dismissed EB-1A Case: Applied Microbiology

U.S. Department of Homeland Security 
,antify ing datzz ~tc~aed 
prevent clearly unwarranted 
invasion of personal privacy 
20 Mass. Ave., N.W., Rm. A.3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY rdU2 
FILE: Office: VERMONT SERVICE CENTER Date: JUN 1 4 201, 
5 72 
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 Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
u > Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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 section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien of extraordinary ability in the 
sciences. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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 into the United States will substantially benefit prospectively 
the United States. 
The applicable regulation defines the statutory term "extraordinary ability" 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." 
8 C.F.R. ij 204.5(h)(2). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. ij 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a major, 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the sciences, specifically 
as a postdoctoral researcher in the field of applied microbiology. At the time of filing, the petitioner was a 
postdoctoral researcher at the College of Engineering Environmental Institute at Pennsylvania State University. 
The petitioner originally submitted supporting materials including eight recommendation letters, evidence of his 
scholarly publications, documentation of three awards and four academic honors, evidence of his membership in 
three professional associations and documents relating to his review of the work of others in his field. The 
director determined that although the record indicated that the petitioner had made meaningful contributions to 
his field, it did not establish that he had garnered the sustained national or international acclaim requisite to 
classification as an alien with extraordinary ability. On appeal, counsel submits a brief and additional evidence 
including documentation of the petitioner's present employment at Antex Biologics, Incorporated; three new 
articles; citation information for some of the petitioner's articles; and evidence of his participation at additional 
conferences. 
We first address counsel's contention that the director should have issued a Request for Evidence (RFE) before 
denying the petition. Although 8 C.F.R. 5 103.2(b)(8) requires the director to request additional evidence in 
instances "where there is no evidence of ineligibility, and initial evidence or eligibility information is missing," 
the director is not required to issue a request for further information in every potentially deniable case. If the 
director determines that the initial evidence supports a decision of denial, the cited regulation does not require 
solicitation of further documentation. In this case, the director did not deny the petition based on insufficient 
evidence of eligibility. 
Furthermore, even if the director had committed a procedural error by failing to solicit further evidence, it is not 
clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact 
supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply to 
afford the petitioner the opportunity to supplement the record with new evidence. 
The evidence submitted, counsel's remaining contentions and the director's decision are addressed in the 
following discussion of the regulatory criteria relevant to the petitioner's case. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavor. 
The director correctly determined that the petitioner did not meet this criterion. The petitioner submitted 
evidence that he received his master's and doctoral degrees with "Great Distinction" from Ghent University in 
Belgium. As the director stated, academic honors do not satisfy this criterion because they are evidence of 
scholastic achievement, not national or international recognition as an excellent research scientist. 
The petitioner also submitted documents in Chinese relating to three awards purportedly earned when he was 
employed by the Jiangsu Institute of Microbiology. The director mistakenly assumed that these awards were 
"related to achievements that took place during [the petitioner's] undergraduate and graduate training" and 
further stated that "[nlo awards are listed which are for activities taking place after attainment of the 
beneficiary's Ph.D. in 2001 ." On appeal, counsel contends that "the statute does not require that the awards be 
received AFTER the award of a Ph.D. This is a rule apparently made up by this examiner." While we 
recognize that the statute and regulation do not require that evidence under this criterion arise after receipt of an 
alien's Ph.D., our concern is not the timing of these awards, but their actual documentation. The petitioner 
failed to submit complete and certified translations of the Chinese documents and we consequently cannot 
determine whether the evidence supports the petitioner's claimed eligibility under this criterion. See 8 C.F.R. tj 
103.2(b)(3). Accordingly, the petitioner does not meet this criterion. 
(ii) Documentation of the alien's membership in associations in the field for which classzjcation is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or3elds. 
