dismissed EB-1B Case: Statistics

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*% 
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U.S. Department of Homeland Security 
20 Mass. Abe . N W , Rm A3042 
Wash~ngton. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: JUN 0 3 2005 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. tj 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. 
u 
@sobert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now 
before the Associate Commissioner for Examinations on appeal. The appeal will be dismissed. 
The petitioner is a state educational institution. It seeks classification of 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. 
§ 1 153(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant 
professor. The director determined that the petitioner had not established that the beneficiary has attamed the 
outstanding level of achievement required for the category of outstanding professor or researcher. The director 
also concluded that the beneficiary did not have three years of experience or a permanent job offer. 
On appeal, the petitioner submits the origynal job offer letter and new information about the beneficiary's 
teaching experience and memberships. For the reasons discussed below, while we find the job offer to be 
qualifying, the petitioner has not overcome the director's other bases for denial. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific academic 
area, 
(ii) the alien has at least 3 years of experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enter the United States -- 
(I) for a tenured position (or tenure-track position) within a university 
or institution of higher education to teach in the academic area, 
(11) for a comparable position with a university or institution of higher 
education to conduct research in the area. or 
() for a comparable position to conduct research in the area with a 
department, division, or institute of a private employer, if the 
department, division, or institute employs at least 3 persons full-time in 
research activities and has achieved documented accomplishments in an 
academic field. 
The final issue to be decided is whether the petitioner has made a qualifying job offer to the beneficiary. The 
regulation at 8 C.F.R. $ 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. 
The regulation at 8 C.F.R. S; 204.5(i)(2), provides, in pertinent part: 
Permanent, in reference to a research position, means either tenured, tenure track, or for a 
tenn 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. 
(Bold emphasis added.) On Part 6 of the petition, the petitioner indicated that the pro osed employment, as an 
assistant professor, was a permanent position. The petitioner submitted a letter from db confirming the 
beneficiary's employment as an assistant professor. sserts that the position is "temporary" and for 
"a three-year penod." This document does not fiom the petitioner to the beneficiary. The 
director requested clarification of the discrepancy between the "permanent" indication on the petition and the 
"temporary" indication in letter. 
In response, the petitioner submitted a letter from president of the petitioning university, 
asserting that the petitioner "intends to employ [the tenure-track position." 
The director concluded that ~residenetter did not resolve the inconsistencies in the absence of the 
actual job offer letter. 
On appeal, the petitioner submits an April 5,2002 letter from president to the beneficiary acknowledging 
the beneficiary's acceptance of the "tenure-track Assistant Professor of Statistics" position. president- 
indicates that the salary and benefits are "for a nine-month appointment commencing in August 2002.'' 
While the director requested evidence that the petitioner had offered the beneficiary a permanent job, we note 
that the petitioner is not hiring the beneficiary as a researcher, but a professor. The definition of "permanent" in 
the regulations only applies to research jobs. A job offered to a professor need only be for a tenure or tenure- 
track position. The record is consistent that the position offered is tenure-track. Thus, we withdraw the 
director's finding that the job offer is not qualifying. Nevertheless, for the reasons stated below, the petitioner 
has not overcome the director's two other bases for denial. 
Page 4 
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The regulation at 8 C.F.R. 9 204.5(1)(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 and/or research in 
the academic field. Experience in teaching or research while working on an advanced degree 
will only be acceptable if the alien has acquired the degree, and if the teaching duties were such 
that he or she had full responsibility for the class taught or if the research conducted toward the 
degree has been recognized within the academic field as outstanding. Evidence of teaching 
and/or research experience shall be in the form of letter(s) from 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 April 28, 2003 to classify the beneficiary as an outstanding professor in the field of 
statistics. Therefore, the petitioner must establish that the beneficiary had at least three years of teaching 
experience in the field of statistics as of April 28,2003 and that he had full responsibility for the classes taught. 
The initial submission did not include to the director's request for additional 
evidence, the petitioner submitted a of the Department of Statistics at Purdue 
University, who indicates the following beneficiary was studying for his Ph.D. at 
Purdue University: 
With respect to his teaching, he taught STAT 301 : "Elementary Statistical Methods," in the Fall 
2000 semester and STAT 301 1: "Elementary Statistical Methods," in the Spring 2001, Fall 
2001 and Spring 2002 semesters. For STAT 301, he was fully responsible for the LAB session. 
He gave lectures for the LAB session, demonstrated how to do statistical computing using 
standard software, held office hours and graded homework. For STAT 301 1, he had full 
responsibility for the whole course. He supervised several undergraduate student tutors, 
coordinated the efforts of a graduate student grader, gave lectures to students as needed, held 
regular office hours and assigned final course grades to students. 
The director concluded that this experience amounted to no more than one and a half years of experience with 
full responsibility for the courses taught. On appeal, 
a 
ubmits a new letter asserting that the beneficiary 
had "full responsibility for the courses he taught as I explaine in my March 2,2004 letter." She continues that - 
the beneficiary started performing research on semiparametric regression using wavelets in the year 1999. She 
asserts, without explanation or examples, that this work has been recognized as outstanding. Based on the 
above, 
S 
oncludes that the beneficiary has "at least three years of experience in research andlor 
teaching in tahstlcs at Purdue University." 
For the reasons discussed below, the petitioner has not established that any research performed by the 
beneficiary has been recognized as outstanding as defined in the regulations. Moreove 
- 
merely 
reiterates on appeal the same information regarding the beneficiary's teaching experience prow e previously. 
The beneficiary did not begin teaching until the Fall 2000 semester and did not assume full responsibility over 
the course, beyond the "LAB" section, until Spring 2001. As such, we concur with the director that the 
petitioner has not established that the beneficiary had the necessary three years of experience as of the date of 
filing. 
The final issue to be considered in this proceeding is whether the beneficiary's scientific accomplishments are 
intenationally recognized as those of an outstanding researcher in his field. The regulation at 8 C.F.R. 
3 204.5(i)(3)(i) state that a petition for an outstanding professor or researcher must be accompanied by 
"[e]vidence that the professor or researcher is recognized internationally as outstanding in the academic field 
specified in the petition." The petitioner must meet at least two of six stated criteria. The petitioner claims to 
have met the following criteria:' 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members 
The petitioner never claimed that the beneficiary meets this criterion. In his final decision, the director noted 
that the beneficiary lists several memberships on his resume, the American Statistical Association (ASA) as of 
2002, the Institute of Mathematical Statistics (IMS) as of 2002, Interface as of 2002, the International 
Association for Statistical Computing (IASC) as of 2004 and the Society for Industrial and Applied 
Mathematics (SIAM) as of 2002, but concluded that the record did not establish that the associations require 
outstanding achievements of their members. 
On appeal, counsel asserts that the petitioner is submitting evidence that the beneficiary was "an invited attendee 
of the AMS-IMS-SIAM Summer Research Conference on Maching [sic] Learning, Statistics and Discover in 
June 2003." The petitioner also submits membership requirements for the American Statistical Association, the 
Association for Statistical Computing, Interface and the Institute of Mathematical Statistics. 
The record is absent any evidence that the beneficiary was actually invited to attend the AMS-IMS-SIAM 
conference. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). Regardless, an invitation to attend a conference is not a membership in an 
association. Finally, the conference apparently took place in June 2003, more than a month after the date of 
filing. Thus, this conference cannot be considered evidence of the beneficiary's eligbility as of that date. See 8 
C.F.R. $ 103.2(b)(12); Matter ofKatighak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
Similarly, the petitioner submitted no evidence that the beneficiary is actually a member of any professional 
associations. The beneficiary's self-serving claims on his curriculum vitae are insufficient evidence of those 
memberships. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). Regardless, the 
materials about these associations submitted on appeal make no reference to exclusive membership 
requirements. SIAM appears to be open to "individual mathematicians, computer scientists, numerical 
analysts, engineers, statisticians, physicists, educators and students." Interface appears to be open to 
"computational scientists, statisticians, mathematicians and individuals from related discipline interested in 
the interface between computing science and statistics." The materials submitted make no mention of any 
membership requirements for either SIAM or Interface other than dues payments. 
1 The petitioner did not claim to meet or submit evidence relating to criteria not discussed in this decision. 
ASA has 19,000 members and appears to be open to "professionals and students working or studying in the 
field of statistics." No mention is made of any membership requirements other than dues payments in the 
materials submitted. ASA does recognize as fellows "full members who have made outstanding 
contributions in some aspect of statistical work." The record is absent evidence that the beneficiary has been 
selected as a fellow of this (or any) association. 
The membership materials for IMS submitted on appeal merely discuss the benefits of membership and the 
dues, without referencing any membership requirements. Finally, IASC is "open to all individuals and 
organisations who are interested in promoting the theory, methods and practice of statistical computing." 
(British spelling in original.) 
In light of the above, the petitioner has not established that the beneficiary is a member of any professional 
association, let alone an association that requires outstanding achievements of its members, as required by the 
plain language of 8 C.F.R. 3 204.5(i)(3)(i)(B). Thus, the petitioner has not established that the beneficiary 
meets this criterion. 
Evidence of the alien 3 participation, either individually or on a panel, as the judge of the work of 
otlters in the same or an allied academicfield 
The petitioner claimed for the first time that the beneficiary meets this criterion in response to the director's 
request for additional evidence. In support of this claim, the petitioner submitted a 2004 request from the 
Associate Editor of Elsevier Science to review a manuscript for a statistics textbook. The director did not 
discuss this evidence. Counsel makes no reference to this clterion on appeal. 
First, the request is dated after the date of filing and, as such, is not evidence of the beneficiary's eligibility as of 
that date. A petitioner must establish elig~bility as of the date the petition is filed. See 8 C.F.R. 103.2(b)(12); 
Matter of Katigbak, 14 I&N Dec. at 49. Second, the record contains no evidence regarding the significance of 
this request. The questions appear more akin to a survey of professors teaching the subject as to the value of the 
proposed text. If Elsevier Science merely contacted several professors in the field for opinions regarding its 
proposed textbook, its request is not indicative of the beneficiary's international recognition. Without evidence 
that sets the beneficiary apart from others in his field, such as evidence that he has reviewed an unusually large 
number of articles for an international journal, received independent requests from a substantial number of 
international journals, or served in an editorial position for a distinguished international journal, we cannot 
conclude that the beneficiary meets this criterion. 
Evidence of the alien's original scientific or scholarly research contributions to the academic$eld. 
Initially,. the petitioner submitted reference letters from the beneficiary's immediate circle of colleagues and 
articles that had allegedly been published. Counsel did not explain how the beneficiary meets this criterion. In 
response to the director's request for additional evidence, counsel references the beneficiary's articles as 
evidence of his contributions. The director, noting predictions of future contributions by the beneficiary's 
references, concluded that the record did not establish that the beneficiary had already contributed to his field. 
On appeal, counsel submits the beneficiary's "publication list" as evidence to meet this criterion. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects, and 
demonstrating that the beneficiary's work was "orignal" in that it did not merely duplicate prior research. 
Research work that is unorignal would be unlikely to secure the beneficiary a master's degree, let alone 
classification as an outstanding researcher. Because the goal of the regulatory criteria is to demonstrate that the 
beneficiary has won international recognition as an outstanding researcher, it stands to reason that the 
beneficiary's research contnbutions have won comparable recognition. To argue that all orignal research is, by 
definition, "outstanding" is to weaken that adjective beyond any useful meaning, and to presume that most 
research is "unoriginal." 
The beneficiary obtained his Ph.D. fro n August 2002. He then accepted a position as an 
assistant professor at the petitioning petitioner submitted three articles authored by the 
beneficiary. While counsel references these articles as "publications," they all begin on page one with no 
reference to the publication in which they appeared. The beneficiary's cuniculum vitae submitted initially 
reflects that one paper had been submitted to Statistics and Computing and two others were "refereed" papers of 
Interface. The beneficiary listed two other papers "in progress." In response to the director's request for 
additional evidence, the beneficiary submitted an article published in Applied Stochastic Models in Business and 
Industry, accepted for publication in July 2003, after the date of filing. In addition, the Science Direct website 
posted an "in press" article accepted for publication in Computational Statistics and Data Analysis. This article 
was available on-line on December 3, 2003, after the date of filing. As discussed above, elig~bility must be 
established as of the date of filing. See 8 C.F.R. fj 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. The 
list of publications submitted on appeal does not include any full-length articles published prior to the date of 
filing. The record confirms that the beneficiary had presented two papers at Interface conferences as of the date 
of filing, abstracts of which appeared in the proceedings of these conferences, apparently prior to the date of 
filing. 
The significance of the beneficiary's publication record will be discussed below. We note, however, that the 
publication of scholarly articles is a separate criterion and that a beneficiary must meet two criteria in order to 
establish eligbility. While the two criteria may be somewhat related, a presumption that publication of a 
scholarly article is sufficient to meet the contributions criterion would render the requirement that a beneficiary 
meet at least two criteria meaningless. That the beneficiary has presented his work is not presumptive evidence 
that the work presented is a contribution sufficient to meet this criterion. To establish the significance of the 
beneficiary's work, we turn to the beneficiary's references whose letters we discuss below. 
irector of Affirmative Action for the petitioner, asserts that the beneficiary "has a strong 
e areas of statistical computing, nonparametric and semi-parametric regression, wavelets in 
nonparametric regression and Bayesian modeling, with numerous publications in professional journals." As will 
be discussed below, the record does not demonstrate that the beneficiary had published numerous publications 
as of the date of filing. Regardless, does not appear to be an expert in the beneficiary's field and her 
letter appears to have been of the beneficiary's job with the petitioner, which is not 
contested. 
a professor at the petitioning teaching experience and 
isticated statistical methods sserts that the beneficiary is 
proficient in several statistical computer languages. how the beneficiary's 
experience and slulls constitute an orig~nal contribution to the field of statistics. For example does 
Page 8 
not provide examples of how the beneficiary has influenced the work of other statisticians internationally, or at 
all. 
Chair of the beneficiary's department at the petitioning university, asserts that the 
-most active statistician whom [the petitioner] has ever employed." otes the 
beneficiary's ability to "apply the cutting edge technology of wavelets to study partially linear models." 
concludes that the beneficiary "will make substantial contributions to the United States 
community in future years." These statements do not establish that the beneficiary has already made orignal 
contnbutions to the academic field of statistics. 
the beneficiary's Ph.D. advisor at Purdue University, provides more detail about his work. 
affirms that the beneficiary's work "has great significance for future development of the field of 
applications." More specifically, explains that the beneficiary 
implemented a novel wavelet nonparametric regression for partially linear models." xplains that a 
partially linear model (PLM) consists of a linear part and a nonparametnc 
the standard linear model. A PLM has many practical applications and has been "successfully applied in 
analyzing the relationship between weather and electncity sales, agricultural field experiments and financial 
time series." Such models, however, are based on assumptions that may not be satisfied. According tom 
applying "wavelet nonparametric regression methods to the partially linear models is a natural extension 
to the traditional methods." Regarding the beneficiary's wor asserts: 
[The beneficiary] proposed regularized wavelet estimation methods for partially linear models. 
He derived the necessary and sufficient conditions for the minimum points of the object 
function. When there is only one variable in the linear part, he developed a simple numerical 
bisection search algorithm for the solution. When there are more than one predictors in the 
linear part, he developed an iterative nonlinear backfitting algorithm. 
redicts that these innovations "will find important application in signal processing, image processing, 
et al." While she explains how these innovations are relevant, she does not provide any examples of how the 
beneficiary's work has already influenced the field of statistics. 
The record is absent letters from experts who are independent of the beneficiary but recognize his work. The 
record is also absent evidence that the beneficiary's work is widely cited. Without such evidence or comparable 
evidence of the beneficiary's influence on the field of statistics, we cannot conclude that he has made orignal 
contnbutions in his field sufficient to meet this criterion. The petition was filed before the beneficiary's work 
was published in full, beyond abstracts, and disseminated in the field. Thus, the influence of his work is 
difficult to gauge. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international 
circulation) in the academicfield. 
As stated above, at the t~me of filtng, the beneficiary's work had been presented but not published In full-length 
articles. The director concluded that the beneficiary's pubhcation record was not indicative of international 
recognttion. On appeal, counsel quote-summary of the beneficiary's publications. Specifically, 
stated that the beneficiary "already has two refereed presentations to prest~gous conferences, a 
refereed publication which has appeared in a good journal, another publication in press in a refereed journal, and 
two more papers submitted to high quality j oumals." 
The regulation at 8 C.F.R. 9 204.5(i)(3)(i)(F) requires publication in journals with an international circulation. 
The Interface materials submitted on appeal reference annual meetings, but do not specifically characterize them 
as international. We acknowledge, however, that the 2002 meeting was in Canada and that the program 
identifies the association as the Interface Foundation of North America. Thus, Interface's conferences and 
proceedings appear to have some recognition outside the United States. 
The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report cmd 
Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral appointment. 
Among the factors included in this definition are the acknowledgement that "the appointment is viewed as 
preparatory for a full-time academic and/or research career," and that "the appointee has the freedom, and is 
expected, to publish the results of his or her research or scholarship during the period of the appointment." 
Thus, this national organization considers publication of one's work to be "expected," even among researchers 
who have not yet begun "a full-time academic and/or research career." This report reinforces our position that 
publication of scholarly articles or presentations of one's work at a conference is not automatically evjdence of 
intemational recognition; we must consider the research community's reaction to those articles. 
The record does not contain evidence that the beneficiary's presentations have been w~dely cited or other 
comparable evidence of the significance of the beneficiary's published or presented work. 
The petitioner has shown that the beneficiary is a talented statistician, who has won the respect of his 
collaborators, employers, and mentors, while securing a minimal degree of intemational exposure for his work. 
The record, however, stops far short of elevating the beneficiary to an international reputation as an outstanding 
researcher or professor. Therefore, the petitioner has not established that the beneficiary is qualified for the 
benefit sought. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.