dismissed EB-1A Case: Medicine

PUBLIC COPY 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 08 23 1 52041 
 OCT 0 2 2009 
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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
Appeals Office 
DISCUSSION: The Director, Texas 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. 9 1 153(b)(l)(A). The 
director determined the petitioner had not established the sustained national or international acclaim 
necessary to qualifj for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief. 
 The petitioner resubmits previously submitted evidence and 
submits evidence that purports to address the regulatory criteria set forth in a previous request for 
additional evidence issued by the director on January 22, 2007. For the reasons discussed below, we 
uphold the director's decision. Moreover, we futher note that the record suggests the petitioner may 
not be coming to the United States to continue in her alleged area of expertise as such an intent 
would render her inadmissible pursuant to section 2 12(a)(5)(B) of the Act. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 8 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has 
been long recognized by the federal courts. See, e.g., Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 
1989). 
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. 
It should be reiterated, however, that the petitioner must show that she has sustained national or 
international acclaim at the very top level. 
This petition, according to Part 6, seeks to classify the petitioner as an alien with extraordinary ability 
as a "doctor." The petitioner's personal statements indicate that she intends to practice both traditional 
Chinese medicine as well as conventional medicine. On appeal, the petitioner submits a job offer to 
work as a "Chief Physician" for Premium Medical Care, P.C. The petitioner is a graduate of a foreign 
medical school, Changchun Medical College. The petitioner has not documented that she has passed 
Parts I and I1 of the National Board of Medical Examiners and is competent in oral and written English. 
Thus, it appears that she is inadmissible to enter the United States to work as a "doctor" as claimed on 
her Form 1-140 petition. Section 212(a)(5)(B). As such, the petitioner has not demonstrated that she 
will continue to work in her area of alleged extraordinary ability or that she will substantially benefit 
prospectively the United States pursuant to sections 203(b)(2)(A)(ii) and (iii) of the Act. 
The regulation at 8 C.F.R. 5 204.5(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 criteria under 8 C.F.R. tj 204.5(h)(3) are as follows. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes 
or awardsfor excellence in the field of endeavor. 
The petitioner has submitted no evidence pertaining to this criterion and has never claimed to meet it. 
Documentation of the alien's membership in associations in the field for which classijication 
is sought, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. 
Initially, the petitioner claimed to be a member of the Chinese Association of Science Technology 
(CAST) and the Red Cross. She submitted no evidence to substantiate that she is a member of either 
association or their membership requirements. The petitioner's response to the director's request for 
evidence relating to this criterion did not include any evidence of her memberships or their membership 
requirements. On appeal, the petitioner submitted evidence of her membership in CAST and her 
membership in the Traditional Chinese Medicine Association and Alumni dated April 10, 2008, well 
after the petition was filed. The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 
petitioner's response to the request for additional evidence was not responsive and now purports to 
submit more responsive evidence. The AAO, however, will not consider this evidence for any 
purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N 
Dec. 533, 537 (BIA 1988). The appeal will be adjudicated based on the record of proceeding before 
the director. Moreover, the petitioner must establish eligibility as of the date of filing. 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). Thus, the 
petitioner's 2008 membership can not be considered. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). The record before the 
director did not establish the petitioner's membership in CAST. Moreover, the petitioner did not 
establish that CAST requires outstanding achievements of its members. On appeal, counsel asserts that 
CAST "is the largest national non-governmental organization of scientific and technological workers in 
China" and "has made significant contributions to the prosperity and development of science and 
technology [and] to the popularization of science and technology among the public." Counsel provides 
additional information about the organization of CAST. 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. 
1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Regardless, the 
large size of CAST is not indicative of an exclusive association that limits membership to those with 
outstanding achievements. We will not presume exclusive membership criteria fiom the distinguished 
reputation of the association itself, which may earn such a reputation irrespective of exclusive 
membership criteria. It is the petitioner's burden to establish the actual membership criteria in order to 
meet the plain language requirements of 8 C.F.R. 5 204.5(h)(3)(ii). The petitioner has not done so. 
In light of the above, the petitioner has not established that she 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 classiJication is sought. Such 
evidence shall include the title, date, and author of the material, and any necessary 
translation. 
The petitioner submitted foreign-Ian ua e articles urportedly about the petitioner in - 
dated September 23, 1992 and in dated December 29, 1996. While the petitioner 
captioned this evidence, she did not submit the necessary complete certified translation pursuant to 
8 C.F.R. 5 204.5(h)(3)(iii) and 8 C.F.R. 5 103.2(b)(3). The petitioner also submitted photographs of 
her appearing in an unidentified newspaper from 2003 and in Newsday in 2000. The director's request 
for additional evidence quoted the regulation at 8 C.F.R. tj 204.5(h)(3)(iii) and advised that "any 
document in a language other than English must be submitted in its native language accompanied by an 
English translation." The petitioner's response did not include any translations. The director concluded 
that the petitioner had not established that she has been covered in professional or major trade journals 
or other major media. 
On appeal, the petitioner submits another foreign language article from 1992 without a complete 
certified translation. This evidence does not comply with the translation requirements at 8 C.F.R. 
§ 204.5(h)(3)(iii) and 8 C.F.R. 8 103.2(b)(3). Counsel asserts that Jilin Daily is a provincial newspaper 
with a circulation of 417,000 and that Chengshi Wanbao is the evening newspaper of the city of 
Changchun. As stated above, the unsupported assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 17 I&N Dec. at 506. 
The petitioner did not submit the initial required evidence to meet this criterion, the complete certified 
translations of the foreign language articles. The record also lacks evidence that the newspapers that 
purportedly covered the petitioner are professional or major trade journals or other major media. 
