On September 3, 2010, NAFSA submitted the following comment to USCIS's August 18, 2010 interim policy memorandum on adjudicator standards for evaluating evidence in employment-based first preference (EB-1) petitions. The NAFSA comments focus on standards for E12 outstanding professor and researcher filings.
Re: Policy Memorandum PM-602-0005, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions (AFM Update AD 10-41)”
NAFSA: Association of International Educators is pleased to have the opportunity to comment on the U. S., Citizenship and Immigration Services Policy (USCIS) Memorandum PM-602-0005, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions (AFM Update AD 10-41).” NAFSA is the world’s largest association of international education professionals in higher education, with nearly 10,000 members throughout the United States and worldwide. NAFSA members file thousands of immigrant petitions with the USCIS annually, and our membership will be directly affected by changes in the petition adjudication process.
In order to maintain their competitive position and foster our nation’s ability to maintain its competitive position, U. S. higher education institutions must be able to continue attracting and employing the world’s most highly-skilled and talented teachers and researchers. It is vital that we continue to compete with the many other nations who are working assiduously to attract and retain these same individuals. In order to do so, U.S. higher education institutions must be able to obtain permanent employment authorization (lawful permanent residence) for them. Often the employment-based first preference, particularly the “outstanding professor or researcher” classification, is the most appropriate category for seeking permanent employment of professors and researchers of that caliber. Changes to the process for adjudicating employment-based immigrant petitions should not impinge on the ability of U. S. institutions of higher education to attract and retain highly-skilled and talented professors and researchers.
The stated purpose of the Policy Memorandum and described changes to the Adjudicator’s Field Manual (AFM), “to ensure that U. S. Citizenship and Immigration Services (USCIS) processes Form I-140 petitions filed under these employment-based classifications with a consistent standard,” is a laudable one that NAFSA appreciates and fully supports. We further welcome your efforts to recognize and respond to criticism of the agency’s evidentiary requirements and review process by the U. S. Court of Appeals for the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115, (9th Cir. 2010). We believe that following the Court’s admonition to avoid unilaterally introducing extra-regulatory evidentiary requirements will help the agency maintain the integrity of its adjudication processes and ensure that they are fair and reasonable.
We are concerned, though, that the two-step analysis instituted by the Policy Memorandum may result in faulty adjudications that fail to apply the regulations properly. We also would encourage a clearer and more careful delineation of the “extraordinary ability” and “outstanding professor and researcher” definitions and criteria and further description of the kinds of probative evidence that might be submitted in support of an “outstanding professor or researcher” petition. The following comments focus on these three aspects of the guidance.
Two-Step Analysis and the Regulations
The regulations clearly establish a presumption that if an “outstanding professor or researcher” petition on behalf of a beneficiary with the required experience requirement and job offer includes evidence in two of the evidentiary criteria described in the regulations, then the beneficiary is to be deemed an “outstanding professor or researcher.” As the guidance notes, 8 CFR 204.5(3)(i) requires a petitioner to submit “evidence that the professor or researcher is recognized internationally as outstanding . . .” The guidance fails, though, to recognize the import of the next sentence at 8 CFR 204.5(3)(i), which is “such evidence shall consist of at least two of the following,” followed by six categories of evidence that would establish a beneficiary as “internationally recognized as outstanding.” In creating the regulation, the agency properly determined that submission of reliable evidence in two or more of the categories would be sufficient to establish the beneficiary as eligible for classification as an “outstanding professor or researcher.”
The regulations define “internationally recognized as outstanding” by clearly describing the kinds of evidence that establish such recognition. This fact has been recognized by legacy-INS (see Reply from Lawrence Weinig, Acting Associate Commissioner for Examinations, to James Bailey, Nebraska Service Center Director, HQ 204.23-O, July 30, 1992, reproduced in 69 Interpreter Releases 1037–38, 1049–53 (Aug. 24, 1992)). It has also been recognized in the “extraordinary ability” petition context by at least two federal courts, one of which stated that “once it is established that the evidence is sufficient to meet three of the criteria listed in 8 CFR 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.” Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994); see also Muni v. INS, 891 F. Supp. 440 (E.D. Ill. 1995). The logic of the Buletini and Muni decisions must be considered to apply to “outstanding professor or researcher” petitions and would require USCIS to approve a petition accompanied by evidence meeting two of the evidentiary criteria unless it can set forth specific and substantiated reasons that the evidence is unreliable or defective so that it could not support such an approval.
