dismissed EB-1A Case: Mechanical Engineering

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
Date: S[P 2 12007Office: NEBRASKA SERVICE CENTER
LIN 06 223 52923
identifjringdatadele
prow:nt clearly unwa:.~
llWasionofpersonalprivacy
PUBLICcopy
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~~-~obert P. Wiemann, Chief
/ Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I I53(b)(l)(A). The
director determined the petitioner had not established the sustained national or international acclaim
necessary to qualify for classification as an alien of extraordinary ability.
On appeal, the petitioner submits a statement and evidence of accomplishments that postdate the filing
of the petition. For the reasons discussed below, we uphold the director's ultimate decision.
Section 203(b) of the Act states, in pertinent part, that:
(l) 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.
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service (INS)
have consistently recognized that Congress intended to set a very high standard for individuals seeking
immigrant visas as aliens of extraordinary ability. See Employment-Based Immigrants, 56 Fed. Reg.
60897, 60898 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level
of expertise indicating that the individual is one of that small percentage who have risen to the very top
of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 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. § 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.
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This petition seeks to classify the petitioner as an alien with extraordinary ability as a research associate
in mechanical engineering. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can
establish sustained national or international acclaim through evidence of a one-time achievement (that
is, a major, internationally 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
awardsfor excellence in thefield ofendeavor.
The petitioner submitted evidence that he received a student award from the Western States Section of
the Combustion Institute for preparing and presenting a technical paper at a 200 I conference. The
petitioner also received a student award from the American Association for Aerosol Research (AAAR)
in recognition of excellent perfonnance in research as demonstrated by a presentation in 2002. The
Executive Director for AAAR asserts that the competition for this award is "international in scope." In
addition, the petitioner received a student travel award given to students whose presentations were
accepted to the 3ed Joint Meeting of the U.S. Section of the Combustion Institute in 2003. Finally, in
May 2004, the petitioner received a Summer Research Institute Fellowship from the Battelle Memorial
Institute. The fellowship "recognizes [the fellow's] academic achievements and enables [the fellow] to
pursue research, training and professional development opportunities that will enhance [the fellow's]
academic pursuits." The fellowship letter further states that the fellowships are awarded "in recognition
of [the fellow's] academic andlor scientific achievements and allow[s] [the fellow] to pursue
educational opportunities" at the Pacific Northwest National Laboratory (PNNL).
The director concluded that the awards recognized student achievements, not achievements in the
field. While the director acknowledged that these awards demonstrate the petitioner's potential in
the field, the director concluded that they do not demonstrate that the petitioner already enjoys
sustained acclaim. On appeal, the petitioner asserts that the conference awards recognize the quality
of his work and that three consecutive awards are significant. He further asserts that the PNNL
fellowship is open to faculty and professional researchers worldwide. Finally, the petitioner
references the opinion of an associate professor at the University of Missouri-Rolla
who asserts that the petitioner "received four student awards in national conferences as well as a
distinguished fellowship award from Pacific Northwest National Laboratory." The petitioner
submits Internet infonnation about the summer research institute fellowship program at PNNL
indicating that faculty and professional researchers are eligible.
Student participation and travel awards do not satisfy this criterion because the most experienced and
renowned members of the field do not aspire to win these awards. Moreover, an internship or
fellowship based on academic achievement is not an award or prize for excellence in the field.
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this
decision.
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While the petitioner has submitted evidence that faculty and professional researchers are eligible for
the general program, the petitioner has not established that he competed for the same slots against
these professionals. We note that the award letter submitted initially asserts that the petitioner "must
remain matriculated and in good standing at [his] college/university throughout this fellowship."
Thus, his particular award appears limited to students. Moreover, even for faculty and researchers,
the petitioner has not demonstrated that the fellowship is a nationally or internationally recognized
prize or award for excellence in the field rather than a program designed to provide future research
opportunities, not to recognize past excellence in the field.
In light of the above, the petitioner has not established that he meets this criterion.
Documentation of the alien's membership in associations in the field for which classification is
sought, which require outstanding achievements oftheir members, asjudged by recognized national
or international experts in their disciplines orfields.
The petitioner submitted evidence of his membership in the Combustion Institute but no evidence of its
membership requirements. The director did not address this particular membership and the petitioner
does not assert on appeal that this membership is qualifYing. We find that the record lacks evidence
that this association requires outstanding achievements of its members.
The petitioner instead relies on his membershi in The director concluded that the
"noteworthy" achievements required by not consistent with the regulatory criterion at
8 C.F.R. § 204.5(h)(3)(ii), which provides that a qualifYing membership must require outstanding
achievements as judged by national or international experts in the field. On appeal, the petitioner
asserts that this membership, in combination with the remaining evidence of record, establishes his
acclaim in the field.
