On May 21 2019 by Feige M. Grundman

Sink OR Swim: Strategies for Outstanding Researcher Success

By Feige Grundman and Liam Jordan

In the stormy seas of EB-1, even after meeting the minimum required regulatory criteria for Outstanding Researcher (OR) classification, a petition can still fall flat when the adjudicator makes their final merits assessment of whether or not the applicant is internationally recognized and rises to the level of accomplishment intended for the classification. With an 80% sustained denial rate on EB-1 Outstanding Researcher AAO appeals for 2018—most of which were denied for failure to demonstrate international recognition—we see that petitioners must go well beyond the plain language of the regulations to establish the beneficiary’s eligibility, and that it’s far better if they can do so convincingly on the initial filing.

Above all, these AAO decisions teach one primary lesson: providing sufficient context is vital. Every EB-1 OR petition is different, even for individuals in the same area of expertise, and thus requires an approach tailored to the facts of the given case. This holds especially true for applicants in heavy research fields where the markers of success in, say, pure mathematics might be quite different than those in cancer biology. Through a strong narrative presentation, adjudicators can be led to a positive decision on petitions in even the most opaque and esoteric of academic fields.

It’s important to delve into the complexities of an individual’s highly-specialized field, and through this research, develop a customized, nuanced argument as to why they warrant OR classification based on the markers of accomplishment associated with their specific specialization. But an informed understanding of the facts is not enough. It’s in the presentation of these facts that an EB-1 OR petition succeeds or fails.

Take, for example, this AAO dismissal on a 2018 EB-1 OR appeal for a clinical assistant professor. In reviewing the USCIS denial, the AAO writes:

“The Beneficiary is employed by the Petitioner as a clinical assistant professor, and her work is in the academic area of medicine, with a focus on anesthesiology. The Director found that the Beneficiary met the requirements of three of the six· evidentiary criteria, those pertaining to the authorship of scholarly articles, original contributions to her field, and judging the work of others in the field, but did not find that she is internationally recognized as outstanding in her field. Upon review we agree that the Petitioner has submitted the necessary initial evidence, and will therefore tum to the final merits analysis.”

We can’t know exactly what wording was used to describe the beneficiary’s field in the filing; in fact the AAO itself seems confused, later referring to the beneficiary’s field as neither medicine nor anesthesiology, but “pharmaceutical science.” Even so, this is a perfect example of specific language mattering. It’s an extremely difficult task to prove that someone in the “academic area of medicine” is outstanding and at the top of the field because of the extremely broad nature of that claim. Even anesthesiology is a broad enough specialization that an individual would need to have outperformed tens of thousands of others to be top among U.S. practitioners alone.

It’s important to narrow it down and show why the applicant is outstanding and recognized for whatever niche they occupy within their fundamental specialization. Then, it’s about establishing what success looks like within that hyper-specialized niche. In sustaining the denial, the AAO notes:

“While the citation evidence shows that researchers other than the authors have cited to this work on a small number of occasions, the record does not include comparative evidence that might establish whether the overall significance of this work supports a finding that the Beneficiary is internationally recognized as outstanding in her field.”

Similar language appears throughout this denial—an acknowledgment of evidence submitted, but an insistence that it fails to provide substantive argument because of its lack of substantive context. To preempt these criticisms, petitions should very explicitly connect the dots, as it were. Don’t assume that the USCIS adjudicator wants to, has time to, or is even capable of making correlations and drawing basic conclusions about what success looks like in x field unless the framework is explicitly laid out. While it may seem awkward from the beneficiary’s perspective, blunt force is always preferable to implication—a vague argument is no applicant’s friend. Last year’s AAO decisions show that petitions must hammer home exactly how the evidence presented relate to the international recognition requirement for EB-1 OR classification and how it indicates a level of accomplishment that distinguishes the beneficiary from their peers who presumably are all also making advancements in the field. If a beneficiary is in the position to be applying for this visa classification in the first place, chances are their work has indeed reached some level of acclaim even if it’s within a very specific sub-niche in their field. The trick is figuring out how to convincingly communicate that to the USCIS adjudicator.

In our experience, a considered stream of clear, strategic communication is more effective than a deluge—quality is better than quantity. In another 2018 denial sustained by the AAO, the petition appears to have relied too heavily on a myriad unsubstantiated reference letters as their primary means of showing that the beneficiary was indeed internationally recognized:

“The Petitioner, a public university, seeks to classify the Beneficiary as an outstanding professor. … The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish, as required, that the Beneficiary is internationally recognized as outstanding in her academic field, information systems. … On appeal, the Petitioner asserts that the Director failed to give sufficient consideration to the 19 reference letters submitted … ”

What is being presented in letter nineteen that wasn’t already discussed in letter number five? Moreover, how long can we expect the USCIS adjudicator’s attention span to be? Testimonial evidence should be finely honed to grab the adjudicator’s attention and—given how many petitions across a broad range of specialties each adjudicator must review per day—present the case in a streamlined fashion. No volume of petition support letters can substitute for lack of clear communication and supporting evidence. Rather, each submitted expert testimonial should be focused and serve the petition in a specific way.

In doing so, there’s certain language that should be avoided. This AAO opinion goes on to read:

“Many of the letters provide a very detailed account of the Beneficiary’s work, as well as its potential practical applications in the field. However, they do not provide detailed information which would support the Petitioner’s eligibility claim.”

Discussing the potential applications or outcomes of research is a common, but understandable error. After all, in the world of applied sciences, it often takes many years and rounds of research before any findings make it to industrial or commercial application. But USCIS and the AAO gives no credence to any assertions that work is significant because it will one day see application. A petition should show how the beneficiary’s contributions have already affected the field, not how it might in a few years’ time. Again, we have the matter of providing sufficient context. Just because research hasn’t yet resulted in the patenting of a new technology, commercialization of a product, or a novel clinical protocol adopted at hospitals across the country does not mean that it hasn’t seen practical application or moved the field forward. The use of a beneficiary’s findings in subsequent research aimed at incremental progress is still application.

In today’s scattershot adjudicatory climate, the regulations are no longer a reliable-enough guide for preparing successful petitions—it’s necessary to monitor trends in Requests for Evidence and recent AAO decisions to develop constantly-evolving petition presentation strategies. AAO decisions published in 2018 show that the tides have turned toward adjudications relying more and more on the overall merits assessment of whether the beneficiary reached a certain, unwritten level of achievement and international acclaim as established by information beyond the plain language of the EB-1 OR regulatory criteria. If the petition can’t clearly define what that level of achievement and acclaim is, USCIS will not fill in the blanks. Foreboding though that uncertainty may seem, with an informed and carefully crafted approach, a clear path forward can be charted.

 

Do you have what it takes to pursue an EB-1 or an O-1 petition? Schedule a consultation to discuss with the EB-1 team. 

 

This article is part of a series analyzing AAO decisions on various employment-based visa classifications in 2018. Liam Jordan is a Technical Writer on the Klasko Immigration Law Partners EB-1 Writing and Research Team. Feige Grundman is a Senior Associate at the firm with expertise in all areas of employment-based immigration law, and specializing in EB-1/O-1/NIW cases.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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