dismissed EB-1A Case: Dental Research

U.S. Department of flomeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
CoPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: OCT 0 2 2009 
LIN 07 180 52857 
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. $ 11 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 returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
C 
Perry Rhew 
Chief, 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 (AAO) 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. 8 1153(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 necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the regulatory 
criteria at 8 C.F.R. fj 204.5(h)(3). 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). Counsel also challenges the applicability of Matter of Katigbak, 14 I&N Dec. 45,49 
(Regl. Commr. 1971) to the instant case. 
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 ths 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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who 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. 8 204.5(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, filed on June 11, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a dental researcher. At the time of filing, the petitioner was a research assistant and 
graduate student at the University of Washington completing programs of study toward a Ph.D. in 
Oral Biology and a Master of Science in Dentistry (MSD). These degrees were conferred upon the 
petitioner on December 14, 2007, more than six months after the petition was filed. In January 
2008, the petitioner began working as tenure track assistant professor at Ohio State University 
College of Dentistry. 
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, internationally 
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. A petitioner, however, cannot establish eligibility for this 
classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R. 
8 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "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. 
5 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria under 
8 C.F.R. 5 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a certificate from the University of Washington stating that he received a 
Warren G. Magnuson Scholarship "for Academic Excellence." The petitioner also submitted a 
March 12, 2004 letter informing him of his selection "as a 2004-2005 Magnuson Scholar" and 
stating that he would receive "$25,000 for the next academic year" to support his education. The 
petitioner's submission also included an April 21, 2005 article in Uweek, the University of 
Washington Faculty and Staff Newspaper, stating that six graduate students were selected as 
Magnuson Scholars "on the basis of their academic performance and their potential contributions to 
research in the health sciences." [Emphasis added.] The petitioner's receipt of a scholarship from 
his university reflects institutional recognition rather than a nationally or internationally recognized 
prize or award for excellence in the field. Further, we cannot ignore that competition for the 
Magnuson Scholarship was limited to graduate students at the petitioner's university and therefore it 
is not an indication that the recipient "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 petitioner also submitted certificates indicating that he received a United Laboratories Education 
Scholarship (Golden Prize) (1 997- 1998) and Bayer-Shanghai Dental Ltd. Awards (1 992 and 1993) 
I 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 4 
for his studies at West China University of Medical sciences.* Pursuant to 8 C.F.R. 5 103.2(b)(3), 
any document containing foreign language submitted to USCIS shall be accompanied by a full 
English language translation that the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to translate from the foreign language into 
English. The preceding certificates were not accompanied by certified English language translations 
as required by the regulation. 
The petitioner's scholarships to attend the University of Washington and the West China University 
of Medical Sciences represent his receipt of financial assistance for his university studies rather than 
his receipt of nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor. University study is not a field of endeavor, but rather training for future employment in a 
field of endeavor. The petitioner's university scholarships offer no meaningful comparison between 
him and experienced researchers in the field who had long since completed their academic studies. 
The petitioner seeks a hlghly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. 
The petitioner submitted a document from the 2007 American Association of Anatomists (AAA) 
Annual Meeting indicating that he was among six finalists for the "Langman Graduate Student 
Award." We acknowledge the petitioner's selection as a finalist, but the plain language of this 
regulatory criterion requires evidence of the petitioner's receipt of "nationally or internationally 
recognized prizes or awards." In this instance, there is no evidence from the AAA showing that the 
petitioner ultimately received the Langman Graduate Student Award at the association's Annual 
Meeting. Nevertheless, we cannot ignore that competition for the award was limited to graduate 
students. Accordingly, selection for this award is not an indication that its recipient "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). 
Selection for the Langman Graduate Student Award offers no meaningful comparison between its 
recipient and experienced researchers in the field who had long since completed their graduate 
studies. 
In response to the director's request for evidence, the petitioner submitted a March 6, 2008 letter 
fiom the president of the American Association of Orthodontists Foundation stating that the 
petitioner's "2008 Post-Doctoral Fellowship Award proposal . . . was approved for funding for a 
two-year period at $50,000 per year, for a total of $100,000." The petitioner also submitted an April 
7, 2008 letter from the president of the American Association of Orthodontists stating that the 
petitioner's fellowship application was approved for funding in the amount of $90,000 for a duration 
of three years. The letter further states: "This program was created . . . to help reduce the student 
debt for dental education in the U.S. and Canada. The fellowship program is intended to address a 
recognized crisis in orthodontic education by providing funds to encourage and support the 
recruitment and retention of orthodontic educators." The petitioner received the preceding 
fellowships subsequent to the petition's filing date. A petitioner, however, must establish eligibility 
2 
 The record reflects that the petitioner holds both a Bachelor of Medicine degree (1996) and a Master of Science degree 
(1999) from West China University of Medical Sciences. 
