Current Trends in EB-1-2 Outstanding Researcher Cases

One way to obtain an immigrant visa in the United States is to be an outstanding professor or researcher. This classification is known as the EB-1-2 category.[5] Between 2,000 and 3,000 people obtain green cards each year through the EB-1-2 category.[6]

Many practitioners believe that a successful EB-1-2 case is either (1) an unattainable dream for all but the very best scholars or researchers; or (2) simply a matter of providing any evidence that fulfills any two of the six criteria set forth in the relevant regulations of the U.S. Citizenship and Immigration Services (USCIS). The answer lies somewhere in between. Universities should consider the outstanding professor or researcher category as an important option for avoiding labor certification and proceeding to permanent residence for their research staff and faculty. However, each piece of evidence submitted must indicate “international recognition” in the particular sub-field, not just ordinary academic activity such as writing papers, being cited, advising graduate students, joining professional societies, and presenting at meetings.

We have obtained sixty opinions decided in the past four years (2000-2004) by the USCIS’ Administrative Appeals Office (AAO) involving appeals of denials of EB-1-2 petitions.[7] These decisions show certain consistent patterns that will assist in deciding whether to use the EB-1-2 category, and in crafting a strong petition. About one-half of the decisions involved universities (including university hospitals); the rest of the petitioners included private corporations, and one case involved a federal government agency.

For the purpose of this article we have focused on the AAO opinions that involved educational institutions. We have included decisions involving other types of petitioners when the issues and legal conclusions in the opinions appear relevant to academic cases. Out of all the opinions we reviewed, all but four of the appeals[8] were denied, except for a few remanded on procedural grounds. This indicates that the law is relatively well-settled.

After a review of the statute, we present the trends in EB-1-2 caselaw as they pertain to institutions of higher education.

The EB-1-2 Standard

Section 203(b)(1)(B) of the Immigration and Nationality Act (INA)[9] states that a person qualifies for immigrant visa classification as an outstanding professors or researcher if he or she:

(ii) has at least three years of experience in teaching or research in the academic area, and

(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 three persons full-time in research activities and has achieved documented accomplishments in an academic field.

USCIS regulations at 8 C.F.R. § 204.5(i)(3) state that a petition for an outstanding researcher or professor must be accompanied by:

(i) Evidence that the professor or researcher 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) Documentation of the individual’s receipt of major prizes or awards for outstanding achievement in the academic field;

(B) Documentation of the person’s membership in associations in the academic field that require outstanding achievements of their members;

(C) Published material in professional publications written by others about the person’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

(D) Evidence of the individual’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

(E) Evidence of the person’s original scientific or scholarly research contributions to the academic field; or

(F) Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

(ii) Evidence that the person has at least three years of experience in teaching and/or research in the academic field. 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 in the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from former or current employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the person.

Issues Regarding the Petitioning Educational Institution

EB-1-2 cases require that the university file a petition on behalf of the beneficiary; he or she cannot self-petition. Moreover, the petitioner must have offered the beneficiary a permanent, full-time position. In the past, the INS (now USCIS) regional service centers focused less on the “permanent” nature of the job than did the Department of Labor in the labor certification context. For example, the DOL typically questions whether positions funded by “soft money” such as grants are really permanent in nature. By contrast, historically, a USCIS regional service center would approve an EB-1-2 petition where the job was labeled as permanent in the offer letter but was still wholly grant-funded.

This appears to have changed somewhat over the past two years. Over half of the cases that we examined, and all of the cases involving university petitioners, questioned the existence of a qualifying job offer as defined by regulation. The regulation states that “[p]ermanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”[10]

All the cases that we reviewed that included offers of employment short of meeting the strict regulatory definition of permanent were denied.[11] Examples included cases in which the position was dependent upon the availability of research funding, as well as positions that resembled “at will” employment.[12] The petitioner’s intent to renew the position indefinitely (albeit without obligation) or the absence of a defined end-date were considered insufficient by the AAO.[13] Claims that the petitioner “does not offer positions of unlimited duration [to any employees] prior to tenure” [14] or that tenure-track positions are also renewable[15] were equally unsuccessful.

