dismissed EB-1A Case: Inventor

Identifying data deleted to 
Plevent clearly unwarranted 
invasion of personal ~~RV~CY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
. .. -- - 
LIN 07 026 50038 
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. 
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. 5 103.5 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. 3 103.5(a)(l)(i). 
F. Grissom' 
'OJ~ctin~ Director, Administrative Appeals Office 
t 
Page 2 
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. § 1153(b)(l)(A), as an alien of extraordmary ability in the 
sciences. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to 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. 5 204.5(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. 9 204.5(h)(3), or under 8 C.F.R. 5 204.5(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. 5 204.5(h)(2). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the sciences, specifically 
as an inventor. With his initial petition dated October 31,2006, the petitioner submitted supporting documents 
including documents verifying his education and work experience, information about his patents, a membership 
certificate for the World Chinese Merchant Union Patent Committee, an invitation to speak as an honored guest 
at the Forum of Chinese Famous Doctors, information about some of his inventions, and three letters of 
recommendation. In response to a Request for Evidence (RFE) dated November 16, 2007, the petitioner 
submitted evidence of the Gold Prize awarded to an invention, information about a stipend sponsored by the 
State Council of China, information about and membership in the China Association of Inventions ("CAI"), and 
Page 3 
additional information about his inventions. We address the evidence submitted in the following discussion of 
the regulatory criteria relevant to the petitioner's case. The petitioner does not claim eligibility under any 
criteria not addressed below. 
(9 Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavor. 
The petitioner submitted evidence that his invention "Dovit vegetable spirit" won the Gold Prize at the Wuyang 
Food Industry Corporation Group's International Food and Processing Technology Expo (Expo) in 1996 and the 
1997 National New Product award. The information submitted about the Expo indicates that 1996 was only the 
second year that the Expo was held and that exhibits of food related products were the main focus. The 
petitioner submitted no evidence that the awards given at this Expo, in only its second year of existence, are 
nationally or internationally recognized prizes for excellence in the field. Similarly, the petitioner failed to 
present any evidence to demonstrate the national or international recognition of the National New Product 
Award. While we acknowledge that the word "national" appears in the title, the name of the title alone is not 
sufficient to establish the recognition accorded to the award. The documents provided give no information such 
as how the winner of the award is chosen, the standing or number of other contestants, or by whom the 
contestants are judged. Although the petitioner submitted evidence of the success of the winning product 
including press releases about the product, the subsequent success of the product does not equate to national or 
international recognition for the award previously received. In response to the RFE, counsel stated that the 
Expo's location in Beijing "indicat[es] [its] significance in China" and that the Expo "is indeed China's only 
authoritative exhibition of food and food processing technology at the State or national level." About the prize 
itself, counsel states that "only one Gold Prize [is awarded] at each Expo." Without documentary evidence to 
support 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 Obaigbena, 19 I. & N. Dec. 533,534 n.2 (BIA 1988); 
Matter oflaureano, 19 I. & N. Dec. 1, 3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I. & N. Dec. 503, 506 
(BIA 1980). Although counsel states that two news articles "revealed the two important reasons why Dovit was 
awarded the only Gold Prize at the Expo," neither article mentions the award as opposed to being about the 
product alone. In addition, the awards were given in 1996 and 1997, nearly a decade prior to the filing of this 
petition. Accordingly, even if the petitioner were able to establish that these awards were nationally or 
internationally recognized, the length of time that has passed since his receipt of the awards is not indicative of 
the sustained acclaim required by this highly restrictive classification. 
Counsel additionally argued that the "use" of the "Dovit" as the "designated liquor" for the 1996 sessions of the 
National People's Congress and the Chinese People's Political Consultative Conference and as the Chinese 
"State present" to Romania and the King of Thailand was evidence of the petitioner's receipt of "[alwards and 
[hlonors" under this criterion. We are not persuaded by this argument. First, the petitioner has submitted no 
documentary evidence to support counsel's assertions regarding the use of the "Dovit." As previously indicated, 
the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 1. & N. Dec. at 534 
n.2; Matter of Laureano, 19 I. & N. Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I. & N. Dec. at 506. Second, 
even if documentary evidence was submitted, the "use" of the petitioner's product or that he may have felt 
honored to have his product used in such a way, is not considered to be a prize or an award. 
