dismissed EB-1B Case: Statistical Genetics And Genomics

PUBLIC COpy 
Date: MAY 1 1 201~ffice: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. MS 2090 
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)(1)(B) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 an institution of higher education/university. It seeks to classify the beneficiary as 
an outstanding professor or researcher pursuant to section 203(b )(1 )(B) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary 
permanently in the United States as an assistant professor of statistical genetics and genomics. 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 professor or 
researcher. 
The petitioner has not submitted a brief on appeal. The petitioner has submitted the following 
additional evidence on appeal: an additional published article containing a citation to the 
beneficiary's work; and, a published abstract previously identified by the petitioner as containing a 
citation to the beneficiary's work.
1 
For the reasons discussed below, the AAO concurs with the 
director that the record fails to establish that the beneficiary enjoys international recognition as 
outstanding in the academic field. Specifically, the petitioner has submitted qualifying evidence 
under only one of the required regulatory criteria, scholarly articles pursuant to 8 C.F.R. 
§§ 204.5(i)(3)(i)(F). Therefore, the evidence submitted by the petitioner has failed to establish that 
the beneficiary satisfies the antecedent regulatory requirement of two types of evidence. 8 C.F.R. 
§ 204.5(i)(3)(i). 
I On appeal the petitioner also submits an article published in 1993 containing a citation to an article published by 
the beneficiary in 1987, and three additional letters of reference. It is noted that on December 15, 2010, the director 
issued a Request for Evidence (RFE). The RFE instructed the petitioner to submit evidence of the applicant's 
eligibility pursuant to section 203(b )(1 )(B) of the Act. In denying the application, the director concluded that the 
documents submitted in response to the RFE were not sufficient to establish that the applicant's eligibility. The 
purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established, as of the time the application is filed. See 8 C.F.R. §§ 103.2(b )(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the application. 8 C.F.R. 
§ 103.2(b)(14). As in the present matter, where an applicant has been put on notice of a deficiency in the evidence 
and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Ohaigbena, 19 I&N Dec. 533 
(BIA 1988). If the applicant had wanted the submitted evidence to be considered, it should have submitted the 
documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need not, and 
does not, consider the sufficiency of this evidence submitted with the appeal. Regardless, the AAO notes that the 
letters of reference do not identify an original research contribution made by the beneficiary to the academic field as a 
whole, or provide evidence of his recognition beyond his own circle of collaborators. 
Page 3 
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 III 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 achieved 
documented accomplishments in an academic field. 
II. International Recognition 
The regulation at 8 c.P.R. § 204.5(i)(3)(i) states that a petition for an outstanding professor or 
researcher must be accompanied by n[e]vidence that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the petition. n The regulation lists 
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; 
Page 4 
(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 on 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 (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 a given 
evidentiary criterion. 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 determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations? 
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)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination.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 this matter, the AAO will review 
the evidence under the plain language requirements of each criterion claimed. As the petitioner did 
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 )(1 )(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. 
Page 5 
not submit qualifying evidence under at least two criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of two types of evidence. Id. 
III. Analysis 
A. Evidentiary Criteria
4 
This petition, filed on December 13, 2010, seeks to classify the beneficiary as a professor or 
researcher who is recognized internationally as outstanding in his academic field. The petitioner 
has submitted documentation pertaining to the following categories of evidence under 8 C.F.R. 
§ 204.5(i)(3)(i). 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement 
in the academic field 
At the time of filing this petition, the petitioner asserted that the beneficiary "is not attempting to 
satisfy this criteria but we thought it good background information to let you know that in 2008, • 
• won the Paul Anderson Student Paper Competition held by the American Statistician 
Association (ASA) ... " The petitioner also stated that the beneficiary was awarded travel grants to 
finance his attendance at three professional conferences. 
It is significant that the proposed regulation relating to this classification would have required 
evidence of a major international award. The final rule removed the requirement that the award be 
"international," but left the word "major." The commentary states: "The word "international" has 
been removed in order to accommodate the possibility that an alien might be recognized 
internationally as outstanding for having received a m~or award that is not international." 
(Emphasis added.) 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. 
Compare 8 c.F.R. § 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 director concluded that the beneficiary's student academic award and grants to finance 
attendance at a conference do not qualify as major prizes or awards for outstanding achievement in 
the academic field. Counsel does not challenge that conclusion on appeal. Accordingly, the 
petitioner has abandoned that claim. See Sepulveda v. us. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir.2005)(holding, in counseled case, that when appellant fails to offer argument on an issue, 
that issue is abandoned); Hristov v. Roark, No. 09-CV-2731, 2011 WL 4711885 at *9 (E.D. N.Y. 
Sept. 30, 2011). Nevertheless, upon review, the AAO concurs with the director's conclusion that 
4 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
Page 6 
the petitioner did not submit qualifying evidence that meets the plain language requirements of this 
criterion, set forth at 8 C.F.R. § 204.5(i)(3)(i)(A). 
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 submitted two articles containing citations to the beneficiary's work. The 
regulation at 8 C.F.R. § 204.5(i)(3)(i)(C) requires evidence of published material about the 
beneficiary's work. Upon review, the published material which cites the beneficiary's work is 
primarily about the author's own work, or recent work in the field generally, and not about the 
beneficiary's work. As such, it cannot be considered published material about the beneficiary's 
work. 
In light of the above, the articles are 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 
At the time of filing this petition, the petitioner submitted evidence that the beneficiary agreed to 
review two manuscripts for the Journal of Probability and Statistics (JPS).5 The petitioner has 
not submitted evidence that the beneficiary completed his review of these manuscripts. In 
addition, the petitioner also asserted that the "Journal of IEEE frequently requests _to 
determine if an article is substantive and groundbreaking enough to be published in their prestigious 
journal. He has also been asked to perform this type of peer review work for Statistica Sinica." In 
fact, the petitioner did not submit any evidence establishing that the beneficiary actually served on 
the panel of judges for the Journal of IEEE or Statistica Sinica. 
As the plain language of the regulation requires "the alien's participation ... as the judge of the work 
of others," the mere request to serve as a judge, or even agreeing to judge, without evidence of 
actually judging the work of others is insufficient to meet the plain language of this regulatory 
criterion. 
In light of the above, the AAO withdraws this portion of the director's decision, and finds that 
the petitioner has not submitted qualifying evidence that meets the plain language requirements 
set forth at 8 C.F.R. § 204.5(i)(3)(i)(D). 
5The petitioner also submitted evidence that the beneficiary was nominated to serve on the Advisory and Review 
Committee of the Division of Resource and Environment Statistics of the Chinese Association of Applied Statistics, 
2011 to 2012. However, this event occurred after December 13, 2010, the date of filing this petition, and cannot be 
considered evidence of the beneficiary'S eligibility after that date. See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Reg. Comm. 1971). 
Page 7 
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: nine reference letters from members of the 
beneficiary's field (eight from the beneficiary's immediate circle of coauthors and collaborators). 
The plain language of the regulation at 8 c.P.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. 
We acknowledge that the beneficiary has authored several articles in journals in the academic 
field. 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 8 C.P.R. § 204.5(i)(3)(i)(P). 
states that he was the beneficiary's doctoral advisor in statistics at the University 
of Florida. According to the beneficiary's curriculum vitae, _ has co-authored several articles 
with the beneficiary. He states that the beneficiary "plays a central role in implementing algorithms 
for differential equations into a statistical mixture framework for functional mapping. He derived 
several mathematical and statistical theorems to simplify the calculations of differential equations 
within the mixture framework." He states that the beneficiary's research findings "will undoubtedly 
impact the pharmaceutical industry, AIDS research and agricultural and forestry industries in the 
United States." While ~iscusses the potential applications for the beneficiary's research, he 
does not suggest that the beneficiary's computational tools are currently in use, or are becoming one 
of the "widely accepted standard techniques" as would be expected of a contribution to the field as a 
whole. Although he states that the beneficiary's "original scientific findings and cutting-edge 
research will receive sustained national and international acclaim and recognition in the fields of 
statistics," he does not explain how the beneficiary's work has impacted the field. 
professor and chairperson of the petitioner's department of biostatistics, states that 
s research "will move forward the methodology for gene discovery in clinical 
settings." She also states that the beneficiary's research related to wireless communication 
"improved this field of research by deriving the best estimate of signal, subject to constraints, a 
growing issue in wireless communication." While _ discusses the potential applications for 
the beneficiary's research, she does not provide examples of independent research institutions using 
the beneficiary's techniques, or explain how the beneficiary's work has impacted the field. 
a professor of mathematics at the University of Florida, states that he has 
several years and has co-authored work with him. He states that the 
beneficiary can be a leading researcher in the area of the application of mathematics and statistics to 
Page 8 
genetics. _does not provide examples of how the beneficiary's research findings are 
already being applied in the field. 
