In a decision issued on May 21, 2010, the Administrative Appeals Office (AAO), the U.S. government body reviewing USCIS decisions, upheld the USCIS Texas Service Center's denial without issuance of a Request for Evidence (RFE) of a state agency's EB-1(b) Outstanding Researcher/Professor petition for a senior environmental scientist. This denial was upheld for several reasons and the decision is pertinent to clients seeking EB-1(b) sponsorship and approval.

General Criteria for EB-1(b) Outstanding Researcher/Professor Petitions

Only an employer may petition for an EB-1(b) beneficiary;  a candidate cannot self-petition. Nevertheless, if an EB-1(b) sponsorship possibility exists, it is an attractive option since visa numbers are currently available for all nationalities and thus a green card may be obtained relatively quickly even for Indian and Chinese-born individuals who are otherwise subject to the several-year backlog in the EB-2 category.  Furthermore, an EB-1(b) may be easier to obtain approval for than an EB-1(a) extraordinary ability petition. 

An EB-1(b) candidate must demonstrate international recognition for outstanding achievements in their particular academic field. The candidate must also have at least three years full-time experience in teaching or research in the field. S/he must have a tenured or tenure-track teaching or comparable research job offer at a university or other institution of higher education or private employer. 

The EB-1(b) petition must include an offer of employment from the prospective U.S. employer and documentation that the beneficiary has met at least two of the following six criteria:

1. Evidence of receipt of major prizes or awards for outstanding achievement 
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement 
3. Evidence of published material in professional publications written by others about the candidate's work in the academic field
4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
5. Evidence of original scientific or scholarly research contributions in the field 
6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

AAO Decision Upholds USCIS's Denial

In this case, USCIS found that: a) the petitioner had not established that the beneficiary attained the outstanding level of achievement required for classification as an outstanding researcher; b) the petitioner did not establish that the beneficiary had the necessary three years of experience; c) the petitioner had not established that it employed three full-time researchers and had achieved documented accomplishments in the beneficiary's academic field; d) the petitioner had not submitted any of the required initial evidence to establish its ability to pay the proffered wage.  

Furthermore, USCIS denied the case without first issuing an RFE and thus allowing the petitioner to provide any missing documentation. The AAO not only affirmed the validity of this inaction by USCIS, but added that a state agency in any case is ineligible to qualify as an EB-1(b) petitioner since it is neither a university nor an institution of higher education or a private employer.

Facts of this Case

The petitioner was a state agency with a budget of over $1,400,000,000 and 1,174 employees.  The beneficiary was an environmental scientist with a Ph.D. received in 2000.  The petition was originally filed with the USCIS Texas Service Center in 2007.  The petition did not claim evidence of major prizes or awards for academic achievement, but did include a letter from the Technical Counsel for Scientific Investigation at the National Autonomous University of Mexico referencing the beneficiary's acceptance into the "Program of Bonuses," foreign language certificates without translations, and evidence of research grants supporting the beneficiary’s research.  Regarding the criterion of judging the work of others, the petition included evidence that the beneficiary had served on the Master’s thesis committee for a student at Florida International University, and had reviewed an article for Ecological Applications.  To show the beneficiary’s original scientific or scholarly contributions, the petitioner submitted copies of the beneficiary’s articles as well as four recommendation letters from the beneficiary’s co-authors and collaborators. 

AAO Finds Documentation Submitted with Initial Petition and Appeal Insufficient

Regarding qualifying experience, evidence that the beneficiary has at least three years of experience in teaching and/or research in the academic field is required.  The statutory language dictates that evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) with a specific description of the duties performed by the beneficiary.  In this case, although the AAO acknowledges that the beneficiary received his Ph.D. in 2000 and submitted articles authored between that time and the filing of the petition in 2007 as well as other evidence suggesting prior employment, this was not found to be sufficient since the petitioner did not submit the initial required evidence of letters from the beneficiary's employers verifying his three years of experience. 

