dismissed EB-1A Case: Chemical Engineering

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20529 
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FILE: WAC 01 258 50646 Office: CALIFORNIA SERVICE CENTER Date: 
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. 3 1 1 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been rerurned to 
the office that originally decided your case. Any further inquiry must be made to that off~ce. 
A- 
1 
I 
c 
Ib Robert P. Wiernann, Director 
I Administrative Appeals Office 
WAC 01 258 50646 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California 
Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The petitioner then 
filed a motion to reopen and reconsider. After granting the petitioner's motion, the AAO affirmed its appellate 
decision. The matter is now before the AAO on a second motion to reopen and reconsider. The motion will be 
granted, the previous decision of the AAO will be affirmed, and the petition will again be denied. 
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. 3 1 153(b)(l)(A), as an alien of extraordinary ability in 
the sciences. The director and the AAO determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
This petition, filed on July 5, 2001, seeks to classify the petitioner as an alien with extraordinary ability as a 
"Chemical Engineer." The regulation at 8 C.F.R. 3 204.5(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 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. It should be reiterated, however, that the petitioner must show that he has sustained 
national or international acclaim at the very top level. In the appellate decision and again on motion, the 
AAO found that the petitioner had not established that he meets at least three of the criteria that must be 
satisfied to establish the sustained national or international acclaim necessary to qualify as an alien of 
extraordinary ability. The evidence presented by the petitioner on motion wili be discussed below. 
Documentation ofthe alien's receipt of lesser nutional~ or internalionally recognized prizes or awards for 
excellence in the $eld of endemor. 
Counsel maintains that a "Certificate of Achievement" presented to the petitioner by Dr. George Goeke, 
Intellectual Asset Manager, Union Carbide Corporation (UCC), constitutes qualifying evidence under this 
criterion. The certificate states that the petitioner "completed all requirements for admission as an honorary 
member of the Pod Catalyst Skill Center." In the appellate decision and again on motion, the AAO found that 
this certificate represents institutional recognition rather than national or international recognition. 
The petitioner submitted a letter from Dr. Goeke stating: 
[The petitioner] spent a one-year sabbatical in my group in fiscal year 1993. During that period, I 
managed a group of about 16 Ph.D. chemists and an equal number of B.S. scientists conducting catalyst 
research in the general area of polyolefins. 
[The petitioner] joined us under the auspices of a joint development program we sponsored with 
selected licensees. In this special program, highly qualified technical people were authorized to spend 
up to one year doing catalyst research in our section. The purpose of this program was to help train the 
candidates in how to conduct catalyst research and to foster good relations with our valued licensees. 
WAC 01 258 50646 
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[The petitioner's] rate of progress was extraordinary, which attests to his skill and drive and the many 
long hours he spent in the lab to lay the groundwork for proceeding through our gate commercialization 
process. He was awarded a "Certificate of Achievement" for his efforts at UCC, an honor reserved for 
those who demonstrate the highest level of performance. 
Dr. Goeke does not indicate the percentage or number of trainees on sabbatical in his section that receive this 
type of recognition. Nonetheless, we do not find that successful performance in a UCC program designed "to 
help train the candidates in how to conduct catalyst research" is tantamount to a nationally or internationally 
recognized award for excellence in catalyst research or chemical engineering. Moreover, we cannot ignore 
that admission to the program was limited to en~ployees of UCC "licensees" (such as Hanwha, the petitioner's 
employer at that time). 
In this instance, the extent of the petitioner's recognition was clearly limited to the training program run by Dr. 
Goeke. We accept that Union Carbide is a well-known company, however, outside of Dr. Goeke's research 
section at UCC, there is no indication that the UCC "Certificate of Achievement" is a nationally or internationally 
recognized prize for excellence in the chemical engineering field, rather than simply an acknowledgment of the 
petitioner's successful completion of UCC7s catalyst research training program for licensees. Pursuant to the 
statute, the petitioner must provide evidence to establish that the certificate presented to him enjoys 
significant national or international stature. Dr. Goeke's letter and the other documentation presented on motion 
are not adequate to establish that this certificate commands significant recognition beyond the petitioner's 
catalyst research trainers at UCC. 
Documentution of the  alien!^ membership in msociations in the field for which classiJcution is 
sought, which require outstanding achievenzents of their members, as judged by recognized 
national or international experts in their disciplines or3elds. 
The AAO's prior decision stated: 
Counsel contends that the petitioner meets this criterion based on his "honorary membership" in the 
POD Catalyst Skill Center as evidenced by his "Certificate of Achievement." The record contains no 
evidence that the POD Catalyst Skill Center in an association with the meaning of this criterion. . . . 
[Dr. Goeke] does not . . . state that the Skill Center is an association rather than a workplace unit of 
Union Carbide. 
On motion, the petitioner submits general in for ma ti or^ about Union Carbide (now wholly owned by Dow 
Chemical as Univation Technologies) and materials related to a catalyst formulation study undertaken by the 
petitioner in 1991. This documentation is not adequate to overcome the AAO's earlier conclusions. It 
remains that the Pod Catalyst Skill Center was a particular research unit of Union Carbide, rather than a 
national or international association of engineering professionals. Moreover, the statute requires sustained 
acclaim and the record contains no evidence documenting the petitioner's activity as an "honorary member" 
of this unit since the early 1990's. 
Counsel argues that Union Carbide, the "world's top edge organization evaluated [the petitioner's] ability and 
performance over a two-year period and granted 'honorary membership' to a foreign company's employee, 
WAC 01 258 50646 
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[the petitioner]." The record, however, contains no bylaws or official membership requirements for 
admission to "honorary membership" in the POD Catalyst Skill Center. We find no evidence to conclude that 
"honorary membership" in the POD Catalyst Skill Center is tantamount to membership in an "association" 
requiring outstanding achievements of its members, as judged by recognized national or international experts. 
In this case, there is no evidence showing that the petitioner holds membership in a highly exclusive 
association comparable to (for example) the U.S. National Academy of Sciences. 
Published materials about the alien in proj2ssionul or mujor trade publications or other mujor 
media, relating to the a1ien:v work in the field for which cluss1J;c-ation is sought. Such evidence shall 
include the title, date, and author of the muterial, and any necessaly translation. 
The AAO's appellate decision stated: 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national distribution and be 
published in a predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but they qualify as major media because of significant national distribution, unlike small 
local community papers. 
On appeal, counsel asserts that the scientific papers authored by the petitioner would satisfy this criterion. 
The petitioner's authorship of scholarly articles will be addressed below under a separate criterion. This 
criterion requires the petitioner to submit published materials written by others about him or his work. In 
this case, the petitioner has offered no evidence showing that he has been the subject of sustained major 
media coverage. 
The AAO's March 17, 2004 decision added: "On motion, counsel submits copies of internal business 
correspondence and an internal evaluation study from Union Carbide. Not only is the petitioner not mentioned by 
name in these documents, internal company documents are not professional or major trade publications." 
On present motion, counsel argues: "For any international joint research program performed under a highly 
secretive agreement, it is forbidden to release the names of key members to the public. Only university professors 
occasionally release their names to the public." Counsel fails to explain how the petitioner was purportedly able 
to achieve sustained national or international acclaim if his work consisted of closely guarded secrets. The record 
contains no evidence showing that the petitiorler has been the primary subject of "published materials" in major 
media. 
Evidence of the alien5 participation, either individually or on a panel, as a jdge of the work of 
others in the same or un alliedjield of speclJication for which clmszfication is sought. 
The petitioner submitted a fax from "Evaluation and Management Division 3, Korea Administrative Institute 
of Industry Technology Evaluation" requesting that the petitioner "[e]valuate the propriety of the research 
proposals of 3 companies . . . and inform the result of select or reject." 
WAC 01 258 50646 
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The AAO's March 17, 2004 decision stated: 
We . . . note that the record does not contain evidence that the petitioner actually evaluated the 
proposals. The record does not reflect the basis for the petitioner's selection to perform the evaluations. 
The petitioner's selection to serve as judge of his peers must be indicative of his national or 
international acclaim in the field. . . . Furthermore, the evidence establishes that the petitioner was 
asked once to review and evaluate the work of others. This falls short of the extensive documentation 
required by the statute to establish that the petitioner meets this criterion. 
On present motion, counsel states: 
The result of the evaluation was sealed and mailed to the Korean Administrative Institute of Industry 
Technology. No copy was issued to [the petitioner] because if companies become aware that their top 
secret research project's information are [sic] released to their competitors, they will accuse and sue the 
Institute. 
[The petitioner] was asked to be a member of many panels for evaluation of other researcher [sic] of 
chemistry and chemical engineers in academic organizations . . . . However, . . . HANWHA did not 
allow him to join there. Instead, he worked as a mernber of a panel for the evaluation of' national 
projects sponsored by the Korean government. The results of those evaluations were not permitted to 
be disclosed. 
The requirement of extensive documentation is to minimize the risk of misjudgment of a petitioner by 
officers of U.S. Citizenship and Immigration Services and the risk of allowing in an unqualified person. 
But, it may not be necessary if the petitioner was already evaluated by a group of persons or by an 
organization . . . . 
Section 203(b)(l)(A)(i) of the Act requires "extensive documentation" of sustained national or international 
acclaim. Counsel's assertion that extensive documentation is unnecessary under certain circumstances is not 
supported by a plain reading of the statute, the regulations, or binding precedent. In regard to counsel's claim 
regarding the petitioner being "asked to be a member of many panels for evaluation of other researchers," we 
find no evidence in the record to support this assertion. The statements of counsel on appeal or in a motion 
are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 
188-89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
In regard to counsel's claim regarding the secretive and therefore undocumented nature of the evaluation 
conducted by the petitioner for the Korean Administrative Institute of Industry Technology and his evaluation 
of national projects sponsored by the Korean government, we note that the burden of proof is on the petitioner 
to produce evidence to support his claims. The petitioner cannot avoid this burden simply by asserting that 
the evidence exists, but cannot be obtained or submitted because of its proprietary or secretive nature. If 
WAC 01 258 50646 
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knowledge of the petitioner's work is deliberately restricted, then by definition national or international 
acclaim is virtually impossible. 
Without evidence that sets the petitioner apart from others in his field, such as (for example) evidence that he 
has reviewed an unusually large number of research proposals or received multiple independent requests for 
his services from a substantial number of national institutions, we cannot conclude that he meets this criterion. 
Evidence of the alien's original scientzjic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the$eld. 
On present motion, counsel states: 
In the field of [the petitioner's] endeavor, industrial polyolefin catalyst, it usually takes couple of 
decades to evaluate the direct contribution of a newly developed catalyst result from market. In 
chemical engineering, the research of polyolefin catalyst is considered as a long-term national industrial 
project. . . . It is almost impossible to pass those steps within a few years. 
The duration of time for the impact of a polyolefin catalyst to be realized does not relieve the petitioner of the 
burden of demonstrating that the greater field views his scientific development as a contribution of major 
significance ss of the petition's filing date. A petitioner must establish eligibility at the time of filing; a 
petition may not be approved based on speculation of future eligibility. Matter ofKatigbak, 14 I&N Dec. 45, 
49 (Comm. 1971). In this case, the petitioner seeks a highly restrictive visa classification, intended for aliens 
already at the top of their respective fields, rather than for individuals whose scientific contributions might 
eventually be recognized at some unspecified future time. 
Counsel further states: "UCC was involved in a sequential joint venture with EXXON in 1997 and a merger 
with DOW Chemical in 2001. So the final step of commercialization of a new catalyst product is temporarily 
suspended. But, [the beneficiary] believes that it will be revived as soon as the Asian economy recovers." 
The petitioner's belief that commercialization of his catalyst will eventually occur at some unknown future 
date is entirely speculative and therefore not adequate to establish eligibility under this criterion. See Matter 
of Kutigbak at 49. 
The extremely narrow range of witnesses offering letters of support in this case does not demonstrate that the 
petitioner's reputation has traveled beyond his circle of acquaintances, let alone nationally or internationally as 
the statute requires. In conclusion, the documentation presented by the petitioner does not support a finding 
that his catalyst is nationally or internationally recognized by the greater scientific community as a major 
contribution. 
Evidence of the alien's authorship of scholarly articles in thejield, in professional or major trade 
publications or other major media. 
