INS Letter on Outstanding Professor/Researcher

INS Advises on Petitions Filed for Outstanding Professor or Researcher

15 JUN 1995

Nathan A. Waxman, Esq.
1375 Broadway
New York, NY 10018

Dear Mr. Waxman:

I am in receipt of your letter, dated June 5. In your letter, you express your concern with the adjudication of immigrant petitions filed under section 203(b)(1)(B) of the Immigration and Nationality Act (Act) for outstanding professor or researcher classification.

In your letter, you state that service centers, in adjudicating petitions filed under the outstanding professor/researcher classification, routinely request types of evidence which are not required in the Act or the regulations as "preconditions" for approval of the petition. Specifically, you maintain that service centers request documentation that the beneficiary has made "breakthrough" original research. In your opinion, this is unrealistic and immaterial to the adjudication of the petition. You also state that service centers accord greater weight to documentation submitted by experts who are clearly independent of the beneficiary. This you also feel is contrary to the Act and the regulations and unfair to some researchers. Lastly, you object to requests for reaction of the scientific community to the beneficiary's research on the ground that is an unfair burden for recent doctoral graduates whose publications are too recent to receive reviews.

Section 203(b)(1)(B)(i) of the Act requires that the alien be recognized internationally as outstanding in a specific academic area. 8 CFR 204.5(i)(3)(i) provides that a petition for an outstanding researcher or professor must be accompanied by evidence that the professor or researcher is recognized internationally as outstanding in a particular academic field. Such evidence shall consist of at least two of six types. The listed types of evidence serve as guidelines for the adjudicator and the petitioner. The ultimate determination, however, is whether, through the evidence submitted, the petitioner establishes that the beneficiary is a researcher or professor who is recognized internationally as outstanding. The beneficiary may well be stronger in one evidentiary area than in another. Nevertheless, the overall impression should be that the alien fits the classification. Mere presentation of evidence which relates to two of the listed criteria does not guarantee an approval. The evidence must be weighed and evaluated. If the director determines that the evidence submitted does not fully establish eligibility for this classification or raises underlying questions regarding eligibility, the director may request additional evidence. See 8 CFR 103.2(b)(8). This regulation applies to any petition filed with the Immigration and Naturalization Service (Service).

In your letter, you criticize three types of document requests made by service centers. I agree that there should be no additional "preconditions" to approving a petition filed under this classification; however, I see nothing wrong with a service center requesting clarification of evidence already submitted. If you disagree with a service center's request for additional evidence, I suggest that you request the center to adjudicate the petition based on the evidence submitted.

The last issue raised in your letter is the ability of start-up private research organizations to file petitions under this classification. Section 203(b)(1)(B)(iii)(III) of the Act allows private employers to file petitions on behalf of outstanding professors or researchers, if the department, division or institute employs at least 3 full-time researchers and has achieved documented accomplishments in an academic field. You urge the Service to allow a start-up company to meet the requirement that it has achieved documented accomplishments in the academic field through the accomplishment of its principal researchers. The statutory language clearly requires that the petitioner, rather than the researchers, have achieved documented accomplishments in the academic field. I do not feel, therefore, that the statutory language can allow a start-up company to meet this requirement merely through the accomplishment of its researchers.

Your letter also addresses the issue of the significance of how authors of collaborative research papers are listed on the publication. You raise an important point which requires further consideration by the Service. The Service recently issued a proposed rule on employment-based immigrant petitions which, in part, addresses evidence for petitions filed under this classification. See 60 FR 29772 (June 6, 1995). I would suggest that you submit a written comment on this issue to the address provided in the Federal Register.

I would caution you that the opinions expressed in this letter consist merely of thoughts. The issues which you raise can only be determined when a petitioner files a fully documented petition with a service center. I hope that this response will be useful to you.

Sincerely,

Edward H. Skerrett
Chief, Immigrant Branch
Adjudications

27MM5G35