dismissed EB-1B Case: Molecular Genetics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 05 259 53159 Office: CALIFORNIA SERVICE CENTER Date: 
 JAN 2 5 n 
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. $ 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. 
xobert b"p"-" P. Wiem nn, Chief 
Administrative Appeals Office 
WAC 05 259 53159 
Page 2 
DISCUSSION: The Director, California 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 "medical practicelresearch center." 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. 5 1153(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the 
United States as a researcher. The director determined that the petitioner had not established that it 
employed at least three full-time researchers in addition to the beneficiary. 
On appeal, counsel asserted that the director's interpretation is not supported by the relevant law or 
regulations. Counsel indicated that he would submit a brief andlor additional materials within 30 days. 
Counsel dated the appeal September 11,2006. As of January 5,2007, this office had received nothing 
fiuther. Thus, on that date, this office advised counsel by facsimile that we had received nothing 
further and afforded five days to resubmit any previously submitted materials. As of this date, more 
than five days later, this office has received nothing further. As such, the appeal will be adjudicated 
based on counsel's assertions on the Form I-290B, Notice of Appeal. For the reasons discussed below, 
we uphold the director's basis of denial. Moreover, 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. More specifically, as will be discussed below, the 
beneficiary's documented accomplishments in the field are minimal and the record does not reflect any 
recognition of these accomplishments beyond his own colleagues. 
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 -- 
WAC 05 259 53 159 
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(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 
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) states that a petition for an outstanding professor or 
researcher must be accompanied by: 
(iii) 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 
(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 full-time in research 
positions, and that it has achieved documented accomplishments in an academic field. 
As used in this section, the term "academic field," means a body of specialized knowledge offered for 
study at an accredited United States university or institution of higher education. 8 C.F.R. 
fj 204.5(i)(2). In this case, the beneficiary's academic field is molecular genetics. The beneficiary 
holds a Bachelor of Science degree in Bioengineering from Arizona State University, awarded in 
May 1998. The petitioner completed an additional four semesters at Arizona State University, but 
the record lacks any evidence that this work led to a graduate (or lesser) degree. 
Petitioner as a qualify in^ Employer 
The first issue to be determined in this matter is whether the petitioner has established that it was a 
qualifying employer as of the petition's filing date of September 29,2005. 
WAC 05 259 53159 
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In response to the director's request for evidence of "persons employed in full-time research 
positions," the petitioner submitted an organizational chart listing the principal investigator/medical 
director and two additional researchers including the beneficiary. 
The director found that the information presented was not adequate to demonstrate that the petitioner 
employed at least three full-time researchers in addition to the beneficiary. On appeal, counsel notes 
that the relevant law and regulations do not explicitly address whether the beneficiary is one of the 
three full-time researchers or not. 
Section 203(b)(l)(B)(iii)(III) of the Act, 8 U.S.C. tj 11 53(b)(l)(B)(iii)(III), directs that an alien may 
qualify as a priority worker based on an offer of employment from a private research department, 
division, or institute, only "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 requirement of three full-time research employees is also set forth in 8 C.F.R. 
tj 204.5(i)(3)(C)(iii). The petitioner contends that it has met this requirement, with the intended alien 
beneficiary qualifying as one of its full-time research employees. The alien beneficiary is currently 
employed in a nonimmigrant classification. 
As noted by counsel, neither the statute nor the legislative history clearly indicates whether the alien 
beneficiary can himself be the third full time research employee for purposes of a private entity's 
eligibility to file a visa petition under tj 203(b)(l)(B). H. Rep. 101-723(I), 1990 USCCAN 6710, 
6739 indicates that a private employer is eligible to file this petition "if there are at least three 
persons employed full-time in research." Like the statute itself, however, the legislative history 
neither endorses nor forecloses the petitioner's argument. Nor does the issue appear to have arisen 
during the rulemaking process. See 56 Fed. Reg. 30,703 (July 5, 1991) (proposed rule) and 60,897 
(November 29, 1991) (final rule). 
