U.S. Citizenship and Immigration Services

MATTER OF T-P-USA, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 7, 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a pharmaceutical company, seeks to classify the Beneficiary as an outstanding researcher in pharmacology. See Immigration and Nationality Act (the Act) § 203(b)(l)(B), 8 U.S.C. § 1153(b)(1)(B). This first preference classification makes immigrant visas available to foreign nationals who can demonstrate international recognition as outstanding in their academic field.

The Director of the Nebraska Service Center denied the petltwn, concluding that while the Beneficiary meets two of the regulatory criteria, the evidence in the aggregate was not indicative of the necessary level of international recognition.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional documentation and maintains that the Director erred by ignoring evidence and created new substantive legal standards.

Upon de novo review, we will dismiss the appeal.

I. LAW

The statute requires that beneficiaries under this immigrant visa classification should stand apart in their. academic area based on international recognition. To establish a professor or researcher's eligibility, a petitioner must provide initial qualifying documentation that meets at least two of six categories of specific objective evidence and demonstrates the beneficiary • is recognized internationally within the academic field as outstanding.

I

Specifically, section 203(b)(l)(B)(i) of the Act provides that a foreign national is an outstanding professor or researcher 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

(b)(6)

Matter ofT-P-USA, Inc.

(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)(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." A petitioner must provide initial qualifying documentation for the beneficiary that meets at least two of the six regulatory criteria listed at 8 C.F.R. § 204.5(i)(3)(i)(A)-(F)(including items such as awards, published material in certain media, and scholarly articles). The submission of evidence relatipg to at least two criteria does not, in and of itself, establish eligibility for this classification. 1

Finally, the regulation at 8 C.F.R. § 204.5(i)(3)(ii) provides that a petition for an outstanding professor or researcher must be accompanied evidence that the foreign national has at least three years of experience in teaching and/or research in the academic field. In addition, experience in teaching or research while working on an advanced degree will only be acceptable if the individual 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. !d.

II. ANALYSIS

The Petitioner is a manufacturer and distributor of generic pharmaceuticals. It seeks to employ the Beneficiary as a "scientist 1 - formulation development." The Petitioner obtained her Ph.D. from

in August 2013 and has been working for the Beneficiary since June 2013. While pursuing her Ph.D., she was a student worker at through The Beneficiary' s

1 See Matter ofChawathe, 25 l&N Dec. at-369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by its quality" and that U.S. Citizenship and Immigration Services (USCIS) examines "each piece of evidence for relevance, probative value, aqd credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true."); see also Kazarian v. USCIS, 596 F.3d I I 15 (91

h Cir. 2010) (discussing a two-part review where the evidence is first counted and then, if satisfying the required number of criteria, considered in the context of a final merits determination). The immigrant visa classification at issue in Kazarian, section 203(b)(l)(A) of the Act, requires qualifying evidence under three criteria whereas the classification at issue in this matter, section 203(b)(I)(B) of the Act, requires qualifying evidence under only two criteria.

2

(b)(6)

Matter ofT-P~USA, Inc.

research focus has been on transdermal delivery of medicine usmg ultrasound and commercial disposal kits for unused medications.

A. International Recognition

The Beneficiary has"served as a peer reviewer and authored published scholarly articles reporting original research. Accordingly, the record supports the Director's conclusion that the Beneficiary has judged the work of others, made original scientific or scholarly contributions and has authored scholarly books or articles in the academic field. 2 On appeal, the Petitioner contends that the Director erred in finding that the Beneficiary's awards were not major under 8 C.F.R. § 204.5(i)(3)(i)(A). As the Petitioner meets more than the requisite two criteria, whether the Beneficiary meets a fourth criterion is moot. We will, however, consider the totality of the record, including items that do not fall under the criteria met, , to determine if the Petitioner has demonstrated, by a preponderance of the evidence, that the Beneficiary is recognized internationally as outstanding in her academic field. 3

( · ·

The Petitioner did not submit copies of the Beneficiary's awards. Rather, it presented her email correspondence with the in which she maintains that she won a travelship award from them and inquires as to the selection requirements. The response discusses the evaluation process, but does not confirm the Beneficiary's receipt of this award. The record also contains an email from professor and department chair at advising the dean of that institution that the Beneficiary received a poster award at the The Beneficiary lists a third award on her curriculum vitae from the but the Petitioner did not document the Beneficiary's receipt of that award or the selection criteria. On appeal, the Petitioner maintains; tliat the recognition was awarded to only three of 898 abstracts in one section and continues that the a nationally acclaimed conference, deemed the Beneficiary's poster presentation as the best of 93 at the conference.

