dismissed EB-1B Case: Software Development

(b)(6)
Date: FEB O S 201
~ffice: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S: Citizenship and Immigration Services 
Administrative Appeals Office (AI\0) 
20 Massachusetts Ave., N.W. MS 2tl'JO 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE:. 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationalit'y Act, 8 U.S.C. § 1153(b)(l )(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. · 
Thank you, 
www.uscis.gov 
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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 filed this immigrant petition seeking 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. § 1153(b)(l)(B). The petitioner, a Delaware corporation, is self-described as a company 
engaged in software development. The petitioner seeks to employ the beneficiary permanently in 
the United States as a researcher/lead prototype engineer. 
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. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO for review. On appeal, counsel contends the director 
applied an improper standard in determining whether the beneficiary had attained the outstanding 
level of achievement required for classification as an outstanding researcher. Counsel asserts that 
the petitioner has submitted sufficient evidence to establish the beneficiary's eligibility for 
classification as an outstanding researcher. On appeal, the petitioner submits a 
brief. In support of 
its brief, counsel submits five unpublished decisions, in each of which the AAO determined the 
petitioner had established that the beneficiary had attained the outstanding level of achievement 
required for· classification as an outstanding researcher. Counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in any of the unpublished 
decisions. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all 
· USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
For the reasons discussed below, the AAO concurs with the director that the record fails to establish 
that the beneficiary enjoys international recognition. Specifically, when we simply "count" the 
evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory 
criteria as required, judging the work of others and scholarly articles pursuant to 8 C.F.R. 
§§ 204.5(i)(3)(i)(D) and (F). As explained in the final merits determination, however, much of the 
evidence that technically qualifies under these criteria reflects routine duties or accomplishments in 
the field that do not, as of the date of filing, set the beneficiary apart in the academic community 
through eminence and distinction based on international recognition, the purpose of the 
regulatory criteria. 1 Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 
5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). 
Beyond the decision of the director, the record lacks the actual job offer issued by the petitioner 
to the beneficiary, pursuant to 8 C.F.R. § 204.5(i)(3)(iii). Further, the petitioner has not 
established that it employs the requisite three full-time researchers in addition to the beneficiary 
as required by section 203(b)(l)(B)(iii)(III) of the Act; 8 C.F.R. § 204.5(i)(3)(C)(iii). An 
1 The legal authority for this two-step analysis will be discussed at length below. 
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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), a.ff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ , 381 F.3d 143, 145 
(3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(B) Outstanding professors and researchers. -- An alien is described in this 
subparagraph if --
(i) the alien is recognized internationally as outstanding in a specific 
· academic area, 
(ii) the alien has at least 3 years of experience in teaching or research in 
the academic area, and 
(iii) the alien seeks to enter the United States --
(I) for a tenured position (or tenure-track position) within a 
university or institution of higher education to teach in the 
academic area, 
(II) for a comparable position with a university or institution 
of higher education to conduct research in the area, or 
(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 ac:hieved 
documented accomplishments in an academic field. 
II. Job Offer from Qualifying Employer 
The regulation at 8 C.F.R. § 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
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Page 4 
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 fieid. The 
department, division, or institute must demonstrate that it employs at least 
three persons full-time in research positio·ns, and that it has achieved 
documented accomplishments in an academic field. 
The petitioner has not submitted its job offer to the beneficiary. Instead, the petitioner submitted 
a letter from addressed to U. S. 
Citizenship and Immigration Services (USCIS), stating "We hereby extend an offer of pem1anent, 
full-time employment as a full-time researcher to [the applicant]." Black's Law Dictionary 118l) 
(91h ed. 2009) 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 resuh in a 
· binding contract" and defines "offeree" as "[o]ne to whom an offer is made." In addition, Black's 
Law Dictionary defines "offeror" as "[o]ne who makes an offer." /d. at 1190. 
In light of the above, the ordinary meaning of an "offer" requires that it be made to the offeree, not a 
third party. As such, regulatory language requiring that the offer be made "to the beneficiary" 
would simply be redundant. Thus, the letter from addressed to USCIS extending 
an offer of employment to the beneficiary ·is not an offer of employment within the ordinary 
meaning of that phrase. The record does not contain an offer of employment from the petitioner 
addressed to the beneficiary, which is required initial evidence pursuant to 8 C.F.R. 
