dismissed EB-2 Case: Counselor Education

MATTER OF L-U-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 16,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a public university, seeks to classifY the Beneficiary as an individual of exceptional 
ability in the sciences, arts, or business, or as a member of the professions holding an advanced degree, 
under the second-preference, immigrant category. See Immigration and Nationality Act (the Act) 
section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). This second preference classification makes 
immigrant visas available to foreign nationals with a degree of expertise significantly above that 
normally encountered in the sciences, arts, or business or an academic degree above that of 
baccalaureate. The Petitioner also seeks designation under 20 C.F.R. § 656.5, Schedule A, Group II. 
Schedule A, Group I as well as Group II, is comprised of certain occupations for which the 
Department of Labor (DOL) has determined there are not sufficient United States workers who are 
able, willing, qualified, and available, and that the employment of these foreign nationals will not 
adversely affect the wages and working conditions of similarly employed United States workers. !d. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary met at least two of the seven listed criteria for Schedule A, 
Group II. Additionally, he found that the Beneficiary's work during the year before the filing of the 
petition did not require an individual with exceptional ability, nor did the position sought. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary meets five of 
the seven listed criteria and that her work in her field did and will require exceptional ability. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Second preference immigrant visas are available for qualified individuals who are advanced-degree 
professionals or who, because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational interests, or welfare· 
of the United States. Section 203(b)(2) of the Act. Exceptional ability in the sciences, arts, or 
business means a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business. 8 C.F.R. § 204.5(k)(2). 
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Every petition under this classification must include one of the following three documents: (I) an 
individual labor certification from the Department of Labor, (2) an application for Schedule A 
designation, or (3) documentation to establish that the beneficiary qualifies for one of the shortage 
occupations in the Department of Labor's Labor Market Information Pilot Program. 8 C.F.R. 
§ 204.5(k)(4)(i). 
Schedule A, Group II designation requires that a petitioner submit evidence of the beneficiary's 
exceptional ability in the sciences or arts as demonstrated by widespread acclaim and international 
recognition from recognized experts in the field. 20 C.F.R. § 656.15(d)(l ). In addition, the 
petitioner must provide evidence meeting at least two of seven criteria (for example awards, 
memberships, published material, and contributions). 20 C.F.R. § 656.15( d)(l )((i)-(vii). Beyond 
demonstrating widespread acclaim and international recognition, the documentation presented must 
show that the position the beneficiary has worked in the year prior to filing and the one sought both 
require an individual of exceptional ability. !d. As with any filing for an employment-based 
immigrant that requires an offer of employment, this petition must be accompanied by evidence that 
the prospective United States employer has the ability to pay the proffered wage. 8 C.F.R. 
§ 204.5(g)(2). 
II. ANALYSIS 
The Petitioner indicated on Forms 1-140 and ETA 9089 that it seeks to employ the Beneficiary as an 
assistant professor at an annual wage of $67,000. Part H of the ETA 9089 reflects that the position 
requires a Ph.D. in counselor education or a related field, with no experience requirements and no 
alternate combination of education and experience listed as acceptable. The record also reflects that 
the Beneficiary has held this position with the Petitioner since August 2014. 
The Director did not contest that the Beneficiary, who possesses a qualifying Ph.D. degree, is a 
member of the professions holding an advanced degree, but denied the petition on two other 
grounds. First, he determined that the Petitioner did not establish that the Beneficiary met any of the 
seven listed criteria under the Schedule A, Group II regulations. Second, he found that the 
Beneficiary's work during the year prior to tiling the petition did not require exceptional ability, nor 
will her intended work in the United States. For the reasons discussed below, while we withdraw the 
Director's decision on the first ground, we agree that the Beneficiary's previous employment did not, 
and intended work will not, require exceptional ability. In addition, the record does not establish 
that the Beneficiary enjoys the widespread acclaim and international recognition required for 
Schedule A, Group II designation. 
