INS Releases Memos on I-140 Evidentiary Standards for Outstanding Professors and Researchers
Memorandum
U.S. IMMIGRATION & NATURALIZATION SERVICE
LIN 204/3
| Subject | 203(b)(1) Aliens of Extraordinary Ability and Outstanding Professors and Researchers |
| Date | June 18, 1992 |
| To | Lawrence Weinig Acting Associate Commissioner for Examinations |
| From | Office of the Director Northern Service Center Lincoln, NE |
There has been some discussion in this office recently about the standards to be applied in adjudicating I-140 petitions for Aliens of Extraordinary Ability and Outstanding Professors and Researchers. It has become clear that there are two schools of thought. We would like a clarification of the intent of the regulations. A recent letter from an attorney regarding the evidentiary requirements for Outstanding Professors and Researchers prompted the discussion so I will concentrate on those regulations, although the same questions arise with aliens of extraordinary ability.
The regulations for outstanding professors and researchers state:
A petition for an outstanding professor or researcher must be accompanied by: (i) Evidence that the alien is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
A list of acceptable evidence then follows.
One school of thought is that the phrase, "Such evidence shall consist of" means that if the evidence submitted meets two of the criteria listed, the alien qualifies for the classification. The other opinion is that the regulation means that at least two kinds of evidence must be submitted, but the evidence must demonstrate that the alien stands out from the regular, garden-variety type of professor or researcher.
The first two criteria, receipt of prizes and awards and membership in associations, require outstanding achievement. A petition that included evidence that met those two criteria would be approvable. However, it has been our experience that most professors and researchers are able to meet the other criteria. Due to the "publish or perish" syndrome in academia, it is almost a job requirement at many universities that professors and researchers publish papers. Is a 15-minute presentation of a paper at an international symposium consisting of three days of 15-minute presentations evidence of outstanding ability? Is publication of a paper in a "vanity press" type of journal sufficient? If that is all that is required to obtain this classification, almost every professor or researcher would qualify. This would seem to dilute the apparent intent of Congress to limit this category to those who have done something out of the ordinary.
Beyond the question of what it takes to establish that an alien is outstanding, the letter from the attorney illustrates another problem we are running into, and that is determining what evidence actually meets these criteria. One in particular, "published material in professional publications written by others about the alien's work in the academic field," seems to cause great difficulty. We have added to our standard transfer out paragraph which gives these evidence requirements, a qualifier which states, "Mere reference to the alien's work or inclusion of the alien I s publications in bibliographies or footnotes is insufficient" (to meet this particular criterion).
The attorney who wrote is very troubled by this. He cites a publication called the Science Citation Index which he says "publishes lists of articles, book chapters, abstracts, etc. that are cited as authoritative in a particular field" and which he thinks meets this criterion. After receiving his letter we found a pending case which includes this publication as part of the supporting evidence. It is a list of people who have published papers. The page which includes the beneficiary (a small portion of the names beginning with the letter V) contains over 175 names, so obviously the entire publication would include several thousand people. Is this the sort of evidence meant by "published material in professional publications written by others about the alien's work in the academic field"? Is there some sort of significance attached to being included in this list? I would think by looking at it that it included everyone who had published a paper during a certain time period without regard to the merits of the papers. If there is significance attached, is it enough to indicate that the alien is outstanding?
The attorney also discusses references to the alien's work in a paper published by another researcher. He states,
These kinds of citations are not a simple reference to a colleague's work; they are a statement that the findings of the cited colleague are a major part of one's research, and thus an indication beyond all doubt that the cited scientist presented findings of such exceptional quality and value that they have been used as the basis of a new researcher's attempt to extend the body of knowledge in a given field.
The attorney apparently believes that publication of a paper automatically also fills the criterion of "evidence of original scientific or scholarly research contributions to the academics field."
Again, the case we reviewed included this type of evidence. In one of the papers, the beneficiary wrote one of 24 articles listed in the footnotes. In the body of the paper the author states, "This work then bears a relationship, at least in terms of topics addressed, to work done in (4) and (24), for the case of finite-difference methods for scalar equations... " The number (24) refers to the article written by the beneficiary. Other papers contain comments such as "Graded-mesh schemes have been developed by Liseikin (15) and Vulanovic [the beneficiary] (21)" and "The main contribution of this paper is to construct a uniform fourth order difference scheme for the boundary value problem using the techniques developed in Bakhvalov (1), Herceg and Vulanovic (14), Vulanovic et al (3) and Vulanovic (29)." Some of these, at least, do not seem to attach any particular importance to the beneficiary's work; they only acknowledge that it exists. Do these types of references meet the criterion of "published material written by others about the alien's work"? Are such references evidence, as claimed by the attorney, of the value and quality of the alien's work? Should we revise or remove the qualifier in our standard transfer out paragraph?
Evidence which was not mentioned by the attorney but which was included in the case we reviewed is called by the petitioner "Review of the beneficiary's papers as published in Mathematical Reviews, edited at the University of Michigan for American Mathematical Society." I would not call them reviews, but summaries. Some of them are the authors I own summaries of the papers' contents. Would these meet the criterion and would they demonstrate that the alien is outstanding?
Another type of evidence which we often receive is meant to fulfill the requirement of "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." This usually takes the form of a letter to the beneficiary from the publisher of a journal asking if he would review papers submitted for publication. The publisher often does not seem to be familiar with the beneficiary's work himself; someone else has recommended the beneficiary to him as an expert in the field. Is expertise equivalent to outstanding ability? Is everyone who reviews papers for publication in scientific journals outstanding? Most professors are asked to serve on masters thesis review panels. This would meet the criterion, but would it show outstanding ability?
In order to ensure that we are adjudicating these petitions consistently and in accordance with the intent of the statute and regulations, we believe these questions should be addressed by headquarters.
JAMES M. BAILEY
Director
203(b)(1) Aliens of Extraordinary Ability and Outstanding Professors and Researchers
30 Jul 1992
James M. Bailey
Director
Northern Service Center
Adjudications
(HQADN)
Your memorandum of June 18 asks for guidance on evaluating evidence presented in support in support of petitions for section 203(b)(1) aliens of extraordinary ability and outstanding professors and researchers. You note that the regulations for each classification contain evidentiary lists a set portion of which should be met in order to document qualification for the classification sought.
The evidentiary lists were designed to provide for easier compliance by the petitioner and easier adjudication by the examiner. The documentation presented must establish that the alien is either an alien of extraordinary ability or an outstanding professor or researcher. If this is established by the meeting three of the criteria for extraordinary aliens or two of the criteria for outstanding professors or researchers, this is sufficient to establish the caliber of the alien. There is no need for further documentation on the question of the caliber of the alien. However, please note that the examiner must evaluate the evidence presented. This is not simply a case of counting pieces of paper.
As well as your memorandum, we have also received a memorandum from the Director of the Western Service Center and a letter from attorney George Newman, Co-Chair of AILA's Committee on Employment Based Preferences on this subject and on the validity of specific pieces of evidence presented in these cases. These pieces of evidence pertain primarily to publish work by others about the alien's work, evidence of the alien's participation as a judge of the work of others, and evidence of either the alien's original research contributions or authorship of scholarly books and articles.
Generally, we maintain that a book by the alien published by a "vanity" press, a footnoted reference to the alien's work without evaluation, an unevaluated listing in a subject matter index, or a negative or neutral review of the alien's work would be of little or no value. On the other hand, peer-reviewed presentations at academic symposia of peer-reviewed articles in scholarly journals, testimony from other scholars on how the alien has contributed to the academics field, entries (particularly a goodly number) in a citation index which cite the alien's work as authoritative in the field, or participation by the alien as a reviewer for a peer-reviewed scholarly journal would more than likely be solid pieces of evidence. We are also inclined to believe that thesis direction (particularly of a Ph.D. thesis) would demonstrate an alien's outstanding ability as a judge of the work of others.
To repeat, we expect the examiner to evaluate evidence, not simply count it.
Lawrence J. Weinig
Acting Assistant Commissioner
cc: Official File
Adj Log
INS: HQADM: EHSkerrett: 7/29/92. jd: bailey
cc: HQSCO
AILA