dismissed EB-1A Case: Medical Science

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
PUBLIC COpy
identifying data deleted to
prevent clearly unwarranted
invasionofpersonalprivacy
FILE: Office: CALIFORNIA SERVICE CENTER Date: AUG 2 32001
SRC 02 041 56993
INRE: Petitioner:
Beneficiary:
PETITION: hnmigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section
203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
k-R~~-1"- Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, Texas
Service Center. On further review of the record, the Director, California Service Center determined that the
petitioner was not eligible for the benefit sought. Accordingly, the director served the petitioner with notice
of intent to revoke the approval of the immigrant visa petition, and the reasons therefore, and ultimately
revoked the approval of the petition on August 7, 2006. The matter is now before the Administrative Appeals
Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in
the sciences. The director determined the petitioner had not established the sustained national or international
acclaim necessary to qualify for classificationas an alien of extraordinaryability.
On appeal, counsel states: "[A]s the revocation in the instant case was arbitrary aIld capricious and 'good and
sufjicient cause' for revocation under Ho and Eslime was not established by the esc, this revocation is wrong
as a matter of law and should be reversed and Respondent's approved immigrant visa petition MUST BE
REINSTATED." [emphases in original].
Section 205 of the Act, 8 U.S.C. § 1155, states: "The Secretary of Homeland Security may, at any time, for
what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under
section 204."
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of
Immigration Appeals has stated:
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is
properly issued for "good and sufficient cause" where the evidence of record at the time the notice is
issued, if unexplained and unrebutted, would warrant a· denial of the visa petition based upon the
petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the
evidence of record at the time the decision is rendered, including any evidence or explanation
submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.
MatterofHo, 19 I&N Dec. 582,590 (BIA 1988) (citing Matter ofEstime, 19 1&N Dec. 450 (BIA 1987».
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the
issuance of a notice of intent to revoke an immigrant petition. Matter ofHo, 19 1&N Dec. at 590.
The Form 1-140, Immigrant Petition for Alien Worker, was filed on November 19,2001 seeking to classify the
petitioner as alien of extraordinary ability as a researcher. The petition was approved in error by the Texas
Service Center on March 20, 2002.
On April 19,2005, the petitioner appeared at the Phoenix, Arizona District Office for an interview pertaining
to his eligibility for adjustment of status to permanent resident. At that time, the interviewing officer noted
that the petitioner had not satisfied at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3) required
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for classification as an alien of extraordinary ability. The petition was then forwarded to the California
Service Center for issuance of a notice of intent to revoke the approval of the petition.
On May 10, 2006, the director of the California Service Center issued a notice of intent to revoke the approval
of the petition. The director's notice included a discussion indicating that the petitioner's evidence did not
satisfy any of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). The notice of intent to revoke also infonned
the petitioner that the evidence of record did not show that the petitioner "is one of that small percentage who
have risen to the very top of the field of endeavor." The director's notice concluded by stating that "the
evidence is not found sufficient to establish that the petitioner has distinguished himself to such an extent that
he has achieved sustained national or international acclaim and recognition." We concur with these fmdings.
On June 9, 2006, the California Service Center received the petitioner's response to the notice of intent to
revoke and this documentation was incorporated into the record of proceeding. Aside from wage data for
medical scientists, postdoctoral scholars, and microbiologists, the petitioner's response included no evidence
pertaining to the regulatory criteria at 8 C.F.R. § 204.5(h)(3).1 In his June 8, 2006 response letter, counsel
argues that that the initial evidence accompanying the petition satisfied the criteria at 8 C.F.R. § 204.5(h)(3)(i)
- (vi), (viii). Counsel further states:
It must be noted that [the petitioner's] approval was not based upon documentation that he
commanded high salary or other significantly high remuneration for services, although the NOIR
[notice of intent to revoke] specifically takes issue with the lack of documentation for this criterion.
As a matter of fact, most research and academic positions do not offer a high salary, regardless of the
extraordinary qualifications and abilities of the researcher or academic.
The director's notice of intent to revoke, however, was not based solely upon the petitioner's failure to meet
the salary criterion at 8 C.F.R. § 204.5(h)(3)(ix). The director's notice also addressed the deficiencies in the
evidence submitted by the petitioner for the other criteria at 8 C.F.R. § 204.5(h)(3). In support of his
statement that "most research and academic positions do not offer a high salary," counsel points to the wage
data submitted by the petitioner for medical scientists, postdoctoral scholars, and microbiologists. In this
documentation, counsel highlighted (with a yellow marker) entry-level wages for Medical Scientists and
Microbiologists as compiled by the U.S. Department of Labor. Counsel also highlighted entry-level salaries
for postdoctoral scholars at Stanford University and postdoctoral research fellows at Drexel University.
However, none of this wage information highlighted by counsel, which consists of salary information for
recent doctoral graduates, establishes that most researchers or academic scholars are unlikely to be offered a
high salary. This wage data only shows that the salary offered to the petitioner at the University of Arizona
falls below the compensation earned by entry-level postdoctoral researchers in the preceding job positions.
Even if we were to accept counsel's unsupported generalization that "most research and academic positions
do not offer a high salary," such a conclusion is irrelevant to a determination as to whether an individual
meets the salary criterion at 8 C.F.R. § 204.5(h)(3)(ix). The plain language of this criterion allows for
evidence of high salary "in relation to others in the field." Therefore, if the petitioner had submitted evidence
I The petitioner's response included "evidence of medical residency training" received by the petitioner in
Arkansas, Pennsylvania, and Arizona and a June 22, 2004 job offer letter for a "Research Technician"
position at the University of Arizona paying an annual salary of $32,300.
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showing that his salary was significantly high in relation to other researchers in his field, such documentation
would satisfy the criterion at 8 C.F.R. § 204.5(h)(3)(ix). In this instance, however, the wage data submitted by
the petitioner reflects a Level 4 Wage for a Medical Scientist in Tucson, Arizona amounting to "$81,224
year." We note that this amount is significantly above the salary level commanded by the petitioner at the
University of Arizona.
On August 7, 2006, the director of the California Service Center revoked the approval of the petition based on
the petitioner's failure to satisfy at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). For reasons
to be addressed below, we concur with the director's fmdings that "the petition was approved in error" and that
the petitioner's evidence is not sufficient to demonstrate that he qualifies for classification as an alien of
extraordinary ability.
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.
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 56 Fed. Reg. 60897, 60898-9 (November 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.
At the time of filing, the petitioner was working as a "research associate" in the Scott Department of Urology
at the Baylor College of Medicine in Houston, Texas. 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
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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. A petitioner, however, cannot establish eligibility for
this classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R.
§ 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself must be
evaluated in terms of whether it is indicative of or consistent with sustained national or international acclaim.
A lower evidentiary standard would not be consistent with the regulatory definition of "extraordinary ability"
as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very
top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The petitioner has submitted evidence pertaining to the
following criteria.
Documentation ofthe alien sreceipt oflesser nationally or internationally recognized prizes or
awards for excellence in the field ofendeavor.
A document submitted with the petition entitled "DOCUMENT AnON FOR Ell ALIEN WITH
EXTRAORDINARY ABILITY" identifies the petitioner's "Curriculum Vitae" and Biographical Sketch as
evidence for this criterion. The petitioner's Curriculum Vitae listed the following items under the heading
"AWARDS, HONORS AND SCHOLARSHIPS."
1982:
1982 - 1987:
1987:
1994 -1995:
1994
1998
H. Narasimiah Medal in Chemistry
National Merit Scholarship - Academic Excellence (Government of India)
Departmental Honors - Community Medicine (Bangalore Medical College)
Pre-doctoral Fellowship (University of Texas Medical Branch)
Student award for outstanding poster presentation (South Dakota State
University)
Finalist: Outstanding poster presentation (Sixteenth Annual Neurotrauma
Symposium)
The record includes no documentary evidence establishing the petitioner's receipt of the preceding awards. A
mere listing of awards prepared by the petitioner fails to satisfy the "extensive documentation" requirement set
forth in section 203(b)(I)(A)(i) of the Act. The self-serving information contained in the petitioner's
Curriculum Vitae and Biographical Sketch is not authenticated by the awarding entities and thus has no
evidentiary value. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Thus, we cannot accept the
preceding self-serving list as evidence for this criterion.
The director correctly concluded that the petitioner had not established that these accomplishments constituted
receipt of lesser nationally or internationally recognized prizes or awards. The director's August 7, 2006 notice of
revocation stated: "In respect to the awards from the universities and other learning institutions, [CIS] views
evidence of various academic awards presented to a student or scholar as honors and are not [sic] nationally or
internationally recognized prizes, but are limited to the individual school or institution making the awards."
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Regarding the H. Narasimiah Medal in Chemistry,2 the National Merit Scholarship for Academic Excellence
from the Government of India, the Departmental Honors from Bangalore Medical College, the Pre-doctoral
Fellowship at the University of Texas Medical Branch,3 and the student award for outstanding poster
presentation (South Dakota State University),4 notwithstanding the petitioner's failure to submit primary
evidence of his receipt of these awards, we note that such awards were limited by their terms to students who
had yet to begin their research careers and thus they excluded experienced professionals from consideration.
