dismissed EB-1A Case: Intellectual Property Law

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
sEp 0 7 2005 
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. 5 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. 
LI 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based preference visa petition was initially approved by the Director, 
California Service Center. In connection with the petitioner's Application to Register Permanent Resident or 
Adjust Status (Form 1-485), the director served the petitioner with notice of intent to revoke the approval of the 
petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of the 
Immigrant Petition for Alien Worker (Form 1-140). The matter is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
Section 205 of the Act, 8 U.S.C. 9 1155, provides that "[tlhe Attorney General [now Secretary, Department 
of Homeland Security], may, at any time, for what he deems to be good and sufficient cause, revoke the 
approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Mutter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will 
be sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Mutter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). Finally, 
the realization by the director that the petition was approved in error may be good and sufficient cause for 
revoking the approval. Id. 
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. 9 11 53(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, counsel asserts that insufficient time was provided to respond to the notice of intent to revoke. 
Counsel, however, does not request additional time to supplement the appeal and does not provide any new 
documentation in support of the appellate brief. We will consider counsel's additional assertions below. We 
note, however, that the petitioner filed the petition on March 6, 2000. The petitioner must establish that he 
enjoyed sustained acclaim at that time. In addition, the petitioner must establish his eligibility as of that date. 
Thus, our analysis below will not consider any accomplishments afier that date. See 8 C.F.R. $ 103.2(b)(12); 
Matter of Kutigbuk; 14 I&N Dec. 45,49 (Comm. 1971). 
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 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. 
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 an intellectual property law 
specialist. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 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.' 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in theJield of endeavor. 
Initially the petitioner submitted several awards issued by the Chinese State Science and Technology 
Commission and student scholarships. The petitioner no longer asserts that the scholarships constitute awards 
for excellence in his field of endeavor on appeal, and this office consistently holds that they do not. The most 
recent award is from 1998 and appears limited to Hubei Province. The record includes China's National 
Regulations on Encouragement of Science and Technology that address five national science and technology 
awards. The petitioner's awards addressed by these regulations include his 1994 and 1995 second place Science 
and Technology Advancement Awards. The record reveals that the State ~ouncil~ssued 169 and 150 second 
place Science and Technology Advancement Awards in 1996 and 1997 respectively. The petitioner did not 
submit similar data for 1994 or 1995. 
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
2 
The regulations reveal that the State Council issues Science and Technology Advancement Awards. The 
petitioner has not established that the State Science and Technology Committee is the same entity as the State 
Council. Thus, thkre remains some question as to whether the petitioner's Science and Technology 
Advancement Awards are the same awards discussed in the regulations. 
The director concluded that the record lacked evidence of the previous winners and the criteria used to nominate 
award candidates and select awardees. On appeal, counsel asserts that the petitioner's State Science and 
Technology Advancement Awards are lesser nationally recognized awards in the petitioner's field. 
We fail to comprehend the relevance of the names of previous winners of these awards. The director does not 
explain how the names of Chinese winners would be meaningful to U.S. adjudicators. Thus, we withdraw the 
director's negative inference from the petitioner's failure to submit that information. Nevertheless, the fact that 
the State Council issued 150 or more of these awards in 1996 and 1997 diminishes the significance of these 
awards. Typically, notable awards or prizes are bestowed to first, second and third place candidates, with one 
winner in each category. 
Moreover, the petitioner's national awards were bestowed in 1994 and 1995, four and five years prior to the 
filing of the petition. While a petitioner need not establish sustained acclaim in each criterion he meets, we note 
that awards issued four and five years prior to the filing date of the petition are not evidence of sustained 
acclaim as of that date. 
Documentation of the alien's membership in ussociations in the Jield for which clussrfication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines orpelds. 
The petitioner submitted evidence of his membership in the Chinese State Science and Technology Law 
Association. He also submitted evidence of his appointment as a director of the Science Dissemination 
Committee of the Fifth Representatives Conference of the Chinese State Science and Technology Information 
Association (CSSTI). The record includes information about CSSTI, including membership requirements for a 
"Director Member." Specifically, a "Director Member" must be a member who has "outstanding academic 
achievement in scientific and technological information or related field." Finally, the petitioner submitted 
evidence that he joined U.S. bar associations after the date of filing. 
The director concluded that bar associations did not require outstanding achievements. The director did not 
contest that CSSTI requires outstanding achievements for some classifications of membership, but concluded 
that the petitioner had not demonstrated his membership in CSSTI. On appeal, counsel notes that the director 
did not contest that CSSTI requires outstanding achievements for some members and concludes that the 
petitioner has, therefore, met this criterion. 
Contrary to counsel's assertion on appeal, the director did not find that the petitioner meets this criterion. As 
stated above, the director noted the lack of evidence of the petitioner's membership in CSSTI. Counsel does not 
address that conclusion on appeal. We concur with the director. Serving as a director for one of the 
association's conferences does not necessarily demonstrate that the petitioner is a "Director Member" of the 
association. Moreover, we withdraw the director's conclusion that CSSTl requires outstanding achievements of 
"Director Members." Such members must demonstrate outstanding academic achievements. This office 
consistently holds that academic achievements, such as class standing or grade point average, are not 
outstanding achievements in a field. Moreover, the record lacks evidence as to how the association defines 
"outstanding." For example, if the association considers typical achievements such as publication to be 
"outstanding," we would not agree that such achievements are outstanding as contemplated by the regulation. 
In light of the above, the petitioner has not established that he meets this criterion. 
Page 5 
Evidence of the alien's original scientzfx, scholarly, artistic, athletic, or business-related contributions of 
major signlJicance in thejield. 
The record is inconsistent regarding when the petitioner obtained his Master of Laws degree from Peking 
University, School of Law. The de ree itself reflects a date of January 1998. The petitioner's transcript lists no 
exams after January 1996. Deputy Chief of Secretariat, Ministry of Science and Technology in 
China and Chief of the Secretariat, Ministry of Science and Technology in China, asserts in his reference letter 
that the petitioner obtained the degree in 1996. The petitioner, however, lists 1994 on his curriculum vitae. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). The petitioner has not resolved the inconsistencies in the record regarding the date he received his 
degree. 
further asserts that the petitioner began working for the Department of Science and Technology 
and System Reform as a policy analyst in Jul 1993. The petitioner, however, indicates on 
his curriculum vitae that he began such work in July 1992.continues that the petitioner was one of 
the "principle drafters of the first basic law of China for science and technology development," which was 
passed by the People's Congress in March 1994. Subsequently, in 1996, the petitioner translated the United 
States' "White Paper" on intellectual property issues and published a "significant paper" on the subject in the 
"top technological law review." The petitioner then joined "the Intellectual Property Task Force in the 
Leadin Grou f China's National Information infrastructure [(NTI)] under the State Council of P. R. 
China.'-concludes that because the petitioner "did the first analysis report to systematically probe 
intellectual property in cyberspace, he has played a significant role in the establishment of China's NII." 
further asserts that the petitioner "has enjoyed tremendous publicity." This assertion is not 
persuasive in light of the petitioner's concession in these proceedings that there is no published material 
about him. 
sserts that the petitioner's thesis, which carried out 
proposals for the first systematic report in the area." In the same 
letter, dated petitioner was, at that time, a senior policy 
analyst. On his curriculum vitae, that he left this position in June 1998 and 
began working as a Deputy Director for the High-tech Development Center of China. As will be discussed in 
more detail below, however, the record contains insufficient confirmation of that appointment. 
In a subsequent letter, Professor attests to the petitioner's contributions to Chinese intellectual 
property law. All of the specific work that Professor discusses in support of that conclusion, 
however, occurred prior to 1996, when the petitioner appears to have obtained his de ree in the field. 
Moreover, it all occurred several years prior to the date of filing the petition. Deputy Chief of 
Secretariat at the Ministry of Science and Technology in China, provides a similar letter. 
While the petitioner's work is no doubt of value, we cannot conclude that every policy analyst working on a 
government sponsored project that results in new policy has made a contribution of major significance to the 
field. Thus, the petitioner has not established that he meets this criterion. 
Page 6 
Evidence of the alien's authorship of scholarly urticles in the field, in professional or major trade 
publications or other major media. 
The petitioner submitted twelve articles in support of this criterion. The petitioner is merely the translator for 
one of those articles. Translating is not authorship. Six of the remaining articles appeared in China Soft 
Science, China Computer World, Forum on Science and techno log^ in China and a collection of theses entitled 
China Information Legal Framework Forum. The petitioner was also an author of a chapter in the book 
"Fundamental Knowledge of Contemporary Science and Technology" and, according to two letters in the 
record, a portion of the textbook "Science, Technology and Law." A third reference asserts that Science, 
Technology und Law is actually a law journal. The copy of Science, Technology and Law contains a volume 
number, suggesting the publication is a law journal, not a textbook. None of the books or articles that appeared 
in the above publications were published after 1997, three years prior to the filing date of the petition. 
The petitioner also submitted evidence of conference and workshop presentations. The only two conferences 
after 1998 were at the Boalt School of Law at the University of California, Berkeley, where the petitioner was a 
visiting scholar. Presenting one's work at the school with which one is affiliated is not indicative of or 
consistent with national or international acclaim. The petitioner presented an abstract at a workshop in 
f in 1996. In 1998, the petitioner gave a talk at the "International Symposium of the Protection o 
Intellectual Property for the 2 1" Century" jointly organized by the China Intellectual Property Society and the 
American Intellectual Property Law Association in Beijing. The petitioner attended the remaining workshops as 
a representative of China's State Science and Technology Commission. 
asserts that "Fundamental Knowledge of Contemporary Science and Technology7' was a bestseller. A 
certificate from the National Committee of Science and Technology provides similar information, indicating that 
the petitioner authored a single chapter in that book. ~othand the certificate assert that the law 
journal that published the petitioner's article was actually a textbook. 
The director concluded that, without citations to the petitioner's published works, he could not establish the 
significance of this work. On appeal, counsel asserts that citations were not originally required and that the 
petitioner is of the opinion that the evidence already submitted is sufficient to meet this criterion. 
Unlike researchers, where publication of one's results is inherent to the field, the practice of law is not similarly 
dependent on publication and building on the results of others, as reflected by citations. That said, we are not 
persuaded that mere authorship of a law review article, textbook or workshop presentation is indicative of or 
consistent with national or international acclaim. The record lacks confirmation of the sales data of the 
"Fundamental Knowledge of Contemporary Science and Technology" from the publisher of that book. The 
petitioner failed to submit course curricula from colleges or law schools establishing that a textbook the 
petitioner is purported to have coauthored is widely used. In fact, the "textbook" appears to be a law journal. 
The petitioner's presentations have been at institutions with which he is affiliated or at workshops as a 
representative of his government agency. It appears that participation at these workshops was one of the 
petitioner's job responsibilities, typical of midlevel bureaucrats. 
The certificate from the National Committee of Science and Technology, however, purports to confirm the 
national circulation of the publications that carried the petitioner's work. As the committee is the publisher of 
China Soft Sciences, we will accept this certificate as evidence of the circulation of that publication. Thus, the 
petitioner has established that this publication is internationally circulated. 
While not all of the evidence submitted to meet this criterion carries the weight claimed by the petitioner, we are 
persuaded that the petitioner minimally meets this criterion. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
While the petitioner initially asserted that his conference presentations served to meet this criterion, he does not 
challenge the director's conclusion that such presentations do not constitute artistic exhibitions or showcases. 
We concur with the director's conclusion that this criterion does not apply to the petitioner's field. 
Evidence that the alien has performed in a leading or critical roIe for organizations or establishments that 
have a distinguished reputation. 
We note that we have already considered the petitioner's alleged contributions to the field of intellectual 
property law above. The analysis under this criterion involves whether the role the petitioner was hired to fill 
was leading or critical for an entity with a distinguished national reputation. The petitioner submitted evidence 
that he was a director of the Science Dissemination Committee of the Fifth Representatives Conference of the 
Chinese State Science and Technology Information Association in 1998, appointed to preside over a "key 
research project" by the State Science and Technology Commission and the Justice Department of the People's 
Republic of China in 1997, represented the State Science and Technology Commission at a number of 
international workshops, and was a "visiting scholar" at the Boalt Hall School of Law from August 15, 1998 to 
September 14, 1998. 
The above responsibilities are not persuasive. Serving in a leading or critical role for a single conference 
sponsored by an entity is not evidence that the petitioner played a leading or critical role for the sponsoring 
entity as a whole. While the certificate from the National Committee of Science and Technology asserts that the 
petitioner's work on the "national-class vital project7' resulted in his national 1995 award, hundreds of projects 
received first, second and third place awards. As discussed above, the record is not persuasive that the 
petitioner's participation in workshops was beyond that expected of midlevel bureaucrats. Finally, one month 
performing research as a visiting scholar is not a critical or leading role for the law school as a whole. 
asserts that the petitioner "took part in" the drafting team head that drafted China's 
first science and technology basic law and trade negotiations headed by no-U.S. intelligence 
property rights "that attracted the world's attention." 
-h 
appears to have been primarily responsible for 
both the drafting and negotiations. He does not ind~cate ow many government employees were part of the 
drafting and negotiation teams. Thus, the petitioner has not established that his role for the Chinese government 
was leading or critical beyond the obvious necessity for a negotiating team familiar with intellectual property 
law. 
The program for the workshop attended by the petitioner in Ankara lists his job title as Senior Program Officer 
for the State Science and Technology Commission. On appeal, counsel asserts that this is a leading or critical 
role for the commission. The record does not contain an organizational chart or other evidence confirming 
counsel's assertion. The record does not establish how many senior program officers serve on the commission 
or to whom they report. 
Page 8 
Finally, counsel asserts on appeal that the petitioner's role as Deputy Director for the High-Tech Development 
Center in the Ministry of Science and Technology in China serves to meet this criterion. The only evidence that 
the petitioner held this position is a letter from Director General of the Executive Office of 
Intellectual Property Conference. The record does not contain an official appointment letter or confirmation 
from the High-Tech Development Center. 
In light of the above, we concur with the director that the petitioner has not established that he 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 the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a intellectual 
property law specialist 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 shows talent as an intellectual property law specialist, but is not persuasive that the petitioner's 
achievements set him significantly above almost ail 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. 
Beyond the decision of the director,\he record does not establish that the petitioner sought to enter the United 
States to work in his area of expertise. Rather, the petitioner was an LLM student. While the petitioner has now 
obtained his LLM and his JSD from Boalt Hall School of Law, at the time of filing he had not done so. The 
petitioner was admitted to the New York State Bar on January 23,2001, after the date of filing. The record does 
not reflect that he is admitted to any other U.S. state bar. Thus, at the time of filing, the petitioner was not even 
licensed to engage in the proposed area of employment. A petition may not be approved if the beneficiary was 
not qualified at the priority date, but expects to become eligible at a subsequent time. Mutter of Katigbak, 
14 I&N Dec. at 49. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 1$ 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER. The appeal is dismissed. 
3 An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United Stutes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), uff'd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis).