A Recent Successful Request for an Outstanding Professor or Researcher

by Joseph P. Whalen

Commentary on an AAO Non-Precedent Decision Decided on/Dated: Dec. 23, 2011, relating to an Appeal from a Decision the Director ,Texas Service Center, pertaining to the Denial of USCIS Form I-140, Immigrant Petition for Alien Worker, as an "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).

The Appeal was SUSTAINED and the Petition APPROVED.

The Appellate Decision was issued under the signatory authority of: Perry Rhew, Chief, Administrative Appeals Office (of USCIS)

Commentary and discussion is interspersed throughout the following text of the decision and will be discernible by being displayed in italics just like this.

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained and the petition will be approved.

The petitioner is a university. It seeks to classify the beneficiary as an outstanding 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 Clinical Biostatistics. 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. [Emphases added.]

On appeal, counsel argues that the beneficiary meets at least two of the six criteria identified at 8 C.F.R. 204.5(i)(3)(i) and that she is internationally recognized as outstanding in the academic field.

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 m this subparagraph if --

(i) the alien is recognized internationally as outstanding in a specific academic area,

The above is the actual point at issue. The experience component and the other items are presumed to be conceded because they have not been addressed.

(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.

The regulation at 8 C.F.R. § 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 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 current or former 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 September 30, 2010 to classify the beneficiary as an outstanding researcher in the area of biostatistics. 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. § 204.5(i)(3)(i) states that a petition for an outstanding professor or researcher must be accompanied by "[e]vidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition." 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;

(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.

Below is the first discussion of how AAO is now applying the two-part analysis adopted from and inspired by the Ninth Circuit's Kazarian case that I have seen since the AAO received and reviewed Amicus Briefs on topic. No real change here

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)(I)(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 U.S. Citizenship and Immigration Services (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^[1]. 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)). The court also explained the "final merits determination" as the corollary to this procedure:

If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.P.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.P.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. § 1153(b)(I)(A)(i).

Id. at 1119-20.

Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the context of a final merits determination^[2]. While involving a different classification than the one at issue in this matter, the similarity of the two classifications makes the court's reasoning persuasive to the classification sought in this matter. In reviewing Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis rather than the two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(1)(iv); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority).

This is clearly an I.R.A.C. styled decision and is appreciated for it. The following is the first post-briefing Kazarian analysis that I have seen. Within part "I. Law", AAO identified the issue and rule involved in this case. The issue is whether the evidence demonstrates that the beneficiary is a "professor or researcher [who] is recognized internationally as outstanding in the [specifically identified] academic field" of Clinical Biostatistics. While a brief explanation of the academic field would have been nice for contextual background, it is enough that it was taken into consideration by the adjudicator. One other item that I must point out is that it is slightly less than clear at the outset if the beneficiary is being assessed as a "professor" or as a "researcher" because reference is made to each term separately in different places within the decision. The primary assertion seems to be as a "researcher". The rule involved is 8 CFR § 204.5(i)(3)(i)(A)-(F). The following analysis compares the evidence submitted against the pertinent evidentiary criteria for which it was submitted in order to arrive at the conclusion.

II. Analysis

Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.

The petitioner submitted evidence showing that the beneficiary served as a peer reviewer of articles for multiple journals and conferences, and that she served on a Ph.D. dissertation defense committee. Accordingly, the AAO concurs with the director's finding that the petitioner has submitted qualifying evidence that meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(D).

The above is a bland and blunt statement of a finding of fact. This is a welcome practice that allows the reader to clearly identify it as such.

Evidence of the alien's original scientific or scholarly research contributions to the academic field.

The petitioner submitted letters of support from experts in the academic field discussing the significance of the beneficiary's original research contributions. The experts' statements do not merely reiterate the regulatory language of this criterion, they clearly describe how the beneficiary's research contributions have impacted the field. Moreover, in support of the experts' statements, the petitioner submitted documentation showing more than one hundred independent cites to her published findings. These citations are solid evidence that other researchers have been influenced by her work and are familiar with it. This evidence corroborates the experts' statements that the petitioner has made research contributions to the academic field. The record reflects that the beneficiary's contributions are important not only to the institutions where she has worked, but throughout the greater field as well. Leading researchers and biostatisticians from around the world have acknowledged the value of the beneficiary's work and its contribution to the academic field at large. Accordingly, the petitioner has submitted qualifying evidence that meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(E).

The above is a bland and blunt statement of a finding of fact. This is a welcome practice that allows the reader to clearly identify it as such. In addition, the evaluation of the evidence is basically limited to the essential information required for inclusion vs. exclusion purposes. Deeper qualitative evaluation and analysis is reserved for the final merits determination.

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 of articles authored by the beneficiary in scholarly journals with international circulation. Thus, the AAO concurs with the director's finding that 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 submitted evidence that meets at least two of the criteria that must be satisfied to establish the minimum eligibility requirements for this classification. Specifically the petitioner submitted evidence to meet the regulatory criteria set forth at 8 C.F.R. §§ 204.5(i)(3)(i)(D), (E), and (F)

The above is a bland and blunt statement of a finding of fact. The final straightforward statement is sufficient and goes no further than required. These are welcome practices that allow the reader to clearly identify the findings of fact and the conclusion for what they are.

B. Final Merits Determination

It is important to note at the outset that the controlling purpose of the regulation is to establish international recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of international recognition. More specifically, outstanding professors and researchers should stand apart in the academic community through eminence and distinction based on international recognition. The regulation at issue provides criteria to be used in evaluating whether a professor or researcher is deemed outstanding. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)).

This writer previously stated in an Amicus Brief to AAO that: it is easy enough to sum up the final conclusion but it usually demands a lengthy trek through reams of documentary evidence to reach that conclusion. Mere conclusory statements by an adjudicator are no more acceptable as proper analysis than statements by counsel, going on record and, being offered up as evidence. USCIS adjudicators must be able to spell out point-by-point what documentation has been submitted and state blandly and bluntly if it meets the underlying threshold for a particular category of evidence as stated in the actual regulatory criterion for which it has been offered.

The first paragraph in this part, "B. Final Merits Determination", makes it clear to the reader what the focus of the analysis is/was. The following summation in the next paragraph draws together the most important points made throughout the decision and presents them in a concise well-supported conclusion. Even though I would have preferred some contextual information on clinical biostatistics, the overall decision is well-written and exhibits sound judgment.

In this matter, the petitioner has submitted documentation sufficient to demonstrate that the beneficiary stands apart in the academic community through eminence and distinction based on international recognition. The beneficiary has served as a peer reviewer of articles for multiple journals and conferences, and has served on a Ph.D. dissertation defense committee. The petitioner also submitted reference letters from independent experts in the field, detailing the beneficiary's specific contributions and explaining how those contributions have influenced the field. Moreover, the beneficiary's publication record at the time of filing not only meets the criterion at 8 C.F.R. § 204.5(h)(3)(vi), her articles are consistently well cited, with more than one hundred independent cites to her body of work as of the petition's filing date. See Kazarian, 596 F.3d at 1121 (citations may be relevant to the final merits determination of whether an alien is at the very top of his field). This citation record is also consistent with a determination that her original research contributions to the field, discussed in the reference letters, are commensurate with international recognition.

In light of the above, the AAO's final merits determination reveals that the beneficiary's qualifying evidence does set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria. 56 Fed. Reg. at 30705.

III. Conclusion

Upon careful consideration of the evidence offered with the initial petition, and later on appeal^[3] , the AAO concludes that the petitioner has satisfactorily established that the beneficiary enjoys international recognition as an outstanding researcher. The petitioner has overcome the objections set forth in the director's notice of denial, and thereby removed every stated obstacle to the approval of the petition.

The record indicates that the beneficiary meets at least two of the six criteria listed at 8 C.F.R. 204.5(i)(3)(i). Based on the evidence submitted, it is concluded that the petitioner has established that the beneficiary qualifies under section 203(b)(1)(B) of the Act as an outstanding researcher.

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 met that burden. Accordingly, the appeal will be sustained and the petition will be approved.

ORDER: The appeal is sustained and the petition is approved.

¹ 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.P.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)(P)).
²The 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)(1)(B) of the Act, requires qualifying evidence under only two criteria
³This is telling that AAO is considering ALL evidence offered for its de novo reviews, as it should.

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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