University or high school study is not a field of endeavor, but rather preparation and training for future
employment in a field of endeavor. The petitioner cannot artificially restrict his field to exclude all those
scientists and physicians who have long since completed their academic studies and training and therefore do
not compete for student honors, scholarships, and fellowships. There is no evidence showing that the
petitioner faced competition from throughout his field, rather than his approximate age group within that
field. We find that the petitioner's receipt of awards limited to students is not consistent with sustained
national or international acclaim as one who has reached the "very top ofthe field of endeavor." See 8 C.F .R.
§ 204.5(h)(2). These awards do not constitute nationally or internationally recognized prizes or awards for
excellence in the field of endeavor.
In regard to the petitioner being declared a "finalist" for an outstanding poster presentation award at the
Sixteenth Annual Neurotrauma Symposium, there is no evidence that he ultimately won a prize or award at
this symposium. While it is certainly recognition of one's talents to be selected as a finalist, the plain
language of this criterion clearly requires the receipt of nationally or internationally recognized prizes or
awards. Nor is there evidence showing that outstanding poster presentation awards at this symposium were
nationally or internationally recognized.
The petitioner also argues that his submission of an "Editorial Comment" appearing on page 967 of the April
2000 issue of Stroke meets this criterion. The editorial comment, which appears at the conclusion of an
article coauthored by the petitioner in the April 2000 issue, does not constitute receipt of a "prize or award"
for excellence in the medical research field. Further, while the Editorial Comment identifies the first author
of the article, the petitioner's name is not specifically mentioned. Nevertheless, we find that
the editorial comment in Stroke is far more relevant to the "published material about the alien" criterion at
8 C.F.R. § 204.5(h)(3)(iii) and will be further addressed there.
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, as judged by recognized
national or international experts in their disciplines orfields.
2The petitioner was age sixteen when he received this student award.
3 The petitioner pursued a Master of Science degree in Microbiology at the University of Texas Medical
Branch from 1994 to 1995.
4 According to his curriculum vitae, the petitioner was employed as a "Laboratory Assistant" at South Dakota
State University in 1994. An award bestowed by one's immediate employer is evidence of internal
recognition rather than national or international recognition.
Page 7
The petitioner submitted photocopies of his membership cards for the Society of Critical Care Medicine
(SCCM) and the National Neurotrauma Society (NNS). While the record includes documentation printed
from the internet websites of the SCCM and the NNS containing general information about these societies,
there is no evidence of their membership bylaws or official admission requirements showing that they require
outstanding achievements of their members, as judged by recognized national or international experts in the
petitioner's field. The director's May 10,2006 notice of intent to revoke stated:
[T]he record contains no supportive evidence indicating that there are set rules for membership including
rigid standards to join. There is no documentation provided to show that inclusion in the membership of
these associations, or organizations is limited to individuals who have extraordinary achievement in their
field of endeavor.
On appeal, counsel argues that "the associations themselves indicate by name the basic membership
requirements (i.e. - National Neurotrauma Society, the Society of Critical Care Medicine, the Society for
Neuroscience, American Society for Neurochemistry, the Indian Medical Association)." Contrary to
counsel's claim, we cannot infer from the names of these societies that their "basic membership
requirements" call for outstanding achievement. We note that the petitioner bears the burden of establishing
that his evidence meets this criterion. See Section 291 of the Act. Further, the petitioner has not submitted
his membership credentials for American Society for Neurochemistry (ASN) or the Indian Medical
Association. Without documentary evidence to support the petitioner's claim of membership in the latter two
organizations, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BlA
1988); Matter ofLaureano, 19 I&N Dec. 1, 3 n.2 (BlA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,
506 (BlA 1980). In regard to counsel's assertion that the petitioner was a member of the ASN, we find that
this claim is contradicted by a registration fonn submitted by the petitioner for the Society's 30th Annual
Meeting (March 13 -17, 1999) in which the petitioner registered for the meeting .as a "non-member" of the
Society, paying a higher fee than that assessed to members of the ASN.
In this case, there is no evidence showing that membership in the preceding associations required outstanding
achievements, as judged by recognized national or international experts in the petitioner's field.
In light of the above, 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 thefieldfor which classification is sought. Such evidence
shall include the title, date, and author ofthe material, and any necessary translation.
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, as
stated in the regulations, be printed in professional or major trade publications or other major media.