An EB-1(b) petitioner must also establish its ability to pay the proffered wage, that it employs at least three full-time researchers, and that it has achieved documented accomplishments in the beneficiary’s academic field.  In this case USCIS and the AAO concluded that insufficient evidence was provided that the petitioner employed at least three fulltime researchers and that it had achieved documented accomplishments in the beneficiary's academic field.  The regulations require that the petitioner "demonstrate" its documented accomplishments, which was not done.  Furthermore, the AAO states that the employment of three full-time researchers cannot be inferred from the petitioner's employment of 1,174 individuals, since showing that total number does not itself meet the petitioner’s burden to “demonstrate” at least three full-time researchers on staff.  Regarding the issue of ability to pay, the AAO found that since the petitioner did not initially address this issue, USCIS justifiably concluded that the petitioner had not established its ability to pay the proffered wage.  The AAO acknowledged that on appeal, the petitioner’s attorney noted that the petitioner indicated that it employs over 100 individuals and listed a budget of over $1,400,000,000 on the submitted 1-140. However, the AAO found that the submitted materials did not contain, as required, a statement from a financial officer at the petitioning agency (which for employers with 100 or more employees may be accepted in lieu of tax returns, financial statements, or federal tax returns).    

AAO’s Merits Determination Citing 9th Circuit Decision Kazarian v. USCIS

In addition to deficiencies in the documentation as discussed above and the ineligibility of a state agency to serve as a legitimate petitioner for an EB-1(b) petition, the AAO found that on the merits, the petitioner failed to establish that the beneficiary was an outstanding researcher who had achieved the required international recognition. 

The U.S. 9th Circuit Court of Appeals issued a decision earlier this year in Kazarian v. USCIS that criticized the AAO’s invention of evidentiary standards not in the statutory language for EB-1(a) petitions. In adjudicating Mr. Kazarian’s case, the AAO had held that without evidence of citations of his work, Kazarian’s articles did not meet the regulatory definition of evidence, because “publication of scholarly articles is not automatically evidence of sustained acclaim” and “[AAO] must consider the research community’s reaction to these articles.”  The 9th Circuit held that “nothing in [the relevant provision] requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor [AAO] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”  Nevertheless, the 9th Circuit did state that citations (or a lack thereof) of a petitioner’s work might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field. 

In this case, the AAO acknowledged the modifications called for by Kazarian in the evidentiary standards it should use, and applied the Kazarian criteria for this EB-1(b) case as persuasive authority, notwithstanding that the classifications are different for EB-1(a) and EB-1(b) petitions.  The AAO found that although the Beneficiary met the evidentiary requirements of a minimum of two out of the six EB-1(b) criteria (published scholarship and judging the work of others), the lack of citations or other evidence of original contribution to the academic field as a whole and the modest nature of the beneficiary’s peer review work meant that in the final merits determination, the beneficiary did not show sufficient evidence of international recognition as an outstanding researcher.    

Implications for EB-1(b) Petitioners and Beneficiaries

This AAO case has important lessons for EB-1(b) Petitioners and Beneficiaries.

For Petitioners, do not ignore the obvious.  Having a multi-million dollar budget and 1000+ employees may not convince USCIS of ability to pay, proof of 3 full-time researchers on staff, or documented accomplishments in the field.  All this information, along with the job offer letter with no fixed term, and letter(s) proving the beneficiary’s three years of experience in the field, should be appropriately “demonstrated” to USCIS.  You should work with your attorney to ensure all this documentation is included with the final petition.

For Beneficiaries, work closely with your attorney to make your case as strong as possible to show international recognition as an outstanding researcher/professor.  For example, in this case the petition included only four letters of recommendation, all from the beneficiary’s immediate circle of coauthors or collaborators.  In the absence of citations or other indications of international impact, at the very least the petition could have included well-crafted independent letters of recommendation, ideally from non-US based recommenders.  Also, foreign language documents should not be submitted without certified translations.  In this case, the foreign language certificates submitted under the category of prizes or awards were not considered by the AAO since they were not translated.

Careful preparation and planning is important to give a weak case a chance to succeed, and to make a moderate case a strong one.