The USCIS service centers and the AAO were particularly critical of postdoctoral research positions, noting that “[p]ostdoctoral positions are generally viewed not as career positions, but as advanced training which serves as a stepping stone leading eventually to permanent placement at a university or other research institution.”[16] In several of the decisions, the AAO cited the Association of American Universities’ Committee on Postdoctoral Education Report and Recommendations which defines a postdoctoral appointment as “‘temporary’ and ‘preparatory for a full-time academic and/or research career,’ rather than a permanent career position in its own right.”[17]

In many of the cases we reviewed, the AAO required that the job offer be evidenced in the form of a letter from the university addressed to the beneficiary and not to the immigration authorities.[18] In one opinion the AAO stated that an offer letter from a professor or department head should not be given any weight without evidence (typically from the personnel department) that the individual signing the letter had been granted the authority on behalf of the university to hire permanent employees.[19] Finally, several of the decisions noted the requirement that the formal job offer letter must pre-date the petition’s filing date.[20]

The apparent change in the enforcement of the EB-1-2 classification regulations pertaining to permanent employment has led to a great deal of debate. It has been questioned whether the regulations are even authorized by the Immigration and Nationality Act because the requirement of an expectation of continued employment absent “good cause for termination” does not appear in the Act.[21] Recently, one of the service centers issued a statement noting that they were “seeking advice from Center Counsel and headquarters on the issue as to whether ‘at will’ employment can be considered ‘permanent.’”[22] Until a final decision has been made it would be wise to take a conservative approach when filing EB-1-2 cases and include an offer letter that clearly meets the regulatory requirements.

Three Years of Research Experience

Few of the AAO decisions we reviewed hinged on the regulatory option that pre-doctoral research counts toward the three-year requirement. However, as a practical matter it is hard to prove that a beneficiary with less than three years of post-doctoral research has an international reputation in their field.[23] In such a case, the petition must clearly document the outstanding nature of any pre-doctoral research, and consider a national interest waiver or labor certification if that research is not outstanding. Paid research assistant work for a professor, common to Ph.D. students in many countries, is treated with suspicion, and must be carefully distinguished from the basic research involved in the dissertation.

Evidentiary Issues

Peer Letters of Recommendation

Be sure to include letters from peers who have not collaborated directly with the beneficiary. However, it undermines the claim to an international reputation when the peer reference did not previously know the beneficiary, but is writing the letter simply after reviewing her resume and publications.[24] Therefore, a combination of letters from collaborators and mentors who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for success.[25]

We offer a short list of awards submitted that held little or no weight in the appeals process because they did not establish international recognition:

• Beneficiary having made the Dean’s List or received merit awards: “Student awards for which only students compete are not major prizes or awards such that they are indicative of international recognition.”[27]

• Awards granted by the petitioner, including internal research funding awards;[28]

• Research fellowships, unless granted on the basis of prior significant achievement;

Note that grants do not fall cleanly into any of the six regulatory criteria for EB-1-2 classification. It may be practical to include substantial funding from competitive sources (National Institute of Health, National Science Foundation, etc) in a separate category of your own design. Alternatively, you can document that the reason for funding by the granting agency was based on recognized past accomplishments (e.g., documented either by the peer reviews for the grant or in the peer reference letters for the EB-1-2 petition).

By “major,” the USCIS standard seems to mean “international.” It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage. “This criterion requires documentation establishing that the beneficiary’s awards enjoy significant international stature.”[33]

Membership in Associations in the Academic Field

Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. For example, membership in the American Chemical Society (ACS), an association of more than 163,000 members, did not meet the standard.[34] The practitioner should submit evidence of selective membership criteria along with evidence of membership in the association.