The petitioner also claims eligibility under this criterion by virtue of his receipt of a State Council Special 
Subsidy ("Subsidy"). The certificate submitted from the Department of Civil Affairs of Henan Province 
indicates that the petitioner has been receiving the Subsidy for an indefinite period of time based on his 
"invention of vegetable spirit and in putting it into commercial production." First, we note that the Subsidy was 
awarded by Henan Province and is only available to those persons living within that geographic area so, without 
more, cannot evidence national or international recognition as opposed to regional recognition. Second, the 
information submitted about the Subsidy indicates that "[tlhose who have been chosen receive a one-time lump- 
sum financial subsidy fiom the State Council and a periodic allowance fiom their local governments." In light 
of this information, it seems as if the Subsidy was awarded at or in close temporal proximity to the time that the 
petitioner's invention won the Gold Prize, i.e. ten years prior to this petition's filing. As such, it cannot 
evidence sustained acclaim in the field. In addition, an article entitled "State Council's Special allowance 
breaks the ownership limits," states that "about 900 people" have been awarded the Subsidy between 1990 and 
2004. With the Subsidy only being awarded every two years, over one hundred people on average were 
awarded the Subsidy in any given cycle. Such a number does not indicate that this is an award given only to that 
small percentage who have risen to the very top of the field of endeavor. See 8 C.F.R. 204.5(h)(2). 
Initially, the petitioner also claimed eligibility under this criterion by virtue of being appointed as a special 
researcher with the China Academy of Management Science, being appointed senior engineer by the Beijing 
Municipal Scientific and Technological Personnel Bureau, being invited to be a part of the Chinese Inventors 
Dictionary, and being invited to speak at various conferences. The letter appointing the petitioner as a special 
researcher with the Academy of Management Science does not indicate that the appointment was anythmg other 
than a job offer with the Academy. The petitioner submitted no evidence that such an appointment constitutes 
an award or prize or that it conveys national or international recognition. Similarly, the Qualification Certificate 
granting the petitioner with the position of senior engineer by the Beijing Scientific and Technological 
Personnel Bureau appears to be recognition that the petitioner has met the qualifications for a particular degree 
or professional certification. In any case, the petitioner submitted no evidence that these appointments are 
nationally or internationally recognized. The invitations to join the Chinese Inventors Dictionary and the 
various conferences do not amount to awards or prizes as no criteria for any contest or competition were set 
forth nor were any judges identified. In addition, again, the petitioner submitted no evidence that these 
invitations are nationally or internationally recognized. 
For all of the above reasons, the petitioner failed to establish that he meets this criterion. 
(ii) Documentation of the alien's membership in associations in theJield for which classijication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or$elds. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must show that the 
association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, proficiency certifications, 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. Further, the overall prestige of a given association is not determinative; 
the issue here is membership requirements rather than the association's overall reputation. 
The petitioner submitted evidence of his membership in the CAI (we presume that this is the same association 
referenced in the original submission as "the World Chinese Inventors Association" as no separate membership 
certificate was included in the record). The information submitted about the CAI indicates that membership is 
awarded to those who "ha[ve] considerable influence in and important impact on activities of invention and 
innovation" and that: 
[Ilndividual members include inventors of patented inventions and professionals of science and 
technology who have been awarded with governmental andlor [the CAI's] reward(s) and prize(s), 
andlor who have acquired outstanding achievement(s) in technological innovation and in boosting 
agriculture through science-technoIogy and education; inventors who have played key 
science/technology roles in the establishment of state-owned or non state-owned enterprises; and 
individuals who have enthusiastically devoted to inventive and innovative activities with outstanding 
achievements and to the activities of [the CAT]." 
Although someone with outstanding achievements in the field may qualify as a member of the CAI, the charter 
does not require that the applicant have an outstanding achievement to qualify as a member. Instead, for 
example, an applicant would qualify for membership if he or she served in a key science or technological role in 
a business. The charter of the CAI further states that membership applications are "examin[ed] and verifi[ed] by 
the department designated by the Executive Council and approv[ed] by the legal representative of [the CAT]." 
The petitioner submitted no evidence to show that "the department" is composed of recognized national or 
international experts in their field as required by the regulation at 8 C.F.R. 3 204.5(h)(3)(ii). 
Initially, the petitioner also claimed eligibility under this criterion by virtue of his membership in the World 
Chinese Merchants Union Patent Committee ("CMUPC"), however, no membership certificate or other 
evidence of membership was submitted into the record. Nor did the petitioner submit any information about the 
membership criteria for the CMUPC to show that membership is predicated upon outstanding achievement in 
the field. The record is also devoid of any evidence that membership applications to the CMUPC are judged by 
recognized national or international experts in the field. 
The petitioner also claimed eligibility by virtue of his inclusion in the Dictionary of Modern Inventors of China 
("Dictionary"), evidence of which appears in the record. The record contains no evidence, however, which 
demonstrates that the Dictionary constitutes an association, whether only those inventors who have made an 
outstanding achievement are included in the Dictionary, and whether entries in the Dictionary are determined by 
recognized national or international experts in the field. 
