Page 1 of 15

AAO Non Precedent Decisions for Outstanding Professors or Researchers 2012

Compiled by Joseph P. Whalen (July 22-23, 2013)

Jan032012_01B3203.pdf1 Appeal Dismissed

The petitioner is an art museum. It seeks to classify the beneficiary as an outstanding researcher pursuant to section 203(b)(I)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1 )(B). The petitioner seeks to employ the beneficiary in the United States as an Associate Curator of Asian Art. The director determined that the petitioner had not established that the beneficiary's job duties constitute a research position in his academic field. The director also found that the petitioner had not established that it employed at least three other persons full-time in research positions as of the petition’s filing date.

Jan032012_02B3203.pdf Appeal Dismissed

The petitioner is a fluid flow simulation software development company. 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 a "Senior Aeroacoustics Engineer." 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 researcher.

On appeal, the petitioner submits a brief and additional evidence. For the reasons discussed below, the AAO upholds the director's ultimate conclusion that the petitioner has not established the beneficiary's eligibility for the classification sought.

Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory criteria as required, judging the work of others and scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(D) and (F). As explained in our final merits determination, however, much of the evidence that technically qualifies under these criteria reflects routine duties or accomplishments in the field that do not, as of the date of filing, set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)).

1 SEE: http://www.slideshare.net/BigJoe5/aao-curator-not-researcher-eb1b-denial-jan-3-2012

Page 2 of 15

Jan052012_01B3203.pdf Denial Affirmed w/Modifications

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on certification. While the director's adverse findings will be withdrawn in part, the decision of the director will be affirmed insofar as the record lacks a piece of required initial evidence.

Mar202012_01B3203.pdf Appeal Dismissed

The petitioner is a high speed optical networking firm. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B), as an outstanding researcher. The petitioner seeks to employ the beneficiary permanently in the United States as a research scientist. The director determined that the petitioner had not established that it employs the requisite three full-time researchers in addition to the beneficiary, as required by section 203(b )(1 )(B)(iii)(III) of the Act; 8 C.F.R. § 204.5(i)(3)(iii)(C).

Mar202012_02B3203.pdf Appeal Dismissed

The petitioner manufactures and sells superabrasives. 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 application development engineer. 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 researcher.

On appeal, the petitioner submits a brief and additional evidence. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition. Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory criteria as required, judging the work of others and scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(D) and (F). As explained in the final merits determination, however, much of the evidence that technically qualifies under these criteria reflects routine duties or accomplishments in the field that do not, as of the date of filing, set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)).

Page 3 of 15

Mar292012_01B3203.pdf Appeal Dismissed

The petitioner is a non-profit medical research organization. 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 a medical researcher in the field of traditional Chinese medicine. The director determined that the petitioner had not established that the beneficiary had attained the level of achievement required for classification as an outstanding researcher. In addition, the director determined that the petitioner did not establish that the beneficiary has at least three years of experience in teaching and/or research in the academic field, as required by the regulation at 8 C.F.R. § 204.5(i)(3). Further, the director concluded that the record lacks evidence that the petitioner has achieved documented accomplishments in the beneficiary's academic field. 8 C.F.R. § 204.5(i)(3)(iii)(C). On appeal, counsel submits a brief. The petitioner has not submitted any additional evidence on appeal. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition. Specifically, the petitioner has submitted qualifying evidence under only one of the required regulatory criteria, scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3) (i)(F). Therefore, the evidence submitted by the petitioner has failed to establish that the beneficiary satisfies the antecedent regulatory requirement of two types of evidence. 8 C.F.R. § 204.5(i)(3)(i).

Apr062012_01B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203 (b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of civil engineering. 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. On appeal, the petitioner submits a brief. The petitioner has not submitted any further evidence on appeal. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition as outstanding in the academic field. Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory

Page 4 of 15

criteria as required, judging the work of others and scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(D) and (F). As explained in the final merits determination, however, much of the evidence that technically qualifies under these criteria reflects routine duties or accomplishments in the field that do not, as of the date of filing, set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria. FNl Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). Additionally, the AAO notes that counsel asserts that U.S. Citizenship and Immigration Services (USCIS) is equitably estopped from denying that the beneficiary be classified as an outstanding professor pursuant to § 203(b) (1)(B) of the Act, because the beneficiary’s 1-140 petition, pursuant to INA § 203(b)(2)(B), was approved, granting the beneficiary a waiver of the alien employment certification process in the national interest. The AAO is without authority to apply the doctrine of equitable estoppel in this or any other case. See Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991) (stating that the AAO, like the Board of Immigration Appeals, is "without authority to apply the doctrine of equitable estoppel against the Service [CIS] so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation"). Equitable estoppel is an equitable form of relief that is available only through the courts. The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the U.S. Department of Homeland Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). Accordingly, the AAO has no authority to adjudicate the beneficiary’s equitable estoppel claim. FN2 ______________ FN1 The legal authority for this two-step analysis will be discussed at length below. FN2 The AAO notes, in any event, that the issue under section 203(b)(2)(B)of the Act, of whether a beneficiary has established that an exemption from the requirement of a job offer would be in the national interest of the United States, is different from the issue under section 8 C.F.R. § 203(b)(l)(B) of the Act, of whether a beneficiary has established that he is recognized internationally as an outstanding researcher/professor.

Page 5 of 15

Apr062012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203 (b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of civil engineering. 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.

Apr062012_03B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/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 in the United States as a postdoctoral research associate. The director determined that the beneficiary's current position, and the position identified on the 1-140, is a fixed term position with no possibility of permanent appointment. The director stated that the position offered at the time of filing does not qualify under 203(b)(1)(B).

* * * * * Based on the submitted evidence, the beneficiary's current position, and the position identified on the 1-140, is a fixed term position with no possibility of permanent appointment. The AAO affirms the director's decision finding that the position offered at the time of filing does not qualify under 203(b)(1)(B).

Apr192012_01B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a research associate in the field of human colorectal cancer. 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.

Page 6 of 15

Apr302012_01B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a professor of piano. The director determined that the petitioner had not established that the beneficiary had attained the outstanding level of achievement required fur classification as an outstanding professor or researcher. In addition, the director found that the record lacks the actual job offer issued by the petitioner to the beneficiary, pursuant to 8 C.F.R. § 204.5(i)(3)(iii). Finally, the director noted that the petitioner had not submitted any of the required initial evidence to establish its ability to pay the proffered wage. On appeal, the petitioner submits a brief and additional evidence. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition. Specifically, the petitioner has submitted qualifying evidence under only one of the required regulatory criteria, judging the work of others pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(D). Therefore, the evidence submitted by the petitioner has failed to establish that the beneficiary satisfies the antecedent regulatory requirement of two types of evidence. 8 C.F.R. § 204.5(i)(3)(i).

May012012_01B3203.pdf Appeal Dismissed

The petitioner is a company specializing in communications equipment and technology. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a research and development controls engineer. 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 researcher. On appeal, the petitioner submits a brief. The petitioner has not submitted any further evidence on appeal. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition as outstanding in the academic field. Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory criteria as required, judging the work of others and scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(D) and (F). As explained in the final merits determination, however, much of

Page 7 of 15

the evidence that technically qualifies under these criteria reflects routine duties or accomplishments in the field that do not, as of the date of filing, set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria.* Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). [*footnote omitted]

May012012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of finance. 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.

Another mundane applicant that does not stand apart.

May012012_03B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of computer information systems/marketing in the petitioner's college of business administration.FN1 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. _____________

FN1 The AAO notes this petition describes the beneficiary's job as an assistant professor of computer information systems. The petitioner has also submitted a confirmation of employment letter, describing the beneficiary's job as an assistant professor of marketing

May112012_01B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b )(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of

Page 8 of 15

statistical genetics and genomics. The director determined that the petitioner had not established that the beneficiary had attained the outstanding level of achievement required for classification as an outstanding professor or researcher. The petitioner has not submitted a brief on appeal. The petitioner has submitted the following additional evidence on appeal: an additional published article containing a citation to the beneficiary's work; and, a published abstract previously identified by the petitioner as containing a citation to the beneficiary's work. FN1 For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition as outstanding in the academic field. Specifically, the petitioner has submitted qualifying evidence under only one of the required regulatory criteria, scholarly articles pursuant to 8 C.F.R. §§ 204.5(i)(3)(i)(F). Therefore, the evidence submitted by the petitioner has failed to establish that the beneficiary satisfies the antecedent regulatory requirement of two types of evidence. 8 C.F.R. § 204.5(i)(3)(i). ____________________ FN1 On appeal the petitioner also submits an article published in 1993 containing a citation to an article published by the beneficiary in 1987, and three additional letters of reference. It is noted that on December 15, 2010, the director issued a Request for Evidence (RFE). The RFE instructed the petitioner to submit evidence of the applicant's eligibility pursuant to section 203(b)(1)(B) of the Act. In denying the application, the director concluded that the documents submitted in response to the RFE were not sufficient to establish that the applicant's eligibility. The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the application is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the application. 8 C.F.R. § 103.2 (b)(14). As in the present matter, where an applicant has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the applicant had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need not, and does not, consider the sufficiency of this evidence submitted with the appeal. Regardless, the AAO notes that the letters of reference do not identify an original research contribution made by the beneficiary to the academic field as a whole, or provide evidence of his recognition beyond his own circle of collaborators.