Page 5 
at the time of filing. 
 8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Accordingly, the AAO will not consider these fellowships in this proceeding. Nevertheless, the 
petitioner's fellowships represent financial support for his future research projects and advanced 
training rather than nationally or internationally recognized prizes or awards for excellence in his 
field of endeavor. A substantial amount of research is funded by fellowship grants from a variety of 
public and private sources. Every successfbl scientist engaged in research, of which there are hundreds 
of thousands, receives funding from somewhere. Obviously the past achievements of the researcher 
are a factor in grant proposals. The hding institution has to be assured that the investigator is capable 
of performing the proposed research. Nevertheless, a fellowship grant is principally designed to hd 
fbture projects, and not to honor or recognize past achievement. Thus, we cannot conclude that having 
one's work funded in such a manner constitutes receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner's response to the director's request for evidence included a certificate stating that he 
received a Charley Schultz Resident Scholar Scientific Research Award at the 108~~ Annual Session 
of the American Association of Orthodontists in May 2008. On appeal, the petitioner submits a 
document from the 108~~ Annual Session of the American Association of Orthodontists stating: "Six 
individuals were selected as recipients of the 2008 Charley Schultz Resident Scholar Award. This 
award . . . is designed to promote clinical and scientific research by orthodontic residents/students." 
The petitioner received this award subsequent to the petition's filing date. As discussed, a petitioner 
must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 
I&N Dec. at 49. Accordingly, the AAO will not consider this award in this proceeding. 
Nevertheless, we cannot conclude that selection for an award limited to "students" or to "orthodontic 
residents" (those participating in an advanced training program) is an indication that its recipient "is 
one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 
$ 204.5(h)(2). The award offers no meaningful comparison between its recipient and experienced 
professionals in the field who had long since completed their educational studies and advanced 
orthodontics training. 
Finally, the plain language of the regulatory criterion at 8 C.F.R. $204.5(h)(3)(i) specifically requires 
that the petitioner's awards be nationally or internationally recognized in the field of endeavor and it is 
his burden to establish every element of this criterion. In this case, there is no evidence showing that 
the petitioner's awards had a significant level of recognition beyond the presenting organizations. 
Accordingly, the petitioner has not established that he meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which class$cation is sought. 
Such evidence shall include the title, date, and author of the material, and any necessa y 
translation. 
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 or international 
distribution. An alien would not earn acclaim at the national level from a local publication. Some 
Page 6 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.3 
The April 2 1,2005 article in Uweek included five sentences about the petitioner, but it was primarily 
about the Magnuson scholar program rather than the petitioner and his work in the field. Further, 
there is no evidence showing that this university newspaper qualifies as a professional or major trade 
publication or some other form of major media. Accordingly, the petitioner has not established that 
he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedfield of spectfication for which classification is 
sought. 
The regulation at 8 C.F.R. 5 204.5(h)(3) provides that "a petition for an alien of extraordinary ability 
must be accompanied by evidence that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." The evidence submitted 
to meet this criterion, or any criterion, must be indicative of or consistent with sustained national or 
international a~claim.~ A lower evidentiary standard would not be consistent with the regulatory 
definition of "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. 5 
204.5(h)(2). 
The petitioner initially submitted a January 16, 2007 letter from - 
Department of Orthodontics, University of Washington, and Editor-in-Chief of the 
American Journal of Orthodontics and Dentofacial Orthopedics, stating: 
I have known [the petitioner] for the past two years as a post-graduate student in orthodontics 
at the University of Washington. He has distinguished himself during his residency and even 
become a reviewer for the American Journal of Orthodontics and Dentofacial Orthopedics 
. . . for which I am the Editor-in-Chief. 
letter fiuther states that the petitioner reviewed one manuscript in 2006 and that the 
petitioner was his student at Washington State University. The petitioner has not established that 
performing a single manuscript review delegated to him by his professor at the University of 
Washington is indicative of sustained national or international acclaim at the very top of his field. 