The director correctly determined that the evidence submitted did not establish the petitioner's eligibility under 
this criterion. The petitioner submitted documentation of his membership in three associations in his field: the 
American Society for Microbiology (ASM), the Society for Industrial Microbiology (SIM); and the Association 
Page 4 
of Environmental Engineering and Science Professors (AEESP). The petitioner submitted an ASM membership 
application form that states that ASM membership is open to "anyone who is interested in its objectives and has 
a minimum of a bachelor's degree or equivalent in microbiology or a related field." Similarly, the submitted 
SIM membership form states that "SIM welcomes individuals interested in the advancement of applied 
microbiological sciences with emphasis on industrial materials & processes." Finally, the record includes a 
printout from the AEESP website that states that "Affiliate Membership is open to individuals associated with 
academic programs who are not eligible for regular membership. These include . . . post-doctoral associates." 
These documents do not establish that outstanding achievements are prerequisite to membership in ASM, SIM 
or AEESP. 
On appeal, counsel claims that because "the statute only requires proof of membership," the director should 
have asked for additional information regarding the membership criteria of these associations in a RFE. 
Counsel ignores the regulatory mandate that the associations "require outstanding achievements of their 
members." 8 C.F.R. ij 204.5(h)(3)(ii). The evidence submitted indicates that ASM, SIM and AEESP require 
only interest and involvement in the petitioner's field. The record does not establish that these three 
organizations require outstanding achievements of their members. Accordingly, the petitioner does not meet 
this criterion. 
(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. 
As noted by counsel on appeal, the director mistakenly stated that the record contained evidence of the citation 
of the petitioner's work and that such citations did not meet this criterion. In fact, the petitioner originally 
submitted no documentation of the citation of his scholarly publications. Yet the director's oversight has not 
prejudiced the petitioner. On appeal, the petitioner submits citation information for some of his articles that we 
address below under the fifth and sixth criteria. 
(iv) Evidence ofthe alien 's participation, either individually or on a panel, as a judge of the work of others 
in the same or an alliedJield of speciJication for which classifcation is sought. 
The director correctly found that the petitioner did not meet this criterion. The petitioner submitted signed 
evaluation forms indicating that he reviewed two manuscripts in his field f 
Engineering Science in 2002. The petitioner's supervisor, I University, wrote the submitted letter requesting the petitionc 
also contains electronic mail messages betwee 
Scientific Journals at Ecomed Publishers, re 
- 
e iowal Environmental 
nnsylvania State 
zcripts. The record 
he Publisher Editor of 
~urnal Environmental 
~ . -~~ 
Science and Pollution Research. xplains that "I enlisted the support of a postdoctoral 
researcher with interest in this topic as well, so I have included his name at the bottom of the review pa~e." The . - petitioner also submitted electronic mail messages addressed to him and 15 other individuals as "Dear Judge 
Volunteers" and including the petitioner's name in two lists of "Poster judges" and "Talk Judges" for awards at 
the Fifth Environmental Chemistry Symposium at Pennsylvania State University in March, 2002. The petitioner 
also claimed to have reviewed an article for the journal Food Control and submitted a website printout of the 
article's abstract, but no evidence of his actual review. 
The director noted that the petitioner's judging was "conducted in conjunction with with [sic] several other 
practitioners in the field, and not primarily by the beneficiary." On appeal, counsel contends that that the statute 
does not require an alien to be the sole judge and that the director "is making up law has [sic] he goes along." 
While it is true that there is no requirement that the alien's participation be limited to those instances where he 
or she serves as the sole judge of the work of others, we do not read the director's statement as imposing such a 
requirement. Rather, the director's comment is a reasonable reaction to the record, which indicates that the 
petitioner's judgment of the work of others is inconsistent with the requisite sustained acclaim. The evidence 
etitioner was asked to review articles by or due to his association with his 
On appeal, the petitioner submitted evidence that he was a co-convener (with 
on Microbial hydrogen-energy production at the 2003 SIM Annual Meeting and 
that he had agreed to serve as a judge for the 2003 Environmental Chemistry Symposium at Pennsylvania State 
University. These events arose after the petition was filed and consequently cannot be considered. The 
petitioner must establish his eligibility at the time of filing. See 8 C.F.R. 9 103.2(b)(12), Matter of Katigbak, 14 
I&N Dec. 45'49 (Comm. 1971). Accordingly, the petitioner does not meet this criterion. 