§ 204.5(i)(3)(iii). 
Secondly, the petitioner has not established that it employs the required three full-time 
researchers, in addition to th~ beneficiary. Instead, in the petitioner's support letter 
states "fThe petitionerl employs nine full-time researchers. including 
However, the 
petitioner has not submitted any documentary evidence to establish that it employs the required 
three full-time researchers. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of Treasure Craft of California, 14 l&N Dec. 
190 (Reg. Comm'r 1972)). We reiterate that the regulation at 8 C.F.R. § 204.5(i)(3)(iii)(C) states 
that the petitioner must "demonstrate" that it employs at least three full-time researchers. Thus, 
(b)(6)
PageS 
it is the petitioner's burden to establish this element of eligibility. Since the petitioner has not 
submitted evidence that it employs three full-time r~searchers in addition to the beneficiary, the 
petitioner has not established that it is a qualifying petitioner pursuant to 8 C.F.R. 
§ 204.5(i)(3)(iii). 
III. International Recognition 
The regulation at 8 C.F.R. § 204.5(i)(3)(i) states that a petition for an outstanding professor or 
researcher must be accompanied by "[e]vidence that the professor or researcher is recognized 
international} y as outstanding in the academic field specified in the petition." . The regulation I ists 
the following six criteria, of which the beneficiary must submit evidence qualifying under at least 
two~ . 
(A) Documentation of the alien's receipt of major prizes or awards for outstanding 
achievement in the academic field; 
(B) Documentation of the alien's membership in associations in the academic field 
which require outstanding achievements of their members; 
(C) 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; 
(D) Evidence of the alien's participation, either individually or ori a panel, as the 
judge of the work of others in the same or an allied academic field; 
(E) Evidence of the alien's original scientific or scholarly research contributions to 
the academic field; or 
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly­
journals with international circulation) in the academic field. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
a similar classification set forth at section 203(b)(1)(A) of the Act. Kazarian v. USCIS, 596 F.3d 
1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the petition, the court 
took issue with the AAO's evaluation of evidence submitted to meet two of the given evidentiary 
criteria. With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that 
while USCIS may have raised legitimate concerns about the significance of the evidence submitted 
to meet those two criteria, those concerns should have been raised in a subsequent "final merits 
detennination ." /d. at 1121-22. · 
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Page 6 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 2 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the. AAO did)," and if the 
petitioner failed to submit sufficient evidence, ''the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits detennination" as 
the corollary to this procedure: · · 
If a petitioner has submitted the requisite evidence, USCIS detennines wheth~r the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i). 
/d. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits detennination. 3 While involving a different classification 
than the one at issue in this matter, the similarity of the two classifications makes the court's 
reasoning persuasive to the classification sought in this matter. In reviewing Service Center 
decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo 
review, the AAO will conduct a new analysis if the director reached his or her conclusion by using a 
one-step analysis rather than the two-step analysis dictated by the Kazarian court. See 8 C.F.R. 
§ 103.3(a)(1)(iv); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. 
United States, 229 F. Supp~ 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9
1
h Cir. 2003) 
(recognizing the AA<?'s de novo authority). 
IV. Analysis 
A. Evidentiary Criteria 
This petition, filed on April 10,_ 2012, seeks to Classify the beneficiary as researcher who is 
recognized internationally as outstanding in his academic field. The petitioner has submitted 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) (comparable to 8 C.F.R. § 204.5(i)(3)(i)(D)) 
and 8 C.F.R. § 204.5(h)(3)(vi) (comparable to 8 c:F.R. § 204.5(i)(3)(i)(F)). 
3 The classification at issue in Kazarian, section 203(b)(l)(A) of the Act, requires qualifying evidence under three 
criteria whereas the classification at issue in this matter, section 203(b)(l)(B) of the Act, requires qualifying 
evidence under only two criteria. 
/ 
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documentation pertammg to the following categories of evidence under 8 C.F .R. 
