dismissed EB-1A Case: Fuel Cell Research

U.S. Departnient of Homeland Secority 
20 Massachusetts Aye. N.W.. RI~. 3000 
Washington. IIC 20529-2000 
U.S. Citizenship 
and Immigration 
LIN 06 189 52260 
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. # I 153(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). 
V n F. Grissom, Acting Chief 
Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the sciences. The director determined the petitioner had not 
established the sustained national or intemational acclaim necessary to qualify for classification 
as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that 
the individual is one of that small percentage who has 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. 5 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that he 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a fuel cell 
researcher. The regulation at 8 C.F.R. tj 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, 
intemational 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 did not claim, and submitted no evidence, that he was the recipient of a major, 
international award. The petitioner has submitted evidence that, he claims, meets the following 
criteria. 
Docunzentation of the alien's rece@t of lesser nationally or internationally recognized 
prizes or awards for excellence in thejeld of endeavor. 
In his May 5, 2006 letter accompanying the petition, counsel asserted that the petitioner was a 
"co-PI [primary investigator] on an NSF [National Science Foundation] grant for $1 10,000 and 
actually BEGAN the Fuel Cell Studies Department at Florida International University." 
[Emphasis by counsel.] Counsel repeated his statement in a March 27, 2007 letter responding to 
the director's request for additional evidence (RFE) dated March 1, 2007. Counsel further stated, 
"Very clearly, $1 10,000 is more than just a fellowship that would pay his own salary. This is a 
significant research award, and we believe it would qualify him for being granted this category." 
However, the evidence of record does not support counsel's assertions. 
Under "Awards and Honors" in his May 5,2006 letter, counsel indicated that the beneficiary was 
a recipient of an NSF, Small Grants for Exploratory Research, in the amount of $1 10,853. The 
petitioner submitted a copy of a June 15, 2005 letter from the NSF to the president of the 
University of Connecticut, advising him that the Foundation had awarded a grant of $1 10,853 to 
the university, and that the project was under the director of Amir Faghri and the petitioner. 
In a March 14, 2007 response to the RFE, 
 a professor in the Department of 
Mechanical Engineering at the University of Connecticut, stated that the petitioner had been a 
research scientist in his lab for the past three years. 
 also stated: 
The petitioner was the Co-PI of the NSF grant, "A New Innovative Passive Miniature 
Direct Methanol Fuel Cell." He assisted in the preparation of the proposal and was 
the major contributor of the NSF project. In general, we do not allow research 
scientists to be PIS on NSF grants and therefore he was appointed as Co-PI. 
Furthermore he was the first author on the papers that were produced for this 
proposal. 
We cannot ignore the fact that research funding through competitive grants is inherent to may 
fields within the basic and applied sciences. Although prestigious grants may indicate the 
recognized value of the recipient's research, they are not prizes or awards for documented 
achievements. Rather, they may recognize that the recipient's prior findings support the viability 
of the proposed research. 
Counsel's argument on appeal that "[a] substantial research grant awarded to a scientist is indeed 
an 'award of excellence"' is unsupported by any documentation that the grant was "substantial" 
or was indicative of an award denoting the petitioner's excellence in his field. The petitioner 
submitted no evidence of the criteria used for the award of the grant or how the petitioner's 
expertise was used as a basis for awarding the grant. Without documentary evidence to support 
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the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbenn, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ranlirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The evidence does not establish that the petitioner meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
clusszficatiorz is sought, which require outstancling achievements of their melnbers, as 
judged by recognized national or international experts in their clisciplines or fields. 
To demonstrate 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 work 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. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner submitted a copy of certificate indicating that he was a member of the American 
Society of Mechanical Engineers (ASME) for 2005-2006. Counsel asserted in his letter that the 
petitioner was also a member of the Electrochemical Society (ECS); however, the petitioner 
submitted no evidence of the petitioner's membership in this society. 
Additionally, the petitioner submitted no evidence that the membership requirements for either 
organization required outstanding achievement of their members. Counsel did not address this 
issue either in response to the RFE or on appeal. The evidence does not establish that the 
petitioner meets this criterion. 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien 's wovk in the field for which class$cation is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
Counsel did not initially allege that the petitioner met this criterion. However, in response to the 
RFE, the petitioner submitted the headlines of a May 20, 2006 newspaper, the Norlvich Bulletin, 
Page 5 
which contains a front page article proclaiming that the "State leads fuel cell effort." The article 
features a picture of the petitioner and quotes him near the end of the article. However, the article 
is not primarily about the petitioner and his work but rather about the fuel cell effort in general. 
Further, counsel acknowledged in his March 7, 2007 letter accompanying the petitioner's 
response that the Norwich Bulletin is a local newspaper. 
On appeal, counsel asserts that while the Novwiclz Bulletin is not the New York Times, "it is still 
the largest newspaper in Eastern Connecticut" and questions what USCIS "does believe a major 
media is." First, counsel provides no documentary evidence that the Norwich Bulletin "is the 
largest newspaper in Eastern Connecticut." Nor does he provide documentary evidence that the 
newspaper has a significant national distribution such that it could be considered as major media. 
Despite counsel's suggestions to the contrary, this is not a difficult concept for the average lay 
person to understand and provides sufficient guidance to the petitioner in providing evidence to 
establish this criterion. Further, as also previously discussed, the article is not primarily about the 
petitioner and his work and therefore does not provided evidence that the petitioner 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 allied field of specification for which classiJication is 
sought. 
The petitioner submitted copies of five Internet e-mails that indicated he either agreed to, or was 
invited to, review manuscripts submitted to the Journal of Power Sources or for the 2006 ASME 
conference. The petitioner submitted no documentation that he actually participated in the 
manuscript reviews. 
The regulatory criteria are established to assist the petitioner in demonstrating national or 
international acclaim, and must be interpreted as a whole with the statute. The AAO interprets 
this regulation to require that the selection and participation process for serving as the judge of 
the work of others in the field be indicative of national or international acclaim in the field. 
While the invitations to the petitioner to review manuscripts for the ASME conference state that 
the petitioner's "expertise and interest in ASME and Power 2006 are greatly valued," none of the 
invitations or confirmations of the petitioner's agreement to review manuscripts indicate that the 
petitioner was chosen in a manner consistent with national or international acclaim. The 
petitioner submitted no evidence to show the basis of his selection. 
In his March 27, 2007 letter accompanying the petitioner's response to the RFE, counsel stated. 
"Very clearly if it is evident that the petitioner qualifies as a judge of the work of others, then 
that petitioner must be considered extremely knowledgeable in his field." Nonetheless, being 
"extremely knowledgeable" in one's field is not the equivalent of being among those who have 
achieved national or international acclaim or who are near the pinnacle of success in a given 
field. The evidence does not establish that the petitioner invitation to review these manuscripts 
was consistent with national or international acclaim. Moreover, the record contains no evidence 
that the petitioner actually reviewed the manuscripts. 
Page 6 
The evidence does not establish that t meets this criterion. 
Evidence of the alien 's original scientzfic, scholarly, artistic, athletic, or business-related 
contvibutions of major signlficnrzce in the field. 
Counsel asserts that the petitioner is the recipient of six patents for his work. However, the 
petitioner submitted evidence of one patent issued by the U.S. Patent and Trademark Office 
(USPTO) and a copy of what purports to be a Chinese patent issued in 1997. However, the 
petitioner failed to submit an English translation of the Chinese document. Because the petitioner 
failed to submit a certified translation of the document, the AAO cannot determine whether the 
evidence supports the petitioner's claims. See 8 C.F.R. €j 103.2(b)(3). Accordingly, the evidence 
is not probative and will not be accorded any weight in this proceeding. 
The other documentation that purportedly indicate the petitioner's patents includes a March 2, 
2006 United States Patent Application Publication, and two documents that counsel states are 
pending U.S. patents. Counsel also stated that the petitioner had a 2006 patent application; 
however, the petitioner submitted no evidence of this. 
Additionally, the petitioner submitted no evidence that the patent or the pending patents were a 
major contribution to his field. The petitioner submitted no documentation that anyone has cited 
his patents in their own work. Simply applying for or receiving a patent is not by and of itself 
evidence that the patented item, technology or theory is of scientific value and has made a major 
contribution to the field. 
The petitioner submitted several letters of recommendation in support of his visa petition. In a 
March 27, 2006 letter, a professor in the Department of Mechanical and Materials 
Engineering at Florida International University, stated that the petitioner "is truly one of the top 
scientists in the world in this field" and "has si nificantl moved DMFC [direct methanol fuel 
cell] fuel cell system development forward.' further stated: 
[The petitioner's] extraordinary work has established his international reputation, 
and his reputation is solid. He is without question one of the leading experts in 
this field, and his publication history is one of the top in this field. He is clearly 
head and shoulders above his peers in this field of research. He has received 
sustained national and international acclaim, and his work has reached the highest 
level of significance and recognition of anyone in this field. 
Nonetheless. the evidence ~ut forth bv the ~etitioner in sumort of his ~etition does not su~~ort 
& & 11 
- conclusions regarding the petitioner's sustained national and international 
acclaim. attests that the beneficiary's six publications and co-principal 
investigator status of a ro ect with a $1 10,000 grant is at the top of the field. This claim is at 
odds wit d's own record where he claims to have published 104 publications 
and 172 meeting and proceedings papers, and has "secured and managed more than $85 million 
in work for the military, federal government, and commercial sectors." 
Page 7 
In a March 27, 2006 letter, , who also works in the Department of Mechanical 
and Materials Engineering at Florida International University as an associate professor, attests 
that the petitioner's "background and experience m k him-uniquely qualified to make world 
class contributions to" the field of fuel cell research.  believes that the petitioner "stands 
alone as a remarkable and outstanding scientist, head and shoulders above his peers." A 
significant achievement such as "a milestone in portable fuel cell te 
 evelopment," does 
not automatically elevate one to the top of the field. Nothing in 
 letter supports his 
conclusion that the petitioner ranks far above his peers. 
, an associate professor in the Department of Mechanical 
Engineering at the University of South Florida, in an April 21, 2006 letter, outlines the 
petitioner's patents and states that his innovations have "dramatically advanced the technology of 
heat pipes." He stated that the petitioner "is the first person who developed" "a totally passive 
DMFC system, in which the capillary siphon concept was used as a fuel delivery means." 
[The petitioner's] abilities as a research scientist are extraordinary. He has four 
papers published in the most prestigious journals in the world with four more in 
submission. He also has three patents, two pending patents and one patent 
application. He has demonstrated that he is without question one of the top 
research scientist[s] in Mechanical Engineering in the world, and his reputation is 
both national and international. He is truly one of the very few scientists at the top 
of his profession. 
As discussed previously, the record does not establish that the petitioner has been granted three 
patents and record does not support - assertions that the petitioner's patents 
have advanced the technology of heat pipes. 
Others who provided testimonials on behalf of the petitioner include: 
Scott K. Thomas, an associate professor of mechanical engineering at Wright State University, 
states in a March 17,2006 letter: 
[Tlhe technological innovations which I know about which are directly 
attributable to [the petitioner's] work or are derivative products of his work are 
milestones in Fuel Cell Research. His contribution has been monumental, and he 
has clearly shown that he is one of the top names in this field in the world. He is 
truly extraordinary, and I believe that he is uniquely qualified for his current 
research position. 
a professor in the Department of Mechanical Engineering at the University of 
- 
California, Riverside, states in an April 6,2006 letter: 
a Page 8 
[The petitioner] is among a small group of select scientists with a rare 
combination of multidisciplinary expertise in mechanical engineering, 
electrochemical engineering, and material science. Only individuals with a 
distinguished history of academic accomplishment and high credentials in related 
science are invited to join the CGFCC fuel cell research group. That fact that [the 
petitioner] has been invited to join the research group demonstrates his 
extraordinary standing in his field. 
- an associate professor in the Department of Mechanical and Aerospace 
Engineering at the University of Missouri-Columbia, stated that he is "familiar [I with the 
importan 
 etitioner's] research due to his publications, conference presentations, and 
patents." further stated: 
In my professional opinion, I feel that [the petitioner] has already reached an 
outstanding level of expertise, skill, general knowledge, and specific insight in his 
field of specialization. Because of worldwide rapid growth of the fuel cell 
research, scientists with [the petitioner's] training, exceptional scientific ability 
and integrity are very much in demand and are irreplaceable. [The petitioner's] 
important contributions to this field far exceeded most others who have similar 
training. 
a professor of polymer science at Dalian University of Technology in Dalian, 
China, stated: 
[The petitioner is] one of the top names in the fuel cell research area in the world. 
[He] has already made some remarkable milestones in portable fuel cell 
technology. These innovations have a number of potential applications in portable 
power sources. [The petitioner] has truly distinguished himself as a research 
scientist by his major contributions in this field. His work is extremely important 
for fuel cell research field, and definitely will benefit other researchers in the 
world. There are few scientists who can produce this kind of significant results at 
this highly competitive level, where the challenge is great and the work is highly 
competitive. 
[H]e is a first rate investigator, and is truly one of the very few individuals at the 
top of his profession. And he has a sustained reputation, both nationally and 
internationally as an outstanding research scientist. [He] is a scientist who has 
succeeded where others have failed; who has made headway in a very complex 
and difficult field, and who, by virtue of his discoveries has made his name 
instantly recognizable anywhere in the world where this type of research is being 
done. His track record speaks for itself. 
The petitioner is certainly one of the finest investigative researchers in his field. 
He has a significant publication record, and has demonstrated time and again that 
he is one of the few people in the world in this field capable of getting results in a 
short period of time. His reputation is worldwide, and he is certainly one of the 
few people at the top of this profession in the United States and in the world. His 
research is having an enormous impact on the fuel cell technology and in fact has 
impacted my own research tremendously. I have used his fundamental discoveries 
as springboards for what I consider to also be important research. 
Despite these accolades, however, the petitioner submitted no documentary evidence that would 
corroborate these statements. With the exception om none of those who submitted letters 
indicated that the petitioner's work helped in their own. Additionally, we note that Professor 
, the director of Dorgan Solar Energy and Fuel Cell Laboratory at the University of 
Miami, describes the petitioner's work as "an impressive effort" and believes that the petitioner 
"is an outstanding young scientist and has the potential to make significant contributions in his 
field." [Emphasis added.] 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publicutioizs or other major media. 
Duties or activities which nominally fall under a given regulatory criterion at 8 C.F.R. 
4 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or routine 
in the occupation itself. As frequent publication of research findings is inherent to success as an 
established research scientist, publications alone do not necessarily indicate the sustained 
acclaim requisite to classification as an alien with extraordinary ability. Evidence of publications 
must be accompanied by documentation of consistent citation by independent research teams or 
other proof that the alien's publications have had a significant impact in his field. 
The petitioner submitted evidence that he had co-authored nine manuscripts, six of which were 
published. Counsel asserted that the petitioner's published work had been cited 32 times; 
however, the petitioner submitted evidence that his work had been cited only 16 times, and that 
of those 16 citations, six were citations to his own work. While citations are not conclusive proof 
of the significance of the researcher's work, it is a good indicator of the importance placed upon 
that work by others in the field. The petitioner submitted no documentary evidence that these 
articles had a significant impact in his field or otherwise demonstrated his substantial national or 
international acclaim. 
Counsel also asserted in his letters of May 5, 2006 and March 27, 2007 that the petitioner was 
the author of nine journal articles and three proceeding papers. However, the petitioner submitted 
no documentary evidence that he had authored any proceeding papers. Assertions of counsel are 
not evidence. Matter of Ohnigbenn, 19 I&N Dec. at 534; Matter of Lnurenno, 19 I&N Dec. 1; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Evidence that the nlie~~ has performer1 in n leaditlg or critical role for organizatioils or 
estnhlishmerlts that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
With the petition, counsel did not specifically allege that the petitioner met this criterion; 
however, he indicated that the petitioner had been a principle investigator at the Department of 
Mechanical Engineering at the University of Connecticut since 2005. As discussed earlier, the 
petitioner served as co-principle investigator on an NSF-funded project, "A New Innovative 
Passive Miniature Direct Methanol Fuel Cell." 
In response to the WE, counsel asserts that the March 24, 2006 letter from - 
who identified himself as "Dean and United Technologies Endowed Chair Professor in Thermal- 
Fluids Engineering," is evidence that the petitioner meets this criterion. Counsel points out this 
specific language in Professor Faghri's letter: 
[The petitioner] is certainly among the finest research scientists I have met in this 
field. He is currently leading a research group working on the passive DMFC 
technology at the Connecticut Global Fuel Cell Center (CGFCC). His track record 
includes significant work developing a passive methanol delivery system that 
allows for fuel delivery at an adjustable, controlled rate from a reservoir to the 
fuel cell. He has also develop[ed] passive water management techniques and 
effective carbon dioxide removal techniques. His breakthrough accomplishments 
in these areas are extremely important for achieving the target density in 
miniaturized DMFCs. The technology based on these results produces longer run 
times (time until a recharge is needed) that are between two and 10 times over 
current battery technologies. 
I regard [the petitioner] as an irreplaceable research member of the Connecticut 
Global Fuel Cell Center research group. The center prides itself on being one of 
the finest research establishments in the world in the fuel cell field. Because of 
this sterling reputation, we are able to attract some of the top fuel cell researchers 
in the world, including [the petitioner]. During his tenure at the CGFCC, he has 
established a reputation for being one of the top researchers in this field. 
Finding another scientist with [the petitioner's] skill and background, although 
theoretically possible, is unlikely. While others may be well versed in the subject 
matter, they do not have the unique combination of knowledge, background, 
technical ability and interests that are necessary. [The petitioner] is the only 
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candidate suitably qualified for this research: he is among the strongest fuel cell 
researchers I have known, and brings exceptional laboratory skills to our program. 
While it appears that the petitioner played a lead role in one particular project, the petitioner has 
provided no evidence that the petitioner had a leading or critical role in any other position at the 
CGFCC or that the CGFCC is an establishment with a distinguished reputation. We note that 
- 
while 
 claimed that the CGFCC "prides itself on being one of the finest research 
establishments in the world in the fuel cell field," the petitioner offered no evidence to support 
this self-assessment by . Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SoSJicz, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
Cullfornin, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The evidence does not establish that the petitioner meets this criterion. 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of, 
the small percentage who has risen to the very top of his field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as 
a research scientist to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The 
evidence indicates that the petitioner has distinguished himself professionally, particularly as a 
multidisciplinarian in highly regarded fields, but is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field. Therefore, the petitioner 
has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may 
not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 
291 of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.