(v) Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related contributions of 
major signijicance in the field. 
The director correctly determined that the petitioner did not meet this criterion. The petitioner submitted 
evidence of his publications and eight recommendation letters from scientists in his field or related specialties. 
The petitioner's supervisors and a former colleague wrote four of the recommendation letters. While such 
letters provide relevant information about an alien's experience and accomplishments, they cannot by 
themselves establish the alien's eligibility under this criterion because they do not demonstrate that the alien's 
work is of major significance in his field beyond the limited number of individuals with whom he has worked 
directly. The petitioner also submitted three letters written by experts who have not worked with him. Yet even 
when written by independent experts, recommendation letters solicited by an alien in support of an immigration 
petition carry less weight than preexisting, independent evidence of major contributions that one would expect 
of an alien who has sustained national or international acclaim. Accordingly, we review the letters as they relate 
to other evidence of the petitioner's contributions to his field. 
researcher [the petitioner] has made a great achievement on fermentative L-lactic acid production, which was 
supported as a national key project by Minister of Chemical Industry, China. He and his colleagues have 
published first L-lactic acid research paper and review paper in the top Chinese professional journals in the early 
1990s, which were indexed by Chemical Abstract." The record contains evidence of these two articles and their 
indexation by Chetnical Abstracts, but shows that the petitioner was not the lead author of either article. The 
record contains no citation information for these articles or other evidence that the petitioner's research in this 
area constituted an original contribution of major significance to the field of applied microbiology. 
Second, while pursuing his master's and doctoral degrees at Ghent University in Belgium, the petitioner 
conducted research concerning microbi 
ecology in human health and diseases. Director of Research and Development at the 
Chamtor Company in France and a form tioner, states that the petitioner developed a new 
sourdough fermentation process that more than doubled the productivity of the fermentation and was put into 
industrial practice. Yet the record contains no corroborative evidence that the petitioner's process was adopted 
by the baking industry or otherwise had an impact in the field of applied microbiology. Simply going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
to nitrite reduction in the oral cavity" and that the petitioner's research was published in four peer-reviewed 
journal articles. The petitioner submitted evidence of these four articles, of which he is the lead author. On 
appeal, the petitioner submits citation lists for each of these articles. The petitioner's article published in the 
August, 2001 edition of Applied Microbiology and Biotechnology has been cited three times. His article 
published in the April, 2001 edition of Journal of Applied Microbiology has been cited eight times. Another 
article published ition of Food and Chemical ~o&ologv has been cited twice, including 
one self-citation. ditor of Food Chemical and Toxicology at Unilever Health Institute in 
the Netherlands, the petitioner "developed a new standard method to quantitatively 
characterize the bacterial nitrate reductase activity in the human oral cavity, which is much simplkr and better 
than the methods used by other research groups." Finally, the petitioner's article published in the June, 2000 
edition of JournaI of Microbiological Methods has only been cited by the petitioner himself in subsequent 
publications. This minimal citation of only three articles does not indicate that the petitioner's work made a 
major impact in his field and does not reflect the requisite sustained acclaim. 
Finally, several of the recommendation letters discuss the petitioner's recent work on erchlorate r tion 
and genetic engineering of bacteria for enhancing hydrogen energy production. the 
petitioner's supervisor at Pennsylvania State University, describes the petitioner as one o t e strongest - 
researchers I have ever known in performing microbiological research in my laboratory" and explains that the 
petitioner is "currently performing several different investigations to understand the bacterial enzymes used for 
perchlorate degradation. This information will be important if we are to operate biological treatment systems 
for a long-term removal of perchlorate from contaminated water sources." 
d 
Iso explains that 
the petitioner's work on genetic engineering of bacteria for enhancing hydrogen energy pro uction will be of 
great im ortance as global warming concerns lead the world away from its reliance on fossil fuels. 
d former Professor of Industrial Microbiology at the Massachusetts Institute of member of the National Academy of 
major impact on applied microbiology." "one of the finest investigative 
researchers in this field. . . . His the top of this profession in 
at Southern Illinois 
University, also "consider[ 
bioremediation and is ssociate Professor of 
Environmental 
petitioner's resume, she "strongly believe[s] that he is a highly accomplished scientist who is conducting cutting 
edge research on microbial production of hydrogen fuel/energy sources and degradation of perchlorate." 
