dismissed EB-1A Case: Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 02 223 5061 1 Office: VERMONT SERVICE CENTER Date: JUN 1 2 2005 
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. 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 'aobert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 223 506 1 1 
Page 2 
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. 9 11 53(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 director failed to consider the petitioner's request to amend the petition to a 
lesser classification. Counsel states that it is a "long standing practice" to allow petitioners to amend their 
petitions to a lesser classification. While the director may sometimes allow a petitioner to amend a petition as a 
courtesy, counsel provides no legal source indicating that the director was obligated to do so. Thus, the 
director's failure to consider the petition under a lesser classification was not reversible error. 
Counsel further asserts that the director failed to consider the evidence submitted in response to the director's 
request for additional evidence. The director's decision does not include the chronology of the proceedings and 
provides a general analysis of the record. The director did not, however, deny the petition for abandonment as 
mandated by the regulation at 8 C.F.R. €j 103.2(b)(13) in cases where there is no response to a request for 
evidence. Thus, the director's decision does not suggest that she failed to consider the petitioner's response. All 
of the evidence of record will be considered in detail below. 
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. 
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. 5 204.5(h)(2). 
The specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
3 204.5(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. 
EAC 02 223 5061 1 
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This petition seeks to classify the petitioner as an alien with extraordinary ability as a scientist. The regulation 
at 8 C.F.R. 5 204.5(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 
never identified which criteria he claims to meet; however, the evidence relates to the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in theJield of endeavor. 
The petitioner's resume lists a fellowship and student award. No evidence of these achievements is contained in 
the record. The director concluded that academic awards cannot serve to meet this criterion. Counsel does not 
challenge this conclusion on appeal and we concur with the director. 
Documentation of the alien's membership in associations in the Jeld for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their di.~c@Iines or fields. 
The petitioner lists his membership in the American Chemical Society and the American Association for the 
Advancement of Science. The record lacks evidence of these memberships and the membership requirements of 
these associations. Thus, we concur with the director's conclusion, uncontested on appeal, that the record lacks 
evidence to meet this criterion. 
Published materials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in theJeld for which classrJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The director concluded that frequent citation is an indication of interest in and reliance on the cited author's 
work but that the record laced "evidence that others have cited the [petitioner's] work to a degree that would be 
indicative of his claimed sustained national or international acclaim." The petitioner did submit some evidence 
of citations to his work in response to the request for additional evidence. The director's decision, however, 
does not state otherwise. Rather, the director concluded such evidence was insufficient. Regardless, articles 
that cite the petitioner's work are about the work of the citing author, not the petitioner. Thus, citations cannot 
serve to meet this criterion. Rather, we will consider citations as evidence of the influence of the petitioner's 
articles below. 
Evidence of the alien's participation, either individually or on apunel, as a judge of the work of others in the 
same or an alliedfield of specification for which classlJication is sought. 
The director concluded that the petitioner had not submitted evidence relating to this criterion. We 
acknowledge that, in response to the director's request for additional evidence, the petitioner submitted an e- 
mail dated after the date of filing advising the petitioner that he had been recommended as a possible reviewer 
I 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
EAC 02 223 5061 1 
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and requesting him to complete a survey. This evidence does not suggest that the petitioner had reviewed the 
work of others as of the date of filing. As such, it is not evidence of his eligibility as of that date. See 8 C.F.R. 
tj 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Regardless, 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. 
Evidence of the alien '.Y original scientzjic, scholarly, artistic, athletic, or business-related contributions of 
major sip$cance in the$eld. 
The director concluded that the petitioner had not demonstrated that he is recognized beyond his immediate 
circle of colleagues. The director failed to consider the petitioner's citation record because "citations are legally 
required." 
biologically relevant molecules." In addition, the petitioner "developed a new extremely efficient way if 
producing an important amino acid which is of great utility for the synthesis of new pharmaceuticals." 
he petitioner's research advisor at the University of Michigan, explains that the petitioner 
"re-designed the whole synthetic approach to lapidelectine B and single-handedly carried the synthesis to a point 
where the entire skeleton of the molecule had been assembled." 
In addition to the above letters and other similar letters from colleagues, the petitioner provided letters from 
more independent sources.a professor at the California Institute of Technology, asserts that the 
petitioner "worked out one of the most challenging projects in organic chemistry." He predicts that the 
petitioner's results will benefit the pharmaceutical industry. While we normal1 requires more specific evidence 
as to the influence the petitioner's work has already had, we note thdassertion is supported by the 
fact that several of the citations to the petitioner's work are from researchers working for the pharmaceutical 
industry. 
professor of chemistry at Emory University, asserts that he became aware of the petitioner's 
etitioner's publications and discussions with the petitioner's research advisor.- 
- 
professor at Wayne State University, asserts that he began following the petitioner's work after 
atten mg one o the petitioner's conference presentations. Both attest to the importance of the petitioner's area 
of research and the potential implications for his work. 
n assistant professor of Chemistry at Yale University, characterizes the petitioner's work 
states that his methods have become "widely used" in organic synthesis. He does not 
claim to use the petitioner's method himself or to have been otherwise influenced by the 
EAC 02 223 506 1 1 
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In response to the director's request for additional evidence, the petitioner also submitted evidence of his recent 
work at Novartis, initiated after the date of filing. We cannot consider this as evidence of the petitioner's 
eligibility as of that date. 8 C.F.R. $ 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
We disagree with the director's dismissal of citations as objective evidence of the petitioner's impact in the 
field. While it may be required in the field to cite prior work on which the author is relying, that fact is precisely 
why frequent citation is an excellent indication of an article's impact in the field. While the petitioner's citation 
record is moderate and includes several citations by the petitioner himself and his co-authors, we cannot ignore 
that the petitioner's work is cited by research teams at major pharmaceutical companies. In light of the above, 
we find that the petitioner has met this criterion. 
Evidence of the alien's authorship of scholarly articles in the f~eld, in professional or major trade 
publications or other major media. 
The petitioner submitted evidence that he has authored 12 published articles. The Association of American 
Universities' Committee on Postdoctoral Education, on page 5 of its Report and Recommendations, March 3 1, 
1998, set forth its recommended definition of a postdoctoral appointment. Among the factors included in this 
definition are the acknowledgement that "the appointment is viewed as preparatory for a full-time academic 
and/or research career,'' and that "the appointee has the freedom, and is expected, to publish the results of his or 
her research or scholarship during the period of the appointment." Thus, this national organization considers 
publication of one's work to be "expected," even among researchers who have not yet begun "a full-time 
academic and/or research career." This report reinforces CIS'S position that publication of scholarly articles is 
not automatically evidence of sustained acclaim; we must consider the research community's reaction to those 
articles. 
As stated above, the record contains evidence that independent experts have moderately cited two of the 
petitioner's articles. Thus, we find that the petitioner meets this criterion. For the reasons discussed above and 
below, however, he falls far short of meeting any other criterion. A petitioner must meet three criteria to 
establish eligibility for the classification sought. 
Evidence that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation. 
At the time of filing, the petitioner was a postdoctoral fellow at Harvard University. When considering evidence 
under this criterion, we look at the nature of the role the petitioner was hired to fill. We cannot conclude that 
every postdoctoral fellow plays a leading or critical role for the university as a whole. 
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 researcher 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 
researcher, but is not persuasive that the petitioner's achievements set him significantly above almost all others 
EAC 02 223 5061 1 
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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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.