dismissed EB-1A Case: Medical Science

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdrninistrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 0 4 2009 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(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. 9 103.5 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. $ 103.5(a)(l)(i). 
vn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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. 5 1153(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, counsel submits a brief. For the reasons discussed below, while we are satisfied that the 
petitioner meets one of the ten regulatory criteria,' of which an alien must meet at least three, we 
uphold the director's ultimate decision that the petitioner has not established his eligibility for the 
exclusive classification sought. We reach this conclusion both through a consideration of the evidence 
under each criterion claimed and in the aggregate. 
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 into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) 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 56 Fed. Reg. 60897,60898-9 (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. 5 204.5(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. 
1 
 The scholarly articles criterion set forth at 8 C.F.R. 3 204.5(h)(3)(vi). 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
According to Part 6 of the petition, this petition seeks to classify the petitioner as an alien with 
extraordinary ability as a postdoctoral research associate in medical science. Postdoctoral positions are 
temporary training positions that allow a biological scientist to accrue the publication record required 
for a permanent position. See http://www.bls.aov/oco/ocos047.htm#trainin (accessed July 30, 2009 
and incorporated into the record of proceeding). While an entry-level training position does not 
preclude eligibility, it is the petitioner's burden to demonstrate that he compares with those at the very 
top of his field, including the most experienced and renowned members of that field. 
The regulation at 8 C.F.R. fj 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 under 8 C.F.R. $204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Initially, counsel indicated that Exhibit C included evidence of awards. That exhibit included a letter 
from the petitioner's supervisor recommending the petitioner for a Postdoctoral Travel Award to attend 
an American Society for Biochemistry and Molecular Biology (ASBMB) conference, a letter from 
ASBMB addressed to "Travel Award Recipient," a Federation of European Microbiological Societies 
(FEMS) Young Scientist Grant "to assist [the petitioner] in attending the FEMS Meeting" and 1992 
and 1993 Certificates of Honor from Nanjing Agricultural University recognizing the petitioner as an 
excellent graduate. 
On March 14,2008, the director issued a Request for Evidence (WE) specifically requesting evidence 
that the petitioner's awards, which the director characterized as academic awards, were lesser nationally 
or internationally recognized awards. In response, counsel no longer claimed that the petitioner meets 
this criterion. The director concluded that the petitioner had not demonstrated that he meets this 
criterion. On appeal, counsel does not specifically address this criterion but asserts that while he is 
addressing what he considered the director's "main errors," he is "by no means stating that the 
[petitioner] fails to qualify under other rubrics as well." 
Academic awards that are limited to current students at a specific university cannot serve as evidence to 
meet this criterion. Similarly, the experienced and renowned members of the field do not aspire to win 
postdoctoral or young scientist travel grants that allow new members of the field to attend scientific 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
conferences. Thus, we concur with the director that the awards documented in the record cannot serve 
to meet this criterion. 
Documentation of the alien's membership in associations in the jield for which classEfication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or$elds. 
Initially, the petitioner submitted evidence of his membership in Sigma Xi, ASBMB and the American 
Society for Microbiology (ASM). The letter from Executive Director of Sigma Xi 
indicates that Sigma % membership is by election and restricted to those who have demonstrated 
"noteworthy achievements" evidenced by "publications, patents, written reports or a thesis or 
dissertation." The letter from Executive Officer of ASBMB indicates that regular 
membership in ASBMB is limited to those with a Ph.D. and one published paper in the field after 
receiving his degree. Director of Member Services for ASM asserts that ASM is "open to 
anyone who is interested in the Society's objectives and has a minimum of a bachelor's degree or 
equivalent experience in microbiology or a related field." 
In his WE, the director advised that the evidence submitted did not document qualifying memberships. 
Counsel's response did not address thls criterion. The director concluded that the membership 
requirements of the above societies, including the "noteworthy achievements" as defined by Sigma Xi, 
were common in the petitioner's field. On appeal, counsel does not specifically address this criterion, 
but implies that the petitioner meets criteria not discussed in the appellate brief. 