For all of the above listed reasons, 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 the field for which classijication 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 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 from 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.1 The petitioner claimed to meet this criterion through his 
inclusion in the Dictionary, discussed above, the award of multiple patents, and several news articles. 
The petitioner submitted no information about the Dictionary to indicate that it constitutes a professional or 
major trade publication or other major media. In addition, he submitted only one page of what we presume to 
be a book or other large scale publication pursuant to the label "dictionary." One page of a multiple page 
publication does not indicate that the publication is about the petitioner as required by the regulatory criterion 
at 8 C.F.R. $ 204.5(h)(3)(iii). 
Although the petitioner also submitted evidence of his receipt of several patents, he submitted no evidence 
that these patents were published in professional or major trade publications or other major media or were 
otherwise published or would constitute major media on their own. To the extent that the petitioner claims 
that the patents were published by virtue of their inclusion on the State Intellectual Property Office website 
of China, evidence of inclusion on a website does not by itself signify that the material appeared in major 
media. We are not persuaded that international accessibility by itself is a realistic indicator of whether a 
given publication is "major media." The petitioner must still demonstrate a widespread distribution, 
readership, or overall interest in the website in order to demonstrate that it is some sort of professional or 
major trade publication or major media. Similarly, the petitioner provided a printout of the "Official Chem" 
website, which lists his vegetable liquor patent, but submitted no information about this website to indicate 
that it amounts to major media. 
The petitioner submitted news articles about his vegetable liquor entitled "Dovit Vegetable Spirit a New 
Member in the Family of Alcoholic Drinks," which appeared in Science & Technology; "Dovit VegeSpirit 
Selected as the Designated Alcoholic Drink for National Congress" and "Employ Resources of Mountains & 
Rivers for Economic Development" published in People's Daily; and "Making Corporation Thrive by Relying 
on Talents," published in Chinese Food Journal. These articles were primarily about the vegetable liquor 
invented by the petitioner; however, the articles credited the purchaser of the petitioner's idea instead of the 
petitioner. In addition, the petitioner submitted no evidence that any of these publications amounts to 
professional or major trade publications or other major media as required by this criterion such as by submitting 
evidence to verify the national or international circulation of the organizations that printed the submitted 
articles. 
The petitioner also submitted two articles unrelated to the vegetable liquor: "An 8 years old girl who was sick 
without money to get retreat caused 2 overseas Chinese Concern," which appeared in Jiangmen Daily and "A 
Male AIDS Patient's Miracle Recovery," which appeared in Singtao Daily's NorthEast News section. These 
articles are not primarily about the petitioner as required by the regulation as they focus upon two sick 
individuals (one with cancer, one with AIDS) and only mention that the petitioner's altruism helped these 
individuals as a part of the individuals' struggle with the diseases. In addition, the petitioner submitted no 
evidence to show that either of these publications amounts to major media. We also note that the second article 
appeared in a regional section of the publication, so that even if the publication amounted to major media, any 
acclaim would be regional in scope instead of national or international. As previously indicated, we are not 
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 7 
persuaded that international accessibility via the internet is a realistic indicator of whether a given publication is 
"major media." The petitioner presented no information regarding the general online readership of Jiangmen 
Daily or any other indication that this website constitutes major media as required by the regulation at 8 C.F.R. 
204.5(h)(3)(iii). The petitioner also submitted three photographs that were taken at a press conference about 
Dovit vegetable spirit, however, no evidence was submitted that these photographs were published in any media. 
Finally, photographs would not qualify as publications under this criterion as the plain language requires the 
author's name indicating that written text is required. 
For all of the above state reasons, the petitioner has failed to show that he meets this criterion. 
(v) Evidence of the alien's original scientiJc, scholarly, artistic, athletic, or business-related contributions of 
major signl$cance in the field. 
Regarding the petitioner's patents, this office has previously stated that a patent is not necessarily evidence of 
a track record of success with some degree of influence over the field as a whole. See Matter of New York 
State Dep 't. of Transp., 22 I. & N. Dec. 215, 221 n. 7, (Commr. 1998). Rather, the significance of the 
innovation must be determined on a case-by-case basis. Id. The petitioner's patent is assigned to - 
Food Industry Corporation Ltd of Henan Province, which has begun production on VegeSpirit. Although the 
record indicates that press conferences were held regarding the launch of VegeSpirit and that it was presented 
to the National Congress, no evidence was presented that the beverage has been mass marketed or widely 
produced and distributed. The Expert Evaluation submitted by the petitioner recognizes the originality of the 
idea, but it does not state that the petitioner made a contribution of major significance in the field through his 
development of this idea. 
