dismissed EB-1A Case: Chemistry

LE: Office: NEBRASKA SERVICE CENT& Date: 
n.1 Cnnnn 
JAN 2 6 2005 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraor inary Ability Pursuant to 
Section 293(b)(l)(A) of the Immigration and Nationality Act, 8 U S.C. 1153(b)(l)(fi) 9 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All docu nts have been returned to 
the office that originally decided your case. Any further inquiry must be made to t at office. P 
w 
Robert P. Wiemann. Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 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. 3 1153(b)(l)(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, counsel asserts that the denial is inconsistent with a previous approval of a nonimigrant visa 
petition in behalf of the petitioner in a similar classification. We do not find that an approval of a nonimmigrant 
visa mandates the approval of a similar immigrant visa. Each case must be decided on a case-by-case basis on 
the evidence of record. The nonimmigrant visa could have issued based on different evidence or in error. 
Citizenship and Immigration Services (CIS) is not bound to treat acknowledged past errors as binding. See 
Chief Probation OfJicers of Cal. v. Shalala, 118 F.3d 1327 (9th Cir. 1997); Thomas Jefferson Univ. v. Shalaln, 
5 12 U.S. 504, 5 17-5 18 (1994); Sussex Engineering, Ltd. v. Montgomery, 825 F.2d 1084 (6th Cir. 1087). The 
remaining arguments will be discussed below. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 
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 have risen to the very top of the field of endeavor. 8 C.F.R. $2&\.5(h)(2). 
The specific requirements for supporting documents to establish that an alien has sustained na~:ional or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
Ci 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that he has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a research chemist. 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. The 
petitioner has submitted evidence that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in thefield of endeavor. 
The petitioner submitted a 1986 certificate of achievement from the Wuhan Lnstitute of Technology. In 1986, 
the petitioner was studying for his Master's degree at that institute. In 1991, the petitioner received a "certificate 
of award" from the "National Department of Mechanical Electrical Industry." The petitioner was a Ph.D. 
student at the time. The petitioner also asserted that he was submitting an award from the American P~ssociation 
for the Advancement of Science (AAAS). The certification, however, is a membership certificate, not a 
competitive award for excellence in the field. 
On January 7, 2003, the director issued a request for additional evidence, noting that the record lacked evidence 
of the selection criteria for or significance of the above certificates. The petitioner no longer claimed to meet 
this criterion in his response and the director did not discuss the criterion further in his final decision. The 
petitioner does not claim to meet this criterion on appeal. 
Academic study is not a field of endeavor, but training for a future field of endeavor. As such, academic 
scholarships and student awards cannot be considered prizes or awards in the petitioner's field of endeavor. 
The petitioner's memberships will be considered below. Thus, we find that the petitioner has not established 
that he meets this criterion. 
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 intt.mationa1 
experts in their disciplines or fields. 
The petitioner submitted evidence of membership in the following associations: AAAS and the American 
Chemical Society (ACS). The petitioner submitted the bylaws for ACS indicating that membership in the 
society requires only that the prospective member be nominated by two members and meet certain education 
and experience requirements. 
In his request for additional documentation, the director concluded that the membership requirements 
documented did not reflect that ACS requires outstanding achievements of their general membership. Once 
again, the petitioner's response did not indicate that he continued to claim to meet this criterion. As such, the 
director did not discuss it in his final decision. The petitioner does not claim to meet this criterion on appeal. 
We concur with the director that possession of a degree, a certain number of years of experience, and 
nomination by current members are not outstanding achievements. 
Published materials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which class$ication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary tmnslation. 
1 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed. in this 
decision. 
Initially and in response to the director's request for additional evidence, the petitioner asserted that the articles 
that cite his own work serve to meet this criterion. While the petitioner is correct that citations can be indicative 
of the cited article's influence, we concur with the director that articles which cite the petitioner's work are 
primarily about the author's own work, not the petitioner. Thus, they cannot be considered published material 
about the petitioner. Nevertheless, as it is typical for members of the petitioner's field to publish original 
scholarly articles, the citation evidence will be considered below as evidence that the petitioner's publication 
history is consistent with national or international acclaim pursuant to 8 C.F.R. 5 204.5(h)(3)(vi). 
Evidence of the alien's participation, either individually or on u panel, as a judge of the work of others in the 
same or an nlliedfield of specfication for which class$cation is sought. 
Initially, the petitioner submitted evidence that the petitioner had refereed one article for the ,loumaE of 
Heterocyclic Chemistry. In his request for additional evidence, the director noted the lack of evidence that the 
petitioner was invited to review the article and concluded that a single review was not indicative of a chemist at 
;he top of his field. In 
- 
rice that he had reviewed two articles sent for 
review to his supervisor, signed the final reviews. The petitioner also 
submitted a review "Advances in Supramolecular Chemistry." 
itor of Supramolecular Chemistry and a professor at the University of Texas at Austin, 
asserts that those invited to write review articles for the text were "experts who had made great contributions to 
supramolecular chemistry. ontinues: 
Topics are usually identified by the editor, and invited experts select the most ground-breaking 
research from the recently published literaiures and their own research work. Research 
summaries provide analyses that range from the purpose of study to the reviewer's observatior~s 
about the research and its implications for further investigation. In addition, the review 
chapters highlight new directions in chemical research. 
The director determined that the petitioner had not established that the journals for which he refereed articles 
specifically invited him to perform the reviews. The director concluded that the petitioner's referee history was 
not sufficient to meet this criterion. On appeal, ults the director for failing to consider the 
petitioner's review article and resubmits the letter fro 
Regarding the petitioner's review of articles submitted for publication, we concur with the director that being 
requested to review an article by one's own advisor is not evidence of national or international acclaim. 
Moreover, we cannot ignore that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Thus, peer review is routine in the field; not every peer reviewer enjoys sustained national or 
international acclaim. Without evidence that sets the petitioner apart from others in his field, such as evidence 
that he has reviewed an unusually large number of articles, received independent requests from a substantial 
number of journals, or served in an editorial position for a distinguished journal, we cannot conclude that the 
petitioner meets this criterion. 
The record does not establish t ditor of Volume 7 of "Advances in Suprarr~olecular 
r the review, as opposed to some of the more notable 
r has not established that selecting the most significant 
articles in the are ectively through citation evidence, constitutes judging 
the work of others. The chapter is better considered under the scholarly article criterion pursuant to 8 C.F.R. 
5 204.5(h)(3)(vi), discussed below. We concur with the director's overall conclusion that the petitioner's review 
history is not indicative of or uniquely consistent with national acclaim. 
Evi 1 encs of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in thefield 
professor at the Universita di ~olo~na, discusses a collaboration with the petitioner's group 
at ng am Young University. serts that the petitioner "was able to efficiently synthelii[ze] new w 
molecules that could work as sensors for applications in the field of medical diagnostics, 
drug discbvery, and environmental con&ol." plains that the petitioner synthesized a series of 
macrocycles containing fluorophores such as 8-hydroxyquinoline, dansylamide, TSQ and Zinquin groups, 
which have proven to be effective chemosensors for transition metal ions." Dr. Prodi concludes that the 
petitioner's work "has tremendous importance for analysing [sic] and monitoring some metal ions in 
environmental and biological systems." 
work the petitioner did at Brigham Young University. Specifically, the petitioner 
9 typically needed to prepare dansylamidoethyl fluorophore for heavy rnetal ions 
from four to one, increasing the yield. The petitioner also prepared X-ray quality single crystals, allowing the 
study of exact structures that cause metal ions to fluoresce. Dr. Bradshaw explains that these deve:lopments 
improve our ability to remove toxic metal ion salts from streams and recover silver. 
University and one of the petitioner's coauthors, asserts that 
method of preparing 8-aminoquinoline annecl ligands, 
the new fluorescent ligands "will allow the 
of transition and post-transition metal ions." Dr. 
Izatt concludes that these procedures have analytical and environmental applications. 
professor at Brigham Young University, asserts that the petitioner developed a new way 
allowing easy "viewing" of the molecule through W spectroscopy. 
senior research investigator with the Bristol Myers Squibb Pharmaceutical Research Institute, 
e petitioner's work designing and incorporating additional molecular features into molecules has - 
a plications in heavy metal extraction, fluorescence-based chemosensors, and pharmaceutical separations. Dr. 
Ili sserts that the petitioner's approach is more "elegant" than the one developed at Bristol Myers Squibb, although he does not indicate that Bristol Myers Squibb has adopted the petitioner's approach. 
a professor at Wuhan University, discusses the petitioner's work at that university. 
synthesized bucket shaped compounds that can accept correctly shaped chemicals 
and are used to analyze pharmaceutical compounds and as enzyme models. 
