dismissed EB-1A Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
i 
\ Washington, DC 20529 
U. S. Citizenship 
and Immigration 
ffice: NEBRASKA SERVICE CENTER Date: 
APR 26 
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 1 153(b)(l)(A) 
4m 
- ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in yow case. All documents have been returned to 
the ofice that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the 
AAO on a motion to reopen and reconsider. The motion will be granted, the previous decision for the AAO will 
be affirmed, and the petition will be denied. 
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 extraordinary ability in 
the sciences. The director and the AAO determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
On motion, counsel states: 
Appellant respectfully moves the AAO to reopen and/or reconsider the Appeal of the 1-140 denial and 
requests the AAO to re-adjudicate the appeal considering this time the brief and evidence submitted to the 
Service Center in support of the Appellant's appeal. The new evidence to be considered in this motion is 
the brief and supporting evidence submitted to the Nebraska Service Center on November 20,2003. 
Review of the record indicates that the brief and evidence submitted by the petitioner in support of the appeal 
were received by the Service Center within 30 days of the filing date of the appeal; therefore, they will be 
addressed below. This documentation was not in the petitioner's file at the time the appeal was considered. 
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, 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, counsel claims, meets the following criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted an English translation of a certificate from the German Dermatological Society showing 
that in 1997 he shared an award of 2,000 Deutsche Marks with five other researchers who co-authored a poster 
presentation with him, entitled "Distribution of Free Calcium Ions in Isolated Human Spermatosomes." The 
name "S. Eisoldt" is centered in bold on the certificate above the names of the petitioner and his other co- 
recipient~. While the translation of the award certificate is contained in the record, the original copy in German 
does not appear to have been included. 
The petitioner also submitted evidence showing that he received a "poster award at the 35& Annual Conference of 
Reproduction Physiology and Pathology" in 2002 in Leipzig, Germany. The petitioner shared this award with 
five other researchers who co-authored the presentation "Interaction Between Major Protein (MP) from Bovine 
Seminal Vesicles and Sperm Calcium ATPase." The English translation of the award certificate states that their 
poster "won the 31d Prize out of all in all 87 poster contributions." 
Page 3 
In response to the director's request for fhther evidence pertaining to this criterion, the petitioner submitted an e- 
mail "Announcement and call for papers" from the 36th Annual Meeting for Physiology and Pathology of 
Reproduction. It is noted that this announcement relates to the subsequent year's conference. The conference 
announcement states that all abstract entries "will be reviewed by two internationally renowned scientists" and it 
does not limit entrants to students. 
Nevertheless, the petitioner has not provided evidence to address the director's observation that the petitioner's 
poster presentations were "not in the plenary session" of the conference. In the appellate brief, counsel asserts 
that "[tlhere is no evidence on record to indicate that these sessions were not plenary," but in this matter the 
burden is on the petitioner to demonstrate that his awards are nationally or internationally recognized. The 
petitioner must provide evidence showing that the third-place poster presentation presented to him and to his co- 
team members represents a significant national or international honor. The director's observations were not 
intended to impose a new standard, as counsel claims, but, rather, to provide examples of the types of evidence 
that demonstrate national recognition for excellence in the field of endeavor. The documentation presented by the 
petitioner does not identlfy the specific criteria for receiving a poster award, nor is there evidence to show that the 
petitioner's poster awards were widely recognized beyond the context of the conference where they were 
presented. 
We note here that section 203(b)(l)(A)(i) of the Act requires "extensive documentation" of sustained national 
or international acclaim. Pursuant to the statute, the petitioner must provide adequate evidence to establish 
that the award certificates presented under this criterion enjoy significant national or international stature. The 
level of recognition and prestige associated with the petitioner's poster awards has not been adequately 
demonstrated. 
Counsel's appellate brief states: "The Director did not consider the numerous grants awarded to [the petitioner] 
under this category. [The petitioner] requested that the awards be considered under the 'comparable evidence' 
criterion pursuant to 8 C.F.R. $ 204.5(h)(4)." That regulation allows for the submission of comparable 
evidence, but only if the ten criteria "do not readily apply to the petitioner's occupation." Therefore, the 
petitioner must demonstrate that the regulatory criteria are not applicable to the alien's field. Of the ten 
criteria, at least eight readily apply to the petitioner's occupation. Where an alien is simply unable to meet 
three of the regulatory criteria, the wording of the regulation does not allow for the submission of 
comparable evidence. 