A Ph.D. is usually required for independent research, industrial research and college teaching in the 
petitioner's field. See http://www.bls.aov/oco/ocos047.htm#training. A solid record of published 
research is essential in obtaining a permanent position involving basic research. Id. Thus, we concur 
with the director that educational requirements or even a requirement for authorship of a published 
article are not requirements for outstanding achievements in the petitioner's field. 
In light of the above, we concur with the director that the petitioner has not established that he meets 
this criterion. 
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 classzfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Initially, the petitioner submitted citations and a press release published on Brown University's own 
website reporting that scientists at Brown mapped the structure of a DNA-doctoring protein complex. 
- - 
The press release states that the achievement occurred in 
 laborat06 and the 
petitioner as a postdoctoral researcher in that laboratory and the study's lead author. The press release, 
according to the initial evidence submitted, was reproduced at www.~h~sor~.com. 
Page 5 
In the RFE, the director advised that citations are not published material about the alien and noted that 
the media report was a "reprint" of the press release on Brown's website. In response, counsel 
questioned what is wrong with a reprint from a university, asserting that the New York Times 
sometimes reprints such material.3 The petitioner submitted evidence that the same press release also 
appeared on the following websites: www.sciencedail~.com/releases, www.medicalnewstodav.com, 
www.eurekalert.org/pub releases, www.sflorn.com, www.biologynews.net, www.innovations- 
revort.de/html and www.whatsnextnetwork.com. The press release also apparently appeared in 
Chinese at www.biotech.orn.cn although the petitioner did not submit a certified translation of this 
evidence pursuant to 8 C.F.R. $204.5(h)(iii) and 8 C.F.R. $ 103.2(b)(3). 
The director concluded that the material was not primarily about the petitioner. On appeal, counsel 
does not specifically address this criterion but implies that the petitioner meets criteria not addressed in 
the appellate brief. 
We concur with the director that the frequently reproduced press release is not primarily about the 
petitioner. Compare 8 C.F.R. $204.5(i)(3)(i)(C), which permits the submission of published material 
about the petitioner's work rather than published material about the alien relating to his work. 
In addition, the petitioner has not established that a press release reproduced on websites of 
undocumented significance can serve to meet this criterion. Notably, the regulation at 8 C.F.R. 
$204.5(h)(3)(iii) requires evidence of the author of the published material. Thus, the identity of the 
author is a relevant consideration. A press release issued by a university promoting research at that 
university is not indicative of or consistent with national or international acclaim to the same extent as 
the independent journalist-authored published material contemplated by the regulation at 8 C.F.R. 
$ 204.5(h)(3)(iii). 
In a related issue, the petitioner has not established whether any of the websites that reproduced the 
press releases constitute major media. In today's world, the Internet consists of numerous websites 
on every subject. To ignore this reality would be to render the "major media" requirement 
meaningless. We are not persuaded that international accessibility by itself is a realistic indicator of 
whether a given publication is "major media." The record does not disclose whether the websites that 
reproduced this press release review the press releases for significance or simply reproduce press 
releases from legitimate institutions as a general service or even for a fee. Without such evidence, we 
cannot determine whether these websites constitute major media. 
Finally, we concur with the director's conclusion in the WE that citations cannot serve to meet this 
criterion as they are "about" the citing author's own work; a citation is not published material about 
the authors of every article cited in the citing article. 
Assuming that the New York Times reproduces university press releases without additional investigation by 
a journalist, the record before us does not contain evidence that the Brown University press release was 
reproduced by the New York Times. 
In light of the above, 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 ofthe work of 
others in the same or an alliedfield of spec@cation for which classiJication is sought. 
Initially, the petitioner submitted an electronic mail message thanking the etitioner for reviewing a 
b, asserting that manuscript for the Journal of Bacteriology and a letter from his supervisor, 
the petitioner "independently, and together with me and his colleagues has reviewed many manuscripts 
journals.'' The petitioner also provided two examples of reviews performed 
with 
The director's RFE requested evidence that the petitioner had garnered any acclaim from his work as a 
reviewer. In response, counsel asserts that the director's request reflects a lack of knowledge about the 
peer-review process, which is anonymous. Counsel notes that reviewers are rarely credited, although 
some journals publish a list of reviewers, "even if they are Nobel Prize winners." 
