dismissed EB-1B Case: Ophthalmology

ideatifling LCda dclscad to 
prevent c?~ *o : . ;::,manted 
invasion of privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
LIN 06 210 52939 
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 
11 53(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 
y~obert P. W~emann, 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 (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a higher education and research institution. 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 1 153(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the 
United States as a research associate. The director determined that the petitioner had not established 
that the beneficiary had attained the outstanding level of achievement required for classification as an 
outstanding researcher. 
On appeal, counsel submits a brief and resubmits evidence already in the record. For the reasons 
discussed below, we uphold the director's decision. 
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. 
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: 
(ii) Evidence that the alien has at least three ye'ars of experience in teaching and/or 
research in the academic field. Experience in teaching or research while working on an 
advanced degree will only be acceptable if the alien has acquired the degree, and if the 
teaching duties were such that he or she had full responsibility for the class taught or if 
the research conducted toward the degree has been recognized within the academic field 
as outstanding. Evidence of teaching and/or research experience shall be in the form of 
letter(s) from current or former employer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien. 
This petition was filed on July 10, 2006 to classify the beneficiary as an outstanding researcher in the 
field of ophthalmology. Therefore, the petitioner must establish that the beneficiary had at least three 
years of research experience in the field as of that date, and that the beneficiary's work has been 
recognized internationally within the field as outstanding. 
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 beneficiary 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. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 
199l)(enacted 56 Fed. Reg. 60897 (Nov. 29, 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 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 
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. 
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." 56 Fed. 
Reg. 60897-01,60899 (Nov. 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. 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). 
The petitioner submitted evidence that the beneficiary received a Knights Templar Eye Foundation 
(KTEF) grant to fund his research proposal. Several of the reference letters attest to the significance 
of this grant. Expert opinions are not presumptive evidence of eligibility and may be evaluated in the 
context of the remaining evidence of record. See Matter of Caron International, 19 I&N Dec. 791, 
795 (Commr. 1988). The evidence about this grant submitted by the petitioner reveals that 
preference is given to young investigators at the beginning of their academic careers and an applicant 
"must not hold an academic rank of Associate Professor or higher." (Emphasis in original.) Thus, 
the record clearly establishes that the most experienced members of the field do not, and in fact 
cannot, compete for this grant. 
Regardless, research grants simply fund a scientist's work. Every successful scientist engaged in 
research, of which there are hundreds of thousands, receives funding from somewhere. Obviously 
the past achievements of the principal investigator are a factor in grant proposals. The funding 
institution has to be assured that the investigator is capable of performing the proposed research. 
Nevertheless, a research grant is principally designed to fund future research, and not to honor or 
recognize past achievement. 
In addition, the petitioner relies on the beneficiary's receipt of a $700 travel grant from the 
Association for Research in Vision and Ophthalmology (ARVO) to attend a meeting. The grant is 
described as a "travel stipend" and is null and void if the recipient does not attend the meeting and 
present his work. We are not persuaded that a travel stipend contingent on attending a meeting is a 
major nationally recognized award or prize indicative of or consistent with international recognition 
in the field. 
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 academicJield which require 
outstanding achievements of their members. 
The petitioner submitted evidence of the beneficiary's membership in ARVO and evidence that 
membership is limited to individuals "demonstrating a serious interest in or making a significant 
scientific contributions to visual science." (Emphasis added.) In addition, some of the beneficiary's 
colleagues in China assert that the beneficiary was a member of exclusive Chinese societies, but the 
record contains no evidence of these memberships or the official membership requirements of the 
societies. 
As the minimum membership requirement for ARVO is simply a serious interest in visual science, 
we are not persuaded that ARVO requires outstanding achievements of its members as mandated by 
the regulation at 8 C.F.R. § 204.5(i)(3)(i)(B). Thus, we concur with the director that 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 has never asserted that the beneficiary meets this criterion. Nevertheless, we concur 
with the director that 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. 
, Editor-in-Chief for the Chinese Journal of Ophthalmology and a professor at 
College (where the beneficiary received his Ph.D.), confirms that the 
beneficiary has refereed articles for that journal. Being requested to review an article by a close 
colleague is not evidence indicative of or consistent with international recognition. Regardless, as 
stated by the director, 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." 