Where statutory language is ambiguous, however, the agency charged with enforcing the statute is 
permitted to interpret that language. US. v. Mead Corp., 533 U.S. 218, 228 (2001); Arizona State 
Bd. For Charter Schools v. US. Dep 't of Educ., 464 F. 3d 1003, 1006-97 (9th Cir. 2006). Thus, 
counsel's implication that we are precluded from reaching an unfavorable interpretation simply 
because the statute and regulations are silent on this issue is not persuasive. 
We concur with the director's reasonable interpretation of the statute and regulations on this issue. 
As noted by the director, section 203(b)(l)(B)(iii)(III) of the Act, 8 U.S.C. tj 1153(b)(l)(B)(iii)(III), 
requires that "the alien seeks to enter the United States" to work for "a department, division, or 
institute of a private employer" that "employs at least 3 persons full-time in research activities." The 
phrases "seeks to enter" and "employs at least 3 persons" are both in the present tense. If an alien 
researcher is currently outside the United States, and intends to enter the United States with an 
immigrant visa, then the prospective employer must already employ at least three full-time 
researchers in the relevant department, division, or institute. In such a case, the three researchers 
WAC 05 259 53 159 
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obviously do not include the alien. Thus, the statutory construction demonstrates that the alien seeks 
to become the fourth researcher in a company that already employs three other researchers. In 
instances where the alien is already in the United States as a nonimmigrant, and the alien has joined 
two other researchers to become the third researcher, then the employer does not satisfy the statutory 
construction. 
There is no regulatory or statutory justification for the arbitrary assumption that a company too small 
to petition for a worker who is still overseas can, nevertheless, petition for that same worker if the 
worker is already in the United States as a nonimmigrant. Therefore, we concur with the director's 
finding that the position held by the alien beneficiary shall not be counted as one of the three persons 
involved full-time in research activities, even if the alien beneficiary is lawfully employed in a 
nonimmigrant classification. The apparent purpose of 203(b)(l)(B)(iii)(III) is to limit this immigrant 
visa classification to well-established research institutes. If the employment of a nonimmigrant 
alien, by definition temporary, can be counted toward this requirement then it would appear that 
hiring three nonimmigrant aliens could make all three of them eligible. This result would, with little 
effort, render the three employees requirement meaningless.' 
Beneficiary's Eligibility as an Outstanding Researcher 
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). As stated above, the beneficiary's only completed degree is a 
Bachelor of Science degree. While the absence of an advanced degree does not preclude eligibility, we 
note that advanced degrees are commonplace in the field. The petitioner bears a heavy burden of 
establishing that the beneficiary compares with internationally recognized researchers in the field, 
including those with advanced degrees. The record, however, lacks evidence of any recognition beyond 
the beneficiary's immediate circle of colleagues. The evidence submitted will be discussed in more 
detail below as it relates to the various regulatory criteria. 
The petitioner claims to have satisfied the following  riter ria.^ 
1 
Granted, for at least some nonirnmigrant classifications, the position itself need not be temporary, but the 
alien must be coming temporarily to the United States. 
2 
 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. 
WAC 05 259 53 159 
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Documentation of the alien's receipt of major prizes or awards for outstanding achievement in 
the academic field. 
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 
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. Cf: 8 C.F.R. 
5 204.5(h)(3)(i) (allowing for "lesser" nationally or internationally recognized awards for a separate 
classification than the one sought in this matter). 
Neither counsel nor the petitioner has asserted that the beneficiary meets this criterion. Nevertheless, 
we acknowledge that in response to the director's request for additional evidence, the petitioner 
submitted Exhibit aa, entitled "Beneficiary's Internationally Recognized Work in the Field and 
Awards." The exhibit, however, contains no awards. The remaining evidence in that exhibit will be 
discussed where appropriate below. 
Documentation of the alien 5 membership in associations in the academic field which require 
outstanding achievements of their members. 