The petitioner submitted review requests and acknowledgements dated December 1, 2006, December 
22, 2006, February 10, 2007, April 7, 2007, July 4, 2007, August 16, 2007, October 27, 2007, 
November 30, 2007, December 13, 2007, January 12, 2008, January 17, 2008, January 29, 2008, 
February 26,2008, April 28,2008 and May 12,2008. The petition was filed February 20,2007. Thus, 
of the 15 new review requests and acknowledgements submitted, only three of them predate the filing 
of the petition. 
The director concluded that the record did not establish that the petitioner's participation in the peer- 
review process exceeded that of other scientists or was indicative of national or international acclaim. 
On appeal, counsel characterizes the director's reasoning as "absurd," asserting that only "established 
or accomplished scientists receive invitations for reviewing the work of others because of their 
reputation and expertise in their respective fields." Counsel concludes: "Most scientists do not have 
this kind of status with this many high ranking journals" although counsel acknowledges that hs 
conclusion cannot be documented. Counsel asserts, however, that the director's conclusions are also 
unsupported and irrelevant as the regulation does not require any evidence other than evidence that the 
alien has judged the work of others. 
Counsel further asserts that the number of average articles reviewed by peer-reviewers is not available 
and that if the director had access to this data he should have provided it. Counsel concludes that the 
director had no basis to deny the petition and "just decided that he wanted to deny this category." 
The evidence submitted to meet this criterion, or any criterion, must be indicative of or consistent with 
national or international acclaim if that statutory standard is to have any meaning. We cannot ignore 
that scientific journals are peer-reviewed and receive hundreds of thousands of manuscripts for 
potential publication that must be peer-reviewed. It is not conjecture, but a logical conclusion from the 
above fact that scientific journals rely on many scientists to review these manuscripts. Thus, peer- 
review is routine in the field and is not, by itself, indicative of or consistent with sustained national or 
international acclaim. 
Counsel appears to be attempting to have it both ways, asserting that peer-review is anonymous with 
little known about who participates and how often, and that it is synonymous with sustained national or 
international acclaim. Assertions that selection for peer-review is reserved for renowned members of 
the field cannot be supported by vague assertions that a particular journal looks for peer-reviewers with 
expertise or accomplishments in the field. Rather, such an assertion must be supported by official 
information from the journal's website or another official source documenting, for example, exactly 
what is required to serve as a peer-reviewer beyond publications in the field and a willingness to 
volunteer or a that the journal boasts a small, exclusive, elite cadre of peer-reviewers. 
Without evidence that sets the petitioner apart from others in his field, such as evidence that he has 
reviewed an unusually large number of articles, received independent requests from a substantial 
number of journals, or served in an editorial position for a distinguished journal, we cannot conclude 
that the petitioner meets this criterion. 
As noted by counsel on appeal, the director states that the response to the WE consisted of reviews that 
"all" postdated the filing of the petition. Counsel asserts that this statement was in error as "many 
reviews took place before the filing of the petition." Counsel concludes that the petitioner "routinely 
receives invitations for reviewing papers submitted to high-ranking scientific journals." 
As stated above, of the 15 reviews documented in response to the WE, only three predate the filing of 
the petition. The petitioner must establish his eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(l), 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Cornm'r. 1971). Thus, the evidence relating to a 
given criterion must be indicative of sustained national or international acclaim as of that date. We 
cannot "consider facts that come into being only subsequent to the filing of a petition." Matter of 
Izummi, 22 I&N Dec. 169, 176 (Comm'r. 1998) citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
198 1). 
While there is no bright line test for the amount of reviews or independent requests that could, on a 
case-by-case basis, meet this criterion, the petitioner has documented only four reviews that predate the 
filing of the petition, two of which were done jointly with the petitioner's supervisor, which is not 
indicative of or consistent with any recognition beyond the petitioner's own laboratory. The petitioner 
has not established that this small number of reviews is significant. 
In consideration of all the evidence submitted under this criterion, we concur with the director that the 
petitioner's record as a peer-reviewer, by itself, it insufficient to meet this criterion. 
Evidence of the alien's original scient$c, scholarly, artistic, athletic, or business-related 
contributions of major signitficance in the field. 