The petitioner submitted an "Editorial Comment" that appeared at the conclusion of an article authored by the
petitioner and three others in the April 2000 issue of Stroke entitled "Regional Cerebral Blood Flow After
Cortical Impact Injury Complicated by a Secondary Insult in Rats." The l2-sentence Editorial Comment names
only the fIrst author of the preceding article. The petitioner's evidence also included material
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(marked "Exhibit I" of the initial submission) described by counsel as publications "evidencing the importance of
[the petitioner's] work in the field and in the United States." The preceding Editorial Comment in Stroke and the
"Exhibit T' publications, however, do not mention the petitioner's name, nor are they about him. The plain
language of the criterion at 8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the alien." If the
petitioner is not the primary subject of the material or his name is not specifically identified in the material, then
the petitioner will not meet this criterion.
The petitioner also submitted four pages printed from an internet citation database (Web of Science) indicating
that throughout his research career his published work has been referenced an aggregate of 12 times.5 As
discussed previously, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published
material be about the petitioner. Without copies of the actual research articles, the petitioner cannot establish that
the articles identified in the citation indices were primarily about him or favorable in nature. With regard to this
criterion, a footnoted reference to the alien's work without evaluation is of minimal probative value. We note
here that research articles citing the petitioner's work are primarily about the author's work, not the footnoted
material identifying the petitioner. In the petitioner's field, it is the nature of research work to build upon work
that has gone before. In some instances, prior work is expanded upon or supported. In other instances, prior
work is superseded by the findings in current research work. In either case, the current researcher normally
cites the work of the prior researchers. Citations of this type do not discuss the merits of an individual's
work, the individual's standing in the field, any significant impact that his or her work has had on work in the
field, or other aspects of the individual's work consistent with his or her sustained national or international
acclaim. Citations of the petitioner's work are more relevant to the "authorship of scholarly articles" criterion
at 8 C.F.R. § 204.5(h)(3)(vi) and will be further addressed later in this decision.
The director correctly concluded that the published material in which petitioner's name did not appear and the 12
citations of his work were not adequate to satisfy this criterion. The director's notice of revocation stated that the
petitioner was unable to establish eligibility for this criterion simply by establishing that his work has been "cited
in print."
On appeal and in response to director's notice of intent to revoke, counsel cites a July 30, 1992 correspondence
memorandum from , Acting Assistant Commissioner, to the then Director of the Nebraska
Service Center, discussing what constitutes "solid evidence" for aliens seeking extraordinary
ability classification. _issued his correspondence memorandum in response to an inquiry from Mr.
_and makes clear that he is discussing his personal inclinations. Moreover, correspondence memoranda
issued to a single individual do not constitute official CIS policy and will not be considered as such in the
adjudication of petitions or applications. Although the correspondence may be useful as an aid in interpreting
the law, such letters are not bind~ officer as they merely indicate the writer's analysis of an
issue. See Memorandum from __ Acting Associate Commissioner, Office of Programs,
Significance ofLetters Drafted by the Office ofAdjudications (December 7, 2000).6
5 Four pages of citation results were submitted, but the first and fourth pages submitted by the petitioner
provided duplicate information.
6 Although this memorandum principally addresses letters from the Office of Adjudications to the public, the
memorandum specifies that letters written by any CIS employee do not constitute official CIS policy. We
further note that in his inquiry to questioned whether citations were published material
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In light of the above, the petitioner has not established that he meets this criterion.
Evidence ofthe alien's participation, either individually or on a panel, as a judge ofthe work of
others in the same or an alliedfield ofspecification for which classification is sought.
The document submitted with the petition entitled "DOCUMENTATION FOR Ell ALIEN WITH
EXTRAORDINARY ABILITY" identifies the petitioner's "Curriculum Vitae and Education Documents" as
evidence for this criterion. Nothing in these documents indicates that the petitioner has participated, either
individually or on a panel, as a judge of the work of others in his field.7 Further, the self-serving information
contained in the petitioner's curriculum vitae has no evidentiary value. As stated previously, going on record
without supporting documentary evidence is not sufficient for pwposes of meeting the burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 158, 165 (citing Matter of Treasure Craft ofCalifornia, 14I&N
Dec. at 190).