On motion, rather than specifically identifying evidence adequate to satisfy this criterion, counsel instead 
argues that the petitioner's "research results are considered as tightly confidential." As previously observed, 
the burden of proof is on the petitioner to produce qualifying published materials. The petitioner cannot avoid 
WAC 01 258 50646 
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this burden simply by asserting that publication of one's work is not relevant to petitioner's field due to the 
proprietary or secretive nature of his work. Counsel's argument contradicts the evidence of record as the 
petitioner has indeed authored a few published articles. In its March 17, 2004 decision, the AAO stated that 
the petitioner submitted evidence of having published at least three articles in professional publications, but 
there was no evidence of citations to those articles. In its appellate decision, the AAO noted that frequent 
citation by independent researchers would demonstrate widespread interest in, and reliance on, a scientist's 
published work. The AAO further observed that an absence of citations to the petitioner's published articles 
suggests that his work has gone largely unnoticed by the greater research community. Although he has had 
ample opportunity to provide evidence of outside reaction to his published articles, the petitioner has failed to 
do so. 
Evidence that the alien has peyformed in a leading or critical role for organizations or 
establishments that hcme a distinguished reputation. 
On present motion, counsel states that the petitioner "was the project owner of the joint development program" 
between UCC and Hanwha. In an earlier AAO decision, it has already been noted that Dr. Goeke "was the 
supervisor of the joint development program." In addressing counsel's claim that that the petitioner's 
participation in the joint development program satisfied this criterion, the AAO's appellate decision stated: 
In order to establish that the alien performed a leading or critical role for an organization or 
establishment with a distinguished reputation, the petitioner must establish the nature of his role within 
the entire organization or establishment and the reputation of the organization or establishment. Where 
an alien has a leading or critical role for a section of a distinguished organization or establishment, the 
petitioner must establish the reputation of that section independent of the organization as a whole. 
Counsel asserts that the petitioner performed in a leading or critical role through his participation in the 
joint development program at Union Carbide. We cannot ignore Dr. Goeke's statement that the purpose 
of this program was to "help train the candidates in how to conduct catalyst research." The petitioner's 
"one-year sabbatical" at Union Carbide from 1993 to 1994 shows that the petitioner conducted research 
at Union Carbide, but there is no evidence to suggest that he fulfilled a leading or critical role within the 
company, especially since he was not a direct employee and his work was only temporary and 
contractual. The record contains no evidence to show that the petitioner has ever supervised or overseen 
other individuals at Union Carbide nor does it indicate that he has consistently exercised substantial 
control over the company's research programs or business decisions. A simple review of Dr. Goeke's 
qualifications, for example, shows that his role and responsib~lities at Union Carbide far exceeded those 
of the petitioner. 'Thus, the petitioner's impact on Union Carbide's research programs appears 
negligible. 
Counsel states that the petitioner "was the principal scientist of Hanwha for 10 years." Exhibit I I submitted 
with this motion includes a translation of a "Petition for sending [the petitioner]" from Hanwha to UCC as 
part of their joint development program. The petition was prepared by Hanwha's Department of Human 
Resources and indicates that the petitioner's title was "Senior Research Engineer." The petition, dated April 
19, 1993, states: 
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[The petitioner] was selected as a beneficiary of a post doctorial program of the Research Center and 
approved by the Group with a determined condition for supporting. 
But, the Department Business Plan got approval of the President (of HYCC [Hanwha]) for the Joint 
Research Agreement with UCC, which was propelled by the same person ([the petitioner]). 
Submit this petition because Joint Development with UCC is different from the post doctorial program 
in terms of [black marked] . . . 
For some unexplained reason, significant portions of the petition from Hanwha's Department of Human 
Resources and its accompanying translation are blacked out in the same manner as above. For example, 
information regarding the petitioner's saiary in the postdoctoral position and the UCC joint research position 
has been withheld. In regard to postdoctoral program of the Research Center cited above, we cannot ignore 
that the petitioner's role in such a program is representative of scientific training for a future professional 
career in a field of endeavor. Furthermore, the petition from Hanwha, in describing the aspects of the 
petitioner's position, includes such phrases as "Learn advanced technology", "Study advanced research 
culture", and "Learn UCC research system and know-how." Such terms indicate more of a trainee-type role 
rather than a leading or critical role. While we accept that the petitioner has contributed to research projects 
at UCC and Hanwha, it has not been shown that his role is any more important than that of other researchers 
employed by those institutions. For the above reasons, we find that the petitioner's evidence falls short of 
establishing that he has performed in a leading or critical role for a distinguished organization, or that his 
involvement has earned him sustained national or international acclaim. 
Evidence that the alieli hu.r comnzanded a high ,salar?, or other significantly high remuneration 
fov services, in relation to others in thejield 
Counsel provides information regarding the petitioner's salary for only two periods, May 1, 1993 to May 1. 
1994 and 1997. We note, however, that the statute and regulations require the petitioner's acclaim to be 
sustained. The record contains no evidence showing that the petitioner has earned significantly high 
remuneration subsequent to 1997. In regard to the income that the petitioner clainied to earn in 1994 
($49,000 salary plus bonus of $31,000), counsel cites Exhibit 11, the Hanwha Department of Human 
Resources document, which blacked out the petitioner's salary and bonus. The record does not include the 
original version of this document or other first-hand evidence (such as tax forms or official employer 
correspondence) to establish that the petitioner actually earned these amounts in 1994. In regard to the 
income that the petitioner claimed to earn in 1997, the record contains a translation of a payroll document 
reflecting a salary of 42,207,629 Won or $49,000. Counsel submits GNP (Gross National Product) data for 
Korea and states that the petitioner "received over 10 times of per capita GNP of his country." 'The petitioner, 
however, must submit salary information for chemical engineers rather than for all Korean occupations. 
Counsel asserts that the petitioner's salary was "two times of other excellent Ph.D. chemical engineers in his 
field" in Korea. but the record contains no statistical evidence to support this assertion. 
The petitioner also submits salary data from the National Science Foundation indicating that in the U.S. 
"federal scientists and engineers with a Ph.D. degree reported a median annual salary of $60,400 in 1993." 
The petitioner also provides data indicating that the median expected salary for a typical chemical engineer in 
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Los Angeles is $56,954. We note here that the $49,000 earned by the petitioner in 1997 is well below the 
median chemical engineer salary amounts cited from the U.S. Even if we were to accept that the petitioner 
earned $80,000 in 1994 (which we do not), we find that counsel's reliance on "median" salary statistics is 
seriously flawed. The petitioner must offer evidence that his salary places him at the very top of his field, not 
simply in the top half. Local prevailing wage figures for chemical engineers in Los Angeles do not meet 
this standard. Without comparative evidence showing that the petitioner is among the highest paid chemical 
engineers at the national or international level, we cannot conclude that the documentation presented is 
adequate to satisfy this criterion. 
Counsel asserts that the petitioner's business contacts, potential sales volume of his catalyst, and contract of 
partnership with counsel constitute comparable evidence under 8 C.F.R. 5 204.5(h)(4). That regulation 
allows for the submission of comparable evidence, but only if the ten criteria "do not readily apply to the 
petitioner's occupation." Therefore, the petitioner must demonstrate that the regulatory criteria are not 
applicable to the alien's field. Of the ten criteria, at least eight readily apply to the petitioner's occupation. 
Where an alien is simply unable to meet three of the regulatory criteria, the wording of the regulation does 
not allow for the submission of comparable evidence. 
On motion, counsel requests that his "office be permitted to present oral arguments to the [AAO]." 'The 
regulations provide that the requesting party must adequately explain in writing why oral argument is 
necessary. Fuithermore, Citizenship and Immigration Services (CIS) has the sole authority to grant or deny a 
request for oral argument and will grant argument only in cases involving unique factors or issues of law that 
cannot be adequately addressed in writing. See 8 C.F.R. 5 103.3(b). In this instance, counsel has identified 
no unique factors or issues of law to be resolved. Counsel states only that "[a] direct personal appearance will 
provide [the petitioner] a fair opportunity to accurately present the facts surrounding his application." Aside 
from this general statement, counsel has set forth no specific reasons why oral argument should be held. We 
find that the written record of proceedings fully represents the facts and issues in this marter. Consequently, 
the request for oral argument is denied. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim, is one of the small percentage who has risen to 
the very top of the field of endeavor, and that the alien's entry into the United States will substantially benefit 
prospectively the United States. Here, the petitioner has failed to demonstrate receipt of a major 
internationally recognized award, or that he meets at least threc of the criteria that must be satisfied to 
establish the sustained national or international acclaim necessary to qualify as an alien of extraordinary 
ability. As the evidence presented does not overcome the grounds for the previous decision of the AAO, and 
it has not been shown that that decision was based on an incorrect application of law, the previous decision of 
the AAO will be affirmed. 
In conclusion, we find that the petitioner has not estab!ished eligibility pursuant to section 203(b)(l)(A) of the 
Act. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
S 1361. The petitioner has not sustained that burden. 
ORDER: The AAO's decision of March 17,2004 is affirmed. The petition is denied.