding achievements of their 
general membership. Thus, the petitioner has not established that the beneficiary meets this criterion. 
Published material in professional publications written by others about the alien 's work in the 
academic field. Such material shall include the title, date, and author of the material, and any 
necessary translation. 
The petitioner submitted citation indices establishing that the beneficiary has been cited. Articles 
which cite the beneficiary's work are primarily about the author's own work, not the beneficiary. As 
such, they cannot be considered published material about the beneficiary. 
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 petitioner submitted a letter from the beneficiary's supervise 
beneficiary "has served as 
 rev~ewer of manv manuscnn 
prestigious journals, such as 
 bd Cancer Cell." 
een submitted to 
- 
The petitioner has not estabmea wnetner tne a~ove journals airectly so11 
or whethew solicited and then assigned the duty to the beneficiary. We note that 
is a member of the National Academy of Sciences. Being requested to review an article by one's own 
supervisor is not indicative of or consistent with international recognition. 
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. 
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." 
discusses the 
 transcription factor connected to cancer and 
was previously believed to be inactive until 
phospherylated by a developmental 
 The beneficiary "made the remarkable 
discovery that the supposedly inactive, UNphosphorylated form 
 is, contrary to previous 
opinion, actually a highly active transcription factor in its own right, 
 of functions quite 
distinct from those of the phosphorylated form that is generated in response to signals." 
expresses his hope that the beneficiary's follow-up to this discovery "will contribute new un 
that will eventually pay off in better treatments for patients afflicted, by cancer or inflammatory 
diseases." 
The petitioner also submitted a letter 
 Research, UK, 
who asserts that he has cooperated wit 
 asserts that the 
beneficiary has contnbuted to "the 
 cancer, its 
potential role in the control of cell growth, differentiation and development in reproductive tissues and 
importance in 
 immune response to the [interferons]- and other- cytokines." 
 Former 
colleagues from 
 laboratory provide similar information. 
February 2005. The record contains no evidence that the 2003 article has been cited. The 2005 article, 
published only three months prior to the date of filing, had been cited a single time. 
To be considered an original scientific contribution indicative of international recognition, 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. The 
record lacks reference letters fro 
 ndent researchers who have applied the beneficiary's- 
work. Moreover, his most recen 
 esults had just been published as of the date of filing and, 
thus had not been widely and frequently cited. Thus, the evidence relating to the beneficiary's work 
om not indicative of international recognition as of the date of filing, the date as of which the 
petitioner must demonstrate the beneficiary's eligibility. See 8 C.F.R. tj 103.2(b)(12); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
ioning institute, discusses the beneficiary's 
While currently at the petitioning institute, 
presentation at a conference in 2000. 
[The beneficiary's] oral presentation provides new insight in to the abnormal function 
of Acyl-coenszyme A: cholesterol acyltransferase (ACAT)[, an] enzyme [that] causes 
hypercholesterolemia and atherosclerosis. His studies showed that the ACAT 
expresses in most tissues and is critical for cholesterol homeostasis and involved in 
atherosclerotic plaque formation. In macrophages, the accumulation of cytosolic 
droplets of cholesterol esters results in the formation of "foam cells," a hallmark of 
early atherosclerotic lesions and in macrophages. The role ACAT in cardiovascular 
pathogenesis has sparked strong interest in pharmaceutical companies to develop 
inhibitors of ACAT as possible therapeutic agents for hypercholesterolemia and 
atherosclerosis. 
The record, however, contains no letters from pharmaceutical companies affirming their application 
of the beneficiary's ACAT research. We acknowledge that the work has garnered some citations, 12 
total, eight of which appear to be from independent research teams. Eight independent citations, 
however, are not indicative of or consistent with international recognition for original contributions 
to the field. 
While the beneficiary's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication or funding, must offer new and useful information to the pool of knowledge. 
The record does not establish that the beneficiary's contributions are indicative of or consistent with 
international recognition. 
Evidence of the alien's authorship of scholarly boob or articles (in scholarly journals with 
international circulation) in the academic field. 
The petitioner submitted evidence that the beneficiary has authored 11 published articles. 
 The 
Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report 
and Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral 
appointment. Among the factors included in this definition are the acknowledgement that "the 
appointment is viewed as preparatory for a full-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. 
Two of the petitioner's articles have been moderately cited. Thus, we are persuaded that the beneficiary 
meets this criterion. We will not presume, however, that meeting this criterion demonstrates eligibility 
under another criterion. Such a presumption would render meaningless the requirement that an alien 
meet two separate criteria. For the reasons discussed above, the evidence falls far short of establishing 
that the beneficiary meets a second 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. 
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. lj 1361. The petitioner has not sustained that burden. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed.