dismissed EB-1B Case: Telecommunications

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
- 
. - 
FILE: Office: CALIFORNIA SERVICE CENTER Date: , : - L, 
WAC 04 110 52131 
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. $ 1 153(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. 
"p4,3 Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. 'I'he appeal will be dismissed. 
The petitioner is a telecommunications company. It seeks to classify the beneficiary as an outstanding 
researcher pursuant to section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 
1153(b)(l)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a senior 
research engineer. The director determined that the petitioner had not established that the beneficiary is 
recognized internationally as outstanding in hs academic field, as required for classification as an outstanding 
researcher. 
On appeal, counsel asserts that the director failed to properly consider the evidence submitted. For the reasons 
discussed below, we find that the petitioner has demonstrated that the beneficiary meets only one of the 
regulatory criteria, not the requisite two. Thus, we uphold the director's ultimate conclusion. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(B) Outstanding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific academic 
area, 
(ii) the alien has at least 3 years of experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enter the United States -- 
(I) for a tenured position (or tenure-track position) within a university 
or institution of higher education to teach in the academic area, 
(11) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
(III) for a comparable position to conduct research in the area with a 
department, division, or institute of a private employer, if the 
department, division, or institute employs at least 3 persons full-time in 
research activities and has achieved documented accomplishments in an 
academic field. 
The regulation at 8 C.F.R. 5 204.5(i)(3) states that a petition for an outstanding professor or researcher must be 
accompanied by: 
(ii) Evidence that the alien has at least three years of experience in teaching andlor research in 
the academic field. Experience in teaching or research while worlung 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 withn the academic field as outstanding. Evidence of teaching 
andlor 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 18, 2004 to classify the beneficiary as an outstanding researcher in the field of 
telecommunications. Therefore, the petitioner must establish that the beneficiary had at least three years of 
research experience in the field as of that date, and that the beneficiary's work has been recognized 
internationally within the field as outstanding. 
The regulation at 8 C.F.R. 9 204.5(i)(3)(i) states that a petition for an outstanding professor or researcher must 
be accompanied by "[elvidence that the professor or researcher is recognized internationally as outstanding in 
the academic field specified in the petition." The regulation lists six criteria, of which the petitioner must satisfy 
at least two. It is important to note here that the controlling purpose of the regulation is to establish international 
recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of 
international recognition. More specifically, outstanding professors and researchers should stand apart in the 
academic community through eminence and distinction based on international recognition. The regulation at 
issue provides criteria to be used in evaluating whether a professor or researcher is deemed outstanding. 56 
Fed. Reg. 30703,30705 (1991). The petitioner claims to have satisfied the following criteria.' 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the 
academic field 
Initially, the petitioner submitted a letter affirming that the beneficiary obtained "an Australian Postgraduate 
Research Award (APRA) Scholarship." The petitioner also submitted materials reflecting that the objective of 
these scholarships is to "provide financial support to postgraduate students of exceptional research promise who 
undertake their higher degree by research at an eligble Australian higher education institution." Recipients 
receive an annual stipend and may be eligble for other allowances. Eligble applicants must demonstrate 
academic accomplishments. Those with doctoral degrees are precluded from receiving these scholarships. The 
director concluded that scholarships are not major prizes or awards for outstanding achievements in the 
academic field. 
On appeal, counsel notes that the petitioner submitted the rules for these scholarships, which indicate that 
academic achievements are required and list the selection process. According to the materials submitted, the 
scholarship is based on past academic achievement, not for accomplishments in a field of endeavor. While 
8 C.F.R. 8 204.5(i)(3)(A) references outstanding achievements in one's academic field, 8 C.F.R. 8 204.5(i)(2) 
defines "academic field" as "a body of specialized knowledge offered for study." The definition does not 
include typical bases for scholarships, such as grade point average and class standing. It remains, academ~c 
study is not a field of endeavor, academic or otherwise. Rather, academic study is training for a future career in 
1 
The petitioner does not claim that the beneficiary meets any criteria not discussed in this decision and the 
record contains no evidence relating to the omitted criteria. 
an academic field. As such, scholarships in recognition of academic achievement, such as grade point average, 
are insufficient. In addition, the beneficiary only competed against other students for the scholarship. The most 
experienced members of the field, those with doctoral degrees, were precluded from eligbility. Scholarships are 
simply not indicative of international recognition in the field. Rather, they represent high academic 
achievements in comparison with fellow students. In light of the above, the petitioner has not established that 
the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the academic field which require 
outstanding achievements of their members 
The petitioner submitted evidence of the beneficiary's membership in the Institute of Electrical and Electronics 
Engneers (IEEE). In the initial cover letter, counsel asserts that IEEE membership "recognizes those who have 
achieved professional proficiency, as demonstrated by degrees received andlor work experience." The materials 
from IEEE reflect that a mere baccalaureate degree in an IEEE designated field can qualifL an individual for 
membership. In response to the director's request for additional evidence, the petitioner submitted IEEE's 2003 
annual report "to establish the significance of the organization within the academic field" as well as the 
association's "more than 361,000 members." The director concluded that the membership was professional 
rather than exclusive. On appeal, counsel merely states that the denial "does not properly take into 
consideration the evidence submitted regarding the criteria to become a Member in IEEE." 
IEEE's prestige in the field is not the relevant factor for consideration. According to the plain language of the 
regulation at 8 C.F.R. 3 204.5(i)(3)(i)(B), we must look at the requirements for membership. The general 
requirement of "proficiency" in the field is not an outstanding achievement; rather, it represents mere 
competence. The more specific requirements, a degree or experience, are similarly not outstanding 
achievements; rather they represent the minimum credentials required to work in the field. Thus, the record 
does not reflect that IEEE requires outstanding achievements of their general membership and the petitioner has, 
therefore, not demonstrated that the beneficiary meets this criterion. 
Published material in professional publications written by others about the alien's work in the 
academic field. Such material shall include the title, date, and author of the material, and any 
necessaly translation 
Initially, counsel asserted that the beneficiary meets this criterion through the three citations of his thesis and a 
self-citation by a coauthor of one of the beneficiary's published articles. In response to the director's request for 
additional evidence, the petitioner submitted evidence of the prestige of the journals in which the articles citing 
the beneficiary's work was published and media coverage of the beneficiary's area of research. The director 
concluded that the evidence could not serve to meet ths criterion. 
On appeal, counsel asserts that the director "ignored" the evidence submitted. Counsel asserts that the citations 
were published in "highly prestigous scientific journals." Regarding the articles in the general media, counsel 
states: 
Although it is true that these articles do not refer to the Beneficiary by name, these articles are 
"about" the Beneficiary's work since they feature precisely the Beneficiary's orignal research 
contributions - wireless communications systems and turbo-coding. Thus, it is fair to conclude 
that these articles would not have been written but for the Beneficiary's groundbreaking 
research results. 
Counsel is not persuasive. First, the director addressed the evidence. Thus, even if we differed with the 
director's conclusion, which we do not, we could not conclude that any evidence was "ignored." Second, 
articles which cite the beneficiary's work are primarily about the author's own work, not the beneficiary. As 
such, they cannot be considered published material about the beneficiary's work. 
THird, as will be discussed in more detail below, the record does not support counsel's assertions regarding the 
articles in the general media. First, however, it is instructive to set forth the factors we will apply in evaluating 
this material. Counsel acknowledges that this material does not mention the beneficiary by name. The 
regulation provides that the materials must be "about the alien's work." Obviously, the most persuasive 
evidence that an article is about the alien's work is credit given to the alien in the article itself. An article that 
does not mention the alien by name is typically not indicative of international recognition, the ultimate standard 
for the classification sought. In some extremely limited cases, however, an individual may be ss widely 
recognized for a particular achievement that an article about that achievement without mention of the - 
individual's name could be perceived as about that individual's work. For example, while an alien need not 
demonstrate the type of international recognition enjoyed by Albert Einstein, an article that was about the 
importance of the development of the theory of relativity but failed to mention ~r.could still be 
considered an article about his work, as he is widely known to have been the pioneer of that theory. The final 
consideration in evaluating whether evidence is indicative of international recognition is the source of the 
article. A press release by the developer of the technology discussed is far less persuasive evidence of 
international recognition than independent journalistic coverage. 
The petitioner submitted an article published after the date of filing in Army Communicator discussing new 
modems that will be "able to send and receive data at speeds from 64 kbps to 155 Mbps." This article, which 
does not mention the beneficiary by name or any company he has ever worked for, cannot be considered as it is 
dated after the date of filing. See 8 C.F.R. tj 103.2(b)(12); Matter of Katigbak; 14 I&N Dec. 45, 49 (Comm. 
1971). 
The petitioner also submitted an article in CommsDesign about the 802.16 standard amended by the IEEE in 
January 2003. The article indicates that "convolutional turbo codes are optional" in the amended standard. The 
article not only fails to mention the beneficiary, but fails to mention any company he has ever worked for. The 
record does not demonstrate that the beneficiary is so internationally recognized as the pioneer of convolutional 
turbo codes to the exclusion of all others working in the field that the mere mention of such codes as an option 
in a newly adopted standard renders the article "about" the beneficiary's work. 
In addition, the petitioner submitted an article in Cableworld reporting on new technologies that will compete 
with cable television and an article reporting the HomePlug Powerline Association's adoption of France 
Telecom's Turbo Code Program. Neither article mentions the beneficiary or a company for which he has 
worked and the record does not establish that the beneficiary pioneered the technology discussed in either 
article. Thus, we are not persuaded that either article is "about" the beneficiary's work in the field. 
The petitioner also submitted press releases posted on Inmarsat's website. While the petitioner never worked 
for that company, a letter from the Director of Research and Development for the company asserts that between 
Page 6 
1995 and 1999 the beneficiary worked on Inmarsat M4 and Inmarsat MPDS, which "are now the comer-stones 
of Inmarsat Global Aera [sic] Network Service." The November 18, 2002 press release reports the launch of 
Inmarsat Regional BGAN, based on GPRS technology. The October 10, 2003 press release announces that 
Inmarsat Regonal BGAN received a "'Highly Commended' award in the Best New Service category at the 
recent World Communications Awards 2003." We cannot conclude that a system launched three years after the 
beneficiary stopped working on projects with the system's developer is so intimately associated with the 
beneficiary that published material about that system can be considered to be "about" the beneficiary's work. 
Moreover, as stated above, the developer's own press releases are not as persuasive as independent journalistic 
coverage. 
Finally, the petitioner submitted news articles posted on the website of the beneficiary's alma mater, the 
University of South Australia. The first article, "Satellites with Space Saving Devices," includes a photograph 
of the modem teach for the project being discussed. The beneficiary is not featured in that photograph. The 
article also credits the discovery of the turbo codes used at the university to "a team of French scientists." Thus, 
it is not a credible assertion that this article is in any way "about" the beneficiary's work. The final article, dated 
in 1998, discusses a collaboration between the university and DSpace on projects for Inmarsat. We 
acknowledge that the beneficiary was part of this collaboration. The article, however, does not mention the 
beneficiary by name. Further, the record lacks evidence that the beneficiary is so internationally recognized for 
pioneering this project that any article about it must be considered an article about his work. Finally, as stated 
above, independent journalistic coverage is far more persuasive evidence of international recognition than a 
press release by the university sponsoring the research. 
In light of the above, the petitioner has not demonstrated that the beneficiary meets this criterion. 
Evidence of the alien Is orignal scientijic or scholarly research contributions to the academic field. 
The director concluded that the record lacked evidence that those who have not collaborated with the 
beneficiary share his colleagues' favorable opinion of his work, that the beneficiary's articles were considered 
significant and that the beneficiary was the orignator of the innovations with pending patents. 
On appeal, counsel notes the prior submission of several letters fi-om individuals who have not worked with the 
beneficiary. Counsel further asserts that the beneficiary's articles and patents serve to meet ths criterion, noting 
that the regulations do not require that the beneficiary be the sole innovator behind an orignal contribution. 
Obviously, the petitioner cannot satisfy this criterion simply by listing the beneficiary's past projects, and 
demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior research. 
Research work that is unorigmal would be unlikely to secure the beneficiary a master's degree, let alone 
classification as an outstanding researcher. Because the goal of the regulatory criteria is to demonstrate that the 
beneficiary has won international recognition as an outstanding researcher, it stands to reason that the 
beneficiary's research contributions have won comparable recognition. To argue that all orignal research is, by 
definition, "outstanding" is to weaken that adjective beyond any useful meaning, and to presume that most 
research is "unorignal ." 