§ 204.5(i)(3)(i). 4 
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 a printout from Microsoft Academic · Search stating that there have been 
eleven citations to the beneficiary's work in eleven different publications. The regulation at 8 C.F.R. 
§ 204.5(i)(3)(i)(C) requires evidence of published material about the beneficiary's work. The AAO 
reads "published material" to mean the published material itself, not a mere citation record. 
However, the beneficiary's citation history is a relevant consideration as to whether the evidence 
is indicative of the beneficiary's recognition beyond his own circle of collaborators. See 
Kazarian, 596 F3d at 1122. The citation history will be considered below in our final merits 
determination. 
The petitioner also submitted several published articles that contain citations to the beneticiary 's 
work. Upon review, the articles citing the beneficiary's work are still primarily about the author's 
own work, or recent work in the field generally, and not about the beneficiary's work. Thus, the 
articles cannot be considered published material about the beneficiary's work. 
The oetitioner has further submitted two conference reports from 
, . respectively, swnmarizing the beneticiary's 
· conference presentation along with those of others who presented at the conferences. The plain 
language of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(C) requires that the published material shall · 
include the title, date, and author of the material. However, these articles are in the nature of press 
releases that; while including the author of the material, do not include the date the article was 
written. As a result, his published material cannot be considered as qualifying evidence that meets 
the plain language requirements of the criterion. 
In light of the above, the published material submitted by the petitioner is not qualifying evidence 
that meets the plain language requirements set forth at 8 C.F.R. § 204.5(i)(3)(i)(C). 
Evidence of the alien's participation, either individually or on a panel, as the judge of the 
work of others in the same or an allied academic field 
The petitioner submitted evidence that the beneficiary has reviewed paper submissions for 
national and international professional svmoosia and conferences. as well as manuscriots for 
professional ioumals such as 
4 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidenc e not 
discussed in this decision . .-
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language of the criterion set forth at 8 C.F.R. § 204.5(i)(3)(i)(D). Pursuant to the reasoning in 
Kazarian, 596 F. 3d at 1122, however, the nature of these duties may be and will be considered 
below in our final merits determination. :' 
r 
Evidence of the alien's original scientific or scholarly research contributions to the academic 
field. 
As evidence relating to the beneficiary's original scientific or scholarly research contributions to the 
academic field, the petitioner submitted the following: three patent applications filed by the 
petitioner in which the beneficiary is listed as a co-inventor; and, six reference letters (four from the 
beneficiary's immediate circle of coauthors and collaborators). The plain language of the regulation 
at 8 C.F.R. § 204.5(i)(3)(i)(E) does not require that the beneficiary's contributions themselves be 
internationally recognized as outstanding. That being said, the plain language of the regulation does 
not simply require original research, but an original "research contribution." Had the regulation 
contemplated merely the submission of original research, it would have said so, and not have 
included the extra word "contribution." Moreover, the plain language of the regulation requires that 
the contribution be "to the academic field" rather than an individual laboratory or institution. 
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 
Transp., 22 I&N Dec. 215, 221 n. 7, (Comm'r. 1998). Rather, the significance of the innovation 
must be determined on a case-by-case basis. /d. While the patent application states that the rights 
to the patent have been assigned to the petitioner, the petitioner does not indicate that it has licensed 
or marketed the beneficiary's patent-pending innovations, but merely states, "The ideas in those 
patents have been developed into prototypes currently at use in [the petitioning company] as well as · 
in other private companies." However, the petitioner has not submitted any documentary 
evidence to establish that other independent companies employ the beneficiary's patent-pending 
innovations or that they had contributed to the field as a whole as of the date of filing. For 
example, the record contains no evidence that the petitioner has attracted media attention or new 
investment based on the beneficiary's research or patent-pending innovations. In its response to 
the director's request for further evidence (RFE), the petitioner states that proprietary prototypes 
it has developed based upon the beneficiary's patent-pending innovations "are confidential, and 
company policy and licensing agreements prevent the disclosure of any specific information that 
is not publicly available." While intellectual property protections are a valid reason to delay 
publication, without evidence of a patent or publication that"has garnered attention in the field, 
we cannot conclude that the beneficiary's work is a recognized contribution to the field as a 
whole. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm 'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm' r 
1972) ). Thus, the impact of the iruiovations is not documented in the record. 
