dismissed EB-1A Case: Epidemiology Research

. '.-" .' ,...-
. identifyingdata deleted to ..
.prevent dea.d:)·..· >:UTIUltN
invasionofperSoruUpriViGJ
PUBLIC COpy
.:
U.S.Department of Homeland Security
. 20 Mass. Ave., N.W., Rm. 3000 .
. Washington, DC 20529
u.S. Citizenship
.and Immigration
Services .
'FILE:
SRC 06 00151472
Office: TEXAS SERVICE CENTER. Date: MAY 0 2 .28~7
,'.
"INRE: Petition'er:
Beneficiary:
. PETITION: Immigrant 'Petition 'for Alien Worker as an Alien of Extraordinary Ability PUrsuant to Section
'. i03(b)(I)(A) of the Immigration and NatiomilityAct, 8 U.S.C..§ 1153(b)(I)(A)
'.
'.' ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents ha~e been retUrned to ,
the office that originally decided your case. Any further inquiry must be made to that offiC:e.
~t(1)~dL
. S-t,.../ Robert P. Wiemann, Chief .
, 1 v AdministrativeAppeals Office.
www.uscis~go~
! .
Page 2
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service
C'enter, and is now before theAdrninistrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) ofthe
, Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability. 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, the petitioner argues that he meets at least three of the regulatory criteria set forth at 8 C.F.R.
, § 204.5(h)(3).
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 followirig 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 Of internationai aeclaini
and whose achievements have been recognized in the field through extensive
doc~eritation,
(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.
Citizenship and Immigration Services (CIS) 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, 60898-9 (November 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. § 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. '
§ 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 September' 30, 2005, seeks to classify the petitioner as an alien with extraordinary
,ability as an epidemiology research_~cientist. At the time of filing, the petitioner was employed as a Research
-Assistant Ptofessor in the Department of Pediatrics at Vanderbilt University's School of Medicine, where he
is also "a Ph.D. candidate under the tutelage of Dr. Director of Vanderbilt University's
Th~ regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish
sustained national Of mtemational 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 thre~ .of which must be satisfied for an alien to establish the sustained aCclaimnecessary to
. qualify as an' alien of extraordinary ability. A petitioner,' however, cannot establish eligibility Jor this
" classification, merely by subinitting evidence that' simply relates to at least three criteria at 8 C.F.R.
§ 204.5(h)(3). Indetermining'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.
• . . I ..' .
,A lower evidentiary standard w.ould not be consistent with the regulatory definition of "extraordinary ability"
. '
as ."a level of expertise indicating that the individual is o,ne 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 petitioner has submitted evidence pertaining to the
.following criteria. ' '
Documentation ofthe alien 's receipt ofle~ser nationally or internationally recog"ized prizes or
awards for excellenpe in the field ofendeavor. '
The director's decision stated:
With the petiti6n,the petitioner submitted a list of awards given to him. The list includes six awards
that were granted by organizations in Hebei Province in China. The petitioner was requested to
,submit evidence that the awards won by the petitioner qualify as nationally or internationally
recognized awards. In response, the petitioner submitted a letter from counsel. The letter states "We
apol<;lgizebut we have,not been able to contact the award coillmittees to obtain letters describing the
criteria for the awards. However, [the petitioner's] awards obtained in China were recognIzed in:the
,testimonial letters we have already pro~ided." , " , '
. .
Some of the letters of support mention the a~ards won by the petitioner. The letter from ••••
•••• states "[The petitioner] has received n,umeroushonors and 'award for his accomplishments
arid service related activities." The specific awards won are not mentioned and additional information
about the awards is'provided. The letter from' states "... his team won the first prize in
medical science and technology from ' No other' information regarding ,
. this award is provided.' The letter from John Wakefield mentions three awards won by the petiti~ner' '
and the research he did to 'Y'in them. Specific information about the awards is not given. The letter
from _ states "His academic and professional standing is confirmed by the large number ,
o( awards he has received from prestigious national and international organizations." Mr. l?I' ;
does not list the awards to' which he is referring or provide ~y additional information. The .letter
from states "[The petitioner's] expertise is not only apparent from his many
publications in this area, but also from his 'miJ!1erOusawards for excellence." Mr. . , . . does not
list the awards or proVideany additional information regarding them.,The letters'of support state that,
'the petitiOl}erhas won awards. However, the letters of support do not clearly establish, that the
petitioner has been awarded national or internationally recognized awards for excellence inJhefield.
On appeal, the ,petitioner doesn~t dispute the director's findings. We concur with the director's ob~ervations.
We further note that t~ere is no first-hand evidence documenting the petitioner,'s receipt of awards from
organizations in China's Hebei Pr.ovince. ,Rather than submitting primary evidence of the~e awards, the
I, .'
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petitioner ~tead submitted le~ers of support from thirdparties attesting to' the' existence of the awards and ,a
resume listing the 'awards prepared by the 'petitionerhimself. In this instance, the petitioner has not complied
with the regul~tion at 8 C.F.R. § 1032(b)(2) regarding tbe submission of secondary evidence. Specifically"
the petitioner has not demonstrated that the awards from organizations in'Hebei Province are unavailable or
do not 'exist; Neyertheless, we fmdthat these awards refleCt proviricial recognition rather than national or '
, international recognition.
The director's decision further stated: "Counsel also,indicates that the petitioner,is the recipient of numerous
grants. Grants are routinely awarded to researchers to support their research." We agree with the director that
the petitioner's receipt of research funding is not adequate to satisfy this criterion. ill regard to the research
, grants for which the petitioner or his employer applied and received funding~ it is noted that research grants
simply fund a scientist's work. The past achievements of the principal investigator are a factor in grant
proposals. The fundIng institution has to be assured that the' investigator is capable of performing the
proposed research. ,Nevertheless: a research grant is principally designed to fund future scientific research,
1, and is not a national or international award to honor or recognize past achievement. Furthermore, we note
'that a substantial amount of scientific research is funded by research grant~ from a variety of public and
',' private somc'es. Therefore,'we do not fmd that the receipt of a research grant automatically places a scientist
"at th~ ~ef)' top'of his field. ' ' " '
, ..' "In light of the abpve, the petitioner.has not established that he meets this criterion.
D~cumentaiiori ofthe ,alien's membershijJ in associations in the field for which ckissification
"is sought, which requir.eoutstanding achievements oftheir members, as judged by recognized
, national ori~ternation(J1 experts in their disciplinesorfields. '
'. . '.
In order to derrionstrat~ that membership in an association meets this criterion, the petitioner must show that
the association requires outstanding achievement ,as an essential condition for' admission to membership.
Membership requirements based, on employment or activity in a given field, minimum: education or
experience, standardized test scores, grade point average, recommendations by colleagues or current
, , members; or payment of dues, do not satisfy this criterion as,such requirements do not constitute outstanding,
achievements. ' In addition, it is clear fromthe regulatory language that members must be selected at the
national or international level, rather than the local or regional level. ,Therefore, membership in an association "
'that evaluates its membership applications at the local or regional chapter level would not qualify. Finally,
the overall prestige of a given association iS,not determinative; the issue here, is membership requirements
, rather thanthe association's overall reputation. ' '
The petitiopersubmltted evidence showing that he is a full memb~r of Si~a Xi, The Scientific Re~earch '
Society. ' On appeal, the petitioner submits an undated letter from , Executive Director for the
, society, stating that ,Sigma Xi confers full membership ''upon those who have' demonstrated noteworthy
achievements in research." these achievementsmust be evidencedby "publications,patents, written reports or a '
thesis or dissertation, which must be available to the Committee on' Admission if I:equested." 'A noteworthy
,achievement is not necessarily an outstanding achievement. In fact, the record reveals that the society does not
take a particularly strict view of noteworthy achievements. Specifically, states that the
"Committee on Qualificationsand Membershipinterpretedthis qualificationto include primary authorship of two
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papers." Dr._continues that an earned doctoral d~greeniay be substituted for' one'paper. We cannot
•conclude that primary author~hip of one or two papers:is indicative of outstimdillgachievement.
The petitioner submitted a September 23, 2005 letter bf support froin'Dr. Professor of
, Pathology and Ce11Biology, School ofMedicii1e,Univ~rsity of AlabamaatBinninghain, statirig:
[The petitioner] ... has he1d''manyesteemed memberships including being a member of t,he Office of
Disease',Preventive Project of the World Bank Loan, member of the Committee of Technology and
Consultaht of the Disease Preventive Project of the World Bank Loan, member of the Committee of
Technology and Consultant of Immunization Program, member of the Committee of Technology of
'. . ' .
Polio Eradication Program, member of the Red Cross committee, full member of Sigma Xi, and
member of th~ American P,ublicHealth Association.' "
. .' ".," .
Aside from thepetitiorier',s Sigma Xi membership card, ,there is no fir~t~hand evidence documenting the,
petitioner's m~'mbership iri the preceding organizations. ' Rather than submitting primary evidence of his...., .
,, membership credentials for these,organizations' the petitioner instead submitted a letter of support ~om a third
party attesting to the existence of the memberships' and a resume listing the memberships prepared by the
petitioner himself. ' Once again, th~ petitioner has not complied with' the regulation at' 8 C.F.R. § 103.2(b)(2),
as he 'has not' demonstrated that primary evidence of these memberships are unavail~ble or do not exist. ' Nor
, has the petitioner submitted evidence,showing that the aforementioned organizations' qualify as "associati.ons
"in the field ..'. ~hich require outstanding achievements of their members." Aside frqm Sigma Xi, the record
does not incl~de evidence of the membership bylaws or the official admission r~uirements for the preceding
organizations; , ',.
In this case, there,is no evidence that the petitioner holds membership,inanasso'ciation requiring outstanding
achievement or that he wasevaillated by nation~l or international experts in consideration of his admission to
membership. 'Therefore, the, petitioner has not established that he meets this criterion.. "'.' ' " .
Evidence ofthe alien 's ~riginal scientific;,scholarly, artistic, athletic, 'or business-related
contrfbuti0rfS,ofmajor significance in'the jie!d.
We witndra~ the director's firiding thatthe petitioner meets this criterion.'
, The petiti6ner submitted ~everalletters of support. We Cite representative examples here.
Dr. 2 'j Head of the' Division of Pediatri<; and Infectious Disease, and' Professor of 'Pediatrics,
Pathology, and Mi<;robiologyand Immunology, Vanderbilt University Medical,Center, states:
. " '. . .J
[The' petitioner's] capacity,to contribute to this field has been well-demonsttated by a number of
sigriificant achievements: ,,numerous invitatiol)s to participate in conferences, educational serinars
and ptojects designed'to enhance professional Understanding of the,discipline of infection control;
experienced ,outbreak investigator in' various settings, including internationally; -investigation of
, ,specific health.-eare acquired infections in China; design and implementation of an infeCtion control
interv~ntionin- C1¥nato prevent HIV/AIDS and va<::~ine prevelltable"diseases:
·f. '
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Page 6
.:
Dr.'; 'Associate Professor .of Medicine, School of Medicine, University' of Alabama at
Binningham (DAB), where the petitioner pursued a doctoral degree in public health and worked from 2000 to
2005, states: >.
[The petitioner's] work on liN molecular biology has been highly innovative. In particular, he has'.
,successfully reconstructed vectors, with HN as the backbone, 'for effective and stable transfection of
human cell lines. These vectors are now being. widely used by other investigators for research on
viral diseases and human malignancies. In addition, his work on HN reverse transcriptase can reveal
pathways suitable for novel, therapeutic intervention.
Dr. states that the petitioner's "vectors are now being widely used by other'investigators," but.
there is no evidence in the record to support this assertion.
Dr., State Epidemiologist, Tennessee Department of Health, and Assistant, Clinical Professor,
Vanderbilt, University School of Medicine; states:,
, '
.[Th~ petitioner's] works have generated more 30 [sic] papers and abstracts, identified, quantified and
provided valuable recommendations regarding taking actions for preventing HIV/AIDS and several
vaccine preventable diseases. ~s actions on t):lis account have already had a profound effect on the
epidemics of liN/AIDS and other infectious diseases in China.
The record, however, includes no' .citation history showing that the petitioner's published work was
particu~arly influential in his field, nor is there evidence demonstrating the impact of the petitioner's work
outside ofChina's Hebei Province. When judging the influence and impact that the petitioner's work has
had, the very act of publication is not as reliable a gauge as is the citation history of the published work. .If a
gi:ven article in a'prestigious journal (such as the' Proceedings of the National Academy of Sciences of the
US:A.) attracts the attention of other researchers,those researchers will cite the source article in their own
,published work, in much the same way that the petitioner himself has cited sources in his own articles.
Numerous independent citations would provide solid evidence that other researchers have been influenced by
the petitioner's work and are familiar with it. If, on the other hand, there are few or no citations of ail alien's
work, sugg~sting that ,that work has gone largely unnoticed by the greater field, then it is reasonable to
conclude that th,e alien's work is not nationally or internationally acclaimed: as a contribution of major'
significance. In this case, there is no evidence showing that the petitioner's work is widely cited by
independent researchers. '
Dr. , now Associate Research Professor, Department of Medicin~, Duke University'Medical Center,
who previously worked at UN3 along with the petitioner, states:
One of [the petitioner's] research focuses was to develop methodS for direct Visualization of liN-I
usin~ fluorescence microscopy. [The petitioner] was able to accomplish this by gen~tic engineering
the green fluorescence protein (GFP) into the liN genome, resulting in the expression of liN-I
particles that could be used to study specific interactions with host target cells and tissues..
. ,t.
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In his' September 22, 2005 letter accompanying the petition, Dr.
supervisor, states: .
the petitioner's Ph.D.
[The petitioner] has ~xtensive experience as a physician in preventatiye medicine, a' medical
microbiologist, epidemiologist, arid health communicator, TThe petitioner] has provided novel
.approaches to the investigation of vaccine preventable diseases. He has communicated ~ese novel
approaches to other epidemiologists and public health researchers. to help further the science of
applied public health practice.
According to the regUlationat 8 C.F.R. § 204.5(h)(3)(v), an alien'scontributi~ns mu~t be not ~n1Y original but
of major significance. We must presume that the phrase "major sigmficance" is not superfluous and, thus,
that it has some meaning. While the petitioner's research is no doubt of vall,le, it can be argued that any
. research must be shown to Qe original and present som~ benefit if it is to receive funding and attention from
the scientific community. Any Ph.D. thesis or published research, ill order to be accepted for graduation,
publication or funding, must offer new and useful information to the pool of ~owledge. 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 to the field as a whole.
In his January 31, 2006 letter submitted in response to the director's request for evidence, Dr. states:
[The petitioner:s] ~xpertise in molecular biology has been 'demonstrated in his scientific publication
with Dr. : at the University of Alabama.at Birmingham, "Identification of Amino Acid
Residues in the HN-l Reverse Transcriptase Tryptophan-repeat Motif that are Required for·Subunit
Interaction Using Infectious Virions" published in Journal of Molecular Biolology (JMB). On our .
recent collaborative initiative to improve the measurementofHIV incidence and helping complete the
picture of current trends and the dynamics of'HIV epidemics, "Estimating HIV InCidence -qsing a ,
Population-Based Serologic Method in China," [the petitioner] is demonstrating his' scientific
expertise in infectious disease epidemiology, molecular biology, and immunology..
. .
Regarding the latter collaborative initiative mentioned by Dr. J; thereis no evidence'that the results of
thi's work were published as ofthe petition's filing date. A petitioner must establish eligibility at the time of
filing~ 8 C.F.R. § 103.2(b)(12); see Matter of Katigbak, 14 I&NDec. 45' (Comm: 1971). Accordingly, the
AAO will not consider this work in this proceeding. Nevertheless, the petitioner's publicati<?ns'relate to the
"authorship of scholarly articles" criterion at 8 C.F.R. § 204.5(h)(3)(vi).· 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, CIS clearly does not view.the
t~o as being interclJ.angeable.If evidence sufficient to meet.one criterion mandated a fmd~g that an alien
met another criterion, the'r~quirement that an alien meet at least three criteria would be meaningless. We will
fully.address the p~titioner's published works under the next criterion.
. In regard to the letters of support submitted with this petition, we note that alinost all of the petitioner's
recommendation letters were written by individuals who have.had clos.econtact with him. With regard to the
personal recommendation of individuals with ties to institutions where the petitioner has 'studied and
worked, the source of the r,ecommendationsis a highly relevant consideration. The~e letters are not first-
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· Page 8 .
"'.'l. .' . .
· hand evidence that the' petitioner has earned sustained acclaim for his contributionS outside of his affiliated
· institutions .. The statutory requirement that an alien have "sustained national or international acclaim," however,
· necessitates evidence of recognition beyond direct acquaintances ofth~ petitioner. See section 203(b)(l)(A)(i) of
the Act. . \
The opmions of exp~rts in the field, while not without weight, cannot fo~ the cornerstone of a successful
ext~ordinary ability claim~ . CIS may, in its discretion, use as advisory opinions statements submitted as
experttestimony. See Matter ofCaron International, 19 I&N Dec. 791, 795 (COIl1II1. 1988). However, CIS is
ultimately responsible fOf 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; CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See
id. at 795-796. Thus, the cOJl1ent 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 ofmajor significance that one would expect of an epidemiology researcher who has sustained
· national or international acclaim. Without extensive documentation showing that the petitioner's work has
been unusually influential or highly acclaimed throughout the greater field; we cannot conclude that his w()rk
· rises to the level of a contribution ofmajor significance.
In light of the above, the petitioner has not established that he meets this criterion.
Evidence ofthe alien 's~uthorship ofscholariy articles in thefield, in profeSSional or major trfuJe ..
publications or other major "!edia.
The regulatlon af 8 C.F.R § 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." Evidence of ~he petitioner's authorship of
-scholarly articles must.be evaluated within the context of the controlling regulation.
The petitioner submitted evidence showing that he authored several published papers and abstracts during his
. research-career. However, we find that authorship of scholarly articles is inherent to scientific research; For
. this reason, evidence showing the influence of the petitioner's articles becomes necessary to set himapart
from other. epidemiology researchers. In the present case, there are no citation indices or other evidence
showing that the petitioner's articles were widely cited.. While we accept that the petitioner has authored
" " . . .
scholarly resear,chpubl~cations, the weight of this evidence is. diminished by a lack of evidence showing that the
greater field regards his published fmdings as especially significant.
,On appeal, the petitioner submits evidence of articles published in Clinic~l Cancer Research-and The Journal
of Immunology in 20Q6. These articles were published subsequent to. the petition's filing date .. As stated
previously, a petitioner must establish eligibility at the time of filing. 8 C.F.R § 103.2(b)(12); see Matter of
_Katigbak, 14 I&N Dec. at45. Accordingly, the AAO will not consider these articles in this proceeding ..
In light of the above, the petitioner has not est~blished that he meets this criterion.
. ..
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Evidence that the alien ~as performed in a leading or critical role for organizations or
establishments·that have a distinguishedreputation. .
. . .' . . . , -. .' ... .
In order to establish that he perfonned 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. . .
The petitioner submitted a letter from Dr. Professor and Director,'Department of Internal
Medicine, Affiliated Hospital of Hebei University, stating that the petitioner served as an Associate Chief
,Physician and Associate Professor in the Department of Immunization at Hebei University and as a Deputy
Director of the Center for STDs' and AIDS Prevention' and Control in Hebei Province. The record, however,
includes no evidence showing that the preceding organizations had a distinguished reputation (such as
independent press reports) during the petitioner's employment. Nor has the petitioner submitted evidence
showing his specific duties for these organizations and that his role was of primary importance to their overall
.success.
.... .
The letter of support from Dr. states that thepetitioner."joined UAB in 2000 to pUrsue a.
doctoral degree in public health.". The record reflects that the petitioner worked as a Research Assistant in the
. School of Mediclne at UABfrom 2000 to 2002 and as aResearch Assodate from~002 to 2005, In 2005,th~
petitioner began working as Research Assistant Professor in the Department of Pediatrics at Vanderbilt
University's School of Medicine, where he is also "a Ph.D. candidate. und~r the tutelage of Dr. _ .
•••• " When comparing the roles and responsibilities' of the petitioner with those of his superiors from
UAB.. and Vanderbilt who have offered letters of support, it becomes immediately apparent that the
importance of their roles and responsibilitie~ f~ exceeded that of the petitioner. While we accept that these
organizations have earned a distinguished reputation, there is no evidence showing that thepetitioner;srole '
was of significantly greater importance than that of the other researchers employed by these .universities
(including tenured professors such as Dr... r . n Thus, we do not find that the petitioner's ~oles at
Vanderbilt Un~versity or UAB were tantamount to a "leading or critical role" for either organization.
In light of the above, the petitioner has not establishedthat he meets this criterion.
hi this case, we concur with,the director's findingthat 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 intematiomil acclaim necessary to qualify as an alien of extraordinary ability.
" • <
R~view ofth~ 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 thepetitioner's achievements set him significantly above
almost all others in his field at the national or international level. Therefore, the petitioner has not established
eligibility pUrsuantto section 203(b)(l)(A)(i) of the Act and the petition may not be approved.
The burden of proof in visa petition proceedings reniains entirely with the petitioner.. Section 291 of the Act,
S U.S.c. § 1361. Here, the petitioner has not sustained that burden.· Accordingly, the appeal will be dismissed.
Page 10
ORDER: . The appeal is disnllssed.