The regulations, court decisions, and agency guidance correctly indicate that there is no basis or authority for requiring a beneficiary who has met the experience and job offer requirements, and has submitted reliable evidence in at least two of the categories listed in the regulations, to provide further evidence that she or he is outstanding among outstanding professors and researchers. In fact, requiring evidence that a beneficiary is outstanding among those who have received major awards for outstanding achievement, or requiring evidence that beneficiary is outstanding among reviewers or editorial board members of scientific journals there is or was selected as such because she or he is recognized as outstanding is a “circular exercise” (see Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)) leading to the imposition of extra-regulatory evidentiary requirements that the court warned against in Kazarian. The Policy Memorandum recognizes that the creation or application of such an additional extra-regulatory substantive criterion would be improper. This fact should be emphasized in the revisions to the AFM. We are concerned that the statement in the “proof” section of the Policy Memorandum (p. 4) that “the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category” will encourage adjudicators to apply such extra-regulatory evidentiary requirements and may result in faulty adjudications. The final merits determination envisioned by the guidance must be simply a determination as to whether the evidence submitted is reliable and not a determination as to whether the beneficiary is outstanding among outstanding professors researchers. As the regulations clearly provide, and as legacy-INS and federal courts have confirmed, the presumption must be that if evidence is submitted in two of the criteria described in the regulations, the beneficiary must be deemed an “outstanding professor or researcher.” Revising the guidance to clarify that the beneficiary need not be outstanding among the outstanding would improve the guidance.
We recognize that the courts in Kazarian and Buletini envisioned an analysis by the adjudicator of the evidence presented with an “extraordinary ability” petition and that this principle would apply to the adjudication of “outstanding professor or researcher” petitions as well. While the court in Kazarian did not specify a process for the analysis, the court in Buletini stated that “once it is established that the evidence is sufficient to meet three of the criteria listed in 8 CFR 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.” In other words, if evidence meeting the evidentiary criteria stated in the regulations is presented with the petition, the burden shifts to USCIS to state with specificity why the evidence is unreliable or otherwise defective and cannot support a conclusion that the beneficiary is eligible for the classification. If USCIS is concerned that a petition might include evidence purporting to meet the evidentiary criteria stated in the regulations although the beneficiary is clearly ineligible under the regulations for the classification sought, then under this approach USCIS could (and should be able to) state with specificity why the evidence is unreliable or defective and cannot support approval. We believe that this approach comports with the regulations and legacy-INS guidance and is the proper analysis to be applied by USCIS to both “extraordinary ability” and “outstanding professor or researcher” petitions.
It is also imperative that before concluding that the evidence submitted is unreliable or otherwise defective, adjudicators must consider the totality of the evidence. This fact is stated in the “policy” section of the Policy Memorandum and in the revisions to the AFM concerning “evaluating evidence submitted in support of a petition for an alien of extraordinary ability” (p. 4), but it is not stated in the revisions to the AFM concerning “evaluating evidence submitted in support of a petition for an outstanding professor or researcher” (p. 11). This appears to be an oversight. The revisions to the AFM should explicitly require adjudicators of “outstanding professor or researcher” petitions to take a holistic approach and consider the totality of the evidence before them, and we would strongly encourage this improvement in the guidance.
Further Distinguishing the “Extraordinary Ability” and “Outstanding Professor and Researcher” Definitions and Criteria
The guidance correctly specifies, in the revision to paragraph (1)(A) of Chapter 22.2(i) of the AFM, that “extraordinary ability” is defined at 8 CFR 204.5(h)(2) as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” The guidance also correctly specifies in the revision to paragraph (2)(A) of Chapter 22.2(i) of the AFM, that a petitioner for an “outstanding professor or researcher” must demonstrate by a preponderance of the evidence “that the alien is recognized internationally as outstanding in a specific academic area” as set forth at 8 CFR 204.5(i)(3)(i). The Policy Memorandum, however, in the final sentence of the “proof” section (p. 4) describing the two-part analysis to be applied to “extraordinary ability,” “outstanding professor or researcher,” and “exceptional ability” petitions states that “it is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor.” Therefore, the memo incorrectly suggests that the “extraordinary ability” definition is applicable to “outstanding professor or researcher” and “exceptional ability” petitions as well. This error should be corrected.