Rather, even if we accepted counsel's assertions, the newspapers appear purely local. Finally, news 
coverage in 1992 and 1996, over 10 years before the petition was filed, cannot demonstrate the 
necessary sustained national or international acclaim. 
In light of the above, the record falls far short of establishing that the petitioner meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of speciJication for which classiJication is 
sought. 
The record contains no evidence relating to this criterion and the petitioner has never claimed to meet 
this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signiJicance in the field 
The petitioner has never claimed to meet this criterion. We note that the petitioner initially submitted a 
letter fiom one of the petitioner's patients attesting to her healing talent. In addition initially and in 
response to the director's request for additional evidence, the petitioner submitted a self-serving 
statement discussing her successful treatments, including the use of a "secret recipes passed down from 
[her] ancestors." The petitioner seeks to enter the United States as a doctor applying both traditional 
Chinese medicine and conventional medicine. We do not distinguish between medical treatments of 
different origins. At issue is whether the petitioner has made an original contribution of major 
significance to the field of medicine. We will not accept anecdotal statements from the petitioner 
regarding a "secret recipe" or fiom even a patient in lieu of controlled medical studies published in 
prestigious peer reviewed journals. The petitioner has not explained how a remedy that she keeps 
"secret" to use on her own patients rather than subjecting it to rigorous clinical testing and peer review 
such that, if effective, it could be widely available is a contribution of major significance to the field of 
medicine. Thus, the petitioner has not established that she meets this criterion. 
Evidence of the alien's authorship of scholarly articles in theJeld, in professional or major 
trade publications or other major media. 
The petitioner did not submit any scholarly articles initially or in response to the director's request for 
additional evidence which quoted 8 C.F.R. 5 204.5(h)(3)(vi). On appeal, the petitioner submitted two 
foreign language articles fiom 1987 published in Tuina without a certified translation of the title and 
author and without evidence that Tuina is a professional or major trade publication or other major 
media such as a prestigious peer-reviewed medial journal and without an explanation as to how these 
articles from 1987 demonstrate sustained acclaim in 2006 when the petition was filed. As stated above, 
evidence relating to this criterion was previously requested and will not be considered when submitted 
for the first time on appeal. See Matter of Soriano, 19 I&N Dec. at 766; Matter of Obaigbena, 
19 I&N Dec. at 537. 
The record before the director contained no evidence relating to this criterion. 
Evidence of the display of the alien's work in theJield at artistic exhibitions or showcases. 
The petitioner has never claimed to meet this criterion and the record contains no evidence relating to 
it. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner has never claimed to meet this criterion and the record contains no evidence relating to 
it. 
Evidence that the alien has commanded a high salary or other signzficantly high remuneration 
for services, in relation to others in the field. 
The petitioner has never claimed to meet this criterion and the record contains no evidence relating to 
it. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
The petitioner has never claimed to meet this criterion and the record contains no evidence relating to 
it. 
Comparable evidence pursuant to 8 C. F. R. $204.50 (4). 
On appeal, counsel asserts that the recommendation letters from the petitioner's patients, her invitations 
to attend various events and photographs of her with prominent individuals constitute comparable 
evidence pursuant to 8 C.F.R. 5 204.5(h)(4). 
The regulation at 8 C.F.R. 9 204.5(h)(4) permits the submission of "comparable evidence" where the 
regulatory criteria do not readily apply. Counsel has not explained why the above regulatory criteria do 
not readily apply to the petitioner's field. We note that an inability to meet a given criterion does not 
suggest that the criterion is not applicable to the petitioner's field. 
Initially, the petitioner submitted a letter from one patient, the former Prime Minister of Trinidad, 
asserting that she is a "generous person and a very good doctor." We are not persuaded that the 
anecdotal testimonials from one of the petitioner's patients selected by the petitioner, which may not be 
representative of all of her patients, is "comparable" to the ten objective criteria set forth at 8 C.F.R. 
§ 204.5@)(3). While 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), the 
reference letter submitted initially is not from a recognized medical expert. 
On appeal, the petitioner submits a letter from another patient, Nigeria's High Commissioner to 
Trinidad advising that he cherishes the ~etitioner's massane "and other treatment" but does address 
" u 
the petitioner's notoriety as a physician. The petitioner also submits letters from - 
another practitioner of traditional Chinese medicine, - a Clinical Assistant 
Professor at the Well Medical College of Cornell University, and President of the 
Chinese Medicine Treatment Centre in Trinidad. We are not persuaded that the general praise of the 
petitioner from a Chinese medicine practioner and two doctors is remotely comparable to the ten 
objective criteria discussed above. Letters from three individuals selected by the petitioner cannot be 
considered indicative of her national or international acclaim in the field of medicine. 
The petitioner was invited to attend a reception at the Chinese Embassy in Trinidad, where she was 
residing at the time. The petitioner submitted no evidence regarding the number of invitees or how 
the invitees were selected. An invitation to attend a reception for all of the Chinese expatriats 
residing in Trinidad at the time is not indicative of the petitioner's recognition in the field of 
medicine. 
The photographs, even if they do show the petitioner with distinguished individuals, cannot serve as 
comparable evidence to demonstrate national or international acclaim as we will not presume such 
acclaim from association. Rather, the petitioner must demonstrate her individual acclaim. 
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 herself as a 
doctor to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner has experience as a practitioner of traditional Chinese medicine, but is not persuasive that the 
petitioner's achievements set her significantly above almost all others in the field of medicine. 
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. tj 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.