On appeal, cOWlselstates: "The fourth criterion requested evidence of [the petitioner's] participation as the judge
of others work, for which he submitted evidence ofhis participation as such at various symposia." We accept that
the petitioner attended and presented his work at various symposia, but there is no evidence in the record that he
participated, either individually or on a panel, as a judge of the work of others at these symposia. As stated
previously, the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N
Dec. at 534 n.2; Matter ofLaureano, 19 I&N Dec. at 3 n.2; Matter ofRamirez-Sanchez, 17 I&N Dec. at 506.
about the cited author. In his response~equivocally states that "a footnoted reference to the alien's
work without evaluation ... would be oflittle or no value." ~oes on to state that "entries (particularly
. a goodly number) in a citation index which cite the alien's work as authoritative in the field ... would more than
likely be solid pieces of evidence." ~oes not, however, identify the criterion to which this evidence
would relate. We concur wi~ that a "goodly number" of citations is solid evidence worth
consideration. We find, however, that this evidence is of significance to one of the other criteria for which Mr.
~ressed concern; namely, authorship of scholarly articles at 8 C.F.R. § 204.5(h)(3)(vi). Nothing in Mr.
•••1 response indicates that citations of an individual's work are relevant to the criterion at 8 C.F.R.
§ 204.5(h)(3Xiii).
7 Regarding the section ofthe petitioner's Curriculum Vitae entitled "SUPERVISING RESPONSmILITIES,"
we do not find that "supervising" one's subordinates is tantamount to "judging" the work of others in one's field
for pwposes of this criterion. Duties or activities which nominally fall under a given regulatory criterion at
8 C.F.R. § 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or routine in
the occupation itself, or in a substantial proportion of positions within that occupation. The petitioner
submitted no evidence that he has judged the work of other researchers in a manner significantly outside the
general duties of his position and reflective of national or international acclaim. For example, there is no
evidence to demonstrate that the petitioner has formally judged the work of established researchers (such as
tenured professors) who have long since completed their graduate studies and postdoctoral training. The
petitioner's involvement in supervising others in his workplace is not indicative of national or international
acclaim and does not fulfill this criterion.
Page 10
In light of the above, the petitioner has not established that he meets this criterion.
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions ofmajor significance in thefield.
The document submitted with the petition entitled "DOCUMENTATION FOR Ell ALIEN WITH
EXTRAORDINARY ABILITY" asserts that the petitioner meets this criterion through his curriculum vitae,
educational credentials, attendance and presentations at various symposia, requests for r~
articles, citations of his work, and an October 25, 2001 letter of recommendation from ~
Assistant Professor of Urology, Baylor College of Medicine. In regard to the petitioner's educational
credentials and curriculum vitae, we find that these documents bear no relevance to this criterion. As will be
discussed below, the director reasonably concluded that the petitioner's evidence for this criterion did not
demonstrate that his contributions were of major significance to his field and consistent with sustained
national or international acclaim.
The letter of recommendation from _states:
I have had ample opportunity to observe [the petitioner's] work in the 18 months he has been with our
research lab. . .. I am responsible for the supervision and daily functioning of the Prostate Cancer
Research Labs 0
* * *
[The petitioner] received his M.D. degree in 1991 from Bangalore Medical College, a premier
medical institution India [sic]. He graduated with High Honors and ranked among the top in his
class. He then entered the graduate education program in Microbiology and Immunology at
University of Texas Medical Branch in Galveston, TX. A year later he transferred to Baylor College
of Medicine and has gained substantial clinical research experience studying the effects of secondary
ischemia following traumatic brain injury. His work in this area has been published in several peer
reviewed national journals.
_ credits the petitioner with publishing his work in peer reviewed national journals. The petitioner's
published work, however, relates to the "authorship of scholarly articles" criterion at 8 C.F.R.
§ 204.5(h)(3)(vi), a criterion that we fmd the evidence in this case minimally satisfies. Here it should be
emphasized that the regulatory criteria are separate and distinct from one another. Because separate criteria
exist for authorship of scholarly articles and original contributions of major significance, CIS clearly does not
view the two as being interchangeable. If evidence sufficient to meet one criterion mandated a finding that an
alien met another criterion, the requirement that an alien meet at least three criteria would be meaningless.
We will fully address the research articles coauthored by the petitioner under the next criterion.
_further states:
[The petitioner] is a research associate in the lab where he has been studying animal models for
prostate cancer. He is also responsible for coordinating the use of animals in the numerous research
Page 11
projects we have ongoing. We maintain a daily census of over 2000 mice and it his responsibility to
interact with the veterinary medical unit staff and maintain the health and well being of the animals.
He has a major responsibility for animal husbandry and ensuring that the various strains of mice that
we use maintain their genetic integrity. He ensures that the transgenic strains of mice which are
identical in appearance are the appropriate genotype. [The petitioner] has also significantly refmed an
animal model for prostate cancer that has been used by for the past thirteen years. This
model, the mouse prostate reconstitution model, had previously required the use of urogenital sinus
tissue from multiple embryos, however, because of [the petitioner's] highly proficient skill and
insight this model has now been enhanced to the stage where only one urogenital sinus is required.