Regarding patents, we recognize that most innovations are the product of a collaboration and we concur with 
counsel that the regulations do not require that the beneficiary be identified as the sole inventor. That said, the 
rage I 
evidence that the beneficiary is listed as an inventor on four patent applications, two of which were approved 
after the date of filing, establishes only that he is an inventor. The very existenck of the patents does not, 
however, show that the beneficiary's inventions are more significant than those of others in his field. To 
establish the significance of the beneficiary's work, we turn to experts in his field, whose letters we discuss 
below. As stated by counsel on appeal, some of the letters are from independent members of the field. 
The beneficiary obtained his Ph.D. at the University of South Australia in 1999. The beneficiary worked for 
during his studies. In 2000, the beneficiary joinedas their Chief 
Technical Officer, according to his curriculum vitae. In 2003, the beneficiary joinerthe petitioner. As of the 
date of filing, the beneficiary had one patent application pending in the United Kingdom and three patents 
pending in the United states. The British patent application concerns a satellite communication system with 
variable data transmission rate while the U.S. patent applications relate to turbo codes and a method and . - 
apparatus for improved performance sliding window decoding. The two U.S. patent applications subsequently 
approved are assigned t- 
The petitioner submts letters from the beneficiary's supervisors for his Ph.D. thesis, Dr. and 
DI-. . DI-. states: 
During his Ph.D. studies, [the beneficiary] developed some significant structures for serially 
concatenated '&ellis coded modulation (SCTCM), r, leading to significantly [sic] improvements in 
bandwidth and power efficiencies for wireless communication, such as mobile satellite systems 
and cellular mobile systems. One of his most outstanding contributions was the development of 
structures with significantly lower complexity implementation, malung these Turbo coding 
schemes feasible for complexity, power and bandwidth constrained applications in wireless 
communication. 
Also during his Ph.D. studies and the years following his candidature, he focused on the 
important area of practical implantation and integration of cutting-edge research advances. 
This lead [sic] of the construction of pioneering proof-of-concept prototypes and commercial 
extensions intended for mobile satellite applications. [The beneficiary] is behind several 
"World's First7' implementations in the area of modem design for data communication over 
satellites. His work in this area was new and novel in the sense that prohibiting problems were 
solved for the practical application of powerful iterative processing. 
Dr. notes that the beneficiary proceeded to apply for patents for his innovations and concludes that 
the beneficiary's ability to demonstrate the practical implementation of his theoretical techniques have 
"propelled the capabilities of commercial communications systems towards fundamental theoretical limits, and 
ultimately closer to optimal use of scarce resources." 
While Dr. ndicates that some of the beneficiary's work used DI-. codes, he also asserts 
that the beneficiary's work on serially concatenated codes was "ground brealung" and was later used "to 
develop new codes for Intelsat, which provide communications near the limit of their theoretical capacity with 
error rates of less than one in ten billion." Finally, Dr. asserts that Inmarsat has adopted the 
beneficiary's high-speed turbo decoder as its standard, allowing voice, internet and slow video to be sent from 
anywhere in the world. 
Dr. ssertlons regarding lnmarsat are supported by a letter fi-om the D~rector of research and 
development at ~nrnarsat,mractman. Mr. asserts that the projects on which the beneficiary 
worked for Inmarsat "are now the comer-stones of Inmarsat Global Aera [sic] Network Semce." Mr. - 
continues that the beneficiary's innovations "saved up to 50% of the amount of required spectrum for our 
semes." 
Dr. Chief Techn~cal Officer om, indicates that he supervised the beneficiary's work there. 
He indicates that after the beneficiary left DSpace, he continued to collaborate with the beneficiary, most 
recently in 2002, and that l~censed the beneficiary's turbo code designs. Dr. oncludes that the 
beneficiary's turbo coding work "has allowed new codes to be discovered, capable of halving or more the 
complexity of integrated circuits irnplementatlons." 
Principal Engineer for- Technologies, asserts that he be an his corn onent suppl~er 
relationship with the beneficiary while the beneficiary was worlung at Mr. = 
affirms that he has "relied on [the beneficiary] to provide innovative si Elm!@!- ng so u ions to our data 
detection problems." Mrotes that the beneficiary has produced research papers for InPhase. Mr. 
notes that few individuals have examined the new area of holographic data storage "with a signal 
processing perspective." The beneficiary "has formulated a custom signal processing scheme theory and 
successively implemented that theory into electronics hardware for our application." 
In response to the director's request for additional evidence, the petitioner submitted two letters discussing the 
beneficiary's contribution to the standardization meetings of the IEEE, held one month prior to the date of filing. ., - 
D. Technical Dircctor for -.-- at -A. asserts that rhc 
beneficiary's work has "spurred the development of a new class of codes, combining the advantages of two 
powerful concepts: 1) Turbo codes, and 2) Low-density parity check codes." Dr.- contends that these 
"flex" codes have been implemented in several industry products. Regarding the standardization meeting, Dr. 
 assert^ that the beneficiary's designs "directly influenced the standardization process." 
for the following reasons: 
0 Existence of actual decoders, running at high speed: [the petitioner] has clearly 
advanced considerably farther than anyone else, and already has field-programmable 
gate arrays that implement the codes and decoders proposed. 
0 Excellent theoretical design: the performance of the codes is excellent, but even further 
the accompanying theory shows why this is so. This is an important factor in gaining 
acceptance for any aspect of a communication system in a standards context. 
e Flexible design that fits the structure of many different decoding approaches: this 
allows for a maximum flexibility and cost-reduction, and building on the best of 
previous approaches. 
Page 9 
Not all of the above letters are from the beneficiary's colleagues, as claimed by the director. The letters are 
extremely specific and explain how the beneficiary's work is being applied and where. The claims that the 
beneficiary's work is being adopted are supported by letters from companies that are licensing and applylng the 
beneficiary's work. As such, we are satisfied that the beneficiary meets this criterion. An alien, however, must 
meet at least two criteria in order to be eligble for the classification sought. For the reasons discussed above 
and below, the beneficiary falls far short of meeting any other criterion. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international 
circulation) in the academic field. 
The petitioner submitted evidence that the beneficiary has authored five published articles and presented his 
work at seven conferences. The beneficiary's presentations were published in the proceedings of those 
conferences. The director concluded that publication is commonplace for Ph.D. students and researchers and 
that the petitioner had not demonstrated that the beneficiary's work was significant. On appeal, counsel asserts 
that the beneficiary's coauthors are experts in the field and notes that some of the articles list the beneficiary as 
the sole author. Finally, counsel asserts that the regulations do not preclude articles authored while a student 
and notes that the beneficiary "has numerous scientific publications in renowned international scientific 
journals." Counsel concludes that "the fact that others in the scientific community utilized these publications in 
their own research is evidence of the impact these publications have had on the field." 
As stated above, outstanding professors and researchers should stand apart in the academic community 
through eminence and distinction based on international recognition. The regulation at issue provides criteria 
to be used in evaluating whether a professor or researcher is deemed outstanding. 56 Fed. Reg. 30703, 30705 
(1991). The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its 
Report and 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 andlor research career," and that "the appointee has the fi-eedom, 
and is expected, to publish the results of his or her research or scholarship during the period of the 
appointment." Thus, this national organization considers publication of one's work to be "expected," even 
among researchers who have not yet begun "a full-time academic andlor research career." This report reinforces 
our position that publication of scholarly articles is not automatically evidence of international recognition; we 
must consider the research community's reaction to those articles. 
The petitioner initially submitted evidence that the beneficiary's thesis has been cited three times, including a 
citation by Dr. In addition, Dr. ited one of the articles he coauthored with the beneficiary. 
The petitioner submitted a letter from Dr I who indicates he became familiar with the beneficiary while 
researching an article. Dr.ontinues that he cited the beneficiary's thesis "and his work was essential to 
the development of ow results." vncluded his cumculum vitae, which reveals that he is a frequent 
collaborator with Dr. the beneficiary's thesis advisor, having coauthored at least four articles with 
Dr.prior to citing the beneficiary's thesis. Regardless, three citations of the beneficiary's thesis and 
a single self-citation by a coauthor of one of the beneficiary's published articles is not persuasive evidence that 
the beneficiary is internationally recognized in the field. 
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the respect of 
his collaborators, employers, and mentors, while securing some degree of international exposure for his work. 
Page 10 
The record, however, stops short of elevating the beneficiary to an international reputation as an outstanding 
researcher or professor. Therefore, the petitioner has not established that the beneficiary is qualified for the 
benefit sought. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
8 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.