The AAO decisions state clearly that this criterion is intended for the “most prestigious associations, such as the National Academy of Sciences, which are extremely restrictive in their membership requirements. The National Academy of Sciences admits a few dozen members each year and these new memberships are decided at the national level rather than by local members.”[35]

Published Material about the Person

To satisfy this criterion, the published material should be at the national or international level. Articles in local newspapers, university publications, or internal company reports do not qualify. Moreover, standard academic citations do not count as published material “about” the beneficiary.[36]

Participation as a Judge of the Work of Others

Reviewing grants or articles can satisfy this criterion if the review request is directed particularly to the beneficiary. Generic “dear colleague” letters or requests passed down from an advisor or mentor do not indicate an international reputation in the field. Also, the job of reviewing cannot be an “inherent duty of the occupation” such as a professor evaluating the work of his or her students.[37] Finally, reviewing articles in journals located within the region where the beneficiary studied may not be found to “demonstrate an international base of recognition.” [38]

Original Scientific or Scholarly Research Contributions to the Academic Field

Evidence submitted in this category must address the international reputation standard. Simply publishing or presenting one’s work, or receiving grant funding, is common in research, and does not indicate that the academic community has taken notice of the work. Overall, the AAO has concluded: “it does not follow that every published article represents an original contribution demonstrative of outstanding research or an international recognition. If we were to hold otherwise, then every alien who has published a scholarly article in an internationally circulated journal would automatically qualify as outstanding, which would clearly go against the intent of the regulations.”[39]

Patents or patent applications also carry little weight unless they demonstrate an international reputation in the field. Practitioners should document the widespread use or application of the patent.

The publications must be in peer-reviewed academic journals, preferably those with international circulation. When submitting evidence under this category, the practitioner must demonstrate that the publication record rises above that of the average scholar.[40] One method of doing so is to show that the beneficiary’s papers have been widely cited by independent researchers in the field. Evidence that the beneficiary’s articles have been cited around the world is “generally a reliable indicator of a given article’s impact.”[41] “Self-citations” by the beneficiary, or citations by collaborators do not satisfy this criterion.[42]

It also helps to have the peer recommendation letters include references to specific papers, their impact, the beneficiary’s contribution, and that they appeared in prestigious journals of international circulation. This can be particularly important when the beneficiary is listed as “co-author” on all or most articles.[43]

Evidence of the articles’ “significant international distribution from independent sources such as media guides or the publishers themselves” can also be helpful to demonstrate international circulation.[44] Note that the Institute for Scientific Information (ISI) ranks journals in terms of citation impact and in terms of total number of citations for journals in all scientific fields. [45] However, ranking alone will carry little weight except in conjunction with a finding that the author’s work has been widely cited or followed.[46]

We also suggest that references note the impact of an article in subjective terms where appropriate. For example, when mentioning a particular article, the reference could write: “From my travel to international meetings and my professional interactions in our field, I also note that Dr. xx’s article is widely discussed, and has been the basis of numerous research proposals.” Any specific details, such as the article sparking discussion at a particular meeting, should also be included. The practitioner should encourage letter writers to take a bit of extra time to come up with details like this if possible.

· Articles published in only one country with only domestic circulation (such as many Chinese medical journals) do not satisfy the international reputation standard.

Interestingly, the AAO has acknowledged that the beneficiary does not have to be the first author on an article to claim credit for it. This is because of “the inherently collaborative nature of modern scientific inquiry, in which researchers rarely labor in isolation.”[48] In our experience, the USCIS service centers do send requests for further evidence (RFEs) asking for proof that the beneficiary is a key independent researcher in a group project. Therefore, as noted above, practitioners should clearly document the role of the beneficiary in a research team, especially if the beneficiary is not first-author on any articles that result from the work.

Practice Tips

First and foremost, screen your cases carefully. Discuss the standard with the beneficiary and, if possible, with her supervisor or mentor, to evaluate whether the outstanding researcher classification applies and whether the necessary evidence can be gathered. Detailed initial intakes will help manage expectations, avoid delays due to RFEs, and reduce the chance of a denial. Careful screening not only weeds out weak cases, but also may help identify a case for the self-effacing researcher. In some cases talking to a supervisor has led us to suggest filing where the beneficiary’s initial modesty about his or her accomplishments might not.