Page 9 of 15

May142012_01B3203.pdf Motion Granted, Denial Reaffirmed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) rejected a subsequent appeal as untimely. The AAO granted a subsequent motion to reopen/reconsider and affirmed the previous decision of the AAO. The matter is now before the AAO on a second motion to reopen/reconsider. The motion will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied. The petitioner is a community development organization. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a professor. The director determined the petitioner had not established that the beneficiary had attained the outstanding level of achievement required for classification as an outstanding researcher or professor and that the petitioner was a qualifying private employer. The AAO rejected the subsequent appeal as untimely filed. The AAO granted a subsequent motion to reopen and affirmed the previous decision of the AAO. The petitioner has filed a second motion to reopen/reconsider. On motion, counsel does not contest the AAO's finding that the appeal was untimely. Counsel alleges ineffective assistance of prior counsel in failing to timely file the appeal with the proper fee. It is noted that any appeal based upon a claim of ineffective assistance of counsel requires: (1) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988). The petitioner has not submitted any of the required documentation to support an appeal based on ineffective assistance of counsel. Therefore, the applicant is found not to have established a claim of ineffective assistance of counsel.

Be sure to read the footnotes!

Page 10 of 15

May142012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1 )(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of finance. 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.

May152012_01B3203.pdf Appeal Dismissed

The petitioner is a non-profit company involved in the research and development of renewable energy technologies. 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 a scientist in the field of biomass research. 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 researcher.

Be sure to read the “job offer” discussion.” I happen to find it flawed. May162012_01B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203 (b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of engineering. The director determined that the petitioner had not established that the beneficiary had attained the outstanding level of achievement required for classification as an outstanding professor or researcher.

* * * * * The petitioner has shown that the beneficiary is a talented professor of engineering, who has won the respect of his collaborators, employers, and mentors, while securing some degree of exposure for his work. The record, however, stops short of elevating the beneficiary to the level of an alien who is internationally recognized as an outstanding researcher or professor. Therefore, the petitioner has not established that the beneficiary is qualified for the benefit sought.

Be sure to read the footnotes and the full Final Merits

Determination.

Page 11 of 15

May162012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a professor of finance and economics. 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.

May252012_01B3203.pdf Summarily Dismissed

The beneficiary has a doctorate in Confucianism. He has filed this petition, seeking to classify himself as an outstanding professor or researcher pursuant to section 203 (b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The director denied the petition on December 15, 2010, on the basis that the regulations make no provision for an individual to self-petition for the requested classification. See 8 C.F.R. §§ 204.5(c), 204.5(i)(1). The beneficiary submits a timely appeal. The beneficiary has not submitted a brief or any further evidence on appeal. FN1 He provides the following as his reason for the appeal:

First, you should thoroughly understand, I am a travel in the community, Professor of Humanities in the field, rather than natural science and engineering laboratory professor. Thus, unlike the employment by the employer to play a role. but both employers, there will be no employer. [sic]

The beneficiary failed to cite to specific errors on the part of the director or describe the evidence the director allegedly failed to analyze. ____________ FN1 On appeal the beneficiary submitted several documents which have previously been submitted into the record.

May252012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an assistant professor of

Page 12 of 15

business management. 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.

Another mundane applicant that did not stand apart from the rest. May302012_01B3203.pdf Appeal Dismissed

The petitioner is a semiconductor manufacturer. 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 a process integration engineer. 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 researcher. On appeal, the petitioner submits a brief and additional evidence.

May302012_02B3203.pdf Appeal Rejected as Improperly

Filed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The director granted a subsequent motion to reopen/reconsider, withdrew its previous decision, and issued a new decision denying the employment-based immigrant visa petition. The matter is now before the AAO on appeal. The appeal will be rejected. The petitioner is a non-profit hospital. FN1 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 a research scientist in the field of hematology/oncology. On May 27, 2011, the director denied the petition, finding 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. On July 26, 2011, the director granted a subsequent motion to reopen/reconsider, withdrew her previous decision, and issued a new decision denying the employment-based immigrant visa petition finding 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. As will be explained below, the appeal will be rejected because it was not signed by the petitioner or the attorney of record as established by a properly filed Form G-28, Notice of Entry of Appearance as Attorney or Representative. Moreover, the underlying petition also was not properly filed.

Page 13 of 15

___________ FN1 The petitioner will be considered self-represented because, as will be made clear in the body of this decision, the record lacks a properly executed Form G-28 Notice of Entry of Appearance as Attorney or Representative. 8 C.F.R. § 103.2(a)(3).