We acknowledge that the beneficiary has authored articles, and that many of the reference letters 
refer to the fact that the beneficiary has authored scholarly articles regarding the subject matter of 
his research which have been presented at conferences and symposia. The regulations, however, 
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Page 9 
include a separate criterion for scholarly articles at 8 C.F.R. § 204.5(i)(3)(i)(F). If the regulations 
are to be interpreted with any logic, it must be presumed that the regulation views contributions as a 
separate evidentiary requirement from scholarly articles. (We will consider the articles under t-l 
C.F.R. § 204.5(i)(3)(i)(F)). Even if we considered the original nature of the beneficiary's 
research to qualify it under the. criterion at 8 C.F.R. § 204.5(i)(3)(i)(E), and we do not, whether 
or not the contributions are indicative of the beneficiary's fnternational recognition in the field is 
a valid consideration under our final merits determination. 
an assistant professor in the department of electronics and telecommunications, 
states that he met the beneficiary in 2011 while both of them were 
working for the petitioner. Referring to the beneficiary's patent-pending innovations, he states that 
in those works "[the beneficiary] developed the finite state automata that are used as signatures tor 
identifying network applications" and "developed the algoritluns for generating the signatures ... ,:; 
He states "The ideas behind these patents are already in use at [the petitioning company], and are 
currently being deployed in "large telecommunications companies" for "licensing trials" for 
"research and development purposes." However, does not provide examples of 
independent research institutions using the beneficiary's research or assert that the beneficiary's 
research is becoming one of the "widely accepted standard techniques" as would be expected of a 
contribution to the field as a whole. He states the beneficiary's research contributions in the area of 
network traffic classification "are outstanding original scientific contributions of major importance, 
because they enable automatic application signature generation and network traffic classification at 
a scale that has never been possible before." However, he does not explain how thosc
1 
contributions have impacted the academic field rather than simply the work of the beneficiary's 
employer. 
further states that the fact that the beneficiary 's research projects "have been supported 
and funded in part by grants from the National Science Foundation are further evidence of the 
national and international importance of his research work." 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. It does not follow that every 
researcher who obtains a Ph.D. or is working with a government grant has made a contribution of 
major significance. The record does not establish that the beneficiary's work represented a 
groundbreaking advance in his field. In addition, the petitioner has not submitted any 
5 The AAO notes that both 
research work: 
use almost identical language in summarizing the beneficiary's 
He developed the finite strata automata that are used 
as signatures for identifying network 
applications in these works, and he developed the algorithms for generating the signaiUres, 
improving the quality of the signatures by identifying and removing redundancies, providing 
quality metrics for Jhe signatures, and optimizing the signatures for improving the 
performance of the resulting traffic classifiers. The ideas and technology encompassed in 
these patents have been develop into a prototype which is in use at Narus, Inc. 
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documentary evidence to establish that that the beneficiary has received a research grant from the 
National Science Foundation. As stated above, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craji of 
California, 14 I&N Dec. 190 (Reg. Comm 'r 1972)). 
an associate professor for information assurance, College of Computer and 
Information Science, states he met the beneficiary in 2007 at a 
professional conference where the beneficiary was a poster p~esenter. He states that "[the 
beneficiary's] work on packet classification optimization and reverse engineering of firewall rule 
sets based on automata-centric approach are outstanding contributions to the field of Internet 
security." He states that the beneficiary's research techniques have resulted in "significant 
reduction in the size of memory used by the classifiers." However, he does not explain how those 
contributions have impacted the academic field as a whole. He states that the beneficiary's 
research "has far-reaching potential implications for the research field of Internet security," but he 
does not provide specific examples of the potential applications for the beneficiary's research. 
Regarding ·both the petitioner and the beneficiary's previous employers, states "Many of 
the systems that [the beneficiary] built using these [research] techniques are being used internally 
and externally by these companies for network management and security." He does not provide any 
examples of independent institutions using the beneficiary's research techniques. 
a full professor of computer science and engineering, 
states that he met the beneficiary in 2011 while both of them were working for the 
petitioner. In language almost identical to that of he summarizes the beneficiary's 
research work including his patent-pending innovations and his dissertation research, stating that the 
beneficiary's research findings are already in use at the petitioning company and at other companies 
for licensing trials. However, does not provide examples of independent research 
institutions using the beneficiary's research or assert that the beneficiary's research is becoming one 
of the "widely accepted standard techniques" as would be expected of a contribution to the field as a 
whole. 
