dismissed EB-1A Case: Agriculture

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
liS. Citizenship
and Immigration
Services
"EAC 05 222 52909
Office: VERMONT SERVICE CENTER Date: t\PR 2 ~nt1
IN RE: Petitioner:
Beneficiary:
PETITION:· Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to
Section 203(b)(l)(A) of the Imniigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A)·
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
h'A-~CL
Robert P. Wiemann, Chief
Administrative Appeals Office
www;uscis.gov
Page 2
DISCUSSION: The Director, Vennont Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification as an employment-based immigrant pursuant to section203(b)(1)(A)
ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary
ability in the sciences. The director determined the petitioner had not established the sustained national
or international acclaim necessary to qualify for classification as an alien of extraordinary ability.
On appeal, the petitioner submitted a statement and additional evidence. The petitioner has not
overcome the director's concerns.
Section 203(b) of the Act states, in pertinent part, that
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who are
aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, business, or
athletics which has 'been demonstrated by sustained national or international
acclaim and whose achievements have been recognized in the field through
extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of
extraordinary ability, and
(iii) the alien's entry to the United States will substantially benefit prospectively
the United States.
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service
(INS) have consistently recognized that Congress intended to seta very high standard for individuals
seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-9
(November 29, 1991). As used in this section, the term "extraordinary ability" means a level of
expertise indicating that the individual is one of that small percentage who has risen to the very top
of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The regulation at 8 C.F.R. § 204.5(h)(3) indicates
that an alien can establish sustained national or international acclaim through evidence of a one-time
achievement (that is; a major, international recognized award). Barring the alien's receipt of such an
award, the regulation outlines the following ten criteria, at least three of which must be satisfied for an
alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability.
. Page 3
(i) Documentation of the alien's receipt oflesser nationally or internationally recognized
prizes or awards.for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which
classification is sought, which require outstanding achievements of their members, as
judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or
other major media, relating to the alien's work in the field for which classification is
sought. Such evidence shall include the title, date, and author of the material, and any
necessary translation; . , .
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of
the work of others in the same or an allied field of specialization for which classification
is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field;
.(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional
or major trade publications or other major media;
. (vii) Evidence of the display of the alien's work in the field at artistic exhibitions or
sho~cases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations
or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high
remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts,.as shown by box office
receipts or record, cassette, compact disk, or video sales.
It should' be reiterated, however, that the petitioner must show that the beneficiary has sustained
na~ional or international acclaim at the very top level. '
Initially, the petitioner submitted a personal statement chronicling her work experience. On December
14, 2005, the director issued a notice of intent to deny the petition, advising the. petitioner of the ten
criteria and requesting evidence that the beneficiary meets at least three of those criteria. In response,
the petitioner submitted a manuscript bearing no indicia of publication, a provincial certifica~e of merit
and an appointment letter for a research position in China.
Page 4
The director noted that the petitioner's certificate of merit was not a national award or prize and that the
manuscript did not appear to have been published and concluded that the petitioner had failed to submit
evidence of her sustained national or international acclaim. .
On appeal, the petitioner submitted a statement' asserting that she is "well reputed" in the field of
agriculture in China. She further asserts that a first grade provincial prizeis equivalent to a second or
third grade national prize and, due to China's strength in the field of agriculture, national prestige in
China is equivalent to international prestige.
The petitioner submits' a letter from an agricultural researcher at the Changle City
Research Institute of Agricultural Science and Technology. The letter is not on official letterhead. Mr.
_asserts that he and the petitioner worked for two divisions of the Fujian Provincial Department of
Agriculture and that the petitioner produced abundant experimental data. Finally, the petitioner
submitted Mr. _ membership identification for the Fujian Provincial Society of Agriculture.
The statute requires extensive documentation to establish eligibility for this classification. The
regulations require that an alien of extraordinary ability be able to demonstrate sustained national Of
international acClaim. The record does not reflect that she has attained any national acclaim in her field
or that she had sustained acclaim as of the date of filing in 2005.. .
First, the petitioner has not established the significance ofher award. As it was issued by a provincial
authority, it does not appear to be a national award. While the petitioner implies that the award has
international prestige, going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158,
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm..
1972)). The record lacks evidence that the selection of the awardees garners international or even
national media coverage. The petitioner has not submitted evidence regarding the number of similar
awards issued by the Fujian ProvinCial Department of Agriculture or the pool of competitors.
Without such evidence, the petitioner cannot establish that this certificate of merit is a nationally or
internationally recognized prize or award which the most renowned members of the field aspire to
WIn.
Second, the petitioner claims to have cultivated a new species of cotton. The petitioner must support
this assertion. Id. The only evidence of the petitioner's contributions in the field is the letter from Mr.
