dismissed EB-1A Case: Fisheries Science

. PUBLIC COpy
Identifyingdatadeletedto
preventclearly unwarranted.
invasionof personalpriVacy. ,u.S. Citizenship .
and Immigration
Services'
-'U,S.Department of Homeland Security
20 Mass, Ave., N.W.,Rm. 3000
.. Washington, DC. 20529
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...
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FILE: LIN 0502250757 Office: NEBRASKA SERVICE CENTER Date: MAYO 3 ZilSI
IN RE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to . ,
.Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A)
ON BEHALF OF PETITIONER: .
'.
INSTRUCTIONS: ...:'
. This is the decision of the.Administrative Appeals Office in your case. All document's have been returned to
the office that originally decided your case. ,·Anyfurther inquiry must be made to that office .
.'."
,~IiDut0~
f' .Robert P. Wiemann, Chief
--rtr"Administrative Appeals Office
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LIN 05 02250757
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now ,before the Admiriistrative Appeals. Ofttce on appeal. , The appeal will be
dismissed.
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The petitioner seeks classification as an "alien of extraordinarY ability" in the sciences, pursuant to
,section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A). 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. Specifically, the director'
concluded th~t the petitioner meets' only one of the regulatory criteria, of which an alien must meet at
least three to establish eligibility fof the dassification ~mlght. -
On appeal,"counsel submits a brief and additional evidence. For the reasons discussed below, the'
petitioner has not overcome the director's valid bases for deI).ial.,
: \
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 ofthe<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 ~een 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, substaritially benefit
prospectively the ynited States.
,Citizenship and Immigrati~n 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 speci,ficrequirements for suppOrtirigdocUments to establish that
", an alien has ,sustained national or ip.ternational acclaim and recognition in his or her field of expertise
are,set forth'in the regUlation at 8 C.F.R. § 2045(h)(3). The relevant critena 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. "
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This petitio~ seeks to classifY the petitioner as an alien with extr~ordina& ability' as a postdoctoral
research' associate. While" the .statute and regulation do not preclude a postdoctoral researcher from
establishing eligibility; the petitioner mustdemonStfate that his accomplishments compare with those at
the very top of the field,inciuding those who have long since 'completed their postdoctoral training.
The regulation at, 8 C.F.R ,§ 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.I ' ,
" ..
Documentation of the alien'5 receipt of lesser nationally or internationally recognized prizes or
.awardsfor excellence in thefield ofendeavor. '
In response to the ,director's req~est for additional evidence, the petitioner submitted evidence that he
receive4 a scholarship from The 'Ohio State Un'iversity,,that he was a "co-winner" of the Best Fisheries
Poster at the 2000 Arinual Ohio Fish and Wildlife C9nference and that he ,received a travel grant from
~e Fisheries Society of the British Isles (FSBD.. '
On' appeal, counsel does not contest the, director's conClusion that the record does not, support this
criterion. Competition for scholarships is limited to other students. EXPerienced experts in the field
'are not seeking scholarships. The record does not reveal that either 'the poster award from a local
conference or the travel award is a lesser nationally or internationally recognized prize'or a\Vard.
, .
In light of the ab~)Ve, the petitioner has not established that he meets this criterion.
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Evidence· of the alien's participation, ei~her individually or on a panel,.,as, a judge' of the work of
,,others,in the same or an' allied field ofspecificatlon for which classification is sought.
.,The petition~"initiaily,submittedevidence that he had refereed "articlesfor Agriculture Iniernation~l,
AQUI, Physiplogy 'and Behavior, the Journal ofFish Biology and Redaktion Aquatic Sciences. The
evidenCe reg' d' ,', th ..' fi the Journal ofFish Biology suggests that petitiorier filled in for his
supervJ.sor, ."
In response to the director's request for additional' evidence, the petitioner submitted a letter from Dr;
_.one of !he p~~itioner's colla~o:atois at~e Ohio State Universi~rtingthat in ~e '
~4and 2005, he asked the petItIoner to reVIew two proposals Dr. _was preparIng'
to submit to the U.S. Department of Agriculture. In addition,the petitioner submitted a letter fromJan
Sauris, Prograrri Manager of the Ohio Agricultural Research and Development Center (OARDC) of'
• .~ I, •• • -". • . • • • •
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The Ohio State Umversity, assertmg that'the petitioner ''was identified a$ a highly qualified individual
with necessary expertise to review a ,proposal on aquaculture s:ubmitted" to the OARDC Research
Enhancement Competitive Grants Program for 2004. Further, the petitioner submitted letters from staff
at Aquaculture International and Physiology and Behaliior discussing the selection of reviewers.