Despite these glowing assessments, the record contains no corroborative evidence 
contributions in these two areas. At the time of filing, none of the petitioner's research at 
laboratory had been published. On appeal, the petitioner submitted evidence of the subseq 
three articles that we cannot consider. The petitioner must establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. $ 
103.2(b)(12), Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 197 1 ). 
In this portion of her decision, the director noted that publication of research is inherent to success as an 
established scientist and determined that the petitioner's publication record was insufficient to meet this 
criterion. The director also addressed the recommendation letters and determined that they did not establish that 
the petitioner's contributions had advanced his field in a manner reflective of the requisite sustained acclaim. 
On appeal, counsel derides this section of the director's decision as "boilerplate garbage . . . and other nonsense 
that was obviously made up by some primeval bureaucrat who know [sic] nothing about either law or scientific 
publications. . . . There is no sense to what is being said, and none of it relates to this petition. This petitioner 
has 16 journal and book publications, as well as 23 conference publications, for a total of 39 publications. He 
ABSOLUTELY qualifies in this category despite what this boilerplate-loving examiner says." Counsel 
mischaracterizes the director's decision and the record does not support his claims regarding the petitioner's 
publications. The record indicates that at the time of filing, (besides numerous abstracts), the petitioner had 
published just ten articles in scientific journals and two chapters for one book. Only three of his articles have 
been minimally cited by other researchers. The evidence submitted thus does not establish the petitioner's 
eligibility under this criterion. 
(vi) Evidence of the alien 's authorship of scholarly articles in the Jield, in professional or major trade 
publications or other major media. 
The director correctly determined that the petitioner did not meet this criterion. As previously mentioned, 
counsel claims on appeal that the petitioner "has 16 journal and book publications, as well as 23 conference 
publications, for a total of 39 publications." However, mere publication of scientific work is insufficient to 
satis6 this criterion. Frequent publication of research findings is inherent to success as an established scientist 
and does not necessarily indicate the sustained acclaim requisite to classification as an alien with extraordinary 
ability. Evidence of publications must be accompanied by documentation of consistent citation by independent 
experts or other proof that the alien's publications have had a significant impact in his field. In this case, the 
petitioner initially submitted no citation information for his publications, but counsel claims on appeal that the 
petitioner "has more than 90 citations which are included with this appeal." Counsel's claims regarding the 
petitioner's publication record are simply not supported by the evidence submitted. 
At the time of filing, the petitioner had published 10 articles in scientific journals in his field and numerous 
abstracts. He is the lead author of seven of the journal articles and is also the lead author of two chapters in a 
book on biochemical engineering. The petitioner submitted supplemental information regarding four of his 
journal articles. The first article is entitled "Evaluation of Nitric Oxide Production by Lactobacilli" and was 
published in 2001 in Applied Microbiology and Biotechnology as a "Short Contribution." According to the 
submitted excerpt from the 2000 listing of "Journal Citation Reports Science Edition," Applied Microbiology 
and Biotechnology is ranked 46 out of 133 journals in this field and has an impact factor of 1.505 and a cited 
half-life of 6.9. On appeal, the petitioner submits evidence that this article has been cited three times by 
independent researchers. The petitioner's second article, "Quantitative Measurement of the Nitrate Reductase 
Activity in the Human Oral Cavity," was published in 2001 in Food and Chemical Toxicology, ranked I0 out of 
94 journals in this field with an impact factor of 1.382 and a cited half-life of 7.7. This article has been cited 
two times, including one self-citation by the petitioner. The third article, "The Bactericidal Effect and Chemical 
Reactions of Acidified Nitrite under Conditions Simulating the Stomach," was published in 2001 in the Journal 
of Applied Microbiology, which is ranked 44 out of 133 journals in this field and has an impact factor of 1.5 1 1 
and a cited half-life of 2.5. This article has been cited eight times by independent research teams. Finally, the 
petitioner's article entitled "Adaptation of E. coli Cell Method for Micro-scale Nitrate Measurement with the 
Griess Reaction in Culture Media," was published in 2000 in the Journal of Microbiological Methods, which is 
ranked 41 out of 80 journals in this field and has an impact factor of 1.512 and a cited half-life of 5.5. No 
independent researchers have cited this article which has only been referenced by the petitioner himself in five 
subsequent publications. 