The submitted materials abou~reveal that _invites to full membership "those who
have demonstrated noteworthy achievements in research." These achievements must be evidenced by
"publications, patents, written reports or a thesis or dissertation, which must be available to the
Committee on Admissions if requested." A noteworthy achievement is not necessarily an outstanding
achievement. In fact, the record reveals that the society does not take a particularly strict view of
noteworthy achievements. Specifically, __Executive Director, indicates that
the "Committee on Qualifications and ~e~s qualification to include primary
authorship of two papers." In addition, an earned doctoral degree may be substituted for one paper.
The petitioner has not demonstrated that primary authorship of one or two papers is an outstanding
achievement in his field.
In light of the above, the petitioner has not established that he meets this criterion.
Page 5
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 classification is sought. Such evidence
shall include the title, date, and author ofthe material, and any necessary translation.
While the petitioner submitted evidence that his articles have been cited and received positive peer­
reviews, he does not assert that this evidence was submitted to meet this criterion. The director does
not explicitly discuss this criterion. We simply note that the peer reviews were not published and that
the citing articles were not "about" the petitioner, but the work of the citing author. Thus, the petitioner
has not established that he 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 alliedfield ofspecificationfor which classification is sought.
The petitioner submits several peer reviews he purportedly completed and evidence that the articles
were subsequently published. Without letters or e-mail notices requesting that he review a particular
article or similar recognition from an editor, the petitioner cannot establish that he composed these
reviews at the request of a journal or that the journal relied on these reviews. The petitioner did submit
an e-mail notice from '_on sabbatical at the University of Utah, acknowledging the assistance of
his "colleagues" at the University of Utah, including the petitioner, in reviewing manuscripts. Thus, the
petitioner has only established that one of his close colleagues solicited his assistance in completing
manuscript reviews. Being requested to review a manuscript by one's own colleague is not indicative
of or consistent with national or international acclaim.
Moreover, as stated by the director, we cannot ignore that scientific journals are peer reviewed and rely
on many scientists to review submitted articles. Thus, peer review is routine in the field; not every peer
reviewer enjoys sustained national or international acclaim. Without evidence that sets the petitioner's
work as a peer reviewer apart from others in his field, such as, but not limited to, 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.
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions ofmajor significance in thefield.
In evaluating the evidence relating to this criterion, we must take into account that the petitioner's
field, like most science, is research-driven, and there would be little point in publishing research that
did not add to the general pool of knowledge in the field. According to the regulation at 8 C.F.R.
§ 204.5(h)(3)(v), an alien's contributions must be not only original but of major significance. We
must presume that the phrase "major significance" is not superfluous and, thus, that it has some
meaning. To be considered a contribution of major significance in the field of science, it can be
expected that the results would have already been reproduced and confirmed by other experts and
applied in their work. Otherwise, it is difficult to gauge the impact of the petitioner's work.
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Moreover, the opinions of experts in the field, while not without weight, cannot form the cornerstone
of a successful claim of sustained national or international acclaim. Citizenship and Immigration
Services (CIS) may, in its discretion, use as advisory opinions statements submitted as expert
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However,
CIS 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; CIS may evaluate the content of those letters as to whether they
support the alien's eligibility. See id. CIS may even give less weight to an opinion that is not
corroborated, in accord with other information or is in any way questionable. Id.; see also Matter of
Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg!. Commr. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of widespread
acclaim and vague claims of contributions are less persuasive than letters that specifically identify
contributions and provide specific examples of how those contributions have influenced the field.
In addition, letters from independent references who were previously aware of the petitioner through
his reputation and who have applied his work are far more persuasive than letters from independent
references who were not previously aware of the petitioner and are merely responding to a
solicitation to review the petitioner's curriculum vitae and work and provide an opinion based solely
on this review. Ultimately, evidence in existence prior to the preparation of the petition carries
greater weight than new materials prepared especially for submission with the petition. An
individual with sustained national or international acclaim should be able to produce unsolicited
materials reflecting that acclaim.
In February 2005, the petitioner obtained his Ph.D. in mechanical engineering at the University of
Delawareunder the direction o~As stated above, in the summer of 2004, the petitioner
took part in a research fellowship at PNNL. As of the date of filing, the petitioner had been working as
a research associate at the Center for the Simulation of Accidental Fires and Explosions (C-SAFE) at
the Universityof Utah since 2005.
_explains the importance of the petitioner's area of research, combustion and soot formation,
and praises the petitioner's skills in solving problems experimentally and computationally. More
specifically,_ asserts that the petitioner "designed a procedure which provides strong evidence
that there is no nanoparticle in flames" below sooting limits, suggesting that combustion can be made
clean with regard to particle emission. The petitioner also discovered that doping a small amount of
ferrocene reduced the critical sooting limits in premixed laminar flames. The petitioner also played
"key roles" in other studies, including a study of the size of distributions of soot particles in flames,
evaluationof the importanceof the diffusion coefficient in a combustion environment, determinationof
laminar flame speeds of fuel blends and investigatio~oscopic properties of soot, sea salt and
other aerosols. Finally, the petitioner also served as__computer administrator, assembling a
network cluster consisting of many computer nodes for high performance scientific computation. Dr.