, of Aquaculture International asserts that m;muscripts for the journal are
, reviewed by "international experts," while _ of Physiology and Behavior simply
'indicates that he relies on personal contacts an~to'locatepotential reviewers. Finally,
the petitioner submitted evidence of multiple reviews for other journals in 2005, all of which postdates
the filing ofthe petition on October 29,2004.
"The director' concluded that the petitioner's review responsibilities were co~sistent with his level of
education and not indicative of sustained national or international acclaim. The director noted the large
number of manuscripts submitted to the journals for which the petitioner has,served as a peer-reviewer.
,On appeal, counsel asserts that the plain language of the regulation at' 8 C:F.R. § 204.5(h)(3)(iv) only
requires evidence that the alien has judged the work of others. Counsel cites Buletini v. INS, 860 F. ,
Supp. 1222, 1231 (B.D. Mich. 1994) for the proposition that the director erred in going beyond the
regulatory language. ' The' court in Buletini, 860 F. Supp. at 1231, held that the regulation at 8C.F.R.
§ 204.5(h)(3)(iv) does not require 'that participating 'as a judge was the result of having extraordinary
ability. Id. In contrast to the broad precedential authority of the case law of a United States ,circuit'
court, the AAOis not bound to follow the published decision of a United States district coUrt in
cases arising within the same district. See Matter ,of K-S-, 20 I&N Dec. 715 (BIA 1993). The
reasoning underlying a district judge's decision will be given due consideration Wilen it is properly
before the AAO; however, the analysis does not have to be followed as am'l:lter of.law.ld. at 7J9.
,Counsel' also Cites"a July 30, 1992 correspondence memorandum from , Acting'
Assistant Commissioner, to the then Director of the Nebraska Service Center, . Mr.
••'issued his correspondence memorandum in response to an 'inquiry from Mr...., and makes
clear that he is discussing his personal inclinations. Moreover, in contrast to officialpolicy memoranda,
issued to' the field, corresponden~e memoranda issued to a single individual do not constitute'officiai
CIS policy and will not be considered as such in the adjudication of petitions, or applications'.,
Although the correspondence may be useful as an aid in interpreting the law, such letters are not
binding on any CIS officer as they merely indicate the writer's analysis of an issue. See
Memorandum' f.rom ,'thomas Cpok, Acting Associate Commissioner, Office of 'Programs,'
, Significance of Letters Drafted by the Office: of Adjudications (December 7, 2000).2 'While Mr.
••.•.• stated that "participation by the alien as a reviewer for a peer-reviewed scholarly journal
would more than likely be solid pieces of evidenc~:' he ultimately concluded that ''we expect the
examiner to evaluate evidence, not simply count it." "
Finally, counsel asserts that the petitioner has reviewed proposals "for several agencies." The record
reflects only that the petitioner has informally'reviewed a propos~l for his 'collaborator ,and more
2'"Althoughthis memo;andurilprincipallyaddressesletters from the Officeof Adjudicationsto the public,the ,
memorandumspecifiesthat1etterswrittenbyany CIS employeedo not consii~ute offiCialCIS policy.
LIN 05 022 50757
Page5 ....
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fo~ally for a ~ant program at- his own institution. ,These reviews are not indicative of any
recognition beyond the Ohio State University.
Regarding the petitioner's manuscript reviews forjournals, we can only consider reviews conducted
prior to the date of filing. ' See 8 C.F.R. § 103.2(b)(l2); Matter of Katigbak, 14 I&N Dec. 45, 49
(Reg. Comm. 1971). Moreover, we do not find it violates the reasoning in Buletini, 860 F.Supp. at
1231, to examine the evidence submitted as to, whether it is indiCative of or inconsistent with
, 'national or international acclaim. The court in Buletini was concerned that an alien would need to
first demonstrate "extraordinary ability" in order to meet this criterion. We are not following this
"circular exercise" that troubled the court. Rather, we are looking at the type or'review responsibilities
inherent to the field and what review responsibilities might be indicative of or at least consistent with
national acclaim. Specifically, we cannot ignore that scientific journals are peer reviewed and rely on
, many scientists to review submitted articles.3 Thus, peer revi~w 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, as of the date offiling, he had reviewed an
unusually larg~ number ,of articles, received indePendent requests fr.om,asubstantial number of
,journals, or served in an editorial position for a distinguished journal, we cannot conclude that the
petitioner meets this'cnterion. '
Evidence of the alien/s original scientific, scholarly,- artistic,. athletic, or, business-related
. contributions ofmajor significan,cein thefield .
The director, acknowledged' the' petitioner's work in the field'and concluded· that the record
,demonstrated' a certain aInount of awareness of this work, but found that the petitioner had not
demonstrated· through objective evidence that he had made contributions of major significance.. On
appeal, counsel once again cites Buletini, 860 F. Supp. at 1232.
As stated above~ the AAO is not bound t9 follow the published decision ofa United States district
court incases arising within the same district. See Matter ofK-S-, 20 I&N Dec. 715 (BIA 1993).
While we accord weight to the reference letters submitted, the opinions of experts in the field cannot .
form the c~rnerstone' of a successful claim of sustained national or international acclaim. ,CIS may,
in its 'discretion, use as advisory opinions, statements submitted as expert testimony. See Matter of
Caron International, 19 I&N Dec; 791, 795 (Comm. 1988). However, CIS is ultimately responsible
for making the final determination regarding ail 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 ofthose letters as to whether they support the alien's eligibilIty. See id.
at 795-796. ' CIS may even give less weight to an opinion that is not corroborated, in accord with
other information or.is in any way questionable. Id. at 795; See also Matter ofSoffici, 22 I&N Dec.
, 3 Accordingto infonnationposted at Elsevier.com,the sdence, technicaland medicalprofessionsproduce:1.2
million peer-reviewedarticles'aru:mally, each of which is presUmablypeer-reviewedby, more than one peer- .
reviewer.
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, 158" 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972».
In evaluating, the reference letters, we note that ,letters containin.g mere assertions of widespread
acclaim, vague claims of contributions or predictions of future applicability are less persuasive than
letters that specifically identify contributions and provide specific examples of how those
contributions have influenced the field. In addition, letters from independent references'who were
previously aware ofthe petitioner through his reputation and who have applied his work are far more
:persuasive than letters from independent references who were not previously aware of the petitioner ,
and !ire m~rely responding to a solicitation to review the petitioner's curriculum vitae and work and
provide an opinion based solely on this review. Ultimately, evidence in existence prior to the
preparation of the petition carries greater weight than new materials prepared especially for
, submission with the petition. 'An individual with sustained national or intemat~onal acclaim should
be able to produce unsolicited materials reflecting that acclaim.
Also on appeal, counsel asserts that the reference letters indicated how the petitioner's work "would
provide invaluable assistance and would make a practical contribution to scientific education and
research." (Emphasis added.) According to the r~gulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's
contributions must be not only original but of major significance.
The petitioner received,his Ph.D. from the UniversitairesNotre-Damede la Paix, Namur in 1996 under
the director of Dr, The petitioner then worked as a visiting scholar and then as a '
postdoctoral research associate at The Ohio State University un~er the supervision of Dr.
, From 2001 to 2003, the petitioner was a postdoctoral research associate at Tex~ Tech
University under the direction of Dr. Finally, the petitioner returned to Dr.
_laboratory at 1?e Ohio State University as a postdoctoral research associate where, he
~fthedateoffilm.g.", ' ",
Dr. asserts that the petitioner's student work demonstrated high competence and that the
international appreciation of his work during this time is evident from the petitioner's publication of.
eight articles. ' We will not presume the major significance of a contribution based on its publication
alone., ' It is the petitioner's 'burden to d~onstrate the impact );lis' work has had beyond mere
, publication. _ '
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,Dr. _ asserts that he 'recruited the petitioner from Belgium b~ed on his knowledge of
ecophysiologyarid food/web interactionsand characterizeshim as "among th,e best young researchers.;'
The petitioner must establish that he compareswith the most renowned members of the field, including
, those with extensive experience in the field. Dr. plains that the petitioner is the sole
, inventor of "many techiliq~es" being used',in Dr. , .laboratory but does not assert that
, independent laboratories have adopted orare considering adopting the petitioner's techniques. ,Dr; ""
mostly discusses ongoing research and the importance_~ects without explaining
,how the petitioner's comp~eted work has impacted the field.' Dr. . otes that the petitioner's
LIN 05 022 59751
Page 7
,'workreeeives go~ernment funding and concludes that they must believe in investing in the petitioner's
research. Every successful' sCientist engaged in research, of which there are hundreds of thousands,
receives,funding from somewhere. Obviously the past achievements of the principal ,investigator are a '
factor in grant proposals. The funding mstitution has to be assured that the investigator is capable of
, perfomiing the proposed research. Nevertheless, a research gran,tis principally designed to fund future
research, and not to reco~ze past achievements as having major significance.' '
Dr.. _does dis~uss some past achievement~. Specifically, Dr. _asserts that the
petitioner "improved yellow perch and walleye pr.oduction and health by developing appropriate diet .
formu.latio.tis and increasi?g .efficiency of ~tocking p~~t ha~e been documeni~ in im?ro~ng
. recovery of stocked fish m mland reservOIrs." 'Dr. ~does not assert that this work IS bemg
applied elsewhere..While 'Dr._ provides an account of Brazilian scientists seeking the
" petitioner's advice at a cOnfere~rd lacks letters from researchers outside the petitioner's·
immediate circle of colleagues discussing his impact qn their own work.
, Finallylli.~serts that the petitioner played a role in securing a grant fOf·the laboratory's
project on sex differentiation in the sea lamprey and that this project "already has resulted in major
scientific dj~~veries pertainin¥ to sex differentiation in the lowest vertebrate ever examined." , •
Dr. pr~ses the petitioner's professionalism and experience. D~. xplai~ that
" in his laboratory., the petitioner studied the effects of perchlorate and· eJ.lvironmentalcontaminant on
, ,thyroid function in fish.' Dr. _ discusses the importance of'this area of research and asserts
that other researchers in his laboratory are continuing projects that the petitioner started, which would
not have been possible without the petitioner's "pioneering research.;' Dr; cknowledges;
'. however, that ,the ~ve to six papers authored by the petitioner during his time at Texas Tech Univer~ity ,.
had yet to be published and, thus, widely disseminated within the field. ,The 'petitioner's curriculum,
. vitae; su.bmitted in ~the director's request fOf.' additional evidence, reflects no articles
coauthored with Dr. _ published prior to 2005. As stated above, the petition was filed in
, October 2004 and" thus, the petitioner must establish eligipility as of that date. See 8 C.F ~R:
§ 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. at 49. ,
Dr. ~ aresearch biologist at the Texas CooperativeFishcmd WildlIfe Research Unit ...
who worked with the petitioner in Texas, asserts ,that the petitioner's "findings on the effects, of
perchlorate'on fish health and reproduction yielded novel information that is'now being used as part
, of an effort to assess the risk Qf perchlorate contamination in the environment" Dr. .
Assistant Director for Scien~e at Texas Tech University, asserts only that the perchlorate project on
which the petitioner worked "has the potential f()r saving taxpayers. millions of dollars in cleanup'
. 'costs while reducing the risks associated with drinking contaminated water." On appeal, the
petitioner submits a document from the National Center for Environmental Assessment listing the ...
, references' associated with the U.S. Environmental Protection Agency's review of perchlorate
contamination. The p~titioner is credited on only one of 32 reports listed.
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Dr., Director of the Lake Michig~ Biological Station in lllinois and a collaborator on,
, the petitioner's projects at The Ohio State University, asserts that the petitioner's contributions:
have been invaluable to the'progress we have made to ex'aminechange'in'Great Lakes
food webs related to increased Greenhouse Gas emissions and establishment of invasive
',species that cascade' through, the food, w~b 'to impaCt reproductive success of
commercially important' fishes. These results have far-reaching implications that 1)
extend to legislation pending in Congress' to protect the integrity of' aquatic' systems'
from invaders, and 2) confirm that depletion of ozone via Greenhouse Gas emissions
can be detrimental ,to commercially important fish populations in the United States.,
Without his efforts and insight, project on this collaborative project would have
stopped. .'
* * *
i.
Other research on stemmim~· the tide of invasive fishes has been Conducted by [the
petitioner]. He has developed unique ,methods to sterilize male sea lamprey,such that
the reproducti~e success of these invaders is reduced.' Success of such sterilization
programs means that fewer commerciallyimportant fishes will be lost to mortality from
,sea lampreys. Instead, varIous salmon, trout and wQitefish populations will be more
readily available for harvest.
'Fi~ally, Dr. ~iscusses the petitioner's w~rk on substituting cottonseed me~ for fish meal in
the aquaculture industry, which "can save the aquaculture industrymilliorts of dollars,each year."',
Dr. asSerts that the petItioner played a"pioneering role" in the production of all-female
populations of it popular sport fish and that this.research was published in a prestigious journal. We
will not, however, presume the significance of' a ,contribution from the journal ill wh.;.ch it waS
published., It is the petiti~mer's burdento demonstrate the significance of theindividual article.' " '
'The petitioner submits several similar letters from other collaborators. The petitioner does not submit
any letters from fish breeders, cotton growers, fish food developers, the aquacl.!ltUreindustry or other
independent sources affirming their familiarity with the petitioner's work and attesting to the iinpact of'
the petitioner's work on their own work. Dr. a researcher at the National Institute
,for Research in the Amazon, Brazil,asserts that he has known of the petitioner's work "since long ago'~
and recently met the petitioner in the laboratory of Dr. ',Dr, • however, does not explain
"how the petitioner's work influenced his own work.
Dr. 'a coauthor, asserts that.' the, number of ,citations demonstrates that the ,
petitioner's work has fonned' the foundation::of work by others. The record, however, while
demonstrating the number of citations, does not include a list of these citations. Thus, the petitioner has
not established that the bulk of the citation~ are from independent sources. Self-citation, while a
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Page 9
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normal and' expected' process, carmot estabiish' that independent,researchers are relying on the
petitioner's work. While one of the reference letters submitted on appeal asserts that the petitioner has
been cited nearly 200 times, the petitioner' did not submit a citation index 'or other evidence
corroborating that claim. The reguhition at8 C.F.R.,§ 103.2(b)(2) requires the submission of primary
evidence over affidavits unless primary and secOndaryevidence are both demonstrably unavailable or
, do not exist. 1,'
On appeal, the petitioner'submits letters fr~m Dr. _" Center Director of, the........
. - -, Executive SeCretaryand Chief Executive Officer of the_
While,both letters affirm the petitioner's selection to lead a Thiamine
Deficiency Syndrome initiative;-it is not clear that this selection had 'taken place prior to the date of
filing in October 2004 o~ that the petitioner has already impacted the field inthisposition.
The petitioner's field, like most science; 'is' research-drivep.,and there would Be little, point in
, publishing research that did'not add to the general pool of knowledge in the field. According to the
regulation at SC.FJt § 204.5(h)(3)(v), aQ. 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. To be considered a contribution of major significance in the field of
science, it can be expected that the results would have already been reproduced and confirmed by
other experts and applied ill their work.' Otherwise, it is difficult. to ga~ge the impact of, the
petitloner's,work.' Witho:ut letters from a broader, spectrum ,of exp~sin the field, the petitioner,
cannot establish that. his'contributions are recognized nationally or internationally as having major
"significance.' ,;, , ' "
, "
, In lightofthe above,'the ~'etltioner has not established that he meets this criterion.
. '. " .
Evidence of the alien 's a~thorship ojscholarlyarticles in the field, in professional' or majoYtrade
publica(ions or other major media. -, " ,
;- ,
, The directorcon~luded that the petitioner's le~gthy publication history and rhoderat~citation record,'
serves to meet thi~ criterion'and we concur. .' '' ,
The documentation submitted in' support of a claim ,ofextra~rdinaryability must clearly demonstrate "
that the alien has achieved sustaipednational or international acclalln,and is one of the small percentage,,',
who has risen to the v~ry top of the field of endeavor. ' ' ~"
Review of the record, however, does not establish that the petitioner has distinguished himself as' a,
, 'r,esearcher to such ali extent that he may be said,tO,have'achieved sustained na~ional or international'
,acclaim or to be within the small percentage at, the verytop of his field. The evidenc~indicates that the
" petitioner shows talent as a postdoctoral researchas'sociate, but"is not persuasive that the petitioner's, '
achievements set him significantly above almost ali others in his field. Therefore, the petitioner has not
,,' established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved... ','
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The b~den ofproof in visa petition proceedings' remains entirely with the petitioner. Section 291 of
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that'1;urden. Accordingly, the appeal
will be disrhissed. . . .
ORDER: '. The appeal is dismissed.'
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