This was a major advancement because it makes possible the screening of many different type [sic] of
genetic alterations for their impact on prostate cancer. These studies were proposed by us over five
years ago as part of an NllI grant application but it was not until [the petitioner] arrived and worked
out the details that we achieved success. This achievement played a major part in our ability to renew
this Nlli grant last November.
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 published 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, improves procedures within his laboratory, or
assists his superiors in obtaining a research grant has inherentl¥ made a contribution of major significance to
the field as a whole. 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. While letter credits the petitioner with
enhancing the mouse prostate reconstitution model used by laboratory, there is no supporting
evidence that this refmement constitutes a contribution of major significance in his field consistent with
sustained national or international acclaim.
_ concludes by stating:
I am confident [the petitioner] will publish an important paper detailing these studies upon
completion of the molecular analysis of the tumors and cell lines which arose from these studies. The
studies should provide additional insight into the role of transforming growth factor beta and p53 in
prostate cancer and perhaps provide a linkage between these and the role of androgens in the
progression of prostate cancer. Each of these factors plays an important role in human prostate cancer
and [the petitioner's] work could help determine which patients with prostate cancers will benefit the
most from androgen ablation therapy.
Regarding _ expectation that the petitioner "will publish an important paper" detailing his studies
at some unspecified future time and observations regarding the possible future implications of
the petitioner's work, we note that the petitioner must demonstrate his eligibility at the time of filing. A
petitioner cannot file a petition under this classification based on the expectation of future eligibility. See
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Individuals seeking employment-based immigrant
classification must possess the necessary qualifications as of the filing date of the visa petition. There is no
Page 12
evidence, for example, of clinical trials or health data showing that the petitioner's work has been successfully
introduced to the general public or other evidence showing that it has had a substantial impact in the field to such
an extent that it qualifies as an original co~tribution of major significance.
With regard to the personal recommendation of the petitioner's former research supervisor, the source of this
recommendation is a highly relevant consideration. This letter is not first-hand evidence that the petitioner
has sustained acclaim outside of his workplace. While such a letter is useful in detailing the nature of the
petitioner's work, letters from independent experts who have been influenced by the petitioner's work are more
persuasive evidence of the significance of his work to the greater field. The statutory requirement that an alien
have "sustained national or international acclaim" necessitates evidence of recognition beyond one's immediate
superiors. See section 203(b)(1)(A)(i)of the Act. The opinion of_ while not without weight, cannot
form the cornerstone of a successful claim of sustained national or international acclaim. 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 (Comm. 1988). However, CIS is ultimately responsible for making the
final determination regarding an alien's eligibility for the benefit sought. !d. 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. at 795-96. Thus, the content of the Dr.
~statements and how he became aware ofthe petitioner's work are important considerations. In view of
the foregoing, the letter fron is not adequate to establish that the petitioner's research findings rise
to the level of a contribution of major significance in his field.
The petitioner also submitted evidence showing that he authored abstracts for presentation at scientific
conferences such as those sponsored by the American Urological Association and the American Society for
Neurochemistry. The petitioner's conference presentations, however, appear more relevant to the "authorship
of scholarly articles" criterion at 8 C.P.R. § 204.5(h)(3)(vi), a criterion that we find the evidence in this case
minimally satisfies. For example, the petitioner submitted a March 2, 2001 e-mail message discussing the
2001 Annual Meeting of the American Urological Association that twice refers to those giving poster
presentations as "authors." Nevertheless, in the fields of science and medicine, we fmd that acclaim is
generally not established by the mere act of presenting one's work at a symposium along with scores of other
participants. The record includes no documentation demonstrating that the presentation of one's work is
unusual in the petitioner's field or that the invitation to present at conferences where the petitioner gave poster
presentations was a privilege extended to only a few top scientists or researchers. In addressing the
petitioner's evidence, the director's notice of intent to revoke correctly noted that "many professional fields
regularly hold conferences and symposiums to present new work, discuss new findings, and to network with
other professionals. These conferences are promoted and sponsored by professional associations, businesses,
educational institutions, and government agencies." Participation in such events, however, does not elevate
the petitioner above almost all others in his field at the national or international level. The record includes no
evidence showing, for example, that the petitioner's presentations had significantly higher rates of attendance
when compared to those of the other conference participants or that the petitioner has served as a keynote
speaker at a national science or medical conference.