, chief technology officer at states that he met . 
the beneficiary in 2008 when he hired him to work as a researcher at . He describes 
the beneficiary's research work at project as "original and outstanding" 
because it "showed how network monitoring ... could be used for real-time diagnostics." He states 
that some of the beneficiary's research ·ideas from that project were adopted into products, 
such as the Network Analysis Module (NAM.) He also describes the beneficiary's work on the 
definition of a new engine for eontent inspection, to be adopted into other products. However, 
the witness does not explain how the beneficiary's research findings have impacted the academic 
field rather than simply the work of the beneficiary's employer at the time. 
an associate professor of computer science at the 
states that he selected the beneficiary to be on the program committee of an 
international professional conference, "on the basis of his outstanding ability and original 
; ' 
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contributions to improving the state of the art in packet classification for network and security 
applications." However, the witness does not state how he first became aware of the beneficiary's 
work. However, the AAO notes that was a student at 
working on his doctoral dissertation in computer science at the same time that the oeneticiary 
was there working on his master's thesis in the same subject, and that both he and the beneficiary 
shared the same dissertation and thesis advisor, Thus, it appears that 
may not be an independent reference. In addition, does not 
provide examples of the beneficiary's specific research contributions or explain how those 
contributions have impacted the academic field. · 
a professor of computer science at . states that the applicant has 
reviewed paper submissions for national and international professional symposia and 
conferences, as well as manuscripts for professional publications, "including two conferences and 
three journals for the top tier He states 
that the beneficiary was chosen to be a peer reviewer, "based upon his expertise in t e area of 
network management and security. In particular [the beneficiary] is an expert on performance 
optimization and configuration management of fuewalls and intrusion detection systems." 
does not state the basis for his knowledge of the beneficiary's work. He fails to acknowledge 
that he is listed as the beneficiary's dissertation and thesis advisor and that he is one of the 
beneficiary's coauthors. Thus, is not an independent reference. He states that the mere 
fact of the beneficiary's participation as a peer reviewer for certain professional journals and at 
certain professional conferences is evidence that he is internationally recognized as being 
outstanding in his field. We acknowledge that the beneficiary reviewed paper submissions for 
national and international professional symposia and conferences, as well as manuscripts for 
professional journals. The regulations, however, include a separate criterion for judging the work 
of others in the field at 8 C.F.R. § 204.5(i)(3)(i)(D). If the regulations are to be interpreted with any 
logic, it must be presumed that the regulation views contributions as a separate evidentiary 
requirement from judging. (We have considered evidence of the beneficiary's judging experience 
under 8 C.F.R. § 204.5(i)(3)(i)(D)). Whether or not the beneficiary's judging experience is 
indicative of the beneficiary's international recognition in the field is a valid consideration under 
our final merits determination. 
The' Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 
2000) (citing cases). The Board also held, however: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." /d. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the 
petitioner to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. 
United States Citizenship & Immigration Services (USCIS) 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'r. 1988). However, USCIS is ultimately responsible for making 
the final determination regarding an alien's eligibility for the benefit sought. ld. The submission 
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of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS 
may, as the AAO has done above, evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24·I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may 
even give less weight to an opinion that is not corroborated, in accord with other information or 
is in any way questionable. /d. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec: 190 (Reg'l. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of widespread recognition and 
vague claims of contributions without specifically identifying contributions and providing 
specific examples of how those contributions have influenced the field. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof.6 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
beneficiary's research, while original, can be considered a contribution to the field as a whole. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements set forth1at 8 C.P.R. § 204.5(i)(3)(i)(E). 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals witlz 
international circulation) in the academic field. 