Tailor your petition to the correct audience. Not all USCIS examiners are college educated, and none are likely to be experts in your client’s specialized field. Additionally, USCIS examiners have a very limited amount of time to read all the materials in each petition (less than thirty minutes in most cases). Present the beneficiary’s accomplishments and qualifications in laymen’s terms. This is especially important in the peer recommendation letters and in the cover letter. A clear and easy to read cover letter should make the petition more easily navigable for someone who is not familiar with the material.

As a practical matter, include only the first page of each journal publication, and the first few pages of each peer letter-writer’s CV. For example, each publication and each CV could be ten pages long (or more!), which can make the package quite unwieldy. We have been told that USCIS examiners are not impressed by the volume of material submitted; in fact, the examiner might be more likely to set aside a particularly large submission in favor of a shorter one. Be selective and include only the strongest evidence. Do not “pad” the petition with documentation that does not clearly make your point. Meeting two of the six categories with strong evidence is probably better than marginal evidence for additional categories.[49]

The key point to remember in crafting an EB-1-2 petition is to establish an international reputation. Each piece of evidence should speak to that standard. The AAO concluded in one decision that “[a]n individual that is recognized internationally as outstanding should be able to produce ample unsolicited materials reflecting such a reputation. If the beneficiary’s scholarly achievements are not widely praised outside of individuals with whom he has previously studied, collaborated, or worked, then it cannot be concluded that he enjoys an international reputation.”[50] Therefore, remember to seek independent references, and to document that the beneficiary has been not only published and cited, but noticed in his or her field.

Conclusion

In our experience, the AAO has raised the bar higher than the USCIS service centers for obtaining classification as an EB-1-2 outstanding professor or researcher. However, the AAO decisions remain consistent over the past few years, and stick clearly to the statute and regulations. With the current enforcement of the strict regulatory definition of “permanent job offer” it does appear that the outstanding researcher category may be moving toward a higher standard of review, paralleling similar patterns in national interest waiver and EB-1-1 adjudications.[51]

We have also reviewed EB-1-2 cases filed by our two law firms and have surveyed some major universities and other immigration practitioners working in this area. In general, we have found that the USCIS service centers are not scrutinizing cases quite as carefully as the AAO.[52] In the initial version of this article two years ago, we noted that there have been fewer RFEs in practice regarding the three years’ research experience, international recognition, and the nature of the position as involving basic research than one might expect by reading the AAO decisions. However, since 2002, we have seen a gradual increase in RFEs in these areas reflecting the issues raised in the AAO decisions. We also sense that once the adjudications officer chooses to send an RFE on the nature of the position, he or she is more likely to add a request for evidence on the international acclaim issue, even in petitions with strong initial supporting evidence.

Furthermore, all of the AAO decisions are firmly grounded in the statute and regulations. Therefore, we stress the importance of carefully screening potential beneficiaries for eligibility, and presenting a strong petition for the service center to approve.

Some practitioners have reported that they follow a “play for the kickback” strategy of submitting a basic petition, holding back some evidence, and waiting for an RFE. We recommend against that because a new U.S. CIS memo advising adjudicators to deny petitions without an RFE[53], and the issue of submitting documentation dated after the initial filing.[54]

If an EB-1-2 petition fails, the AAO decisions argue against filing an appeal. Appeals to the AAO take a year or longer to be decided. They are very unlikely to lead to reversal. Suggested alternatives are:

• File the I-140 again, with whatever additional publications or other materials are available, and addressing the reasons for the initial denial.

• Consider filing an EB1-1 or national interest waiver petition if the beneficiary is one of the top few in his or her field, or if he or she has made a significant accomplishment in a field of national interest.

• Consider traditional labor certification, which allows restrictive requirements based on business necessity, and can help focus on the beneficiary’s particular skills required by the petitioner.