The petitioner also submitted correspondence reflecting an aggregate of fourteen reprint requests for his
articles. Requests for reprints do not indicate that the person requesting the reprint has already read and
-Page 13
evaluated the article. Therefore, such requests are not adequate to establish that the petitioner's research
findings rise to the level of a contribution of major significance in his field.
As previously discussed, the petitioner submitted Web of Science search results showing that throughout his
research career his body of work has been referenced an aggregate of only 12 times. When evaluating the
impact of the petitioner's research articles, we find that a citation history is a reliable gauge for determining
the significance of his published work to the greater field. Numerous independent citations would provide
solid evidence that other researchers have been influenced by the petitioner's work and are familiar with it.
On the other hand, few citations of an alien's work may indicate that his work has gone largely unnoticed by
the greater field and has not been recognized as a contribution of major significance. In this case, the limited
number of cites to the petitioner's body of work is not adequate to demonstrate that his research has risen to the
level of a contribution of major significance in his field.
Without extensive documentation showing that the petitioner's work has been unusually influential or highly
acclaimed throughout his field, we cannot conclude that his work rises to the level of contributions of major
significance. As such, the petitioner has not established that he meets this criterion.
Evidence ofthe aliensauthorship ofscholarly articles in thefield, in professional or major trade
publications or other major media.
The petitioner submitted evidence of his coauthorship of symposia abstracts and articles appearing in
publications such as Journal of Neurotrauma, Journal of Neurochemistry, and Stroke. As previously
discussed, the petitioner also submitted information printed from an internet citation database (Web of Science)
indicating that throughout his research career his published work has been referenced an aggregate of 12 times.
While these citations demonstrate a small measure of interest in the petitioner's published research, it has not
been shown that his publication record and citation history elevate him to the very top of his field or that his
published research findings have earned him sustained national or international acclaim. Although we find
that the petitioner minimally satisfies this criterion and therefore withdraw the director's findings for this
criterion, we note that the weight of the petitioner's evidence is diminished by the fact that publication is an
inherent duty of scientific researchers and by the limited number of cites to his body of work.
Evidence that the alien has peiformed in a leading or critical role for organizations or
establishments that have a distinguished reputation.
In order to establish that he performed a leading or critical role for an organization or establishment with a
distinguished reputation, the petitioner must establish the nature of his role within the entire organization or
establishment and the reputation of the organization or establishment. We concur with the director's finding
that the record lacks evidence ''that the petitioner has played an especially significant role" in his research
positions.
We find that the petitioner submitted sufficient documentation to establish that Baylor College of Medicine
has a distinguished reputation. At issue is the nature of the position the petitioner was hired to fill and its
importance to the success of Baylor College of Medicine. The October 21, 2001 letter from V T states:
"I am responsible for the supervision and daily functioning of the Prostate Cancer Research Labs of Dr.
Page 14
The labs consist of three faculty, six senior level researchers, eight post-doctoral
fellow[s], four technicians and a secretary." letter does not indicate which of the preceding
categories the petitioner's "research associate" position falls under, nor does it state that the petitioner
performed in a "leading or critical role" for the college beyond the immediate research projects to which he
was assigned. In this instance, we cannot conclude that the petitioner's subordinate research position at
Baylor College of Medicine was tantamount to a leading or critical role for the college as a whole. There is no
evidence showing that the petitioner's role was of significantly greater importance than that of the other
researchers employed by Baylor Medical College (including tenured professors such as and
The petitioner failed to submit confirmation of his "leading or critical role" from any officials from the other
organizations who employed him prior to the petition's filing date. The record lacks evidence demonstrating how
the petitioner's role differentiated him from other workers holding similar appointments, let alone more senior
employees in those organizations. Thus, we find that the petitioner has not established that he was responsible for
his past employers' success or standing to a degree consistent with the meaning of "leading or critical role" and
indicative of sustained national or international acclaim.
In light of the above, the petitioner has not established that he meets this criterion.
In this case, the petitioner has failed to demonstrate his receipt of a major internationally recognized award, or
that he meets at least three of the criteria that must be satisfied to establish the sustained national or
international acclaim necessary to qualify as an alien of extraordinary ability. 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 or as a researcher who has earned sustained
national or international acclaim. As such, the director noted both in the May 10, 2006 notice of intent to
revoke and the August 7, 2006 notice of revocation that the petitioner "is not qualified for the immigrant
classification sought and that the petition was approved in error." We regret that more than four years had
elapsed between the erroneous approval and the revocation (the record offers no explanation for this delay).