The petitioner submitted evidence that the beneficiary is an associate member of Sigma Xi based on his 
"potential for becoming a research scientist." Counsel notes that Sigma Xi boats several members who 
are Nobel Laureates. At issue, however, are the requirements for the level of membership held by the 
beneficiary. Nominations for associate membership do not involve a finding that the nominee has 
made noteworthy achievements as required for full membership. We are not persuaded that 
demonstrating the potential to become a research scientist is an outstanding achievement. Regardless, 
the petitioner has not established that Sigma Xi interprets noteworthy achievements as ones generally 
considered outstanding in the field. For example, advanced degrees and published articles are common 
in the field and do not constitute outstanding achievements. 
The petitioner also submitted evidence that the beneficiary is a member of the Biomedical Engineering 
Society. The Internet materials about this society, provided by the petitioner, reflects that members 
must have a degree in biomedical engineering or a related field and experience in the field. Applicants 
must be sponsored by current members. None of these requirements constitute outstanding 
achievements. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
WAC 05 259 53 159 
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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 evidence that the beneficiary has been cited twice and that a database of fly 
genes includes the beneficiary's abstracts as references. 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. Moreover, a database of articles relating to a certain topic is 
also not published materials about the work of the authors whose articles are listed. 
The petitioner also submitted an article in Research, a magazine profiling research at Arizona State 
University published by that institution. The article is about the university's strategies in promoting 
research among undergraduates. The beneficiary's work is mentioned as an example of undergraduate 
research, but is not the focus of the article. A second article, posted on Arizona State University's 
website, is about an upcoming symposium that will include presentation by undergraduates at the 
university. The beneficiary's work is mentioned as an example of the work being performed by 
undergraduates. Even if we considered these articles to be "about" the beneficiary's work, the evidence 
submitted to meet a given criterion must be indicative of or at least consistent with international 
recognition. The submitted articles, published in a school magazine where the beneficiary was a 
student and on the same university's website, are not indicative of any recognition beyond that school. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien 's original scientrfic or scholarly research contributions to the academic 
field. 
As stated above, the beneficiary obtained his Bachelor of Science fiom Arizona State University in 
1998 and took an additional four semesters of courses after that date which did not lead to another 
degree. In 2002, he began working for the petitioning research center. 
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." 
Initially, the petitioner referenced two citations and the listing of the beneficiary's work on a database 
of work relating to fly genes as evidence to meet this criterion. This level of citation is far below the 
WAC 05 259 53159 
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wide and frequent level of citation that can be expected of a researcher whose contributions have 
garnered international recognition. The petitioner also noted the beneficiary's contribution to the "Ask 
a Biologist" website designed by Anzona State University. The beneficiary, however, is credited as a 
programmer. Computer programming is not the beneficiary's academic field in which he claims to be 
an outstanding researcher. Rather, his degree is in bioengineering and he performs genetic research. In 
response to the director's request for additional evidence, the petitioner submitted reference letters. 
At Arizona State University, the b 
 worked in the laboratory of ~r.h 
Professor Emeritus of Biology. Dr. 
 rts that the beneficiary was one of her top undergraduate 
students. At issue, however, is not whether the beneficiary compares well with other under aduate 
students but whether he is internationally recognized as an outstanding researcher. Dr. dassert s 
that the beneficiary cloned and characterized a gene mutation in a fly, Drosophila melanogaster, 
selected and maintained wild-type and mutant strains of the same fly and applied molecular techniques 
to chromosomes, gene cloning, vector manipulation and mutagenesis. Dr. 
 does not explain, 
however, how this work has been recognized as significant in the field. We acknowledge that this work 
has been published, is listed in a database of gene research on flies and has been cited twice. Two 
citations, however, are not significant and the petitioner has not explained the significance of inclusion 
in the fly gene database. If all similar research is indexed in this database, its inclusion is not indicative 
that the research has been recognized as unusually significant in the field. Moreover, Dr.- 
acknowledges that this work was performed in a different academic department than the beneficiary's 
actual field of study, bioengineering, which is the subject of the beneficiary's degree. 
Dr. the beneficiary's supervisor at the petitioning research center, asserts that the 
beneficiary performs diagnostic and research work in molecular genetics at the center and successfully 
initiated and completed an experimental therapeutics program using a mouse model of - 
disease. Dr. further praises the beneficiary's work in developing a clinical database and 
maintaining the computer databases. ~r.does not explain how the beneficiary's research 
has impacted the field or how his database work demonstrates international recognition or even ability 
as a genetics researcher. 
The petitioner also submitted a letter from Dr 
 a senior biologist at the National 
Institute of Neurological Disorders and Stroke, 
 Health (NIH) and former laboratory 
supervisor at the petitioning research center. 
 asserts that he worked with the 
beneficiary at the petitioning research center and that h 
 ble impression of the beneficiary's 
work. ~r. ontinues: 
During [a] short period of time, [the beneficiary has] made significant contributions in 
neuromuscular research [by] studying inherited neuromuscular diseases such as 
Charcot-Marie-tooth disease, proximal myopathies and spastic paraplegia just to name a 
few. There is no treatment available for these genetic diseases, from which thousands 
of people suffer in the USA. Only animal models will ultimately provide therapeutic 
means. 
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Dr. does not identify a single contribution or explain how it impacted the field. Simply 
working in an important area of research does not create a presumption that the researcher has made 
contributions consistent with internationally recognition to that area of research. Dr. - 
further asserts that the beneficiary has authored "several" published articles, which attest to his 
qualifications and research and academic "potential." The record, however, contains only two abstracts 
published as of the date of filing and unpublished manuscripts. 
Head of the Clinical Neurogenetics Unit at NIH, indicates that he has collaborated 
ZthIary. Dr. 
 asserts, in a letter dated October 24, 2005, that the beneficiary is 
pursuing his Ph.D. although the petitioner has asserted that the beneficiary stopped pursuing this degree 
in 1999. mil- sserts that the beneficiary's experience working with fly gene 
him well," Dr. 
 oes not assert that the work itself was particularly influential. Dr. 
provides the following information regarding the beneficiary's work for the petitioner: 
[The beneficiary's] efforts resulted in discovery of novel SPG6 and NIPAl gene 
mutations, and a genetic cause of nemaline myopathy in the Old Order Amish 
population living in the mid-Western states of the US. [The beneficiary's] current 
research is concentrated on development of an animal model of desmin myopathy, a 
fatal disease known to affect a number of large American families. He also succeeded 
in adapting methods for the detection of gene expression. 
Finally, Dr. mpraises the beneficiary's skills and expertise. The record lacks evidence that any 
of the work discussed by Dr. had been published as of the date of filing and, thus, 
disseminated in the field. The re 
 any evidence that this work has influenced the field to any 
degree or that it has garnered the beneficiary any 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 
(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 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 795-796. 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft ofcallfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing 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 the most persuasive. 
 The record lacks letters from independent experts. 
 Even the letters 
WAC 05 259 53159 
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provided include no language suggesting that the beneficiary enjoys international recognition in the 
field as an outstanding researcher. Objective evidence that might corroborate any claims of 
international recognition, such as but not limited to widespread and frequent citation, is absent. 
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 thesis or 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 has garnered any notable recognition at the international level or 
even that it has had significant international exposure. 
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 has authored two published abstracts in 1997 and 
1998. In addition, the petitioner submitted a list of abstracts posted on Arizona State University's 
website, which includes one by the beneficiary. The printout is not clear, however, as to whether these 
abstracts were actually published or merely presented at a university event. While the petitioner also 
submitted a manuscript authored by the beneficiary, we cannot consider any manuscripts not yet 
published as of the date of filing. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 
(Reg. Comm. 1971). 
It is 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 discussed above, 
the beneficiary's work has only been minimally cited. As such, we are not persuaded that his 
publication record is sufficiently consistent with international recognition in order to meet this criterion. 
The petitioner has shown that the beneficiary is a competent researcher, who has won the respect of his 
collaborators, employers, and mentors. The record, however, stops far 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. § 1361. 
 The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.