Initially and in response to the director's RFE, the petitioner submitted several reference letters which 
will be discussed in detail below. The record also contains the petitioner's publications, including one 
book, the press release discussed above, reprint requests and citations of his work. The director 
acknowledged that the petitioner's work was original and viewed as significant by his references but 
concluded that the evidence as a whole, including the small number of citations for an individual 
article, did not support a finding that the petitioner's contributions were of major significance. 
On appeal, counsel states that he has "a right to DEMAND to know" how the director determined that 
the citations were insufficient and threatens to sue USCIS to determine the director's "bright line test." 
Counsel further states that the petitioner's area of specialty is not a heavily researched area, that 
citations do not appear for several years and that the petitioner's 2006 article with six citations was 
recent. Counsel concludes that the selection of one of the petitioner's articles as a cover article for a 
distinguished journal is sufficient evidence of the work's significance and that the opinions of the 
petitioner's peers should be considered definitive evidence under this criterion. Counsel notes that the 
director "is NOT a peer" and, thus, concludes that director's "subjective opinion, or even some secret 
number of citations that he is referring to is not enough." 
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. 
Furthermore, the regulations include a separate criterion for scholarly articles. 8 C.F.R. 
tj 204.5(h)(3)(vi). Thus, while the authorship of original articles is relevant to this criterion, the mere 
authorship of scholarly articles alone cannot serve as presumptive evidence to meet this criterion. To 
hold otherwise would render the regulatory requirement that a petitioner meet at least three criteria 
meaningless. Moreover, while the journal's reputation can be considered, we will not presume the 
significance of an article from the journal in which it appeared. While the nature of the journal may 
demonstrate that the research was deemed promising, it is the ultimate application of the research that is 
relevant to whether the research actually constitutes a contribution of major significance. 
We concur with the director that 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. 
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 (Comm'r. 1988). However, USCIS is 
Page 9 
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. USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; see also 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l. Comm'r. 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. Persuasive letters should also provide specific examples of how those contributions 
have already influenced the field as opposed to merely speculating that the petitioner's work has the 
potential to influence 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. 
The petitioner received his Ph.D. fiom Kiel University in Germany in April 2002. The petitioner then 
worked as a visiting scientist at the University of Constance in Germany. In April 2003, the petitioner 
joined Brown University as a postdoctoral researcher where he remained when the petition was filed. 
Executive Chairperson of the Swedish Senior Experts Organization and an appointee of 
the Chinese State Administration of Foreign Talents Affairs, asserts that the petitioner was a key 
member of a Chinese research team investigating and developing functional products by using lactic 
acid bacteria resulting in the use of the normal micro flora of the human body to prevent infectious 
disease. asserts that the petitioner developed "functional products which have being [sic] 
produced on a large scale in China." While the petitioner's work in China has been moderately cited, 
the record contains no Chinese patents, letters fiom Chinese manufactures, advertisements for medical 
products, media coverage or other similar evidence that the petitioner's products were widely produced 
and utilized in China. 
Director of the Institut fiir Mikrobiologie, Kiel, Germany, asserts that the petitioner 
worked in 
 laboratory fiom June 1998 through Jul 2002, where he independently 
performed "extremely important microbiological research." 
 explains that the petitioner 
investigated bacteriophage infections during biomedical and food fermentation, which causes economic 
losses every year. While asserts that the petitioner presented this work, he does not explain 
the results of this work or how it has im acted bacteriophage infections during food fermentation 
nationally or internationally. her indicates that the petitioner proved himself an 
"extraordinary research scientist" b com letin the cloning, over-expression and protein purification 
tasks involved in his project for 
 at the University of Constance. Once again, Dr. 
does not explain the results of this work or its impact in the field. 
explains that his own work focuses on the Escherichia coli bacterio ha e h to study the 
process mobile DNA uses to gain entry into a target chromosome. mle group resolved 
the structure of h integrase in higher-order complexes, they have yet to resolve the structures of more 
"delicate and short-lived intermediate complexes." In order to resolve these structures, the use of 
sophisticated technologies such as in-gel Fluorescence Resonance Energy Transfer (FRET) is required. 
explains that the petitioner was recruited for this purpose based on his "grasp of these 
technologies" and "ability to apply them effectively in his experiments." According to, the 
petitioner participated in the design and validation of this work and is the primary person in the 
laboratory working on this system. notes that the petitioner presented the results of this work 
at two conferences and that it was the cover article in a 2006 volume of Molecular Cell. - 
explains that the petitioner "is the first person in the world to resolve a DNA trajectory within a six 
protein regulatory complexes, which is an inaugural research for understanding important biological 
questions in transcription, replication, recombination and RNA processing." In a second letter, Dr. 
- speculates that the number of "postdoctoral applicants" selected to present their research is 
small. We will not narrow the petitioner's field to postdoctoral researchers. - also asserts that 
the petitioner's findings "are leading to the novel application" of FRET technology in structural 
biology. however, provides no examples of these new applications being used in 
independent laboratories. 
oncludes in his first letter that the petitioner's area of research and continued work is in the 
national interest. We note that the petitioner is the beneficiary of an approved visa petition for an 
advanced degree professional pursuant to section 203(b)(2) of the Act where the alien employment 
certification was waived in the national interest. At issue in this petition is whether the petitioner has 
sustained national or international acclaim. While asserted that the petitioner's presentations 
"attracted the attention of many experts" and explained how the petitioner's work was original and 
necessary for the next step in this area of research, he provided no examples of how the petitioner's 
work had already been applied in the field. 
Several of the remaining letters merely provide broad generalizations that are not helpful in determining 
the petitioner's impact in his field. For example, of Brandeis University asserts that the 
petitioner has made "tremendous contributions to the field of site specific recombination," that his work 
"represents a major leap in our understanding" in site specific recombination in bacteriophage h and 
that the petitioner is "one of the world's leading experts in in-gel FRET." While speculating that this 
work "will benefit a wide audience of world scientists," 
 does not provide examples of how 
the petitioner's work has already impacted the field. 
Similarly, 
 at the University of California, Los Angeles (UCLA) who has 
coauthored articles with 
 speculates that the petitioner's research "will have medical 
benefits" and "will eventually lead to the development of-effective therapies and novel preventive 
methods for many medical conditions." Once again, does not, in his initial letter, provide 
examples of other laboratories applying the petitioner's work. 
a professor at the University of Illinois at Urbana-Champaign, asserts that the 
petitioner's results usin in- el FRET "in and of itself merits him a classification as an extraordinary 
research scientist." e however, merely speculates that this process "will be of significant 
interest to scientists in the many other applications within the area of protein-nucleic acid interactions" 
and offers only "the possibility of determining other complex structures that are known to be involved 
in interesting and fundamental biological processes." concludes only that the petitioner is 
"among the rising young scientists in the area of site-specific recombination." The classification 
sought, however, requires that the petitioner already be among the small percentage at the top of the 
field, including the most renowned and experienced members of that field, rather than a "rising" 
member of the field in comparison with other "young scientists." 
The letters in response to the director's RFE are more specific. 
 a professor at Yale 
Medical School, asserts that his own research was "strongly affected" by the petitioner's in-gel FRET 
work. Specifically, explains that his laboratory was unsure of its results using FRET, but 
after reading the petitioner's article, was able to apply his methodology to their system allowing them to 
achieve convincing results that were published. Similarly, of the Centre National 
de la Recherche in France, asserts that he is aware of the petitioner's work and cited it in 2007. In his 
second letter, asserts that he used and cited the petitioner's work. The list of citations from 
Google.Scholar and Scopus.com, provided by the petitioner, does not list an article by- 
that these services do not always provide a complete list of citations. 
 Dr. 
a professor at the University of Illinois at Urbana-Champaign, also confirms citing the 
petitioner's work and his article is listed among the citing articles provided by the petitioner. 
In addition to the letters from those who have applied and cited the petitioner's work, as stated above, 
the petitioner also provided search results demonstrating that the petitioner's work in China had been 
moderately cited. Specifically, his article in Molecular Cell had been cited six times as of the date of 
the response to the WE, at least two of which postdate the filing of the petition. The petitioner's article 
in Virology had been cited four times, two of which postdate the filing of the petition and are self- 
citations by coauthors. We concur with counsel that a "bright line" test for citations would be 
inappropriate and that some areas of research may not lend themselves to widespread and frequent 
citation. While counsel has asserted that the petitioner's area of research is one that is not heavily cited, 
the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel does not support his assertion with objective 
4 
 The petitioner's 2006 article in Molecular Cell, submitted into the record by the petitioner, cites a 2002 
article coauthored by and - 
evidence, such as evidence that - article in Nature referenced in the press release submitted 
has similarly garnered only a small number of citations. Significantly, it is the petitioner's burden to 
demonstrate that the evidence submitted is indicative of or consistent with national or international 
acclaim. 
We also acknowledge that the petitioner has authored a book which is available on multiple Internet 
sites such as Amazon.com. Far more persuasive, however, would be evidence as to how well thls book 
has sold and whether it is referenced in other literature in the field. The record contains no such 
evidence. 
The above evidence demonstrates that the petitioner's work has application in the field but is not 
reflective of sustained national or international acclaim. Even if we were to conclude that the petitioner 
meets this criterion, and we do not, for the reasons discussed above and below, the evidence falls far 
short of establishing that the petitioner meets a third criterion. 
Evidence of the alien S authorship of scholarly articles in the $el4 in professional or major trade 
publications or other major media. 
As stated above, the petitioner has authored articles in peer-reviewed articles, including a cover article 
in Molecular Cell and a book and has presented his work at several conferences. As stated above, the 
evidence submitted to meet a given criterion must be indicative of or consistent with sustained national 
or international acclaim. The Department of Labor's Occupational Outlook Handbook, (OOH), 
available at http://www.bls.~ov/oco/ocos047.htm#train (accessed July 30, 2009 and incorporated 
into the record of proceeding), provides that a solid record of published research is essential in 
obtaining a permanent position in basic research. As a researcher must demonstrate published research 
prior to even obtaining a permanent job in the petitioner's field, published research alone cannot serve 
to set the petitioner apart from others in his field. Moreover, we disagree with counsel that citations 
after the date of filing are relevant to this classification. At issue is whether the petitioner can 
demonstrate his sustained national or international acclaim as of the date of filing the petition. See 8 
C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). A 
petitioner may not file a petition and secure a priority date in the hopes that he will be recognized for 
his subsequent work during the adjudication of the petition. 
That said, we acknowledge that the petitioner's article was featured on the cover of Molecular Cell, that 
the petitioner is the author of a book and that he is moderately cited in China. Thus, we are satisfied, 
considering the evidence in the aggregate, that the petitioner meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
- asserts that the petitioner is "irreplaceable,"5 a "lead scientist on many important projects" 
and played "a leading and key role in many ways." The director's RFE advised that there was no 
"identifiable evidence" in the record relating to this criterion. In response, counsel notes that the 
petitioner's principal investigator and others attest to the petitioner's role in the laboratory at Brown 
University. Counsel asserts that the petitioner has been a "research scientist" at Brown and Tufts, 
although the petitioner had not yet begun working at Tufts University as of the date of filing. Counsel 
concludes that a "research scientist" (the petitioner actually was employed at Brown as a "postdoctoral 
research associate") "is the top of all possible research positions," while acknowledging in the same 
sentence that the petitioner works for a principal investigator. As there is no "award" for serving in a 
leading or critical role, counsel concludes that the assertions of the petitioner's principal investigator 
"should be determinative." 
The director concluded that the petitioner had not demonstrated that the role of "postdoctoral 
researcher" was a leading or critical role for Brown or Tufts beyond the obvious need to employ 
researchers. The director noted that postdoctoral research positions are actually training positions and 
that not every postdoctoral researcher plays a leading or critical role for the institution where they work. 
On appeal, counsel asserts that the director's analysis modifies the regulatory language at 8 C.F.R. 
$204.5(h)(3)(viii) and that this analysis would preclude not only postdoctoral researchers but all 
researchers from meeting this criterion. As an example, counsel asserts that Dr. Albert Einstein would 
not meet this criterion under the director's analysis in his faculty position with the Institute for 
Advanced Study because he did not play a leading or critical role for Princeton University as a whole. 