May302012_03B3203.pdf Appeal Rejected as Untimely Filed

The petitioner is a self-employed legal consultant. He seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an "offices manager/advertising". The director determined that the petitioner had not submitted any of the required initial evidence to establish that the beneficiary had attained the outstanding level of achievement required for classification as an outstanding professor or researcher.

The appeal was received at 36 days after the date of the

denial (3 days too late). Jul022012_01B3203.pdf Misfiled EB-3 (Dismissed) Jul022012_02B3203.pdf Appeal Dismissed

The petitioner is an institution of higher education/university. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a Research Scientist in the field of cancer biology. 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.

No international recognition and only met one criterion.

IV. Conclusion The documentation submitted in support of a claim of outstanding ability must clearly establish that the alien has achieved international recognition. Had the petitioner submitted the requisite evidence under at least two evidentiary categories, in accordance with the Kazarian opinion the next step would be a final merits determination that considers all of the evidence in the context of whether or not the evidence submitted by the petitioner has demonstrated that the beneficiary is recognized internationally

Page 14 of 15

as an outstanding professor or researcher in the academic field specified in the petition. 8 C.F.R. § 204.5(i)(3)(i); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not submitted the requisite evidence under at least two evidentiary categories, the appeal will be dismissed on this basis alone. FN5 The AAO will not conduct a final merits determination. FN6 __________________ FN5 Additionally, the director determined that the petitioner had not established that the beneficiary has the necessary three years of experience, because the petitioner had not established that the beneficiary's research experience has been recognized within the academic field as outstanding. See 8 C.F.R. § 204.5(i)(3)(ii). As noted above, we will not conduct a final merits determination in this case. Regardless, the AAO agrees with the director that the petitioner has not established that the beneficiary's research experience has been recognized within the academic field as outstanding. As stated above, the beneficiary's original research does not appear to rise to the level of a contribution to the academic field as a whole. The fact that the beneficiary was among the first to make a new discovery carries little weight. Demonstrating that the beneficiary's work was "original" in that it did not merely duplicate prior research is not useful in setting the beneficiary apart in the academic community through eminence and distinction based on international recognition. 56 Fed. Reg. at 30705. Research work that is unoriginal would be unlikely to secure the beneficiary a Master's degree, let alone classification as an outstanding researcher. To argue that all original research is, by definition, "outstanding" is to weaken that adjective beyond any useful meaning and to presume that most research is "unoriginal." Of far greater importance in this proceeding is the impact the beneficiary's work has already had on the overall academic field. The record does not contain evidence that independent experts have consistently cited or relied upon the beneficiary's work, nor does the record contain other comparable evidence that demonstrates that the beneficiary's publication record is consistent with international recognition. FN6 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. In any future proceeding on motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits determination as the official who made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act: section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003) 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 191. & N. Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).

Footnotes throughout the majority of decisions in this category cannot be overlooked or you lose too much context and background.

Page 15 of 15

Jul022012_03B3203.pdf Appeal Dismissed

The petitioner is a company involved in the research and development of photonic devices and systems, 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 USC § 1153 (b)(1)(B), The petitioner seeks to employ the beneficiary permanently in the United States as a senior electro-optics engineer, 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 researcher. On appeal, the petitioner submits a brief and copies of documents that have previously been submitted into the record. For the reasons discussed below, the AAO concurs with the director that the record fails to establish that the beneficiary enjoys international recognition as outstanding in the academic field. Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying evidence under two of the regulatory criteria as required, judging the work of others and scholarly articles pursuant to 8 CF,R, §§ 204,5(i)(3)(i)(D) and (F), As explained in the final merits determination, however, much of the evidence that technically qualifies under these criteria reflects routine duties or accomplishments in the field that do not, as of the date of filing, set the beneficiary apart in the academic community through eminence and distinction based on international recognition, the purpose of the regulatory criteria. Employment-Based Immigrants, 56 Fed. Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29. 1991)). (footnote omitted) Beyond the decision of the director, the record lacks the actual job offer issued by the petitioner to the beneficiary, pursuant to 8 CFR. § 204.5(i)(3)(iii).

Dec122012_01B3203.pdf Denial Withdrawn; Petition

Approved on ~Certification

DISCUSSION: The Director, Texas Service Center, denied the employment based immigrant visa petition for abandonment, reopened the matter and denied it on its merits. The director's decision advised that the matter was being forwarded to the Administrative Appeals Office (AAO) and that the petitioner could submit a brief to the AAO within 30 days in accordance with 8 C.F.R. 103.2(b).FN1 The director's decision will be withdrawn and the petition will be approved.

This one is a MUST READ and don’t skip the footnotes!