• Finally, do not forget to ask about other paths to permanent residence, including family-based sponsorship, spouse’s employment-based options, the diversity visa lottery program, or asylum.

[1] This article will also be published in the upcoming AILA publication, Immigration Options for Academics and Researchers (AILA 2005). Copyright © 2004 Erin Farrell, Jennifer Riley, and Stephen Yale-Loehr. All rights reserved.

[2] Erin Farrell (edf@jcvisa.com) is an attorney with Joseph Curran Associates (www.jcvisa.com) in Northampton, Massachusetts, where she specializes in corporate immigration law. She is a graduate of Smith College and Notre Dame Law School.

[3] Jennifer Riley (jennie@jcvisa.com) is a research associate at Joseph Curran Associates, where she specializes in immigration options for scientists and scholars. A graduate of Smith College, Jennie has published both in the fields of molecular/microbial evolution and in immigration law, including co-authoring the updated article on Consular Processing in the 2002-03 AILA Immigration & Nationality Law Handbook.

[4] Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LEXIS NEXIS Matthew Bender. He also teaches immigration law and refugee law at Cornell Law School, and is of counsel at True, Walsh & Miller (http://www.millermayer.com) in Ithaca, N.Y, where he practices business immigration law. Mr. Yale-Loehr co-writes a bi-monthly column on immigration law for the New York Law Journal, and also chairs AILA’s Business Immigration Committee.

[6] Department of Homeland Security, 2002 Yearbook of Immigration Statistics, at http://uscis.gov/graphics/shared/aboutus/statistics/IMM02yrbk/IMMExcel/table5.xls (last visited Sept. 7, 2004).

[7] Some AAO EB-1-2 opinions decided in 2003 can be found online at http://uscis.gov/graphics/lawsregs/admindec3/b3/index.htm (last visited Sept. 7, 2004). We obtained more recent decisions directly from the USCIS reading room at USCIS headquarters in Washington, DC. All AAO decisions noted in this article are on file with Erin Farrell. This article expands on earlier treatment of this subject in Jennifer Riley, Dan Berger, & Stephen Yale-Loehr, Current Trends in EB1-2 Outstanding Researcher Cases, 7 Bender’s Immigr. Bull. 1095 (Sept. 15, 2002).

[8] Matter of [Name not provided], File No. WAC-03-072-52109 (AAO Feb. 2004), Matter of [Name not provided], File No. SRC-01-225-64303 (AAO Feb. 2004), Matter of [Name not provided], File No. WAC-01-278-50938 (AAO May 7, 2003) and Matter of [Name not provided], File No. WAC-02-106-51650 (AAO Feb. 14, 2003).

[11] In one case the AAO found that the definition of permanent employment had been met through the submission of a letter from the petitioner to the beneficiary and withdrew the director’s finding that the position offered was not permanent in nature. The letter explicitly stated that the “‘position meets the definition of a permanent position in that it is for an indefinite or unlimited duration and [the beneficiary] will have the expectation of continued employment unless there is good cause for termination[.]’” The appeal was dismissed on other grounds. Matter of [name not provided], File No. [not provided] (AAO Feb. 27, 2003).

[12] Matter of [name not provided], File No. [not provided] (AAO 2004). See also Matter of [name not provided], File No. [not provided] (AAO May 9, 2003) where the AAO noted that “[e]mployment at will . . . is, by definition, distinct from permanent employment.”

[13] Matter of [name not provided], File No. [not provided] (AAO 2004) and Matter of [name not provided], File No. [not provided] (AAO February 2?, 2004).

[15] Matter of [name not provided], File No. [not provided] (AAO 2004). In this decision the AAO noted that “the regulatory requirements are not discretionary, and the employment policies of a given university cannot override the regulations.”

[17] Matter of [name not provided], File No. [not provided] (AAO May 9, 2003). See also Matter of [name not provided], File No. EAC-02-120-51858 (AAO Jan. 21, 2004); Matter of [name not provided], File No. [not provided] (AAO Oct. 23, 2003). The Association of American Universities’ Committee on Postdoctoral Education “Report and Recommendations,” March 31, 1998 can be found online at http://www.aau.edu/reports/PostdocRpt.html (last visited Sept. 8, 2004).