Counsel then speculates that the director's analysis would be more favorable to Bill Bradley, whose 
performance as a basketball player did more for the university as a whole by raising money for the 
institution. 
There are several problems with counsel's critique. First, the hypothetical eligibility of Dr. Einstein, a 
Nobel laureate who is the subject of several biographies and authored seminal articles that 
hdamentally changed the direction of theoretical physics, would not hinge on the nature of his 
position at any given institution. Second, the Institute for Advanced Study is not a department or 
division of Princeton University. Rather, it is an independent institution with no formal affiliation with 
any institution, although it enjoys close collaborative ties with multiple institutions including Princeton. 
See http://www.ias.edu/about~mission-and-hit (accessed July 30, 2009 and incorporated into the 
record of proceedings). Finally, as will be explained below, it is the role the alien was hired to fill 
rather than the alien's services in that role that serves to meet this criterion. Thus, it does not 
The petitioner has since left laboratory and is now working at Tufts University according to the 
submission in response to the RFE. 
Page 14 
necessarily follow from the director's analysis that a student basketball player would necessarily have a 
stronger claim to meet this criterion, although that is not the issue before us. 
While a scientist need not reach the level of Dr. Einstein to qualify for the classification sought, 
invoking the name of Dr. Einstein, a Nobel Laureate who fundamentally changed theoretical physics 
and enjoyed acclaim both in his field and among the public, is not helpful in establishing that the 
petitioner is one of the small percentage at the top of his field. 
Significantly, we have already considered the petitioner's contributions while working in - 
laboratory above pursuant to 8 C.F.R. 5 204.5(h)(3)(v). The regulation at 8 C.F.R. 5 204.5(h)(3)(viii) is 
a separate criterion with different considerations. Specifically, according to the plain language of the 
criterion at 8 C.F.R. 5 204.5(h)(3)(viii), the petitioner must demonstrate that he was hired into or 
selected for a leading or critical role and that the entity that hired or selected him enjoys a distinguished 
reputation. In other words, the nature of the position for which the petitioner was hired must be 
indicative of sustained national or international acclaim irrespective of what the petitioner ultimately 
does in that role. We reiterate that we are not suggesting that the petitioner's performance in his job is 
irrelevant; rather, what the petitioner did in that role is far more related to the contributions criterion at 
8 C.F.R. 5 204.5(h)(3)(v). 
As the petitioner was not yet employed at Tufts University as of the date of filing, we will not consider 
his role there. See 8 C.F.R. @j 103.2(b)(l), (12); ~atter o Kati bak, 14 I&N Dec. at 49. The 
petitioner worked as a postdoctoral research associate in d laboratory. Counsel's assertion 
that this position is the "top of all possible research positions" is not supported by any of the statements 
ffom the petitioner's references, including principal investigators, a senior research fellow at a major 
pharmaceutical company and a director of an entire institute.' The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&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. As stated above, postdoctoral 
positions are temporary training positions that allow a biological scientist to accrue the publication 
record required for a permanent position. See htt~://www.bls.~ovlocolocos047.htm#training. 
In light of the above, the evidence falls far short of meeting this criterion. 
Finally, the conclusion we reach by considering the evidence to meet each criterion separately is 
consistent with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. The petitioner, a postdoctoral research associate at the time of filing, relies on his 
professional memberships, publications, moderate citation record, participation in the widespread peer- 
review process and the praise of his immediate circle of peers. While this may distinguish him fiom 
other postdoctoral researchers, we will not narrow his field to others with his level of training and 
experience. 
 is a member of the National Academy of Sciences. 
 is director of an 
This list is provided as a list of far higher research positions than postdoctoral research associate, and is not 
intended as a list of positions that would necessarily always serve to meet this criterion. 
Page 15 
institute and edited a book on genetic engineering. 
 an investigator at the 
Howard Hughes Medical Institute and one of the petitioner's references, reviewed grant applications for 
both the National Institutes of Health and the National Science Foundation. served as an 
executive editor for three peer-reviewed journals. These credentials reveal that the top of the 
petitioner's field is far higher than the level he has attained. 
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 
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 postdoctoral researcher, but is not persuasive that the petitioner's 
achievements set him significantly above almost all 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. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.