NAFSA raises this problem because many petitioners have in the past reported Requests for Evidence, Notices of Intent to Deny, and petition denials indicating that the adjudicating officer has incorrectly applied the “extraordinary ability” definition to an “outstanding professor or researcher” petition. Also, the prior version of the AFM stated concerning “outstanding professor or researcher” petitions that “the same general guidelines discussed in the preceding section relating to the adjudication of a petition for an alien of extraordinary ability apply to the adjudication of a petition for an outstanding professor or researcher . . .,” although it also attempted to distinguish the standards for each. Because these two separate and distinct standards have in the past been conflated or perhaps not carefully enough distinguished, we believe that the guidance would be improved not only by a correction to the Policy Memorandum, but also by an affirmative statement at paragraph (2)(A) of Chapter 22.2(i) of the AFM that the beneficiary of an “outstanding professor or researcher” petition need not have risen to the very top of his or her field of endeavor.
Further Description of Probative Evidence for “Outstanding Professor or Researcher” Petitions
We would suggest expansion of the “Part One Analysis” and “limited determination considerations” as follows:
The same statement in the “Part One Analysis” section for “extraordinary ability” petitions (p. 4), that “in certain cases, evidence submitted to establish one criterion may be sufficient to satisfy more than one of the criteria set forth . . . ,” should be included in the “Part One Analysis” section for “outstanding professor and researcher petitions” (p. 12). For example, evidence of publication in a scientific journal may be considered “evidence of the alien’s authorship of scholarly books or articles” (8 CFR 204.5(i)(3)(i)(F)) and “evidence of the alien's original scientific or scholarly research contributions to the academic field (8 CFR 204.5(i)(3)(i)(E)).
8 CFR 204.5(i)(3)(i)(A): Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
The terms “prizes” and “awards” should be broadly construed. For example, if the beneficiary has received substantial grant funding for research after his or her grant proposal has been peer reviewed, particularly if there is an indication that the grant is prestigious or highly competitive (such as a National Institutes of Health grant), such grant funding may be considered an award. Selection for a prestigious or highly competitive fellowship, instructorship, or professorship should be considered an award (these may carry the name of an individual or institution that provided an endowment to fund them). If the beneficiary has been elected or appointed to a leadership position in a scientific society or professional association, this kind of recognition from peers should be considered an award. Expert opinion letters submitted with the petition may be a useful source of information about an award or prize.
8 CFR 204.5(i)(3)(i)(B): Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
A relevant factor that may lead to a conclusion that the beneficiary’s membership in the association was based on outstanding achievements in the academic field is the fact that the alien’s membership was through election, nomination, or invitation. Mere payment of a membership fee to such an association does not necessarily indicate that it is not an exclusive association, but payment of the fee should not be the only criterion for membership. If the beneficiary has been elected or appointed to a leadership position in an association, this may be considered recognition of her or his outstanding achievements by peers. In addition to printed information about the association, expert opinion letters submitted with the petition may be a useful source of information about the association.
8 CFR 204.5(i)(3)(i)(C):
Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
Scientific, scholarly, or academic journals, both printed and electronic, are the publications most likely to address a professor’s or researcher’s work. While a simple reference to the beneficiary’s work in such a journal article would not necessarily lead to a conclusion that the article is about the beneficiary’s work, if the citing author takes particular note of the beneficiary’s work (for example, by offering an evaluation or appraisal of it), or if there is an indication that the author has based his or her own work in part on the work of the beneficiary, then the material should be considered to be about the beneficiary’s work. If the beneficiary’s work is noted in a retrospective or highlighted in an article about noteworthy developments in the field, then the material should be considered to be about the beneficiary’s work.
8 CFR 204.5(i)(3)(i)(D):
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;
Professors and researchers who are recognized to have outstanding expertise or made outstanding achievements may be asked to judge or review the work of others in the field. This might include, among other things, reviewing manuscripts submitted to a journal for publication, serving on the editorial board or committee of a journal, reviewing session or workshop proposals submitted to a selection committee for a conference or scientific or professional meeting, reviewing proposals for grant funding that have been submitted to a governmental agency or non-profit institution, leading or moderating a discussion of the work of others at a conference or meeting, or authoring a journal article or a textbook chapter that provides a review and analysis of research or scholarship on a topic within the field.
Documents indicating that a beneficiary has been invited to engage in such judging or review work should be considered evidence of the alien’s participation as a judge of the work of others. In addition to copies of invitations or other correspondence concerning the activities, expert opinion letters submitted with the petition may be a useful source of information about the nature of the judging.
Direction of theses and dissertations by graduate students by the beneficiary, which may be evidenced by university records or a letter from a department chair concerning the activity, should also be considered judging the work of others (see Reply from Lawrence Weinig, Acting Associate Commissioner for Examinations, to James Bailey, Nebraska Service Center Director, HQ 204.23-O, July 30, 1992, reproduced in 69 Interpreter Releases 1037–38, 1049–53 (Aug. 24, 1992); see also Kazarian v. USCIS, 596 F.3d 1115, (9th Cir. 2010)).
8 CFR 204.5(i)(3)(i)(E):
Evidence of the alien's original scientific or scholarly research contributions to the academic field;
Scientific, scholarly, and academic journals generally publish only original work, as do most book publishers, so the publication of an article, book, or book chapter would usually indicate an original contribution to the field by the beneficiary. Most such journals apply a rigorous peer-review process to manuscripts submitted for publication, and many have very low rates of acceptance for publication, indicating the competitive nature of scholarly publication. The beneficiary’s publication or presentation of her or his work at a scientific or professional gathering, such as an annual conference, as well as invitations to the beneficiary to present to other groups and in other venues, may also may also indicate that the beneficiary has made an original contribution of interest to the field. Citation to the beneficiary’s work by others in the field may be further evidence that the work is an original contribution to the field, and a large number of citations or history of citations evidenced by records from citation indexes such as GoogleScholar, SciFinder, the Web of Science, among others, should be considered strong corroborative evidence that the cited work is considered an original contribution to the field.
Letters from others in the field detailing the beneficiary’s original contributions to the field (for example, describing the beneficiary’s research and how it has contributed to the field) should be considered evidence of such contributions, especially if corroborated by other evidence submitted with the petition such as publications and evidence of citations. For example, publication of the beneficiary’s work in peer-reviewed journals and citations to the work would clearly corroborate experts’ opinions that the work is original (see Reply from Lawrence Weinig, Acting Associate Commissioner for Examinations, to James Bailey, Nebraska Service Center Director, HQ 204.23-O, July 30, 1992, reproduced in 69 Interpreter Releases 1037–38, 1049–53 (Aug. 24, 1992)).
NAFSA applauds the efforts of USCIS to develop guidelines for adjudicators that ensure the proper and consistent application of law to employment-based preference petitions and assist adjudicators in exercising their discretion within the scope of the law. We believe that these efforts will be enhanced and the interim guidance greatly improved by more clearly distinguishing the eligibility standards for three kinds of petitions discussed, emphasizing that the eligibility standard for the “outstanding professor or researcher” category is unique, and clarifying the fact that adjudication of “outstanding professor or researcher” petitions should not be made with reference to the different eligibility standard for the separate and distinct “extraordinary ability” category. Revising the guidance to broadly construe the evidentiary criteria described under 8 CFR 204.5(i)(3), taking into account the unique nature of scientific research and the rapidly evolving technologies utilized, would also enhance your efforts and improve the guidance. Restricting the “final merits determination” described in the guidance to the consideration of whether the evidence submitted is reliable, as the regulations indicate, and preventing adjudicators from requiring evidence beyond that delineated in the regulations will further ensure consistent and proper adjudications. Expanding the discussion of the “final merits determination” for “outstanding professor and researcher” petitions to stress that the adjudicator must consider in its totality all of the evidence presented with a petition will both improve the parity of the “outstanding professor and researcher” petition and “extraordinary ability” petition sections of the guidance and will help ensure fair and reasonable adjudications. Thank you for considering these comments.