[18] 8 C.F.R. §204.5(i)(3)(iii). See, e.g., Matter of [name not provided], File No. [not provided] (AAO June 9, 2003), where the AAO noted that “[a] letter to the U.S. government, stating that the beneficiary has been offered a permanent position, is not a job offer. It is, rather, a claim about, and a description of, a job offer.”

[20] See, e.g., Matter of [name not provided], File No. [not provided] (AAO Feb. 2?, 2004), Matter of [name not provided], File. No. EAC-02-120-51858 (AAO Jan. 21, 2004), Matter of [name not provided], File No. [not provided] (AAO May 23, 2003), and Matter of [name not provided], File No. [not provided] (AAO Mar. 19, 2003). See also Matter of Katigbak, 14 I. & N. Dec. 45 (INS Reg. Comm. 1981), requiring that the beneficiary meet the qualifications for the employment-based immigrant classification as of the date the petition is filed.

[21] See, e.g., Daniel C. Horne, Requests for Evidence: Are the Outstanding Researcher Regulations Authorized by the INA?, 9 Bender’s Immigr. Bull. 956 (Aug. 15, 2004).

[23] See, e.g., Matter of [name not provided], File No. [not provided] (AAO May 23, 2003). But see Matter of [name not provided], File No. [not provided] (AAO Feb. 6, 2003). This case was remanded by the AAO for further action as a result of the director’s “summary conclusion” that “‘[t]he beneficiary has only been out of school for 4 years – not really enough time to distinguish himself internationally.’” In its decision, the AAO noted the requirement of three years of experience and stated “[w]hile it would likely be rare for a researcher to earn international recognition as outstanding after only four years, to deny the petition on that basis is arbitrary and not grounded in any statute, regulation or case law.” Nevertheless, this case demonstrates the scrutiny given to cases involving researchers early in their careers.

[24] See, e.g., Matter of [Name not provided], File No. [not provided] (AAO Feb. 4, 2003), where the AAO noted that “[w]e do not require letters from individuals with no knowledge of the beneficiary’s work; such letters would not demonstrate international recognition. In order to demonstrate international recognition, however, the record must contain evidence that international experts beyond the beneficiary’s circle of colleagues are aware of his work. Otherwise, the concept of international recognition is meaningless.”

[25] See, e.g., Matter of [name not provided], File No. [not provided] (AAO Mar. 19, 2003) where the AAO stated that “it appears that, based on the identical wording and irregular punctuation, the professors did not independently formulate the wording of their letters, thus detracting from the evidentiary weight of their claims.” See also Matter of [name not provided], File No. SRC-01-225-64303 (AAO Feb. 2004) which noted that “[w]hile the identical passages may detract from the overall weight given to their letters, we withdraw the director’s conclusion that those passages ‘cast doubt on [the letters’] authenticity and upon the information contained in the letters.’"

[26] As one AAO decision noted, “The beneficiary’s fellowship grants . . . and scholarships were, by nature, presented not to established scholars with active professional careers, but rather to individuals pursuing further training and education. Graduate study is not a field of endeavor; we cannot artificially restrict the beneficiary’s field to exclude established researchers who have long since completed their training and therefore do not compete for fellowships and scholarships.” Matter of [name not provided], File. No. WAC-02-105-52596 (AAO Apr. 10, 2003).

[29] Matter of [name not provided], File No. EAC-02-120-51858 (AAO Jan. 21, 2004) and Matter of [name not provided], File No. WAC-02-133-52171 (AAO May 13, 2003).

[30] In one case the AAO noted that “[b]eing elected to positions such as Student Practicum Supervisor or Student Liaison Co-Chair at a particular educational institution do not qualify as major prizes or awards that demonstrate international recognition.” Matter of [name not provided], File No. WAC-02-105-52596 (AAO Apr. 10, 2003).

