dismissed EB-1A Case: Genetics Research

U.S. Department of Homeland Securiq 
U. S. ~itizknshi~ and Immigration Services 
Office of Administrative Appeals MS 2090 
identifying data deleted to 
 Washington, DC 20529-2090 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COPY 
IN RE: 
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. 8 1153(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. 8 103.5 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. 8 103.5(a)(l)(i). 
dk,Cliai; 
/ '50 F. Gnssom 
Acting 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 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 extraordmry ability in the 
sciences. The director determined that the petitioner had not established the sustained national or international 
acclaim required for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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 into the United States will substantially benefit prospectively 
the United States. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. $204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to hlfill the 
criteria at 8 C.F.R. 
 204.5(h)(3), or under 8 C.F.R. $ 204.5(h)(4), must depend on the extent to which such 
evidence demonstrates, reflects, or is consistent with sustained national or international acclaim at the very 
top of the alien's field of endeavor. 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. $204.5(h)(2). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the sciences, specifically 
as a postdoctoral fellow in genetics research. The petitioner initially submitted articles authored by the 
petitioner, his diplomas, an invitation to submit an article and evidence of the petitioner's acceptance, articles 
citing the petitioner's articles, and six letters of recommendation. In response to a Request for Evidence 
("RFE) dated November 15,2007, the petitioner submitted a citation list for his publications, information about 
the publications in which his articles appeared, and two letters of recommendation. On appeal, the petitioner 
submitted a list of works citing his publications, an article he co-authored, an article discussing his research, 
information about the laboratory in which he works, and one letter of recommendation. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or awards 
for excellence in thefield of endeavor. 
Although counsel claims for the first time on appeal that the petitioner is eligible under this criterion, he 
provides no reasoning or documentation to support his claim. Upon review of the record, we find no evidence 
to document the petitioner's receipt of any prizes or awards. The unsupported statements of counsel on appeal 
or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 
464 U.S. 183, 188-89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). As such, the 
petitioner has failed to demonstrate his eligibility under this criterion. 
(ii) Documentation of the alien's membership in associations in thejeld for which classijication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines orfields. 
Again, counsel, for the first time on appeal, claims that the petitioner is eligible under this criterion. 
However, he fails to provide any reasoning to support his claim and no evidence of the petitioner's 
membership in any associations. The unsupported statements of counsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 188-89 n.6; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 503. Accordingly, the petitioner has failed to establish that he 
meets this criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in thejeld for which classification is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, as 
stated in the regulation, 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 fi-om a local publication. An alien would not earn acclaim at the national 
level &om a local publication. Some 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.' 
Again, counsel claims that the petitioner is eligible under this criterion, but submits no supporting information 
about his claims. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfj. the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533,534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
1 
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. 
Page 4 
The only references to the petitioner in published material that we fmd in the record are the materials authored 
by the petitioner and other articles that cite the petitioner's work. The articles authored by the petitioner are 
more relevant to the criteria under 8 C.F.R. $204.5(h)(3)(v) and will be Wer addressed later in this decision. 
Articles citing the petitioner's work are primarily about the authors' work. Even where the petitioner's work 
was specifically discussed instead of merely footnoted such as in the article entitled "SILencing misbehaving 
proteins" that appeared in Nature Genetics, the petitioner's work was mentioned only in one sentence and 
footnoted. With regard to this criterion, a brief reference to the alien's work does not meet the requirement that 
the material be about the alien. Further, we note that this article referenced ten other articles and their 
corresponding authors. The submitted citations to the petitioner's work do not discuss the merits of his work, 
his standing in the field, or any other aspects of his work to make the overall article about the petitioner as 
opposed to being about other scientific f~ndings. As previously indicated, the citations of the petitioner's work 
are more relevant to the criteria at 8 C.F.R. 3 204.5(h)(3)(v) and (vi) and will be fbrther addressed later in this 
decision. 
Accordingly, the petitioner has not demonstrated eligibility under this criterion. 
(iv) 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 alliedjield of specification for which classification is sought. 
Again, counsel on appeal claims that the petitioner is eligible under this criterion, but provides no reasoning 
to support his claim. The only evidence in the record relating to this criterion is an invitation from Current 
Opinion in Cell Biology to contribute an article focusing "on, at most, 30 interesting and relevant articles 
published recently in the field." We cannot ignore that this sort of invitation is routinely issued by scientific 
journals. Thus, peer review is routine in the field and not every peer reviewer enjoys sustained national or 
international acclaim. Without evidence that sets the petitioner apart from others in his field, such as 
evidence that he has reviewed an unusually large number of articles, received independent requests from a 
substantial number of journals, or served in an editorial position for a distinguished journal, we cannot 
conclude that the petitioner meets this criterion through a single invitation to contribute an article discussing 
other articles. Lastly, we note that a petitioner must establish eligibility at the time of filing. The record does 
not demonstrate that petitioner actually submitted any article written pursuant to this request. A petition 
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. 8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Cornm. 1971). 
Accordingly, the petitioner has not demonstrated eligibility under this criterion. 
(v) Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business-related contributions 
of major significance in the field. 
While letters of recommendation provide relevant information about an alien's experience and 
accomplishments, they cannot by themselves establish the alien's eligibility under this criterion because they 
do not demonstrate that the alien's work is of major significance in his field beyond the limited number of 
individuals with whom he has worked directly. Even when written by independent experts, letters solicited 
by an alien in support of an immigration petition carry less weight than preexisting, independent evidence of 
major contributions that one would expect of an alien who has achieved sustained national or international 
acclaim. Accordingly, we review the letters as they relate to other evidence of the petitioner's contributions. 
An August 25,2006 letter from, instructor in neurology at the Harvard Medical School, states that 
the petitioner's "discoveries in [the field of neurodegenerative diseases] have had, and could continue to have 
monumental significance for our understanding of the basic biological processes of neurodegeneration, and may 
eventually result in the development of new therapies for neurodegenerative diseases." continued: 
"[the petitioner] has skills and abilities that in combination are virtually unique, which enable him to perform 
research that others cannot do." A July 27, 2006 letter fkom professor of anatomy and 
neurobiology at the University of Tennessee Health Science Center, states that the petitioner's research may 
lead to the development of new therapies to treat neurodegenerative diseases. - chairman of 
the department of biochemistry at the Medical College of Wisconsin, wrote in a May 11, 2006 letter that the 
petitioner's work in his laboratory as a graduate student provided insight into "the primary genetic defects 
leading to diseases [which] is essential for the use of gene therapy, or for the application of drug screens." Dr. 
predicts that "[the petitioner] will become a leading scientist in the field of neurodegenerative 
diseases." The August 1 1, 2006 letter from head of the laboratory at which the petitioner is 
currently employed, states that the petitioner "has showed creativity and a strong passion for science, 
demonstrating his great potential as a research scientist" and that the petitioner "is currently trying to solve a 
long-standing problem in neurodegenerative diseases research, the cell type specificity in neurodegeneration." 
These letters discuss what may, might, or could one day result from the petitioner's work, rather than how his 
past research already qualifies as a contribution of major significance in the field. As a petitioner must establish 
eligibility at the time of filing, a petitioner cannot file a petition under this classification based on the 
expectation of future eligibility. 8 C.F.R. §§ 103.2@)(1),(12); Matter ofKatigbak, 14 I. & N. Dec. at 49. 
The July 17, 2006 letter from , associate professor of neurology at the Harvard Medical 
School, stated that the petitioner "is an outstanding researcher whose work, which is recognized nationally and 
internationally, has contributed significantly to our understanding of brain disease." The December 3, 2007 
letter from states that she does not know the petitioner personally, but instead learned of the 
petitioner through "his outstanding work in neurodegeneration . . . in 2005" and that the petitioner "currently is 
working on an extremely important and ambitious project . . . [which i]f he succeeds, . . . could dramatically 
change the direction of research on neurodegeneration." The December 12, 2007 letter fi-om m 
states that the petitioner's work "highlights a crucial progress on the understanding of the mechanisms of 
neurodegeneration." A December 30, 2007 letter from Heather Harding, assistant professor at the New York 
University School of Medicine, states that "[the petitioner] is one of the most promising and accomplished 
young scientists in the field of neurodegenerative diseases" whose previous paper "pointed out crucial and 
previously unknown connections between endoplasmic reticulum functions and neurodegeneration." That paper 
"opened a new avenue for studying the mechanisms of neurodegenerative diseases." 
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 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 to the field as a whole. We must presume that the phrase "major significance" is not superfluous 
and, thus, that it has some meaning. While these letters discuss the value of his work, there is no evidence that it 
constitutes an original contribution of major significance in his field consistent with sustained national or 
Page 6 
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 contributions of major significance, 
we cannot conclude that he meets this criterion. The letters fiom the petitioner's colleagues indicates that his 
research may lead to fiu-ther breakthroughs as a building block for further research but that the research done 
thus far has not significantly impacted the field. 
For all of the above stated reasons, the petitioner has not demonstrated eligibility under this criterion. 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The petitioner provided evidence of four peer reviewed articles: "Erf4p and Erf2p Form an Endoplasmic 
Reticulum-associated Complex Involved in the Plasma Membrane Localization of Yeast Ras Proteins" which 
appeared in The Journal of Biological Chemistry in December 2002 and on which the petitioner was the lead 
author; "Palmitoylation and Plasma Membrane Localization of Ras2p by a Nonclassical Trafficking Patway in 
Saccharomyces cerevisiae" which the petitioner co-authored and which appeared in Molecular and Cellular 
Biology in September 2003; "Protein accumulation and neurodegeneration in the woozy mutant mouse is caused 
by disruption of SIL1, a cochaperone of BiP on which the petitioner was the lead author and which appeared in 
the September 2005 edition of Nature Genetics; and "Endoplasmic reticulum stress in health and disease" which 
appeared in the 2006 Current Opinion in Cell Biology and on which the petitioner served as lead author. 
We note that authoring scholarly articles is inherent to the research field.2 For this reason, we will evaluate a 
citation history or other evidence of the impact of the petitioner's articles when determining their significance to 
the field. For example, numerous independent citations would provide solid evidence that other researchers 
have been influenced by the petitioner's work and are familiar with it. On the other hand, few or no citations of 
an alien's work may indicate that his work has gone largely unnoticed by his field. The record contains 
evidence that the petitioner's articles have been cited in 104 publications. Although the petitioner's work does 
seem to have been widely cited, the petitioner's number of publications pales in comparison to the authors of his 
letters of recommendations who authored "more than 30 high auality veer-reviewed science papers, maw of 
- - -* . 
which have been published on the very top scientific journals" 
 "over 60 peer-reviewed 
scientific papers and reviews" -J, "more 
 , and "more than 
50 high 
 peer-reviewed research papers" \. From this evidence, it seems that the 
top of the profession is at least a step above the level of the petitioner. 
The information submitted about the publications in which the petitioner's articles appear consists solely of a 
self generated print-out entitled "Journal Impact Factors," which states that The Journal of Biological Chemistry 
is ranked 82 and has an impact factor of 7.385, Molecular and Cellular Biology is ranked 46 and has an impact 
2 
The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report 
and Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral appointment. 
Among the factors included in this definition was the acknowledgement that "the appointee has the freedom, 
and is expected, to publish the results of his or her research or scholarship during the period of the 
appointment." Thus, this national organization considers publication of one's work to be "expected," even 
among researchers who have not yet begun "a 111-time academic andlor research career." This report 
reinforces USCIS's conclusion that publication of scholarly articles is not presumptive evidence of sustained 
national or international acclaim. 
Page 7 
factor of 10.498, Nature Genetics has a rank of 9 and an impact factor of 28.543, and Current Opinion in Cell 
Biolo~ has an impact factor of 15.246. The websites identified as the sources of this information are the 
Institut de Biologie Physico-Chimique, a journal entitled Frontiers in Bioscience, and Sci-Bytes. We note that 
the petitioner did not submit a print out of these websites or the names of the organizations that did the rankings, 
but instead provided only a link to the website. In addition, only the link for Sci-Bytes actually pulled up the 
information submitted; the other two provided links were not usable so that only the number 4 ranking for 
Nature Genetics could be verified. Even with proof that the first two websites actually did the rankings claimed, 
the petitioner submitted no evidence showing that any of these websites could be relied upon to accurately rank 
the publications. 
The petitioner also submitted an article entitled "Introducing Woozy" which appeared in the Summer 2006 
edition of Marinesco sjogren Syndrome News and on which the petitioner was the lead author. The petitioner 
presented no evidence to show that this article is anything other than an internal publication for the laboratory at 
which the petitioner is employed. The petitioner submitted no evidence to show that this newsletter is a 
professional or major trade publication or other major media. 
The petitioner also alleges eligibility under this criterion by virtue of his participation in the Cold Spring Harbor 
meeting. The petition&, however, submitted no evidence as to the degree of his participation or what was 
presented, if anything. The July 17, 2006 letter fiom states that the petitioner "presented his 
original research" at Cold Spring Harbor and other conferences and that Cold Spring Harbor is a conference "at 
which cutting edge scientific results are often first made known.'' However, no Wer information was 
submitted about the conference to establish its relevance to this criterion. 
For all of the above reasons, the petitioner has not demonstrated eligibility under this criterion. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
To meet this criterion, a petitioner must establish the nature of his role within the entire organization or 
establishment and the reputation of the organization or establishment. Where an alien has a leading or critical 
role for a section of a distinguished organization or establishment, the petitioner must establish the reputation of 
that section independent of the organization itself. Counsel claims that the petitioner is eligible under this 
criterion by virtue of his work with the Jackson Laboratory ("Laboratory"). On appeal, counsel submitted 
information about the Laboratory fiom the Laboratory's own website indicating that the Laboratory is "an 
independent, non-profit organization focusing on mammalian genetics research to advance human health." 
Information generated by the organization itself is insufficient to establish the organization's reputation even if 
website had included any indication as to the reputation that it enjoys. Theletter fiom Dr. 
t the Laboratory "is considered the top mouse genetics laboratory in the world." The letter fiom 
ates that the Laboratory is "one of the most renowned genetics research institutes in the world." 
No evidence was presented to support the assertions made in these letters of the petitioner's colleagues. As 
such, we are unable to conclude that the Laboratory enjoys a distinguished reputation 
Even if the petitioner submitted evidence showing that the Laboratory enjoys a distinguished reputation, he 
failed to show that his role was leading or critical for the Laboratory. The subordinate role of postdoctoral 
researcher is designed to provide temporary research training for a future professional career in the field of 
endeavor. There is no evidence demonstrating how the petitioner's role differentiated him from the other 
researchers in the departments where he worked, let alone more senior faculty. We note that the information 
submitted about the Laboratory lists faculty members according to specialty and that the petitioner's name is not 
included in this list. The August 1 1, 2006 letter from states that the petitioner "has undertaken a 
few important research projects related to cerebellar neurodegeneration" and that he "is enormously valuable on 
his current research projects." also stated that the Laboratory "received several requests from 
MSS researchers and other scientists for research collaborations based on this mouse model and [the 
petitioner's] work." - letters do not state that the petitioner plays a leading or critical role for the 
Laboratory, at which she is the senior staff scientist, and no documentation submitted by the petitioner 
establishes that he was responsible for the Laboratory's success or standing to a degree consistent with the 
meaning of "leading or critical role." 
As such, the petitioner has not established that he meets this criterion. 
On appeal, counsel claims that the petitioner was denied due process because of the quality of the decision 
issued by the Director. As with any claim of a violation of due process, a violation of an immigration regulation 
will not render a decision unlawful unless the violation prejudiced the interests of the alien protected by the 
regulation. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980). Furthermore, we note that in 
visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See 
Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of 
evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I. & N. Dec. 1035, 
1036 (BIA 1997); Matter of Patel, 19 I. & N. Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 I. & N. Dec. 15 1 
(BIA 1965). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. § 5570>) 
("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. US. Dept. of 
Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's 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). Therefore, any due process 
violation would be remedied by de novo consideration on appeal. As we do not disagree with the Director's 
decision, no due process violation occurred at that level. 
In this case, the petitioner has 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. 9 204.5(h)(3). 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 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.