The petitioner submitted several articles authored by the beneficiary, including his doctoral 
dissertation and his master's thesis. Thus, the petitioner has submitted evidence that qualifies under 
8 C.P.R. § 204.5(i)(3)(i)(F). 
In light of the above, the petitioner has submitted evidence that meets two of the criteria that must 
be satisfied to establish the minimum eligibility requirements for this classification. Specifically the 
petitioner submitted evidence to meet the criteria set forth at 8 C.P.R. §§ 204.5(i)(3)(i)(D) and (F). 
The next step, however, is a final merits deterniination that considers whether the evidence is 
consistent with the statutory standard in this matter, international recognition as outstanding. 
Section 203(b )(1 )(B)(i) of the Act. 
B. Final Merits Determination 
It is important to note at the outset 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 
6 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily 
conclusory assertions. I756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
(b)(6)
Page 13 
evaluating whether a professor or researcher is deemed outstanding. Employment-Based 
Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 
(Nov. 29, 1991)). 
The nature of the beneficiary's judging experience is a relevant consideration as to whether the 
evidence is indicative of the beneficiary's recognition beyond his own circle of collaborators. 
See Kazarian, 596 F. 3d at 1122. Counsel asserts, with the submission of the recommendation letter · 
of the beneficiary's dissertation and thesis advisor, that the beneficiary's participation as a 
peer reviewer for certain professional journals and at certain professional conferences is evidence 
that he is internationally recognized as being outstanding in his field.. As stated above, the 
petitioner submitted evidence that the beneficiary has reviewed paper submissions for national 
and international professional symposia and conferences, as well as manuscripts for professional 
innrnals such as 
The AAO cannot ignore that scientific journals are peer 
reviewed and rely on many scientists to review submitted articles. Thus, peer review is routint: 
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 manuscripts 
for a journal that credits a small, elite group of referees, received independent requests from a 
substantial number of journals, or served in an editorial position for a distinguished journal, the 
AAO cannot conclude that the beneficiary's judging experience is indicative of or consistent with 
international recognition. 
Regarding the beneficiary's original research, as stated above, it does not appear to rise to the level 
of a contribution to the academic field as a whole. Demonstrating that the beneficiary's work was 
"original" in that it did not merely duplicate prior research is not useful in setting the beneficiary 
apart in the academic community through eminence and distinction based on international 
recognition. 56 Fed. Reg. at 30705. Research work that is unoriginal would be unlikely to secure 
the beneficiary a Master's degree, let alone classification as an outstanding researcher. 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." 
I 
Of far greater importance in this proceeding is the impact the beneficiary's work has already had 
on the overall academic field. The beneficiary's citation history is a relevant consideration as to 
whether the evidence is indicative of the beneficiary's recognition beyond his own circle of 
collaborators. See Kazarian, 596 F. 3d at 1122. While evidence that the petitioner's work is 
widely cited can serve to establish the impact of this work, the record does not contain evidence that 
independent experts have consistently cited the petitioner's work. The petitioner submits evidence 
that five of the beneficiary's articles have been cited a total of eleven times. In addition, a review 
of the citing articles reveals that they do not substantively discuss the beneficiary's work, but cite 
it as one among many other authorities. The record does not contain evidence that independent 
experts have consistently cited or relied upon the beneficiary's work, nor does the record contain 
other comparable evide.nce that demonstrates that the beneficiary's publication record is consistent 
with international recognition. 
(b)(6)
Page 14 
In addition, the two independent references do not indicate that they learned of the beneficiary's 
work through the beneficiary's international reputation. Indeed, the record lacks evidence that a 
signific~t number of members of the academic field outside of the beneficiary's immediate 
circle of colleagues are even aware of his work. 
In light of the above, the fmal merits determination reveals that the beneficiary's qualifying 
evidence, participating in the widespread peer review process and publishing articles that have not 
garnered widespread citations or other response in the academic field, does not set the beneficiary 
apart in the .academic community through eminence ·and distinction based on international 
recognition, the purpose of the regulatory criteria. 56 Fed. Reg. at 30705. 
C. Conclusion 
The petitioner has shown that the beneficiary is a talented researcher/prototype engineer, who has 
won the respect of his collaborators, employers, and mentors, while securing some degree of · 
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 ~e beneficiary is qualified for the benefit sought. 
The petition will be denied for the above-stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remainsentirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.