As stated above, outstanding 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). Any Ph.D. thesis, postdoctoral or other research, in order to be 
accepted for graduation, publication or funding, must offer new and useful information to the pool of 
knowledge. To conclude that every researcher who performs original research that adds to the 
general pool of knowledge meets this criterion would render this criterion meaningless. 
The beneficiary obtained his Ph.D. in Ophthalmology from Peking Union Medical College in 2002. 
His Ph.D. mentor was . The beneficiary then worked as a research associate at that 
institution throu 
 he accepted a postdoctoral fellowship with the petitioner in 
the laboratory of 
We will consider the reference letters discussing the beneficiary's research below. At the outset, 
however, we note that the opinions of experts in the field, while not without weight, cannot form the 
cornerstone of a successful claim of 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. at 795. 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. 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 Sof$ci, 22 I&N Dec. 158, 
165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 
1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of international 
recognition and original 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 curriculum vitae and work and provide an opinion based solely 
on this review. 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 recognition. 
Page 7 
explains that the beneficiary's Ph.D. research focused on a new surgical treatment (limited 
macular translocation (LMT)) for submacular choroidal neovascularization, the abnormal growth of 
new blood vessels under the central retina. further assets that the beneficiary used a rabbit 
model to establish the reliability and predictability of LMT. 
 continues: 
[The beneficiary's] study was the first one in the world that pointed out the 
importance of controlling translocation direction to LMT; and suggested that 
adjusting the position of scleral shortening may control the translocation direction and 
improve the predictability. He also found that release of the scleral shortening sutures 
can reduce corneal astigmatism remarkably. Another part of [the beneficiary's] 
Ph.D. research was to modify the traditional vitrectomy (a critical procedure in LIMT 
and other retina surgeries to remove the sticky vitreous aqueous in front of [the] 
retina) to make it more practical and efficient in animal experiments. This is a leap 
forward in retinal research using animal models. 
concludes that the beneficiary's modifications "have benefited and will certainly benefit more 
other researchers in this field" and that the beneficiary's articles in this area have been "widely cited 
by other retina investigators." The record, however, only confirms that one of the beneficiary's 
Chinese articles has bee and that article (relating to intraspinal tumors) had only been cited 
once as of the date of a letter. provides no examples of other retina surgeons or 
researchers using the beneficiary's modifications. 
, former Chair of the Department of Ophthalmology at Peking Union Medical 
-. 
College ~os~ital, asserts that the beneficiary made geat achievements in academic research in 
ophthalmology. asserts specifically that the beneficiary reported the first case of diffusive 
infiltrating retinoblastoma in China in 1996 and was the first to report a relationship between lumbo- 
sacral intraspinal tumors and bilateral papilloedema. The beneficiary reported the latter results at a 
1998 conference and published his findings in the Chinese Medical Journal in 2000. m 
further asserts that the beneficiary "independently designed a study investigating the effect of a new 
foldable intraocular lens," of great significance for the common surgery used to remove cataracts. 
Finally, asserts that the beneficiary's Ph.D. thesis on LMT was published in a top Chinese 
journal "and has been cited by other researchers." Once again, the record does not support the claims 
that the beneficiary's articles reporting his research in China had been cited more than once as of the 
date of filing. 
praises the beneficiary's talent and professionalism generally. He further asserts that the 
beneficiary's research is "translational" in that the beneficiary has "developed drugs that are 
promising for the treatment of severe and common eye disorders such as diabetic retinopathy, age- 
related macular degeneration (the most common form of blindness in the US) and retinopathy of 
prematurity." does not assert that any of these drugs developed by the beneficiary have 
been patented or are pending patent or that they are being investigated by pharmaceutical companies 
or other research institutions. also states that the beneficiary has "pioneered the 
combination of molecular and sur ical techniques" for the treatment of the above eye diseases and 
conditions. Once again, does not identify any eye surgeon or researcher utilizing the 
beneficiary's techniques. 
an assistant professor at the petitioning institution, asserts that the beneficiary has 
"worked on developing strategies to introduce genes to revent the roliferation of abnormal blood 
vessels in the eye," known as neovascularization. 