Page 7
a member of the petitioner's Ph.D. committee, provides similar information. While
notes that the petitioner has been moderately cited, neither
provide any specific examples of how the petitioner's work has made major contributions to the field
consistent with sustained national or international acclaim, such as discussing how it is being applied in
other, independent laboratories.
The petitioner also submitted a letter from a principal member of the
technical staff at Sandia National Laboratories (an associated partner of C-SAFE). While_
asserts that he is not a personal acquaintance of the petitioner and has never worked with hi~
Schonbucher, Head of the Institute of Chemical Engineering at the University of Duisburg-Essen,
Germany, asserts that he met the petitioner "several times in a technical workshop of combustion
research at Sandia National Laboratories," hosted b~and another researcher. Thus, it
would appear that the petitioner attended "several" o~workshops at ~andia National
Laboratories. ~serts that the petitioner "discovered important properties of the evolution
of the soot particle size distribution during soot formation by applying the cutting-edge technology of a
scanning mobility particle sizing system" and "characterized the temperature influence on particle size
distributions." While ~serts that this work "yielded valuable data for validating models of
soot formation during combustion phenomena," he does not provide information consistent with a
contribution of major significance that has garnered national or international acclaim, such as, for
example, by explaining how other researchers have utilized this information.
~,aprofessor at Ben-Gurion University of the Negev in Israel, asserts that his opinion is
based on his interactions with the petitioner while on sabbatical at the University of Utah and a review
of the petitioner's curriculum vitae and published articles. asserts that the petitioner's
contributions consist of developing a sampling system that can measure the true soot particle size
distribution in a flame and designing an "ingenious ex riment" to find the influence oftemperature on
the bimodality of soot particle size distribution. asserts that the petitioner used his
sampling system to discover bimodality in soot particle size distribution, assumed to be uni-modal. Dr.
_ notes that the petitioner's work was published, indicating national and international exposure.
••••••• does not provide information indicating that the petitioner's work has made major
contributions to the field consistent with national or international acclaim, such as examples of the
petitioner's data being used to set standards or his sampling system being used in other laboratories.
The most independent letter is from _,an associate professor at the University of Missouri­
Rolla._ indicates that he learned of the petitioner's work at technical conferences and that his
group has utilized and cited the petitioner's work.
The petitioner also submitted evidence that two of his articles had been moderately cited and a third
article has been cited four times. The petitioner submits evidence of more citations on appeal, but these
do not relate to his alleged acclaim as of the date of filing, the date as of which the petitioner must
establish his eligibility. See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg!.
Commr. 1971). As noted by the director, the petitioner is not listed as the first author of his cited
Page 8
articles. On appeal, the petitioner explains that while he contributed to the cited articles, he did not
"fight to be first author."
The petitioner's listing as second author on the most cited articles does not negate the evidentiary value
of that evidence. Nevertheless, the record contains o~tter from a member of the field who can
be considered independent of the petitioner. While --. supports the petition, he provides few
specifics consistent with national or international acclaim, such as examples of how the petitioner's
data or methods are being applied in the field. While the petitioner has been moderately cited and the
petitioner submitted copies of the bibliography sections of articles containing some citations, the
petitioner did not provide examples of the text of the articles that cite his work. Thus, the petitioner has
not demonstrated the context in which his articles were cited.
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. In
light of the above, the petitioner has not established that he meets this criterion.
Evidence of the alien's authorship ofscholarly articles in the field, in professional or major trade
publications or other major media.
As of the date of filing, the petitioner had authored seven articles, two of which are submitted for the
first time on appeal. On his curriculum vitae, the petitioner listed 19 conferences, but did not submit
evidence that he presented his work at all of these conferences, such as programs or published
proceedings. The petitioner's self-serving curriculum vitae is not evidence. See Matter ofSoffici, 22
I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190
(Reg!. Commr. 1972)). We will consider the publications documented in the record. While publication
is inherent to the field of research, we acknowledge that two of the petitioner's articles have been
moderately cited. Thus, the petitioner has 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. 8 C.F.R. § 204.5(h).
Review of the record, however, does not establish that the petitioner has distinguished himself as a
researcher 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 a research associate and has published scholarly articles, but is not persuasive
that the petitioner's achievements set him significantly above almost all others in his field. Therefore,
Page 9
the petitioner has not established eligibility pursuant to section 203(b)(1)(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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.