dismissed EB-1B Case: Organic Chemistry

identifying &a deleted to 
prevent clearly unwmted 
invasion of personal privacj 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
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. $ 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. 
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 researches, develops and manufactures pharmaceuticals and healthcare products. 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. 8 1153(b)(l)(B). The petitioner seeks to employ 
the beneficiary permanently in the United States as an associate principal scientist. The director 
determined that the petitioner had not established 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, while we 
afford more evidentiary weight to the petitioner's scholarly articles, one of which is moderately cited, 
we concur with the director that the petitioner has not established the beneficiary's eligibility for the 
classification sought. 
Beyond the decision of the director, we further conclude that the petitioner's confirmation to the 
director that it has offered the beneficiary a job was not responsive to the director's request for the 
actual job offer issued to the beneficiary. 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). 
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 -- 
Page 3 
(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 
(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. 
International Recornition 
The regulation at 8 C.F.R. fj 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 years of experience in teaching andlor 
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 former or current 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 27, 2006 to classifL the beneficiary as an outstanding researcher in the 
field of organic chemistry. Therefore, the petitioner must establish that the beneficiary had at least 
three years of research experience in the field of organic chemistry as of that date, and that the 
beneficiary's work has been recognized internationally within the field as outstanding. The beneficiary 
received his Ph.D. from the University of Nottingham in October 2001. He then worked as a 
postdoctoral fellow at the Ohio State University through July 2003 before joining the petitioner. Thus, 
he had three years of research experience as of July 27,2006. 
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 beneficiary must satisfl 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. 
Page 4 
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 petitioner claims to have satisfied the 
following criteria. ' 
Published material in professional publications written by others about the alien S work in the 
academicjeld. Such material shall include the title, date, and author of the material, and any 
necessary translation. 
The petitioner relies on citations of the beneficiary's articles to meet this criterion. The record reflects 
that of the beneficiary's five articles, four have been cited between two and four times each and the 
final article has been moderately cited. The director acknowledged the citations but concluded: 
However, citations are generally brief references to a person's work within a larger 
article discussing the author's own work, and such articles generally have dozens of 
citations. There is nothing to demonstrate that any of the articles referenced were 
specifically about either the [beneficiary] or his work. 
On appeal, counsel asserts that the director's conclusions "are legally and factually unfounded." 
Counsel then discusses the prestigious nature of the journals in which the citations appear and asserts 
that "the mere inclusion of one's work within the bounds of these journals - whether in an original 
publication or in a citation - is evidence in and of itself of the international recognition of the chemist 
by the scientific community at large." Counsel further asserts that some of the articles indicate that the 
beneficiary's work formed the basis of the author's work and others are review articles confirming the 
importance of the beneficiary's results. 
The regulation at 8 C.F.R. 5 204.5(i)(3)(i)(C) provides that the materials must be "about the alien's 
work." We concur with the director that articles which cite the beneficiary's work are primarily about 
the author's own work or a broad look at recent work in the field. As such, they cannot be considered 
published material about the beneficiary's work. In reaching this conclusion, we do not find that 
citations have no evidentiary weight or relevance to the classification sought. Citations often bolster 
other evidence relating to the contributions and scholarly articles criteria set forth at 8 C.F.R. 
5 204.5(i)(3)(i)(E),(F) and we will discuss the citations of the beneficiary's work below in that context. 
They cannot, however, serve to meet the plain language of this criterion. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's original scientijic or scholarly research contributions to the academic 
)eld. 
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. 
In explaining the analysis of the evidence under this criterion, the director stated: 
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 doctorate degree, let alone classification as an outstanding 
professor or 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. 
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 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. 
Thus, 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. Thus, we concur with the 
director's analysis; the petitioner must demonstrate not only that the beneficiary has made "original" 
contributions but also that these contributions are indicative of a researcher who has been recognized 
in the field internationally. 
In examining the significance of the beneficiary's work, we turn to experts in his field, whose letters we 
discuss below. The opinions of experts in the field, however, while not without weight, cannot form 
the cornerstone of a successfU1 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. 79 1, 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 Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of international 
recognition and "outstanding" ability or 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 ffom 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. 
~r., a professor at the Autonomous University of Madrid, asserts that the beneficiary 
worked at the university in 1997, after receiving his bachelor degree. 
asserts that the beneficiary achieved more than the "average student," 
beneficiary's work at the ~utonomous University of Madrid garnered international recognition. 
Dr. 
 currently a professor at the University of California Davis, explains that he 
suvervised the beneficiary's earlv doctoral research at the University of Nottingham. There, the 
- 
beneficiary worked on synthesizing the novel hetrotricyclic molecule azatriquinacene. 
 The 
beneficiary was able to succeed in this project using a reaction that had been attempted previously 
without success, by dividing that reaction into two steps. During this work, the beneficiary 
"discovered an unusual trimerization reaction of azatriquinenamine" and subsequently synthesized 
"more novel azatriquinane structures." This work has been minimally cited. 
Dr. a Reader in Organic Chemistry at the University of Nottingham, merely 
asserts that the beneficiary performed original research using various methods and techniques but 
does not discuss the significance of this work or the beneficiary's role on these projects. Dr. = 
Pattenden, another professor at the University of Nottingham, asserts that the beneficiary 
demonstrated that ent chemical reactions were hi 1 effective with the synthesis of 
dinucleotides. Dr. notes that the beneficiary and Dr & are the only two authors on the 
articles reporting these results, indicating that the beneficiary performed "all of the experimental 
work." We acknowledge that one of the articles coauthored with Dr. was cited three times 
while the other was cited in 20 articles by independent research teams. 
Dr. - professor at the Ohio State University, discusses the beneficiary's research in 
his laboratory from November 2001 t 
 3. The beneficiary "worked towards the total 
synthesis of the marine natural product 
 ~rsserts that the beneficiary was 
one of two individuals working on 
 ough the synthesis of complex structures is 
usually accomplished by a number of chemists working for many years. The record contains no 
evidence that, as of the date of filing, the beneficiary had published or presented this work or that it 
was otherwise disseminated internationally in the field. As such, the petitioner has not demonstrated 
that this work could have garnered the beneficiary any international recognition as of the date of 
filing. 
 The petitioner must establish the beneficiary's eligibility as of that date. 
 See 8 C.F.R. 
103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
The above letters are all from the beneficiary's collaborators and immediate circle of colleagues. 
While such letters are important in providing details about the beneficiary's role in various projects, 
they cannot by themselves establish the petitioner's national or international acclaim. In response to 
the-director's-request for additional evidence, the petitioner submitted two letters 
members of the field: D of ~orth Carolina State University and Dr. 
Page 7 
of Virginia Polytechnic Institute and State University. Both references assert that their opinion is 
based on a review of the beneficiary's credentials and published work; neither reference indicates 
that he or she had previous knowledge of the beneficiary and his work prior to be requested to 
provide a reference letter. 
 Moreover, neither reference claims to have been influenced by the 
beneficiary. Rather, ~r and Dr. 
 simply reiterate the beneficiary's experience and 
publications and praise his skill and knowledge in the field. 
The petitioner has not established that the beneficiary's work prior to joining the petitioner has 
garnered international recognition. The record contains no letters from researchers explaining the 
beneficiary's influence on their own work or who had even heard of the beneficiary prior to being 
requested to provide a letter in support of the petition. The beneficiary has had a single article cited 
more than four times. The 20 citations of the beneficiary's 2001 article in Organic Letters are not as 
notable as counsel implies. In most of the independent articles citing the beneficiary's work, his 
work is cited as one of multiple articles (as many as 26 in one article) for the same proposition. The 
citations are not without weight; we consider them as persuasive evidence relating to the criterion set 
forth at 8 C.F.R. 5 204.5(i)(3)(i)(F) below. To conclude, however, that meeting that criterion creates 
a presumption of meeting this criterion would render the requirement that an alien meet at least two 
criteria meaningless. In the absence of stronger evidence that the beneficiary is personally 
recognized in the field for his contributions, we are not persuaded that a single moderately cited 
article establishes that the beneficiary's original contributions to the field have garnered him personal 
international recognition. 
With the petitioner, the beneficiary was, at the time of filing, pursuing an agent to treat obesity and 
Metabolic Syndrome. The petitioner submitted four patent applications it has filed listing the 
beneficiary as one of several inventors. The director noted the lack of evidence that these patents were 
approved or demonstrating their significance. On appeal, the petitioner submits a letter from ~r= 
a professor at the University of California, Irvine. Dr. 
beneficiary's work for the petitioner "could be used to treat" obesity 
record lacks evidence of any clinical trials, media coverage of the agents developed or other 
comparable evidence that this work has attracted any attention beyond the petitioner. This office has 
previously stated that a patent is not necessarily evidence of a track record of success with some degree 
of influence over the field as a whole. See Matter of New York State Dep 't. of Tramp., 22 I&N Dec. 
2 15,221 n. 7, (Cornrn. 1998). Rather, the significance of the innovation must be determined on a case- 
by-case basis. Id. The impact of the beneficiary's agent as of the date of filing is not documented in 
the record. 
While the beneficiary's research is no doubt of value, the record does not reflect that the beneficiary 
has garnered international recognition for his original work. 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. 
Page 8 
The petitioner submitted evidence that the beneficiary had authored five published articles as of the 
date of filing. We will not consider articles published aRer that date. See 8 C.F.R. 8 103.2(b)(12); 
Matter of Katigbak, 14 I&N Dec. at 49. The director noted that all of the published articles were 
authored while the beneficiary was still a Ph.D. student. The director then cited the Association of 
American Universities' Committee on Postdoctoral Education, on page 5 of its Report and 
Recommendations, March 3 1, 1998 for the proposition that even researchers holding entry-level 
postdoctoral appointments are "expected" to publish their results. The director then concluded that the 
publication of articles by itself was insufficient to meet this criterion. The director acknowledged that 
the beneficiary had been cited but found that the evidence was not indicative of or uniquely consistent 
with international recognition. 
On appeal, counsel asserts that the director erred in dismissing the beneficiary's articles based solely on 
the fact that the beneficiary authored them while a doctoral student. Counsel asserts that there is no 
basis in the law or regulations for excluding doctoral work. 
As quoted above, the regulation at 8 C.F.R. fj 204.5(i)(3)(ii) specifies that research experience while 
working on an advanced degree is acceptable provided the alien has acquired the degree and the 
research conducted toward the degree has been recognized within the academic field as outstanding. 
Thus, while we concur with counsel that doctoral research may be considered, it does not appear fi-om 
the director's decision that the beneficiary's student status was the basis for finding that the beneficiary 
does not meet this criterion. Rather, the director concluded that publication of one's research results is 
routine in the field, even for researchers in entry-level positions, and cannot serve to set the beneficiary 
apart fi-om others in the field without additional evidence of the impact of those articles. 
Counsel further asserts that the prestigious nature of the journals that have published the beneficiary's 
articles is evidence that the beneficiary "is internationally recognized as an outstanding researcher." 
Counsel is not persuasive. We will not presume the beneficiary's recognition in the field fi-om the 
prestige of the journals in which he was published. Rather, the petitioner must demonstrate the 
significance of the individual articles. 
While we concluded above that the citations of the beneficiary's articles do not constitute published 
material about the beneficiary and are insufficient to demonstrate the beneficiary's recognition for 
contributions to the field, we are persuaded that they are sufficient to meet this single 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. 
Page 9 
Job Offer 
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 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. 
(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 
of'fer is essential to the fornlation of an enforceable contract. An offer and acceptance of the offer 
creates the contract." Sig~ificantly. the same ciictionary defines offtree as "a person or entity to 
vtlhom an qfJcr to cntcr into a contract is rrladc by another (the offeror)," and offeror as "a person or 
entity who makes a specific proposal to nnothcr. (the q~ercc) 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 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. 9 204.5(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 its Group Vice President of Chemical Research 
addressed to CIS, confirming an offer to the beneficiary. This document does not constitute a job offer 
from the petitioner to the beneficiary. On September 29, 2006, the director requested "a letter offering 
the alien a permanent research position." 
In response, the petitioner submitted another letter addressed to CIS confirming its offer to the 
beneficiary. The director did not raise this issue in the final denial notice. Nevertheless, we find that 
the record still lacks this required initial evidence, the job offer extended by the petitioner to the 
beneficiary. While we will consider all relevant circumstances regarding the beneficiary's reasonable 
expectation of permanent employment, such as evidence of the petitioner's retention of the beneficiary 
over several years, such evidence is only meaningful once the required initial evidence, the job offer, 
has been submitted. In this matter, the petitioner has failed to persuasively explain why we should 
accept the petitioner's description of a document in lieu of the document itself. 
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.