[31] As one AAO decision noted, “[t]aking a widely administered, near-mandatory admissions test is not a major prize or award, regardless of one’s score.” Matter of [name not provided], File No. [not provided] (AAO Feb. 2?, 2004).

[32] The AAO has noted that “fellowship grants are often bestowed in response to applications by prospective recipients, who describe the research they seek to undertake. In other words, grants and scholarships generally support future activities rather than recognize prior achievements.” Matter of [name not provided], File No. WAC-02-105-52596 (AAO Apr. 10, 2003). In our experience, this argument can be rebutted by showing that the research has achieved international interest, thereby satisfying the international reputation standard.

[36] See Matter of [name not provided], File No. [not provided] (AAO Feb. 2?, 2004) and Matter of [name not provided], File No. LIN-02-114-55189 (AAO July 10, 2003).

[37] Matter of [name not provided], File No. WAC-02-133-52171 (AAO May 13, 2003). In this decision, the AAO noted that “[E]valuating tenured research professors for an international award would be far more indicative of outstanding international reputation than would evaluating one’s own graduate students on a dissertation committee.” See also Matter of [name not provided], File No. [not provided] (AAO Oct. 23, 2003).

[40] The AAO noted in one decision that “publication of scholarly articles is not automatically evidence of international recognition; we must consider the research community’s reaction to those articles.” Matter of [name not provided], File No. [not provided] (AAO Feb. 4, 2003).

[43] As stated in one decision, “[w]hile we do not find the lack of a first-authored article to be determinative, it is the petitioner’s burden to demonstrate that the articles submitted are indicative of or consistent with international recognition.” Matter of [name not provided], File No. [not provided] (AAO Oct. 23, 2003).

[49] See, e.g., Matter of [name not provided], File No. [not provided] (AAO Feb. 27, 2003), where the AAO noted that “[t]he petitioner has submitted a very substantial quantity of evidence in support of the petition at hand. The outcome of this appeal rests not on any deficiency in the quantity of the evidence, but rather on the character of the evidence submitted.”

[51] See, e.g., Chris Gafner, Carolyn S. Lee, & Stephen Yale-Loehr, The AAO Makes Extraordinary Ability Extraordinarily Hard to Prove, available at http://www.millermayer.com/new/eb1hard.html (last visited Sept. 25, 2004), reprinted in7 Bender’s Immigr. Bull. 1218 (Oct. 15, 2002); Stephen Yale-Loehr & Christina Alexander, Recent AAO EB-1-1 Decisions, at http://www.millermayer.com/new/eb11.html (last visited Sept. 25, 2004); Cletus M. Weber & Ron Wada, National Interest Waivers 2002 - A Practice Update, 7 Bender’s Immigr. Bull. 361 (Apr. 1, 2002); William A. Stock, Building Bridges No More: AAO Issues Precedent Decision Limiting National Interest Waivers, 3 Bender’s Immigr. Bull. 873 (Sept. 1, 1998); Stephen Yale-Loehr & Sean Koehler, National Interest Waivers, at http://www.millermayer.com/resources/immigrant/immigrant9cont.htm (last visited Sept. 25, 2004).

[52] But see Rita Kushner, Qualifying Scholars, Professors, & Researchers for Immigrant Visas Under the First Preference Category, in 2 American Immigration Lawyers Association, Immigration and Nationality Law Handbook 2002-03 Edition 176 (Randy P. Auerbach et al. eds., 2002). That article claims that the service centers are already following the AAO in raising the bar on EB-1-2 cases. Id. at 185.

[54] See Matter of [name not provided], File No. [not provided] (AAO Oct. 23, 2003) (abstract published after petition submitted cannot be added as additional evidence to satisfy RFE). See also Matter of Katigbak, 14 I. & N. Dec. 45, 49 (INS Reg. Comm’r 1971) (education or experience acquired after the filing date of an immigrant visa petition may not be considered, since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought).