dismissed EB-1B Case: Medical Research

PUl3LIC 9 COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 5 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 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
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 university and medical research institution. 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. €j 1153(b)(l)(B). According to Part 6 of the petition, 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 or that the 
beneficiary is recognized internationally as outstanding in his academic field, as required for 
classification as an outstanding researcher. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
conclude that the petitioner has now overcome the director's finding that the beneficiary is not 
recognized internationally as outstanding, but has not overcome the director's finding that the petition 
was not supported with the initial required evidence, a job offer predating the filing of the petition. As 
the petitioner has not overcome all of the director's bases for denial, we must dismiss the appeal. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) priGty 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 
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(111) for a comparable position to conduct research in the area 
with a department, division, or institute of a private employer, if 
the department, division, or institute employs at least 3 persons 
full-time in research activities and has achieved documented 
accomplishments in an academic field. 
The regulation at 8 C.F.R. 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, 199 1). The director found that the beneficiary met the criterion at 8 C.F.R. 
5 204.5(i)(3)(i)(F), relating to the authorship of published articles, and we concur with that finding. 
Thus, the beneficiary must meet one additional criterion in order to be eligible. 
We find that the petitioner has established that the beneficiary has made original contributions to the 
field consistent with international recognition. 
Obviously, the petitioner cannot satisfy the criterion set forth in the regulation at 8 C.F.R. 
5 204.5(i)(3)(i)(E) 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 director concluded that "most" of the letters were from the beneficiary's colleagues and that the 
record did not establish that the beneficiary was recognized as outstanding beyond those colleagues. 
mle the submission of letters from members of the field beyond the beneficiary's circle of colleagues 
does not always establish eligibility, we find that in this matter the letters, especially those submitted on 
appeal, in combination with the remarkably positive discussion of the beneficiary's work in the articles 
that cite him, serve to meet this criterion. 
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 Matter of Caron International, 19 I&N Dec. 791, 795-796 (Comm. 1988). 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 Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Crap of Calfornia, 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 petitioner through 
his reputation and who have applied his work are far more persuasive than letters from independent 
references who were not previously aware of the petitioner and are merely responding to a 
solicitation to review the petitioner's cumculum vitae and work and provide an opinion based solely 
on this review. 
The beneficiary's current work focuses on the use of statins to treat Multiple Sclerosis and relates to 
statin use for other diseases. Notably, Dr. 
 Head of the ~e~kment of Cellular Therapy 
at University College, London, asserts that he learned of the beneficiary's work through his 
- 
publications and that his work "has also informed my own research and has opened up new avenues of 
clinically relevant research around the world." A 2004 review article in Current Opinion in Neurology 
notates the beneficiary's work as "of outstanding interest." In a published speech, the researchers 
performing human clinical trials of statins in Multiple Sclerosis patients expressly mention one of the 
beneficiary's articles as work "that led to the initiation of several clinical trials." These trials have 
attracted media coverage in the general media. Finally, as stated above, some of the beneficiary's work 
is well cited. 
In light of the above, the petitioner has now demonstrated that the beneficiary meets the criterion at 
8 C.F.R. 5 204.5(i)(3)(E) in addition to the criterion identified by the director as satisfied. Thus, the 
petitioner has not established that the beneficiary is recognized intemationally as outstanding. 
While we withdraw the director's finding that the beneficiary is not recognized intemationally as 
outstanding, it remains to determine whether the petitioner submitted the required initial evidence 
regarding a qualifying job offer, the director's second basis for denial. 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 oflering 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 ofleree) 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) affming 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 proposed employment was a permanent 
position. The petitioner submitted a letter from Dr. 
 the beneficiary's supervisor at the 
petitioning university, addressed to Citizenship and Immigration Services (CIS), affirming the 
petitioner's "commitment to continue to employ" the beneficiary. This document does not constitute a 
job offer from the petitioner to the beneficiary. On April 19,2006, the director requested evidence that 
the petitioner had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted a letter offering the beneficiary an instructor position date May 22, 
2006, more than a month after the petition was filed. The director noted that the petitioner had not 
submitted a job offer that predates the filing of the petition. On appeal, counsel asserts that the 
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petitioner has employed the beneficiary for six years, promoting him to a research scientist in January 
2003 and to an instructor in July 2006. Counsel asserts that because the petitioner had initiated the 
process to promote the beneficiary to an instructor when the petition was filed the petitioner felt the 
May 22,2006 letter was responsive to the director's request for additional evidence. 
The purpose of the request for evidence is to elicit further infomation 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 (1 2). The petitioner must establish that the position offered to the 
beneficiary when the petition was filed merits the classification sought; a petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. 
See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See also 8 C.F.R. 
$ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971); Matter of Michelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). 
As stated by the director, 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@)(14). Moreover, the non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. While 
we recognize that the petitioner offered the beneficiary a promotion after the date of filing, at issue is 
the job offer that had been extended to the beneficiary prior to that date. The record is absent the 
alleged 2003 job offer for the research scientist position. Thus, we concur with the director that the 
record lacks the required initial evidence, a qualifying job offer that predates the filing of the 
petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 136 1. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.