The record shows that at the time of filing, the petitioner has published ten articles in scientific journals, two 
book chapters and numerous abstracts. Independent researchers have cited only three of the petitioner's articles. 
These citations are minimal and do not reflect the requisite sustained acclaim. On appeal, the petitioner 
submitted evidence of the publication and citation of three more articles. We cannot consider this evidence 
because it arose after the petition was filed. The petitioner must establish eligibility at the time of filing. See 8 
C.F.R. 5 103.2(b)(12), Matter ofKatigbak, 14 I&N Dec. at 49. Apart from citations, the record contains no 
other evidence of the significance of the petitioner's articles. Although relevant, the recommendation letters 
the petitioner's publications have made a notable impact in 
his field. "has a significant publication record." As previously 
notes that the petitioner co-authored two articles on L-lactic 
articles have been cited or otherwise recognized in 
his field. Despite counsel's claims, the evidence submitted does not demonstrate that the 
publication record is consistent with the sustained national or international acclaim requisite to classification as 
an alien with extraordinary ability. Accordingly, the petitioner does not meet this criterion. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
The director correctly found that the petitioner did not satisfy this criterion. On appeal, counsel claims that the 
director "essentially ignore[d] the fact that Penn State is a distinguished institution, and that petitioner was a 
leading researcher there." Again, counsel's claim is not indicates that at 
the time of filing the petitioner was a postdoctoral at the College of 
Engineering Environmental Institute at the petitioner 
as "irre laceable" and "a key member 
otes that "Penn State prides itself on being one of the finest research establishments in the 
IS le ." choes these views by stating that the petitioner "is a key member of his 
at Penn tate nlversity, and Penn State itself is [at] the forefront of this research." -- 
escribes the petitioner as "a postdoctoral research associate in aboratory at 
University, one of the top research institutions in the c ecommendation 
letters describe the petitioner as a "postdoctbra~ researcher" or as holding a "n& 
letters demonstrate that the petitioner is a highly valued member of 
establish that he plays a leading or critical role for the Environmenta 
1 position." While the 
aboratory, they do not 
State Universitv. 
indicates that the petitioner is a postdoctoral researcher whose work is led and directed by 
t himself. In addition, the record contains no independent evidence that the Environmental 
State University have distinguished reputations. Accordingly, the petitioner does not 
meet this criterion. 
(ix) Evidence that the alien has commanded a high salary or other signEficantIy high remuneration for 
services, in relation to others in theJield. 
The petitioner initially submitted no evidence relevant to this category. On appeal, counsel claims the petitioner 
meets this criterion through his current employment as a principal scientist at Antex Biologics, Incorporated 
("Antex"). The petitioner submitted a letter from Antex dated July 23, 2004 and captioned "Offer of 
Employment - Principal Scientist." We cannot consider this evidence because it arose after the petition was 
filed. Again, the petitioner must establish eligibility at the time of filing; a petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. 3 103.2(b)(12), Matter of 
Katigbak, 14 I&N Dec. at 49. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. $ 1153(b)(l)(A) 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner has made meaningful contributions to his field, but the record does not 
establish that he was a scientist of extraordinary ability at the time of filing. 
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.