• a colleague at the Fujian Provincial Department of Agriculture, who makes no reference to a new
.species of cotton. Regardless, this type of letter cannot establish the petitioner's recognition beyond her
immediate circle of colleagues. Moreover, the opinions of experts in the field, while not without
weight, CanDot form the cornerstone of a successful claim. of sustained national or international
. acclaim.. CIS may, in its discretion, use as advisory opinions, statements submitted as expert
testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795 (Comm. 1988). However, CIS
is ultimately responsible for making the final determination regarding an alien's eligibility for the
Page 5
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive
evidence of eligibility; CIS may evaluate the content of those letters as to whether they support the
alien's eligibility. Id. at 795-796. CIS may even give less weight to an opinion that is not,
corroborated, in ac~ord with other information or is in any way questionable. Id. at 795; See also
Matter ofSoffici at 165.
In evaluating the reference letters, we note that letters 'containing vague claims of contributions are
less persuasive than letters that specifically identify contributions and provide specific examples of
how those contributions have influenced the field. ,In addition, letters from independent references
who were previously aware of the petitioner through her reputation and who have applied her work
are the most persuasive. Ultimately, evidence in existence prior to the preparation of the petition
carries greater weight than new materials prepared especially for submission with the petition. An
individual with sustained national or international, acclaim should be able to produce unsolicited
materials ,reflecting that acclaim. ,
According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only
original but of major significance., We must presume that the phrase "major significance" is not
superfluous and, thus, that it has some meaning. To be considered a contribution of major
significance in the field of science, it can be expected that the results would have already been
reproduced and confirmed by other experts and applied in their work. Otherwise, it is difficult to
gauge the impact of the petitioner's work. The record contains no evidence that the petitioner's
"abundant experimental, data" has been widely influential in the field or that she has garnered
acclaim at the national level (by definition beyond Fujian Province) for her new speCiesof cotton. '
Third, as stated by the director, the manuscript submitted bears no indicia ofpublication, such as a
journal title or pagination. The petitioner makes no attempt to rebut this conclusion on appeal, and
we concur with the director. Thus, the petitioner has not established that she has authored scholarly
articles in major or professional trade publications or other major media pursuant to the regulation at
8 C.F.R. § 204.5(h)(3)(vi). '
Fourth, while the petitioner claims to have been promoted to ''vice-director'' of the Fujian Provincial'
Academy of Agricultural Science, the appointment letter is only for the position of "researcher." W~
concur with the director that the petitioner's appointment as a researcher for the Fujian Provincial
Academy of Agriculture cannot serve to meet the criterion at 8 C.F.R: § 204.5(h)(3)(viii). The record
lacks evidence that this appointment is for a leading or critical position beyondthe obvious need for the
academy to employ competent researchers. In other words, this appointment does not set the petitioner '
,apart from others in her field of research.
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate
that the alien has achieved sustained national or international acclaim and is one of the small percentage
who has risen to the very top of the field of endeavor., Review of the record, however, does not
establish that the petitioner has distinguished herself as a plant physiologist to such an extent that she
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may be said to have .achieved ·sustai~ed national or international acclaim or to be within the small
percentage at the very top of her field. .. Specifically, for the reasons discussed above, she has not
submitted extensive documentation establishing that she meets at least three of the ten regulatory
criteria.
Moreover, the statute requires sustained acclaim. According· to the petitioner's Form G-325A,
BiographicInformation, submitted in support of her Form 1-485, Application to Regi,ster Permanent
Residence or Adjust Status, the petitioner has not worked as a researcher since May 2003, over two
years before filing the instant petition. Thus, any notoriety the petitioner may have enjoyed in the field
in 2003, and the record contains no evidence of such notoriety, was not sustained two years later when
the petition was filed.
Finally, beyond the decision of the director, the petitioner has not established that she is coming to the
United States to continue work in her area of expertise. An application or petition that fails to comply
with the technical requirements of the law may be denied by the AAO even if the Service Center
does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc.·v.·
United States, 229 F, Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de
novo basis).
The regulation at 8 C.F.R. § 204.5(h)(5) provides:
No offer ofemployment required. Neither an offer for employment in the United States
nor a labor certification·is required for this classification; however, the petition must be
accompanied by clear evidence that the alien is.coming to the United States to continue
work in the area of expertise. Such evidence may include letter(s) from prospective
employer(s), evidence of prearranged commitments such as contracts, or a statement
from the beneficiary detailing plans on hmy he or she intends to continue his or her
work in the United States.
The petitioner did not submit any of the possible types of evidence required under this regulation.
Moreover, she has not established that, after a two-year absence, she is still qualified to conduct
research in a field that is presumed to be constantly growing in new knowledge.
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition
may not be approved.
The bUrden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of
the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.