awards and fellows coordinator for states that the executive committee ranks papers for the travelship award. interim associate dean and professor of physical therapy at the clarifies that issues travelship awards to three graduate researchers. An award limited to graduate students necessarily excludes the most experienced members' of the field. Regarding the poster award, the record contains no information from the describing their awards. characterizes the

2 8 C.F.R. § 204.5(i)(3)(i)(D), (E), (F). 3 8 C.F.R. § 204.5(i)(3)(i). While the statute requires extensive documentation, eligibility is to be determined not by the quantity of the filings alone but by their quality. Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). We "examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence." /d.

3

(b)(6)

Matter ojT-P-USA, Inc.

best poster award, selected among 93 posters, as "prestigious." Finally, praises the Beneficiary's third place award for a podium presentation by awarded by a panel of experts.

At issue in this stage of the analysis is whether the awards are indicative of international recognition as outstanding. The Petitioner has not documented that the Beneficiary's awards are at a level that garners the recipient such recognition. For example, the record contains no evidence that the trade or general media reports the selection of these awards such that the recipients receive name recognition internationally.

With respect to the Beneficiary's services as a peer reviewer, the Petitioner contends on appeal that these individuals judge the performance of others and reflect international recognition because the Beneficiary was "regularly asked by journals that rank in the top quintile in the relevant scientific field to judge the work of others in the field."4 The Petitioner supported the petition with non-precedent decisions. While 8 C.F.R. § 103.3(c) provides that precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. In the first non-precedent example, the beneficiary had not only served as an anonymous peer reviewer, but was also a named journal editor. In another example, the beneficiary both served as a peer reviewer of a substantial number of articles and also reviewed technical papers.5 Similarly, in the third example addressing peer review, the individual had served on a committee in addition to reviewing manuscripts for several journals. These cases do not suggest that having been invited to serve as a volunteer peer reviewer for four journals is necessarily indicative of international recognition as outstanding. The Petitioner did not document that the journals identified the Beneficiary by name as one of a limited number of reviewers such that she gained name recognition for this service. Nor did the Petitioner offer other persuasive evidence that the Beneficiary's level of review demonstrates she is internationally recognized as outstanding.

As evi~ence that the Beneficiary's original contributions rise to a level indicative of international recognition as outstanding, the Petitioner relies on four reference letters, three of which are from collaborators. On appeal, the Petitioner maintains that the Director erred by discounting letters from collaborators, but also not giving sufficient weight to the independent letter. Letters from collaborators are useful in explaining the nature of the Beneficiary's role on various projects, while independent letters are probative of the awareness of her work beyond her immediate circle of colleagues. We will consider the content of these letters.

in whose laboratory the Beneficiary worked while pursuing her Ph.D., confirms that the Beneficiary succeeded in delivering a variety of different molecules across the skin, which has fewer gastric and pain side effects than other delivery systems. Specifically, she presented a "proof-of-

4 The Petitioner also contests the Director's conclusion that peer review is not indicative of international recognition after only requesting evidence that the Beneficiary completed the invited reviews. The Director, however, requested such evidence for the purpose of determining whether she met the judging criterion. The final merits analysis looks at the quality of evidence and, thus, the nature of the judging. Cf Kazarian, 596 F. 3d at 1122. 5 The decision also references an "appointment" but the nature of that achievement is redacted.

4

(b)(6)

Matter ofT-P-USA, Inc.

concept" delivery of the arthritis treatment, ketoprofen, across the skin using ultrasound. praises the reception of these findings and notes that they appeared in a prestigious journal, but does not describe how the field has built on this concept after dissemination. also discusses the Beneficiary's study on an analgesic transdermal patch for children, however, the letter acknowledges that work was pending publication.

I

who collaborated with the Beneficiary during her graduate work, also focuses on her work with ketoprofen. explains that this research "provides an extensive foundation for establishing accurate dosage therapy for patients" which will "serve as a valuable starting point for the designation and implementation of clinical trials to assess the efficacy of a particular dosage regiment of ketoprofen." does not, however, identify a company pursuing such a clinical trial.

continues that while clinics utilize ultrasound at a higher frequency, the Beneficiary hypothesized and proved that lower frequency results in higher permeation, which has "revolutionize[ d] ultrasound mediated therapy and now form[ s] the basis for the development of new equipment for therapeutic use." Again, does not name the institution pursuing the design of such equipment. Finally, notes that the Beneficiary helped develop a disposal kit for unused medications, which has "enabled MN) to develop and commercialize medication disposal kits."

a partner with previously led a team at on at-home drug deactivation technologies, rending them safe for disposal. He confirms

that the Beneficiary contributed significantly to their collaboration on a disposal system, which led to a commercially available product. That the Beneficiary performed services for her sponsor that contributed to the success of the assigned project is not necessarily indicative of international recognition. The record contains no evidence pertaining to the success of this invention on the market or awareness in the field of its significance, such as, for example, trade media coverage of its introduction.

vice president of and the sole independent reference, does not detail how he became aware of the Beneficiary's work. states that the Beneficiary's results with low frequency ultrasound were not previously known, confirming that her work is original. At issue in this part of our analysis is whether the impact of her contributions is indicative of international recognition. specifically addresses the Beneficiary's findings regarding the transdermal delivery of salmon calcitonin, for which she developed a stable formula to avoid degradation.

characterizes this work as "a key breakthrough," "extremely innovative[,] and praiseworthy." does not, however, suggest that or any other company is pursuing

transdermal delivery of salmon calcitonin based on her work.

The above letters confirm the novel nature of the Beneficiary's work. Demonstrating that the Beneficiary's work was "original" in that it did not duplicate prior research is insufficient. Ultimately, the letters discuss the future potential of the Beneficiary's findings and do not describe how she has already impacted the field at a level consistent with international recognition.

5

(b)(6)

Matter ojT-P-USA, Inc.

The last group of documents relate to the Beneficiary's publication history. She has authored a book chapter and several articles. In support ot: the significance of these writings, the Petitioner offered citations to this work. Only one of the Beneficiary's articles and her book chapter have garnered more than 10 citations. The record only contains the first page of the book chapter, so the Petitioner has not demonstrated whether it reports the Beneficiary's own work, or other results in the field. The Petitioner has not shown that the level of citation for the Beneficiary's top cited article is significant. While it submitted some of the citations, they do not suggest significant reliance on her work. For example, a review article by of notes that there is "substantial evidence in the literature that the application of ultrasound can facilitate transdermal drug delivery." The article cites five articles for that proposition, only one of which the Beneficiary authored. As another example, an article by

and others in reported different results than the Beneficiary, finding that ultrasound did not improve permeation of ketoprofen, although the authors acknowledge that they did not use low frequency ultrasound and used pig rather than rat skin, which is less permeable but more similar to our own.

Ultimately, the Beneficiary is a talented researcher who has performed challenging research with promising implications. She is deemed sufficiently knowledgeable to serve as a peer reviewer and researchers in the field have taken some notice of her work as is apparent from the citations. These factors in the aggregate, however, do not demonstrate that she is internationally recognized as outstanding in the field.

B. Offer of Employment

While not addressed by the Director, the record does not contain the required initial evidence relating to the proposed employment.6 The Petitioner currently employs the Beneficiary under the terms of a nonimmigrant visa, which does not require that the job be permanent. While no labor certification is required for the immigrant classification sought in this matter, the regulation does require an offer of employment in the form of a letter. 7 Given that the Petitioner in this matter is not a university or institution of higher learning, the letter must tender the Beneficiary "a permanent reseat6h position" in his academic field. 8 A letter addressed to USCIS listing the job responsibilities is not a letter proposing to employ the Beneficiary. As the Petitioner did not provide its past job offer letter or a new one, it has not complied with the initial evidence requirements or met its burden of proof in establishing that it has extended a permanent research position to the Beneficiary.

III. CONCLUSION

The Petitioner has not demonstrated that the Beneficiary is internationally recognized as outstanding or that it has offered her a permanent job. It is the Petitioner's burden to establish eligibility for the

6 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 7 8 C.F.R. § 204.5(i)(3)(iii). . 8 8 C.F.R. § 204.5(i)(3)(iii)(C).

6

Matter ofT-P-USA, Inc.

immigration benefit sought. /Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofT-P-USA, Inc., ID# 86514 (AAO Nov. 7, 2016)

7