states that he has known the beneficiary from his association with the statistical 
genetics group at Penn State Medical Center, of which the beneficiary was a member as a post­
doctoral fellow. He states that the beneficiary helped to develop a differential-equation-based 
model to help identify the genes that are responsible for dynamics of virus. He states that the 
beneficiary's model "will have great influence in studying molecular genetics properties of the virus 
dynamics." Although_provides an example of a potential application for the beneficiary's 
research, he does not provide examples of independent research institutions using the beneficiary'S 
research findings. 
a professor of mathematics at the College of Computer Science at South China 
, states that he became aware of the beneficiary's work when his research team 
read a 2009 article co-authored by the beneficiary. He states that the beneficiary's research work 
"totally changed our view about the disease dynamic models such as HIV and hepatitis" and "brings 
us creative methods in solving our research problems." does not state that he or his 
research team has used the beneficiary'S research nor does he explain how the 
beneficiary's work has impacted the field. 
I'-''''U'''', states that he became 
a Job at Guangzhou University, 
prior to working for the petitioning university. Although he states that the beneficiary's research 
"has changed others (sic) work," he does not explain how the beneficiary's work has impacted the 
field. 
'jing, 
known the beneficiary for many years, but he does not indicate how he learned of 
the beneficiary's work. He states that the beneficiary has made advances in statistical genetics that 
have changed his and other's work. He does not state that he has used the beneficiary's research 
findings, and he does not provide examples of research institutions using the beneficiary's research 
findings. Although _ states that the beneficiary's proposed algorithm "has corrected some 
mistakes of many widely cited publications," he does not state that the beneficiary'S computational 
tool is currently in use, or is becoming one of the "widely accepted standard techniques" as would 
be expected of a contribution to the field as a whole. He states that the beneficiary'S research will 
influence many scientists' research. Speculation as to a future contribution cannot establish that 
the beneficiary has already contributed to the academic field as a whole. 
of biostatistics at the petitioning university, states that the 
IS research forward" in the areas of methodological research focused on genetic 
problems, and research involving "the analysis of longitudinal features of disease measured in 
subjects over time." ~oes not provide examples of independent research institutions 
using the beneficiary'S techniques, or explain how the beneficiary'S work has impacted the field. 
professor of biochemistry and molecular 
umverslty, states the beneficiary is performing statistical analyses cancer 
research results. While it is clear that the beneficiary'S work benefits the umverslty. 
_does not state that the beneficiary has made original scientific or scholarly research 
contributions to the academic field. 
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. Id. The submission 
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 of V-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. Id. at 795; see also Matter of Sojfici, 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 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 forth at 8 c.P.R. § 204.5(i)(3)(i)(E). 
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, uscrs need not accept primarily 
conc1usoryassertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 10 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. 
The ~etitioner submitted several articles authored by the beneficiary in journals in the academic 
field. Thus, the petitioner has submitted evidence that qualifies under 8 C.F.R. § 204.5(i)(3)(i)(F). 
In light of the above, the petitioner has failed to satisfy the antecedent regulatory requirement of two 
types of evidence. 8 C.F.R. § 204.5(i)(3)(i). 
IV. Conclusion 
The documentation submitted in support of a claim of outstanding ability must clearly establish that 
the alien has achieved international recognition. 
Had the petitioner submitted the requisite evidence under at least two evidentiary categories, in 
accordance with the Kazarian opinion the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the evidence submitted by the 
petitioner has demonstrated that the beneficiary is recognized internationally as an outstanding 
professor or researcher in the academic field specified in the petition. 8 C.F.R. § 204.5(i)(3)(i); see 
also Kazarian, 596 F.3d at 1119-20. As the petitioner has not submitted the requisite evidence 
under at least two evidentiary categories, the appeal will be dismissed on this basis alone. The AAO 
will not conduct a final merits determination.8 
For the above stated reasons, the petitioner has not established eligibility pursuant to section 
203(b )(1 )(B) of the Act, and the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
7 The petitioner also submitted evidence that the beneficiary authored a chapter in a book published in 2011, and 
was invited to participate in a seminar in China in 2011. However, these events occurred after December 13, 2010, 
the date of filing this petition, and cannot be considered evidence of the beneficiary'S eligibility after that date. See 
8 C.F.R. § 103.2(b)(12);Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
8 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d at 145. In any 
future proceeding on motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits 
determination as the official who made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. 
§ 2.1 (2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BrA 1987) (holding 
that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).