In regard to the research grants for which the petitioner or his employer applied and received funding, it is 
noted that research grants simply fund a scientist's work. The past achievements of the principal investigator 
are a factor in grant proposals. The funding institution has to be assured that the investigator is capable of 
performing the proposed research. Nevertheless, a research grant is principally designed to fund future 
scientific research, and is not a national or international award to honor or recognize past achievement. 
Furthermore, we note that a substantial amount of scientific research is funded by research grants from a 
variety of public and private sources. Therefore, we do not accept the assertion that the receipt of a research 
grant places a scientist at the very top of his field. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or$elds. 
In the appellate brief, counsel explains that a signature discrepancy in the two letters from Judith Hansen, 
Executive Secretary, Society for the Study of Reproduction, was the result of Ms. Hanson granting 
authorization for another individual to sign in her behalf. Regardless, no evidence has been presented to 
overcome the director's finding that the Society did not require outstanding achievement. 
The AAO's appellate decision stated: 
To demonstrate that membership in an association meets this criterion, the petitioner must show that the 
association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or current 
members, or payment of dues, do not satisfy this criterion as such requirements do not constitute 
outstanding achievements. The overall prestige of a given association is not determinative. The issue 
here is membership requirements rather than the association's overall reputation. 
The petitioner submits evidence that he is a member of the Society for the Study of Reproduction. 
Membership in the organization is "limited to individuals or organizations who demonstrate active 
interest in the field of reproduction and related areas." Regular membership in the organization is based 
on "scientific productivity and continuing interest in the field," possession of a doctoral degree or 
demonstration of its equivalent through scientific accomplishments, and a specific history of 
publication within the previous six year period. The guidelines allow the membership committee to 
waive the publication requirement if the individual serves in an administrative capacity that is of "great 
relevance to the area of reproductive research." The above guidelines make it clear that outstanding 
achievement is not a prerequisite for membership in the Society for the Study of Reproduction. 
The ~etitioner also claims to meet this criterion based on his members hi^ in the Anatomical Societv. 
counsel submitted a letter from D states tha; membership in the sociek 
requires documentation of outstanding achievements in anatomical science as a prerequisite for joining. 
In his request for evidence (RFE) dated June 9, 2003, the director noted that the petitioner became a 
member of this society while he was still in school, and there is no evidence of his outstanding 
achievements that resulted in his selection for membership to the society. Counsel did not further 
address this organization in his response to the RFE, and we find that the evidence does not establish 
that membership in the organization is based on outstanding achievements. 
We fiuther note that the record contains no evidence of the Anatomical Society's bylaws or official 
membership requirements to demonstrate that it requires outstanding achievement as an essential condition 
for admission to membership. 
On motion, counsel does not challenge the AAO's findings in regard to this criterion. The evidence presented 
by the petitioner is not adequate to demonstrate that the petitioner's membership in either society required 
- Page 5 
outstanding scientific achievement or that he was evaluated by national or international experts in 
consideration of his membership. The record contains no evidence to establish that these two societies 
require outstanding achievement of their members in the same manner as highly exclusive associations such 
as (for example) the U.S. National Academy of Sciences. 
Evidence of the alien's participation, either individually or on apanel, as a judge of the work of 
others in the same or an alZiedJield of specijication for which clmsijcation is sought. 
On motion, counsel states: 
[The petitioner] respectfully requests the AAO to reconsider their determination that [the petitioner] 
does not meet this criterion. 
This criterion requires only that the alien participated as a judge of others in his field; it does not 
include the requirement that [the petitioner] also demonstrate that his selection for such participation 
was the result of his "sustained national or international acclaim," as alleged by the Service. The 
AAO's interpretation erroneously increases the burden on applicants in this category. A plain reading 
of the statute does not support this added burden. 
Section 203(b)(l)(A) of the Act states, in pertinent part, that: 
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, 
Contrary to counsel's statement, a plain reading of the statute does support the conclusion that a petitioner 
must demonstrate "sustained national or international acclaim" to qualify as an alien of extraordinary ability. It 
is important to note that the controlling purpose of the regulation at 8 C.F.R. Ej 204.5(h)(3) is to establish 
sustained national or international acclaim, and any evidence submitted to meet the regulatory criteria must 
therefore be to some extent indicative of such acclaim. The evidence presented must be evaluated and 
properly weighed in terms of the governing statute and regulations; it is not simply a matter of accepting that 
any piece of evidence presented under a particular criterion automatically satisfies that criterion. By way of 
analogy, Citizenship and Immigration Services (CIS) sometimes requires copies of income tax returns to 
establish that a petitioner has the ability to pay the proffered wage to the beneficiary. The petitioner, 
however, does not automatically meet this requirement by submitting a copy of an income tax return. Rather, 
we must consider the content of that income tax return; if it does not show that the petitioner can afford to pay 
the beneficiary, then the petitioner cannot credibly argue that it met its obligation merely by supplying the 
copy of the tax return. The same reasoning also applies to evidence presented under the criteria at 8 C.F.R. 
5 204.5(h)(3). 
The petitioner submitted an initial letter Editor-in-Chief, Andrologia, stating: 
"We hereby certify that [the petitioner] has from 1996 through 2002." 
Page 6 
~res not specifically identify the manuscripts reviewed by the petitioner, nor does he provide 
information regarding the number of scientists who were also requested to provide peer reviews for the - - 
journal during that same period. It is further noted that Professo d the Philipps- 
University of Marburg in Germany, who offers a letter in support of this petition and who supervised the 
petitioner's thesis, served as " Co- Editor-in-Chief' of Andrologia from 1995 to 2000.' Given the petitioner's 
close relationship to Dr. d it is rather unlikely that the petitioner's notoriety as a top researcher 
resulted in his being selected as a reviewer. It would be more reasonable to conclude that the petitioner was 
selected because his research mento;at that time happened to serve as co-editor of this journal. 
In his second letter, I3r.m~: 
The editors at Andrologia receive about 60 to hundred [sic] manuscripts for publication in our journal. 
At the moment we reject approximately 50% . . . of the articles submitted. 
Publication of manuscripts is based on a peer review system including at least two notable reviewers for 
each manuscript. We select our reviewers based on their reputation for scientific knowledge in the 
subject matter of the manuscript. Two very important criteria in assessing a scientist's knowledge are 
publications in high standard journals and the ability of a scientist to obtain peer-reviewed grants . . . . 
According to Dr. etter, one can become a reviewer for Andrologia through publication and 
obtaining We do not find that such activities elevate an individual scientist above 
almost all others in the research field at the national or international level. Reviewing manuscripts is 
recognized as a professional obligation of scientists who publish in research journals. Thus, peer review of 
manuscripts is a routine element of the process by which articles are selected for publication in scholarly 
journals. Occasional participation in peer review of this kind does not demonstrate that the petitioner has 
earned sustained national or international acclaim at the very top of his field. In certain instances, authors who 
repeatedly decline requests to review will be asked to submit their own manuscripts to other journals. The 
petitioner has not submitted evidence to show that only a small percentage of researchers review papers in this 
manner. 
The petitioner also submitted a letter from Editor-in-Chief, Biology of Reproduction, who 
states that reviewers for her journal "are o have expertise in the area of the manuscript." 
As evidence of his service as a reviewer, the petitioner submitted pages 1856 and 1857 of the June 2001 edition 
of Biology of Reproduction. The top of page 1856 bears the heading "AD HOC REVIEWERS" and states: "The 
editors express their gratitude to the following individuals who evaluated papers for Biology of Reproduction 
fiom September 15,2000, through April 10,2001. . . . Members of the Editorial Board are not included on this 
list; their names appear on the inside cover of each issue of the journal." Pages 1856 and 1857 consist of an 
alphabetic listing of approximately 750 names. The petitioner's name appears under the letter "W along with 26 
other "ad hoc" reviewers. To assert that peer review of this kind is adequate to satisfy this criterion would be to 
assert that all 750 of these individuals are of that small percentage who have risen to the very top of the field of 
endeavor. The record contains no evidence to support this conclusion. The evidence presented here indicates 
According to his resume, died and worked at Philipps-University of Marburg fi-om 1988 to 1997. The 
petitioner's resume identifies s the petitioner's "Principal Professor." 
Page 7 
that serving on the "Editorial Board" enjoys a significantly higher level of prestige than that of serving as an 
"ad hoc reviewer.') 
Without evidence that sets the petitioner apart from others in his field, such as (for example) evidence that he 
has peer-reviewed an unusually large number of manuscripts for publication in various scientific journals, 
received multiple independent requests for his services from a substanti r served in an 
editorial position for a distinguished journal (in the same manner as Drs for example), 
we cannot conclude that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signzjicance in the field. 
The petitioner submitted several letters in support of the petition. We cite representative examples here. 
Assistant Vice President, Wyeth Research, states that the petitioner "innovated 'single 
ificant new tool used by scientists to analyze and experimentally manipulate 
individual sperm." her states: 
The buffer system that [the petitioner] utilizes in this technique essentially slows spermatozoa activity 
to the point where individual cells can be studied while maintaining viability; this has been a limitation 
in the field. Prior to this revolutionary development, researchers were forced to extrapolate results from 
tests performed either on groups of sperm or spermatogenic cells, thus lowering the reliability and 
reproducibility of the data. Single Sperm Cell Photometry is now employed by other researchers all 
over the world. 
~r.o~ram Director, Male Reproductive Heal*, Reproductive Sciences Branch, National 
Institutes of Health, states: 
This new methodology allowed [the petitioner] to immobilize spermatozoa for significant periods of 
time during which tests could be performed. While this may sound simple to a non-scientist in actuality 
it was groundbreaking. Up to this point, no one had been fully successful in obtaining ion flux 
measurements from mature spermatozoa. 
D- Professor, Department of Physiology and Biophysics, University of Washington, and Elected 
Member of the U.S. National Academy of Sciences, states that the petitioner's spermatozoa studies have 
"pushed the envelope in two directions. One is that his technique has been fine enough to follow the 
signaling evens in single spermatozoa on a second-by-second basis . . . . The second is that he has greatly 
advanced the leads available for research in male disorders of fertility and in regulation of fertility." 
The petitioner's appellate submission (not previously reviewed by the AAO) included evidence showing that his 
published articles have been cited approximately 100 times. In this case, the large number of citations of the 
petitioner's published articles demonstrates widespread interest in, and reliance on, his work. These citations 
show that many other researchers have acknowledged the petitioner's influence and found his work to be 
significant. Such evidence bolsters the witnesses' claims that the petitioner's findings are of major 
Page 8 
significance in the andrology field. The record adequately demonstrates that the petitioner's contributions are 
important not only to the research institutions where he has worked, but throughout the greater field. 
After reviewing the petitioner's appellate submission, we find that the evidence presented is adequate to 
satisfy this criterion. The AAO's prior finding in regard to this criterion is withdrawn. 
Evidence of the alien's authorship of scholarly articles in the$eld, in professional or major trade 
publications or other major media 
The AAO previously found that the petitioner's evidence is adequate to satisfy this criterion. 
In this case, we find that the evidence presented satisfies only two of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
The fundamental nature of this highly restrictive visa classification demands comparison between the 
petitioner and others in his field. The regulatory criteria describe types of evidence that the petitioner may 
submit, but it does not follow that every scientific researcher who has published the results of his work, or 
who has trained under prominent researchers, is among the small percentage at the very top of the field. While 
the burden of proof for this visa classification is not an easy one to satisfy, the classification itself is not meant 
to be easy to obtain; an alien who is not at the top of his or her field will be, by definition, unable to submit 
adequate evidence to establish such acclaim. This classification is for individuals at the rarefied heights of 
their respective fields; an alien can be successful, and even win praise from experts in the field, without 
reaching the top of that field. 
It has not been shown, nor does the overall tone of the witness letters presented in this 
petitioner's achievements are comparable to those of scientific experts such as Professor 
That these individuals have demonstrated achievements that far exceed those of the 
that, however respected the petitioner may be and whatever future promise his career may hold, the petitioner 
has not yet reached the to of his field. For example, a November 10, 2003 letter provided on appeal from 
Professor Pcientific Director and Professor in Reproductive Medicine, University of 
Birmingham, states that the petitioner "is likely to be principal investigator in the very near future." Even if it 
were unanimously agreed that the petitioner would one day reach such a level, this visa classification is 
reserved for those already at the top of their field, not for those who are expected eventually to reach that 
level. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim, is one of the small percentage who has risen to 
the very top of the field of endeavor, and that the alien's entry into the United States will substantially benefit 
prospectively the United States. The petitioner in this case has failed to demonstrate that he meets at least three 
of the criteria that must be satisfied to establish the sustained national or international acclaim necessary to quallfL 
as an alien of extraordinary ability. 
Review of the record does not establish that the petitioner has distinguished himself as a scientific 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 is not persuasive that the petitioner's achievements set 
him significantly above almost all others in his field at the national or international level. As the evidence 
presented does not overcome the grounds for the previous decision of the AAO, and it has not been shown 
that that decision was based on an incorrect application of law, the previous decision of the AAO will be 
affirmed. 
In conclusion, we fmd that the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not sustained that burden. 
ORDER: The AA07s decision of March 29,2004 is affirmed. The petition is denied.