A. Evidentiary Criteria 
To establish the Beneficiary's eligibility, the Petitioner must demonstrate, among other things, that 
the Beneficiary qualities as an individual of exceptional ability in the sciences in accordance with 
the regulatory provisions found at 20 C.F.R. § 656.15(d)(l). We have reviewed all of the evidence 
in the record of proceedings, and find that the Beneficiary has met two of the seven evidentiary 
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criteria found at 20 C.F.R . § 656.15(d)(l)(i)-(vii). Specifically, the Benefi ciary has served as a _judge 
of the work of others in her field in her role as a peer reviewer tor 
and and has authored scholarly articles in her field in international 
professio nal journals, and 
However, the record does .not establish that the 
Beneti.ciary has met the remaining criteria clai med. 
Documenlmion of !he alien ·s membership in international associations , in the field 
for which cert~fication is sough t. which require outstanding achi evement of their 
members, as judged hy recogni zed inlernat ional experts in their disciplines or fie lds. 
20 C.F. R. ~ 656.15(d)( l )(ii) 
The record establi shes that the Beneficiary is a member of three honor societies, but does not 
estab lish that these socie ties require outstanding achievement of the1r member s, or that membership 
is judged by recognized international experts in their fields. All three requir e 
a minimum number of 
academic semesters complete d and a minimum grade point average or class standing, but does not 
demon strate that these requireme nts, by themselves, can be cons idered ro be outstanding 
achievements . In addition , the record does not- establish that recogni zed international experts are 
involved in the review of candid ate's achievements. The bylaws of submitted on 
appeal, indicate only that membe rship nominations approved by each chapter are forwarded to the 
society's headq uarters. 
On appeal. the Petitioner also asse rts the Beneficiary 's memb ership on its 
However , the reco rd docs not establi sh that this can be considered as an international 
assoc iation, as its member ship is compri sed of representatives from each of the Petitioner 's colleges 
and one non-scientist "from the community , '~ and the scope of its review is limited to research 
projects cond ucted at In addition, Section 2.2 of the document titled 
indicate s that a variety of 
criter ia are used when determ ining the_ makeup of the Board, and does not establis h that outstanding 
achievemen t is a requirem ent. · 
The Petitioner also asserts on appeal, that the Beneficiary's service on conference comm ittees and as 
a pane l member for various meeting s and workshops should be consid ered under this criterion. Even 
if we were to accept that particip ation in temporary committees and panels can be considered to 
qualify as membership in asso ciations , which we do not, it has not been establi shed that outstanding 
achievements are required to participate in these roles . The record also does not estab lish how the 
Beneficiary was select ed to appear as a speaker or panelist , or shed light on who approved her 
selection or invitation. Regardin g the Beneticiary's service as a memb er of the 
201 2 and 20l3 conferences, the Petitioner submitt ed emails which . invite the 
Benefic iary to participate and indicate that "we count on our members to review the submitted 
abstract paper s," but these do not describe any selection process for those invited, and thus do not 
establish that outstan ding achievement was a prerequisite for participation on the committee . 
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Published ma!erial in prq(essional publications about the alien. about the alien ·s 
work in the field for which cert!fication is sought. which shall include !he title. date, 
and author of such published material. 20 C.F.R . § 656.15( d)(l )(iii) 
The Petitioner submitted an article about the Beneficiary and her work which was publi shed in 
a newspaper serving the island nation of In his decision, the Director held that the 
Beneficiary did not meet this criteria because the article does not provide the author 's name. On 
appeal, the Petitioner asserts that despite the plain language of the regulations, the evidence need not 
include the name of the author so long as the credibility and probability ofthe material can otherwise 
be established , and that the name of the author need not be a person. While the Petitioner has 
submitted an article describing policy and rationale for using anon ymous bylines in 
its publication, it has not submitted evidence of any such policy at The record does not 
support an interpretation of the regulation that would be contrary to its plain meaning. . 
The Petitioner also asserts that the Director erred by adding a requirement not in the regulations 
when he held that had not been shown to be a "professional publication in the field of 
educational counseling. " The Petitioner is conect that the regulation does not include the language 
used by the Director in his decision, but it has not submitted evidence to establish eligibility. The 
Petitioner note s that an interpretation of "professional publications " that wou ld limit this criterion to 
publications written for or about the field for which certification is sought would eliminate 
consideration of material publi shed in many media and newspaper outlets. However , the focus of 
the requirement s in several other criteria within the regulations, as well as the "widespread acclaim 
and international recognition " prong discussed below, is on the beneficiary' s status within his or her 
field, not within the general public. 1 Therefo re, limiting the consideration of evidence submitted 
under this criterion to those publications which are in or about the field for which certification is 
sought is consistent with the plain language of the criterion. 
Evidence r~( the alien's original scient(fic or scholarly research conlributions of 
major sign(ficance in the field .for J..llhich certification is sough t. 20 C.F.R. § 
656.15(d)( l )(v) 
The Petitioner submitted several support letters written by her colleague s and mentor s as evidence of 
her original contributions of major significance in the field of counseling education. On appeal, the 
Petitioner asserts that the Director misconstrued this evidence in his decision. USCIS may, in its 
discretion, use as advisory opinion stateihents submitted as expert testimony. See Mat/er of Caron 
ln!ernationa/ , \9 l&N Dec. 791, 795 (Comm'r 1988). However , USCIS is ultimately responsible for 
making the tina! determination regarding an alien's eligibility for the benefit sought. /d. The 
submission of letters of support from the petitioner 's personal contact s is not presumptive evidence 
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See, for comparison, the regulation at 8 C.F.R. § 204.5(h)(3)(iii), one of ten criteria which may be met by a foreign 
national seeking classification as an Alien of Extraordinary Ability, which requires the submission of evidence of 
"[P]ublished material about I he alien in professional or major trade publications or other major media .. .'' (emphasis 
added). 
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or eligibility ; USCIS may evaluate the content of those letters as to whether they support the alien's 
el igibility . See id at 795-796; see also Mcllfer of V-K-. 24 l&N Dec. at 500 n.2 (BIA 2008). Thus, 
the content of the writers' statements and how they became aware of the petitioner's reputatio n are 
important considerations. Even when written by independent experts , letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence. 
In general, the letters fr~m and note that the Beneficiary has 
published articles in international scientific journals, served as a peer reviewer for journals and 
conferences, and spoke at workshops and in panel discussions. All of these scholarly activities are 
substantiated by additional evidence in the record, but the record does not establish that they can be 
considered to be contributions of major significance. In her letter , states that 
profess ionals in the field of couns elor education "around the world have gained illumination and 
cultural competencies on how to counsel West Indian individuals," but as indic ated in the Director 's 
deci sio n, the record shows that the Beneficiary's publications on this topic have garnered limited 
attention in the form of citations by other scholars. Similarl y, and point to 
the Beneticiary's contr ibution s to a textbook and an encyclopedia in the tield, but the record does 
not demonstrate that the use of these materials, and specifically those sectio ns authored or co­
authored by the Beneficiary, has become so widespread in the field to the point where they can be 
considered to have made a contribution of major significance. 
B. Widespread Acclaim and International Recognition, 
The submission of evidence under 20 C.F.R. ~ 656.15(d)(l)(i)-(vii) does not , by itself, establish 
eligibility for the bene fit. While the Bene ficiary has satisfied the necess ary two criteria , the record 
does not reflect that she enjoys widespread acclaim and international recogniti on accorded by 
recognized experts in her field 20 C.F.R. §656 .15(d)(l). Specificall y, the evidence shows that the 
Benef iciary has served as a peer reviewe r for scholarly journals on at least two occasions , and served 
as a reviewer of paper s s ubmitt ed for presentation at scholarly conferences in her tield. HO\vever, 
peer reviewed journals rely on numerous volunteers to judge the manuscripts that have been 
submitted tor possible pub lication, and the Petit ioner has not demonstrated how this work by the 
Beneficiary, and her service as a reviewer for scholarly conference s1 ind icates she possesses 
wide spread acclaim and international recognition. 
\11oreover, the Petitioner has established that the Beneficiary has published severa l articles in 
internati ona l professional journals in her field , but does not demonstrate 1hat thi s work has been 
rece ived by other scho lars in her field to an extent rising to widespread acclaim. In addition, the 
I>ctitioner has nat shown that the Benefici ary ' s contributions to a four- vo lume encyclopedia and a 
textbook have gained widesp read use as reference materials in her field or otherwise brought her 
internation al recognition. 
The remainin g evidence also does not demonstrate the Beneficiar y's eligibility for the requested 
classification. The single article about the Beneficiary and her work described the Beneficiary's 
visit with a group of students and faculty, and her facili.tation of mental health 
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workshops during the v isit. The evidence does not establish that the content of thi s article, or its 
publi cation in a newspaper of unkno wn circulation , is indicative of widespread accla im and 
interna tional recognit ion. 
Fin a ll y~ the submit ted evidenc e, including re ference letters from other scholars in the Beneficiary's 
fi eld, does not corroborate the Petitione r's claims of her original and significant co ntributions in her 
field . As discussed above, those letters' statements about the Benefici ary's international recognition 
and her status as a worldwide authority in her field are not substantiated by documentary evidence in 
the reco rd . 
C. Qualifying Work Experience and Prospec tive. Pos ition for Schedule A, Group li 
The regulation at 20 C.F .R. § 656. 15(d)( l ) further requires that the Petitioner must submit 
"documentation showing [the Beneficiary 's work in his field] during the past year did , and [her] 
intende d wo rk in the United States will , req uire exceptional ability." In the year before the tiling of 
the petition , the Beneficiary was emp loyed in the same position for which the Petiti oner seeks to 
employ her, that of assistant professo r in Departm ent of Counseling & Special 
Pop ul ations. Part H, [tern 11 of the E TA 9089 submitted in support of the petition describes the 
duties of this position as teaching graduate courses in counseling, school counse ling and/or clinical 
ment al health counseling; maintaining an active research and publication agen da; and assis ting in the 
coordination of the counseling program . 
In respo nse to the Director' s reques t for evidenc e, the Petiti oner submitted a letter from 
Human Resource s Direc tor of Compens ation & Employment, which further elabo rated on 
the requirements and dutie s o f this posit ion. states that the Benefic iary's current 
salary of $7 1,228 exceeds the offe red sa lary, and that " [T]he pos ition req uires an individual with a 
high level of specialized expe rtise and except iona l ability in inental hea lth co unseling so that the 
Univ ersity can· continue to prepa re our students to pro vide much needed mental health counseling to 
spec ial population communities." Howeve r, as noted by the Dire cto r, the goa l of preparing stude nts 
is central to the mission of every educator hired by the Petitioner an.d other instit utions, and neither 
this s tatement nor the minimum requirements listed on the ETA 9089 are indicative of any 
requirements above those normally expected of a college or university assistant professor. in 
additi on, it is common, and often expec ted, for college and university faculty to continue to pursue 
researc h and publisb their findings while teac hi ng classes. 
On appeal , the Petitioner state s that the Directo~ failed to consider other factors s uch as its diverse 
studen t body , which makes the Beneficiary's ex pertise critical for the otfe red posit ion, and how 
menta l health conditions in the Petitioner 's local area require ·an educato r "with a record of succes s 
in educatin g the mental health professionals of the future. " However , the record does not 
subs tantiate that these factors are uniqu e to the Petitioner and would justify a requirement of ability 
beyo nd that normally required for educa tors in this field. 
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IlJ. CONCLUSION 
In considering the totality of the Petitioner's evidence, the documentation submitted establishes that 
the Beneficiary possesses an advanced degree, and meets two of the seven regulatory criteria at 20 
C.F.R. §656. I 5(d)(l ). However, the Petitioner has not demonstrated that the Beneficiary enjoys 
widespread acclaim and international recognition from recognized experts in her tield, or that the 
Beneficiary's employment in the last year required, and prospective employment will require, 
exceptional ability. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-U-, I D# I 006291 (AAO Mar. 16, 20 18) 
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