The petitioner presented no evidence that any of his other patents have led to products, medicine, or goods 
marketed or produced so as to make a significant impact upon his field. Counsel stated in his response to the 
RFE that the cancer clinic at Henan TCM College has been prescribing the petitioner's herbal blend to ease 
cancer sufferer's discomfort and alleviate their symptoms, however, no evidence appears in the record to 
support counsel's statements. Without documentary evidence to support 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 Obaigbena at 534 n.2; Matter of Laureano, 19 I. & N. Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 17 1. & N. Dec. at 506. Counsel also cites evidence of the medicine's effectiveness at curing the 
disease it was intended for such as through the news articles discussed above. The effectiveness of the 
invention is not the issue as an invention will, by its nature, be unique. Without evidence which 
demonstrates a mass application of the medicine, for example, the petitioner is unable to show that he or his 
invention significantly impacted the field. 
The petitioner submitted five letters of recommendation on appeal supporting his claim of eligibility under 
this criterion. The opinions of experts in the field, while not without weight, cannot form the cornerstone of 
a successful extraordinary ability claim. U.S. Citizenship and Immigration Services (USCIS) may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I. & N. Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate 
the content of those letters as to whether they support the alien's eligibility. See id. at 795-796. Thus, the 
content of the experts' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of an 
immigration petition are of less weight than preexisting, independent evidence of original contributions of 
major significance that one would expect of a researcher who has sustained national or international acclaim. 
The January 6, 2006 letter fiom , deputy general manager of Healthstar Medical Development 
Company, stated that medicine invented by the petitioner was given to 70 HIV- ositive eo le and that they 
typically saw their HIV status reverse itself. The July 20, 2006 letter from 
 director and 
- - 
professor at the No. 1 Military Medical University, states that the Anti-AIDS medicine developed by the 
petitioner has been "tested and clinically tried . . . with remarkable therapeutic results" and that the medicine 
"is the best and most effective Chinese phytophannaceutical medicine." The July 20, 2006 letter from 
- member of the National Intellectual Property Bureau, states that the etitioner's patents 
have a "good reputation and created good economic value." The letter from 1) researcher at the 
University of Chicago, states that the petitioner's inventions "have extraordinary potential for 
commercialization" and that many of the inventions can increase the standard of living in rural areas, "protect 
the environment and reduce reliance on foreign oil." overall, stated that the petitioner "is clearly an 
outstanding inventor with extraordinary ability and dedication to his career." Director of the 
Department of Clinical Pharmacology and Project Office of National Center for AIDS Prevention & Control 
of China's Ministry of Health, wrote in an August 8, 2006 letter that the petitioner "has made remarkable 
inventions and contributions in many fields and areas." cited the positive results in studies 
involving the use of Chinese medicines as developed by the petitioner in treating cancer and HIV. None of 
these letters indicate that the petitioner has made a contribution of major significance to the field although 
some of the letters indicate promise for future development or usage of the petitioner's patented ideas. 
However, a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. 8 C.F.R. §$ 103.2(b)(1),(12); Matter of 
Katigbak, 14 I. & N. Dec. 45'49 (Comm. 1971). 
While such letters are important in providing details about the petitioner's role in various projects, they cannot 
by themselves establish the petitioner's acclaim beyond his immediate circle of colleagues. The ten regulatory 
criteria at 8 C.F.R. § 204.5(h)(3) reflect the statutory demand for "extensive documentation'' in section 
203(b)(l)(A)(i) of the Act. Opinions from witnesses whom the petitioner has selected do not represent 
extensive documentation. Independent evidence that already existed prior to the preparation of the visa petition 
package carries greater weight than new materials prepared especially for submission with the petition. 
Accordingly, the petitioner has failed to establish his eligibility under this criterion. 
On appeal, as it relates to the director's finding that the petitioner failed to establish that he seeks to enter the 
United States to continue work in his area of extraordinary ability, the petitioner submitted a letter from a 
prospective employer,, which detailed its intent to employ the petitioner and 
indicated that it had filed a nonirnrnigrant petition on behalf of the petitioner. Counsel argues that this additional 
evidence should be considered on appeal as the director's RFE did not request such additional information. 
While the AAO generally does not accept documents submitted for the first time on appeal, in this instance, as 
the petitioner was not notified of this particular deficiency prior to the denial, we have reviewed the evidence 
and find it sufficient to overcome the director's finding. We, therefore, withdraw the fmding of the director on 
this issue. 
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An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his field. The record in this case 
does not establish that the petitioner had achieved sustained national or international acclaim as an inventor 
placing him at the very top of his field at the time of filing. He is thus ineligible for classification as an alien 
with extraordinary ability pursuant to section 203(b)(I)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), and his 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. 6 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.