In response to the director's request for additional evidence, the petitioner submitted letters from independent 
researchers not only praising the petitioner's work, but also discussing their own adoption of his methods. 
The director concluded that the petitioner meets this criterion through his development of novel compounds 
that fluoresce when exposed to metals in the environment. The record supports that conclusion. 
the alien's authorship of scholarly articles in the field, in professional or m8ajor trade 
or other major media. 
evidence that he has authored 40 published articles and the aforementioned review 
2000 article in the Journal ofHetrocyclic Chemistry was the lead article in that issue. 
Universities' Committee on Postdoctoral Education, on page 5 of its Report and 
1998, set forth its recommended definition of a postdoctoral appointment. 
this definition are the acknowledgement that "the appointment is viewed as 
and/or research career," and that "the appointee has the freedom, and is 
or her research or scholarship during the period of the appointment." 
of one's work to be "expected," even among researchers 
and/or research career." This report reinforces CIS'S position that 
evidence of sustained acclaim; we must co~~sider the 
The director co cluded that the petitioner meets this criterion. Although many of the citations of the petitioner's 
articles are self cites, we will not disturb the director's conclusion that the petitioner meets this criterion, albeit 
minimally. 
i 
the alien has perjorrned in a leading or critical role for organizations or establishnzents that 
uished reputation. 
his Ph.D. from Wuhan University in 1994. The petitioner then spent one year as an 
university. From August 1995 to August 1997, the petitioner worked as a postdoctoral 
Hong Kong Polytechnic University. The petitioner then returned to Wuhan University 
wprked as a postdoctoral fellow at Brigham Young University from February 1998 to 
2001 until the date of filing the petitioner was a synthetic organic chemist at IBC 
of Research and Development at IBC, asserts that the petitioner "is an important 
chemistry Ph.D. letter, signed jointly with 
Synthesis at IB was critical 
and Technology. 
Whil the petitioner stopped working at IBC in October 2002, he asserts that IBC 
[him] when our business again has a project needing his unique expertise in 
synthetic organic chemistry." 
asserts that the petitioner's work "was critical to the success of our on-going research in new 
at Brigham Young University. 
professor at Wuhan University, asserts that the petitioner was a co-principal investigatol- on two 
projects and the principal investigator on a third project at the university funded by the National Natural Science 
Foundation of China. 
Page 7 
assertion that the petitioner's work was critical to a project but 
determined tha that the company would not hire the petitioner again until it had 
another project 'needing his unique expertise in synthetic organic chemistry."' The director then con~:luded that 
playing a leading role in a research group at a university does not imply a leading role for the university itself, 
the entity with the distinguished reputation. The director noted that the published mateme 
Brigham Young University relating to fluorescing waste metallic ions mentions1 
co laborator! 
I 
On appeal,, the petitioner does not contest the director's role at Brigham 
Young University, but asserts that the director mischaracterized tatement regarding IBC's t interest in rehiring the petitioner. 
W have already considered the petitioner's claimed contributions while working for Brigham Young 
Un versity and IBC above. What is relevant for this criterion is the nature of the role the petitioner wiis hired to 
fill and the national reputation of the employer. We concur with the director that the petitioner's postdoctoral I posltion at Brigham Young University cannot serve to meet this criterion. While Brigham Young University 
may have a distinguished reputation, we cannot conclude that every post doctoral researcher who plays an 
important role in a distinguished university's laboratory plays a leading or critical role for the University as a 
whole. We also concur with the director's concern that the published material about the petitioner'!; research 
group does not mention him. We further note that the work discussed in this material appeared in the J'ournal of 
Organic Chernistv in July 2001. The petitioner does not list this article on his curriculum vitae. 
The petitioner's concern that the director twist statement is valid. Nevertheless, we concur 
with the director's ultimate determination on a research firm requires creative and 
successful researchers to succeed, we cannot conclude that every research chemist plays a leading or critical role 
for the research firm that employs him. We note that the materials from IBC's website submitted for the record 
list several notable articles published by IBC staff. The petitioner is not a coauthor on any of these articles. 
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 himself as a research 
chemist to such an extent that he may be said to have achieved sustained national or international acclaim or to 
be within the small percentage at the very top of his field. The evidence indicates that the petitioner shows 
talent as a research chemist, but is not persuasive that the petitioner's achievements set him significantly above 
almost all others in his field. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A) of the Act and 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. 3 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.