The petitioner also submitted a June 2,2007 e-mail inviting him to review a manuscript for The Cleft 
Palate-Craniofacial Journal, but there is no evidence showing that he actually completed the 
review. The plain language of this regulatory criterion specifically requires "[elvidence of the alien's 
3 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
We note that although not binding precedent, this interpretation has been upheld in Yasar v. DHS, 2006 WL 778623 *9 
(S.D. Tex. March 24,2006); All Pro Cleaning Services v. DOL et al., 2005 WL 4045866 "1 1 (S.D. Tex. Aug. 26,2005). 
participation . . . as a judge of the work of others." An invitation to perform a manuscript review is not 
tantamount to evidence of one's participation as a judge of others' work. 
In response to the director's request for evidence, the petitioner submitted additional e-mails from 
February, May, July, and August of 2008 inviting him to review manuscripts for Osteoarthritis and 
Cartilage, Cells Tissues Organs, and American Journal of Orthodontics and Dentofacial 
Orthopedics. As discussed, an invitation to review is not tantamount to evidence of actual 
participation. The petitioner also submitted a second letter from dated October 2, 2008 
stating that the petitioner has now completed a total of "five excellent reviews" for the latter journal 
and that he plans to appoint the petitioner "to serve as an associate editor." The petitioner was 
requested to perform the 2008 reviews subsequent to the petition's filing date and there is no 
evidence showing that he had served as an associate editor for American Journal of Orthodontics 
and Dentofacial Orthopedics as of that date. A petitioner, however, must establish eligibility at the 
time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, 
the AAO will not consider the 2008 review requests or the associate editor appointment in this 
proceeding. 
In this case, the record includes evidence demonstrating the petitioner's actual participation in only 
one manuscript review (at the request of as of the petition's filing date. We note here that 
peer review is a routine element of the process by which articles are selected for publication in 
scientific journals. Occasional participation in the peer review process does not automatically 
demonstrate that an individual has sustained national or international acclaim at the very top of his 
field. Reviewing manuscripts is recognized as a professional obligation of researchers who publish 
themselves in scientific journals. Normally a journal's editorial staff will enlist the assistance of 
numerous professionals in the field who agree to review submitted papers. It is common for a 
publication to ask several reviewers to review a manuscript and to offer comments. The 
publication's editorial staff may accept or reject any reviewer's comments in determining whether to 
publish or reject submitted papers. Without evidence pre-dating the filing of the petition that sets the 
petitioner apart from others in his field, such as evidence that he has reviewed an unusually large 
number of articles, received and completed independent requests for review from a substantial 
number of journals (as opposed to a request originating from his professor), or served in an editorial 
position for a distinguished journal in the same manner as we cannot conclude that he 
meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business- 
related contributions of major signzjkance in the field. 
The petitioner submitted several letters of support. We cite representative examples here. In 
evaluating the reference letters, we note that letters containing mere assertions regarding the 
petitioner's talent and potential are less persuasive than letters that specifically identify contributions 
and provide specific examples of how those contributions have influenced the field. For example, 
many of the individuals offering letters of support focus on the petitioner's educational 
qualifications, the general importance of his specialty, or the shortage of qualified faculty in 
dentistry and orthodontics programs rather than how his original research findings equate to 
Page 8 
scientific contributions of major significance in his field. 
 Vague, solicited letters from local 
colleagues or letters that do not specifically identify contributions or how those contributions have 
influenced the field are insufficient. Kazarian v. USCIS, 2009 WL 2836453, *5 (9th Cir. 2009). 
Dentistry, university of Michigan, states: 
I am . . . conversant with [the petitioner's] area of research and the strong research reputation 
of his current mentor and collaborator who I believe provided [the 
petitioner] with a strong research foundation. 
considers [the petitioner] to be a superb researcher who is thorough, 
conscientious, and productive. In the relatively short time of his academic training, [the 
petitioner] has already published three first-authored publications and has submitted &o 
others. Together with the three published articles, [the petitioner] has 9 manuscripts 
published or in press. . . . I believe that [the petitioner] has a bright future in academic 
dentistry and research in craniofacial research. 
[The petitioner's] specific research area on examining the link between craniofacial function 
and abnormal development of the craniofacial structures is likely to have implications to the 
treatment of patients with these disorders. His research background together with his clinical 
training makes [the petitioner] a uniquely qualified individual who will help to advance our 
field. Additionally, it should be noted that there is and has been a severe national shortage of 
faculty in U.S. dental schools over the past several years. Thus, it is an imperative that we 
recruit and retain individuals like [the petitioner] who have the training to perfonn 
competitive research and teach for our research and profession to be sustained in the long 
run. 
With regard to the petitioner's publication record as discussed by, the regulations contain 
a separate criterion regarding the authorship of published articles. 8 C.F.R. 5 204.5(h)(3)(vi). We will 
not presume that evidence relating to or even meeting the scholarly articles criterion is presumptive 
evidence that the petitioner also meets ths criterion. Here it should be emphasized that the regulatory 
criteria are separate and distinct from one another. Because separate criteria exist for authorship of 
scholarly articles and original contributions of major significance, USCIS clearly does not view the 
two as being interchangeable. To hold otherwise would render meaningless the statutory requirement 
for extensive evidence or the regulatory requirement that a petitioner meet at least three separate 
criteria. Kazarian v. USCIS, at *6 (publications and presentations are insufficient absent evidence that 
they constitute contributions of major significance). We will hlly address the petitioner's published 
work under the next criterion. 
Washington, states: 
I serve as [the petitioner's] P.I. [Principal Investigator], and his work as a researcher is 
carried out in my lab. I have also been his teacher, and more recently, his collaborator on 
various projects. 
[The petitioner's] particular research expertise is unusual and greatly needed for the study of 
craniofacial function and craniofacial anomalies. In addition to being able to perform most 
laboratory procedures for examination of tissues and molecules, he is expert in the use of 
techniques to record muscle function, jaw movement, and bone deformation in living animals 
and persons. This knowledge confers unique advantages for research on how various clinical 
procedures affect growth and behavior. As an example, I refer you to his 2006 paper in the 
Journal of Oral and Maxillofacial Surgery, in which he employed a variety of mechanical 
transducers to study whether a surgical site in the lower jaw was immobilized by the metal 
hardware used to splint it. He discovered that the location actually moved with every 
chewing cycle, and that the basic deformation was a bending of the jaw. This sort of 
information is absolutely required for understanding how movement affects healing and how 
hardware interacts with the skeleton . . . . 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication, presentation, or funding, must offer new and useful information to the pool 
of knowledge. It does not follow that every researcher who performs original research that adds to 
the general pool of knowledge has inherently made a contribution of major significance in the field. 
College of Dentistry, states: 
[The petitioner], who is a dentist, came to the University of Washington in 2000 as a Ph.D. 
candidate in Oral Biology. His goal was to become trained as a researcher in the fields of 
dental and craniofacial research. At the University, [the petitioner] was mentored in research 
by a close colleague of mine, Thus, I became aware of his outstanding 
. -. -. 
research potential in my field . . . . 
[The petitioner's] desire to stay in the United States is thus highly advantageous for dental 
education and research in the United States, as this area has a chronic shortage of candidates, 
and is constantly in need of additional highly trained individuals, such as [the petitioner], to 
serve as faculty members in the nation's dental schools. 
In his work thus far, [the petitioner] has already made a number of important research 
contributions. His work has been especially important in the area of distraction osteogenesis. 
This method, when applied to the bones of the jaws, allows the regeneration of bony tissues 
that have been lost due to trauma, surgery, or as a sequalae of the loss of teeth. It also helps 
in the reformation of facial structures in those with congential craniofacial deformations. 
[The petitioner's] continued presence in the United States is much needed to further these 
advances as they show much promise for the treatment of patients that suffer from the loss of 
craniofacial bone. 
With regard to the witnesses of record, many of them they discuss the promise of the petitioner's 
work and his potential as researcher, rather than how his past research achievements already qualify 
as original contributions of major significance in the field. A petitioner cannot file a petition under 
this classification based on the expectation of future eligibility. Matter of Katigbak, 14 I&N Dec. at 
49. 
In response to the director's request for evidence, the petitioner submitted an October 8, 2008 letter 
from -1 Section df Orthodontics, Ohio State University (OSU) 
College of Dentistry, stating: 
Last December [the petitioner] completed his MSD in Orthodontics and his Ph.D. in Oral 
Biology at the University of Washington in Seattle. His research focused on craniofacial 
hard tissue biology under the direction of his dissertation advisor, . This 
background has well prepared him for the faculty position at OSU and made him critical to 
our ability to build a hard tissue group along with two other Division faculty members. 
Because of his qualifications, we were able to have funds allocated for his position. 
[The petitioner's] past research has made great contribution to the understanding of how 
functional loading affects bone adaptation in cranial sutures and the mandibular distraction 
site, two important growth surfaces in the craniofacial region. Since his employment at 
OSU, [the petitioner] has quickly expanded his research to the areas of mandibular 
periosteum and the alveolar bone. We expect [the petitioner], together with his colleagues at 
OSU, to make significant progress in the field of crianiofacial hard tissue biology and its 
application to clinical dentistry. This is an area that underpins much of what we do clinically 
and has many unsolved issues that remain at the basic level. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. While the evidence indicates that the petitioner 
performed admirably on the research projects to which he was assigned at the University of 
Washington and that he is a talented researcher with potential, the submitted documentation does not 
establish that he has already made original scientific contributions of major significance in his field. 
For example, the petitioner's evidence does not establish that his work has had a substantial national 
or international impact, nor does it show that his field has significantly changed as a result of his 
work. 
In this case, the letters of recommendation are not sufficient to meet this regulatory criterion. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796. Thus, the content of the experts' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by independent 
experts, letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent evidence of original contributions of major significance that one would 
expect of a researcher who has sustained national or international acclaim. Without evidence 
showing that the petitioner's work has been unusually influential, highly acclaimed throughout his 
field, or has otherwise risen to the level of original contributions of major significance, we cannot 
conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in thejield, in professional or 
major trade publications or other major media. 
The petitioner submitted evidence of his co-authorship of articles in publications such as Journal of 
Oral and Maxillofacial Surgery, The Anatomical Record, and Archives of Oral Biology. The 
petitioner also submitted evidence of articles that cite to his work. Accordingly, we concur with the 
director's finding that the petitioner meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
The petitioner submitted letters of support discussing his work at the University of Washmgton. While 
the petitioner performed admirably on the research projects to which he was assigned, there is no 
evidence showing that his temporary roles as a graduate student and a research assistant were leading 
or critical for the university. The petitioner's evidence does not demonstrate how his subordinate 
positions differentiated hm fiom the other researchers employed at the university, let alone its tenured 
faculty and principal investigators. For example, there is no indication that the petitioner served as a 
principal investigator at the University of Washington and initiated his own research projects. A 
comparison of the petitioner's positions with those of his superiors (such as - 
and of the other individuals offering letters of support indicates that the very top of the petitioner's 
field is a level above his present level of achievement. 
Page 12 
The documentation submitted by the petitioner does not establish that he was responsible for the 
university's success or standing to a degree consistent with the meaning of "leading or critical role" and 
indicative of sustained national or international acclaim. 
In response to the director's request for evidence, the petitioner submitted letters from - 
and - of Oral ~iolo~~, OSU indicating that the petitioner began 
working at OSU as an assistant professor in January 2008. The petitioner's work at OSU post-dates 
the filing of the petition and therefore his role as an assistant professor will not be considered in this 
proceeding. 8 C.F.R. 55 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. 
In this case, we find that the petitioner meets only one regulatory criterion, three of which are 
required to establish eligibility. 8 C.F.R. tj 204.5(h)(3). We concur with the director's finding that 
the petitioner has failed to demonstrate his receipt of a major internationally recognized award, or 
that he meets at least three of the criteria that must be satisfied to establish the national or 
international acclaim necessary to qualify as an alien of extraordinary ability. 8 C.F.R. 
5 204.5(h)(3). The conclusion we reach by considering the evidence to meet each criterion 
separately is consistent with a review of the evidence in the aggregate. Even in the aggregate, the 
evidence does not distinguish the petitioner as one of the small percentage who has risen to the very 
top of the field of endeavor. 8 C.F.R. 8 204.5(h)(2). 
On appeal, counsel states: "Matter of Katigbak is NOT applicable to the instant case, because the 
fiuther evidence we provided on October 27, 2008 did not constitute NEW EDUCATION OR 
EXPERIENCE acquired subsequent to the filing date (June 11, 2007)." Contrary to counsel's 
argument, the applicability of Matter of Katigbak is not limited solely to instances involving new 
education or experience. Rather, this standing precedent is also applicable in any circumstance in which 
an alien seeks qualification under a "new set of facts" that post-date the filing of the petition. Id. at 49. 
By law, the director does not have the discretion to reject published precedent. See 8 C.F.R. 
5 103.3(c), which indicates that precedent decisions are binding on all USCIS officers. To date, 
neither Congress nor any other competent authority has overturned the precedent decision, and 
counsel's disagreement with that decision does not invalidate or overturn it. Therefore, the 
director's reliance on relevant, published, standing precedent does not constitute error. Further, 
Matter of Katigbak has been incorporated into USCIS regulations, 8 C.F.R. 5 103.2(b)(12), which 
requires that evidence submitted in response to a request for evidence establish "filing eligibility at the 
time the application or petition was filed." Matter of Katigbak provides: 
If the petition is approved, he has established a priority date for visa number assignment as of 
the date that petition was filed. A petition may not be approved for a profession for which 
the beneficiary is not qualified at the time of its filing. The beneficiary cannot expect to 
qualify subsequently by taking additional courses and then still claim a priority date as of the 
date the petition was filed, a date on which he was not qualified. 
Section 204 of the Act requires the filing of a visa petition for classification under section 
203(a)(3). The latter section states, in pertinent part: "Visas shall next be made available to 
qualzfied immigrants who are members of the professions." (Emphasis added.) It is clear that 
it was the intent of Congress that an alien be a recognized and fully qualified member of the 
professions at the time the petition is filed. Congress did not intend that a petition that was 
properly denied because the beneficiary was not at that time qualified be subsequently 
approved at a future date when the beneficiary may become qualified under a new set of 
facts. To do otherwise would make a farce of the preference system and priorities set up by 
statute and regulation. 
Id. The Regional Commissioner continued this reasoning in Matter of Wing's Tea House, 16 I&N Dec. 
158, 160 (Reg. Cornrn. 1977). That decision reemphasizes the importance of not obtaining a priority 
date prior to being eligible based on future experience. In fact, despite counsel's assertion to the 
contrary, this principle has been extended beyond the alien's eligibility for the classification sought. For 
example, an employer must establish its ability to pay the proffered wage as of the date of filing. 
Matter of Great Wall, 16 I&N Dec. 142, 144- 145 (Act. Reg. Comm. 1977). That decision provides that 
a petition should not become approvable under a new set of facts. Recognizing that Matter of Katigbak 
was not "foursquare with the instant case" in that it dealt with the beneficiary's eligibility, Matter of 
Great Wall still applies the reasoning. The decision provides: 
In sixth-preference visa petition proceedings the Service must consider the merits of the 
petitioner's job offer, so that a determination can be made whether the job offer is realistic 
and whether the wage offer can be met, as well as determine whether the alien meets the 
minimum requirements to perform the offered job satisfactorily. It follows that such 
consideration by the Service would necessarily be focused on the circumstances at the time of 
filing of the petition. The petitioner in the instant case cannot expect to establish a priority 
date for visa issuance for the beneficiary when at the time of making the job offer and the 
filing of the petition with this Service he could not, in all reality, pay the salary as stated in 
the job offer. 
Id. (Emphasis in original.) Finally, when evaluating revisions to a partnership agreement submitted in 
support of a petition seeking classification as an alien entrepreneur pursuant to section 203(b)(5) of the 
Act, this office relied on Matter of Katigbak for the proposition that "a petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts." Matter of Izummi, 22 
I&N Dec. 169, 175 (Comrn. 1998). That decision further provides, citing Matter of Bardouille, 18 
I&N Dec. 1 14 (BIA 198 I), that we cannot "consider facts that come into being only subsequent to 
the filing of a petition." Id. at 176. 
While an award received after the filing date may be based on research conducted prior to the filing 
date, the attention resulting from the award was not indicative of the recipient's acclaim in the field 
as of the date of filing. Further, citations published after the date of filing may serve as evidence of 
the continued relevance of an alien's work that had already been well cited as of the filing date, but 
they cannot be considered evidence that the alien was already nationally or internationally acclaimed 
as of that date. Moreover, articles by the alien that were not published as of the date of filing and, 
thus, had not been subject to peer review and disseminated in the field as of that date, cannot 
establish national or international acclaim as of the date of filing. To hold otherwise would have the 
untenable result of an alien securing a priority date based on the speculation that his work might 
prove influential while the petition is pending. 
Review of the record does not establish that the petitioner has distinguished himself 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 is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. 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 AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka 
v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAOYs de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.