 Chairman of the petitioner's 
Department of Ophthalmology, explains that neovascularization is one of the major risk factors in 
graft rejection after corneal transplants. elaborates that the beneficiary has 
"demonstrated the inhibitory effect of several genes on neovascularization in two animals' models of 
the disease." While asserts that the beneficiary has presented and published this work, he 
does not explain how it has already impacted the field. speculates that "gene transfer 
using these genes will be very useful in the treatment of ocular neovascular diseases and will benefit 
millions of patients in the USA," but does not affirm that this work has already impacted the 
treatment of neovascularization or profoundly advanced research in this area. 
also discusses the beneficiary's research on apoptosis, programmed cell death, and its 
relation to central retinal artery occlusion (CRAO). According to, the beneficiary has 
"elucidated the molecular pathway to apoptosis in a mouse model of the disease." Finally, Dr. 
explains that the beneficiary has shown "that at least four subtypes of a protein called RTEF 
may regulate the developme mouse model" of childhood blindness, 
retinopathy of prematurity ( eneficiary received the KTEF research 
grant for his ROP research. a former visiting scholar in - 
laboratory, provides similar information to that provided by other colleagues at the petitioning 
institution. 
The petitioner did provide two letters from researchers in the field who have not worked with the 
beneficiary. Director of Vitreo-Retinal Diseases and Surgery at Indiana University, 
asserts that he came to know of the beneficiary's work his article on the association between 
papilloedema and lumbo-sacral intraspinal tumors. reiterates the beneficiary's research 
findings, characterizing them as significant, but does not assert that he himself has applied the 
beneficiary's techniques. 
, Chairman of the Department of Ophthalmology at the University of Southern 
California, asserts that he is familiar with the beneficiary's work based on a review of the 
's articles, hearing his presentations and assessments from the beneficiary's colleagues. 
also reiterates the beneficiary's research findings, asserting that they have had a 
"significant impact." 
 J concludes that the beneficiary's gene therapy findings "were 
undoubtedly tremendous contributions to gene therapy research involving angiogenic diseases, and 
might ultimately lead to the development of new biological therapy for ocular neovascularization." 
does not assert that his own research has benefited from the beneficiary's work. 
Finally, both =and 
 assert that the beneficiary's citation record is an indication of 
the significance of his research. The beneficiary's documented citation record as of the date of 
filing, however, is not significant. Specifically, as stated above, one of the beneficiary's articles 
regaiding his work in china had been cited only once. In addition, eight independent research teams 
had cited the beneficiary's article on corneal transduction. While we recognize that research is a 
collaborative effort, we cannot ignore that the beneficiary is listed as seventh out of nine authors on 
- 
that article. Regardless, we do not find that a record of eight citations for a single article is a citation 
record consistent with international reco nition as outstanding. We note that one of the eight 
citations, the article by d., cites the beneficiary's use of a model reported by others 
in 1996, referenced in footnote 15 of ]Is article. Thus, while Is article cites the 
model favorably, it does not appear to be a model developed by the beneficiary. The record contains 
no evidence that more than two of the beneficiary's articles had been cited as of the date of filing. 
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 research contributions are indicative of 
international recognition as outstanding in the field of ophthalmology. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
The beneficiary lists 31 articles on his curriculum vitae. The petitioner submitted copies of 10 of 
those articles. 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 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 andlor research career." Moreover, the Departmerit of Labor's Occupational 
Handbook 151 (2006-2007 ed.) indicates that a "solid record of published research is essential in 
obtaining a permanent position involving basic research." This above information 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, only one of the beneficiary's articles had been cited even moderately as of the date 
of filing. There is no evidence of widespread or even consistent moderate citation. Thus, we are not 
persuaded that the beneficiary's publication record is sufficiently consistent with international 
recognition to meet this 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 the level of an 
alien who is internationally recognized 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. 3 1361. 
 The petitioner has not sustained that burden. 
 Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.