Nevertheless, section 205 of the Act specifically allows for revocation "at any time," and the pertinent regulations
are silent as to the issue ofelapsed time.
On appeal, counsel states:
The NOIR [notice of intent to revoke] and the subsequent revocation failed to establish "good and
sufficient cause" under Estime and Ro. Unlike in Ro and Eslime, there was nothing in the record
indicating any derogatory information that would cause the Director of the CSC [California Service
Center] to view the evidence previously found to be satisfactory in a different light. There was no
investigatory report or other information that would have provided good or sufficient cause to reevaluate
8 Information appearing atop the "Biographical Sketch" document submitted by the petitioner identifies Dr.
__as a "Principal Investigator" and "Program Director." We note that the achievements of Dr.
_and _ indicate that the top of the petitioner's field is a level above his own level of
achievement.
Page 15
whether the evidence previously deemed satisfactory should be readjudicated. Furthennore, in Ho,
which involved an adoption, and Estime, which was marriagebased, the visa petitions were revoked after
questions arose regarding whether objective evidence of eligibility has been established. Here, the
second adjudicator at the esc readjudicated a discretionarydetermination of eligibility previously made
by the adjudicator at the TSC [Texas Service Center] simply by subjectively providing different weight
to the exact documentary evidence that is part of the record. . .. While it is clear that Ho allows for a
District Director's realizationthat a visa petition was erroneouslyapproved, Ho makes equally clear that
an explanationand logical nexus as to why a previously approvedvisa petition was readjudicatedmust be
provided.
In the present case, we find that the decision to revoke the approval was based on a lack of objective evidence
establishing eligibility for the classification sought. As previously discussed in this decision and in the
director's notices, the petitioner failed to submit objective evidence establishing his eligibility under at least
three of the regulatory criteria set forth in the regulation at 8 C.F.R. § 204.5(h)(3). Contrary to counsel's
observations, the director's notices did provide ample explanation for revocation of the approval of the
petition. The director's notice of intent to revoke and notice of revocation both stated that the "USCIS
District Office in Phoenix, Arizona conducted an interview with the self-petitioner, in order to verify
information submitted in support of the immigrant classification sought. At the time of interview it was
determined by the interviewing officer that the [petitioner] is not qualified for the immigrant classification
sought and that the petition was approved in error." The director's notices then discussed the petitioner's
failure to satisfy the regulatory criteria required for classification as an alien of extraordinary ability. By
itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the
issuance of a notice of intent to revoke an immigrant petition. See Matter ofHo, 19 I&N Dec. at 590. Upon
finding that the petitioner had not met at least three of the regulatory criteria set forth at 8 C.F.R.
§ 204.5(h)(3), the director had essentially no choice but to revoke the erroneous approval of the petition. The
approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but
a preliminary step in the visa application process. The beneficiary is not, by mere approval of the petition,
entitled to an immigrant visa. Id. at 589.
Counsel further argues that the "remedial and ameliorative intent of AC21 should be applied to the instant
case." As a result of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Public
Law 106-313, the Immigration and Nationality Act was amended to include the following section:
Section 204(j) of the Act states:
Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent Residence - A
petition under subsection (a)(1)(O) [since redesignated section 204(a)(1)(F) of the Act] for an
individual whose application for adjustment of status pursuant to section 245 has been filed and
remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the
individual changes jobs or employers if the new job is in the same or a similar occupational
classification as the job for which the petition was filed.
Page 16
Section 204(a)(1)(F) of the Act states: "Any employer desiring and intending to employ within the United
States an alien entitled to classification under section 203(b)(1)(B), 203(b)(l)(C), 203(b)(2), or 203(b)(3) may
file a petition ... for such classification."
In the present case, the petitioner seeks classification as an employment-based immigrant pursuant to section
203(b)(l)(A) of the Act, therefore, pursuant to section 204(a)(1)(F) of the Act, the provisions of AC21 do not
apply to the petitioner. Further, the petitioner's 'failure to satisfy the regulatory criteria at 8 C.F.R.
§ 204.5(h)(3), rather than a change ofjobs or employment, served as the basis for revocation.
Review of the record does not establish that the petitioner has distinguished himself 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. Therefore, the petitioner has not established
eligibility pursuant to section 203(b)(I)(AXi) of the Act and the petition may not be approved.
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. The burden remains with the petitioner in revocation proceedings to establish eligibility for
the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968); Matter of
Estime, 19 I&N Dec. at 452 n.l; Matter ofHo, 19 I&N Dec. at 589. Here, the petitioner has not sustained that
burden.
ORDER: The appeal is dismissed.