dismissed EB-1A Case: Medicine

(b)(6)
DATE: 
JUN 0 7 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W ., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconside_r or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
on Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and 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)(l)(A), as an 
alien of extraordinary ability in the sciences. The director determined that the petitioner had not met 
the requisite criteria for classification as an alien extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award . Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. The director determined that the petitioner's evidence had 
met the categories of evidence at 8 C.F.R. § 204.5(h)(3)(iv) and (vi). 
On appeal, counsel asserts that the petitioner meets the regulatory categories of evidence at 8 C.F .R. 
§ 204.5(h)(3)(v) and (viii). For the reasons discussed below, the AAO will uphold the director's 
decision. 
I. LAW 
Section 203(b) ofthe 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. 
(b)(6)
Page 3 
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 H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability'' 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. !d.; 8 C.P.R.§ 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (91h Cir. 2009) aff'd in part 
596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the petition, the 
court took issue with the AAO's evaluation of evidence submitted to meet a given evidentiary 
criterion.' With respect to the criteria at 8 C.P.R. § 204.5(h)(3)(iv) and (vi), the court concluded that 
while US CIS may have raised legitimate concerns about the significance of the evidence submitted to 
meet those two criteria, those concerns should have been raised in a subsequent "final merits 
determination." !d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, ''the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.P.R.§ 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A. Evidentiary Criteria 
This petition, filed on April 11, 2011, seeks to classify the petitioner as an alien with extraordinary 
ability as an internal medicine physician and research scientist. At the time of filing, the petitioner 
was working as a resident physician on the Osler Housestaff in the Department of Internal Medicine 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
(b)(6)
Page 4 
a1 The petitioner has submitted documentation pertaining to the 
following categories of evidence 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. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue to 
be abandoned. Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs 
claims found to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not established that he meets this regulatory criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer 
additional arguments. The AAO, therefore, considers this issue to 
be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, 
the petitioner has not established that he meets this regulatory 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 specification for which classtfication is 
sought. 
The petitioner submitted an "Invited Review" article that he coauthored with two others in 
The regulations contain a separate criterion regarding the 
authorship of scholarly articles. 8 C.F.R. § 204.5(h)(3)(vi). Regardless, compiling and summarizing 
recent articles in a specific area such as the potential pathogenic role of xanthine oxidoreductase in 
respiratory and cardiovascular disorders is not "judging" the work in those articles. 
The petitioner submitted a self-prepared statement indicating that he has served "in the capacity of a 
judge of the work of others" by teaching and evaluating medical students, supervising and evaluating 
the housestaff, evaluating faculty members, interviewing candidates for housestaff and assistant 
research positions, serving on the Graduate Medical Education Committee, serving on the Quality 
Improvement and Quality Assurance Committee, serving on the Life Support Committee, and 
reviewing 'journal club" articles. The petitioner, however, failed to submit documentary evidence of 
his participation. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. Therefore, the AAO has not considered whether the petitioner meets the remaining categories of evidence. 
(b)(6)
Page 5 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). A petition must be filed with any initial evidence required by the regulation. 8 
C.F.R. § 103.2(b)(1). The nonexistence or other unavailability of primary evidence creates a 
presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). Regardless, the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv) requires evidence that the petitioner has served as "a judge of the work of others." 
The petitioner has not established that serving as an educator, a supervisor, a job interviewer, a 
member of the aforementioned committees, and an informal "journal club" reviewer equates to 
participation as a judge of the work of others in the field. The phrase "a judge" implies a formal 
designation in a judging capacity, either on a panel or individually as specified at 8 C.F.R. 
§ 204.5(h)(3)(iv). The regulation cannot be read to include every informal instance of performing 
one's job functions or providing feedback to one's colleagues. 
The petitioner submitted a May 4, 2010 e-mail from the Associate Editor of 
inviting the petitioner to review "ManuscriiJt ID entitled 
for the journal. The e-mail 
states: "I invite you to review this manuscript." The petitioner also submitted an e-mail from his 
su ervisor, Dr. asking the petitioner if he felt like reviewing a manuscript submitted to 
Invitations to serve as a 
peer reviewer are not tantamount to evidence of one's participation as a judge of others' work. The 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) specifically requires "[e]vidence of the 
alien's participation ... as a judge of the work of others." [Emphaisis added.] There is no 
documentary evidence from the editorial staff of the preceding journals indicating that the petitioner 
actually completed the preceding manuscript reviews. 
The petitioner submitted a January 25, 2010 e-mail from the Production Editor of 
(an academic journal publishing company) inviting the petitioner to review a paper entitled 
The 
petitioner also submitted a February 20, 2010 e-mail from the Production Editor thanking the petitioner 
for completing the review. 
The petitioner submitted a July 7, 2008 e-mail from Dr. 
thanking the petitioner for reviewing manuscript 
- -
for the journal. 
Editor-in-Chief of 
entitled 
The petitioner's participation as a peer reviewer of two manuscripts for 
meets the plain language requirements 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). Accordingly, the AAO affirms the director's finding 
that the petitioner's evidence meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director's decision determined that the petitioner failed to establish eligibility for this regulatory 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
(b)(6)
Page 6 
significance in the field." [Emphasis added.] Here, the evidence must be reviewed to see whether it 
rises to the level of original scientific or scholarly-related contributions "of major significance in the 
field." The phrase "major significance" is not superfluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU 
v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). The petitioner submitted various letters of 
support discussing his work. 
Dr. Professor of states: 
[The petitioner'sJ basic research project entitled' 
' can be described as - -
innovative and of very high quality. Pulmonary hypertension (PH) affects thousands of 
Americans each year .... In his study, [the petitioner] has demonstrated that the enhanced 
signaling of the receptor for the natural anticoagulant Activated protein C (APC), which is 
currently used in the treatment of sepsis, protects against the development of hypoxia­
induced PH. The results of this groundbreaking research may ultimately Improve 
physicians' ability to properly and effectively treat this devastating condition. 
* * * 
In the study ' 
[the petitioner] and his team analyzed Apolipoprotein E Epsilon 4 Allele (ApoE4), which is 
involved in cholesterol metabolism, as an important genetic risk factor for Alzheimer's 
disease. He discovered that while ApoE4 status is a sex neutral risk factor for dementia, its 
association with cognitive decline and impairment in verbal memory and learning is stronger 
among women. This work will, without any doubt, open the floor for future mechanistic 
studies to investigate the lack of sex neutrality in the associations between ApoE4+ and 
cognitive decline or impairment in specific domains of cognition. 
[The petitioner's] work resulted in a number of manuscripts published in highly respected 
peer-reviewed journals like the 
He also presented the 
results of his research projects in prestigious national and international meetings. 
Dr. asserts that the petitioner's research results "may ultimately improve physicians' ability 
to properly and effectively treat" PH and that the petitioner's work "will, without any doubt, open 
the floor for future mechanistic studies to investigate the lack of sex neutrality in the associations 
between ApoE4+ and cognitive decline or impairment." While the AAO does not dispute the 
originality of the petitioner's research and findings, as well as the fact that the field has taken some 
notice of his work, there is no evidence demonstrating that the petitioner's work was of major 
significance in the field at the time of filing the petition. Rather, Dr. appears to speculate 
about how the petitioner's findings may affect the field at some point in the future. Eligibility must 
be established at the time of filing the petition. 8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 14 
I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
(b)(6)
Page 7 
1981 ), that US CIS cannot "consider facts that come into being only subsequent to the filing of a 
petition." !d. at 176. 
Dr. Director, states: 
[The petitioner's] studies in the fields of acute lung injury and pulmonary hypertension have 
been selected for publication in some of the most prestigious journals, including his work: 
published in the 
published m the journal, 
published m the journal, and 
published in the to name a few. 
With regard to Dr. and Dr. comments regarding the petitioner's published and 
presented work, the regulations contain a separate criterion regarding the authorship of scholarly 
articles. 8 C.P.R. § 204.5(h)(3)(vi). The AAO will not presume that evidence 
relating to or even 
meeting the scholarly articles criterion is presumptive evidence that the petitioner also meets this 
criterion. 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, 
USCIS clearly does not view the two as being interchangeable. To hold otherwise would render 
meaningless the statutory requirement for extensive evidence or the regulatory requirement that a 
petitioner meet at least three separate criteria. Publications and presentations are not sufficient 
evidence under 8 C.P.R. § 204.5(h)(3)(v) absent evidence that they were of "major significance." 
Kazarian v. USCIS, 580 F.3d at 1036. In 2010, the Kazarian court reaffirmed its holding that the 
AAO did not abuse its discretion in finding that the alien had not demonstrated contributions of major 
significance. 596 F.3d at 1122. Thus, there is no presumption that every published article or 
conference presentation is a contribution of major significance; rather, the petitioner must document 
the actual impact of his article or presentation. 
The petitioner submitted citation evidence from Google Scholar reflecting an aggregate of 121 cites 
to thirteen of his published articles. In addition, the petitioner submitted copies of multiple articles 
that cited to his work. The AAO notes that the number of citations per article is minimal to moderate. 
For instance, the submitted documentation reflects that none of the petitioner's articles was 
independently cited to more than thirty times. Specifically: 
1. 
was cited to 29 times; 
2. 
was cited to 1 
7 times; 
3. 
was cited to 17 times; 
(b)(6)
Page 8 
4. 
cited to 14 times; 
5. 
cited to 14 times; 
6. 
to 12 times; 
7. 
. was cited to seven times; 
8. 
cited to three times; 
9. 
10. 
cited to twice; 
11. 
12. 
13. 
was cited to twice; 
was cited to twice; 
was cited to once: and 
was cited to once. 
was 
was 
was cited 
was 
was 
Merely submitting documentation reflecting that the petitioner's work has been cited by others in 
their published work is insufficient to establish eligibility for this criterion without documentary 
evidence reflecting that the petitioner's work has been of "major significance in the field." 
Generally, the number of citations is reflective of the petitioner's original findings and that the field 
has taken some interest in the petitioner's work. It is not, however, an automatic indicator that the 
petitioner's work has been of major significance in the field. The petitioner has not established that 
the minimal to moderate number of independent cites per article for his published work is indicative 
of original scientific contributions of major significance in the field. 
Dr. Professor of Medicine, Department of Medicine, 
states: 
----------------~ 
I served as the Dr. Professor and Director of the Division of Pulmonary and 
Critical Care Medicine m the Department of Medicine at 
* * * 
At the nation's leading medical institution, [the petitioner] worked in the 
laboratory of the famed Dr. 
* * * 
(b)(6)
Page 9 
. Acute lung injury (ALI) is a clinically devastating pulmonary complication of infection and 
systematic inflammation, characterized by noncardiogenic pulmonary edema leading to 
extreme hypoxemia .... Given its high rate of death, [the petitioner] focused his research on 
discovering new therapeutic treatments for this disease. For instance, in his study 
published in the 
[the petitioner] 
explored the role of anticoagulant activated protein C in ventilator-induced lung injury. 
Compiling the results of this study with those of a previous study, which revealed that 
activated protein C enhances pulmonary endothelial barrier function, he concluded that the 
protein C system is a crucial participant in vascular barrier homeostasis. This fundamental 
discovery of endothelial protein C rece tor in injury development and treatment will lead to 
the discovery of novel therapies for 
Another vital study that has improved the medical community's understanding of ventilator­
induced lung injury was [the petitioner's) study 
This study showed that high-tidal volume mechanical ventilation rapidly activates 
caspases within the lung, resulting in increased alveolar cell apoptosis. First published in 
the these findings have gone a long way in helping 
physicians and scientists use caspases and regulators of their activity as novel therapeutic 
targets. 
Dr. asserts that the petitioner's "fundamental discovery of endothelial protein C receptor in 
injury development and treatment will lead to the discovery of novel therapies for " but there is 
no documentary evidence showing that the petitioner's finding had already been implemented as a 
treatment method or that his work otherwise equated to a scientific contribution of major 
significance in the field at the time of filing the petition. As previously discussed, eligibility must 
be established at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter oflzummi, 22 I&N Dec. at 175. 
Dr. states that the petitioner's findings in "have gone a long 
way in helping physicians and scientists use caspases and regulators of their activity as novel 
therapeutic targets," but Dr. fails to provide specific examples indicating that the petitioner's 
work has substantially impacted treatment methods in the medical field or was otherwise of major 
significance in the field. According to the citation evidence submitted by the petitioner, his article 
entitled ' has been 
cited to a dozen times since its publication in 2009 and his article entitled ' 
has been cited to 17 times since its publication in 2008. The petitioner has not 
established that this moderate level of citation is indicative of original scientific contributions of 
major significance in the field. 
Dr. further states: 
[The petitioner] has presented his research findings ... at medical conferences for the 
following prestigious associations: 
(b)(6)
Page 10 
and the 
among others. 
The AAO notes that many professional fields regularly 
hold meetings and symposia 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 necessarily involve original 
contributions of major significance in the field. There is no documentary evidence showing that 
any of the petitioner's specific conference presentations are frequently cited by other medical 
researchers, have significantly impacted the field, or otherwise rise to the level of contributions of 
major significance in the field. While presentation of the petitioner's work demonstrates that his 
findings were shared with others and may be acknowledged as original contributions based on their 
selection for presentation, the AAO is not persuaded that presentations of the petitioner's work at 
various medical conferences are sufficient evidence that his work is of "major significance" in the 
field as a whole and not limited to the engagements in which his work was presented. The 
petitioner has failed to establish, for example, the impact or influence of his presentations beyond 
those in attendance so as to establish that his work was of major significance in the field. 
Dr. Associate Professor of Medicine, _____ ------~-- states: 
At [the petitioner] mastered several basic and advanced scientific research 
methods in investigating molecular markers that contribute to the etiology and outcome of 
lung injury and pulmonary hypertension. . . . In studying several potential therapeutic 
targets for these devastating diseases, [the petitioner] was able to demonstrate, in two 
separate basic research projects, that the over-expression of Endothelial Protein C Receptor 
protects from both ventilator-induced lung injury and hypoxia-induced pulmonary 
hypertension. These breakthrough findings constitute the start of a whole new avenue of 
research that will hopefully find a cure for these serious medical conditions. 
Dr. asserts that the petitioner's findings regarding the over-expression of 
Endothelial Protein C Receptor "constitute the start of a whole new avenue of research that will 
hopefully find a cure for these serious medical conditions," but he fails to provide specific examples 
of how the petitioner's work has already been applied in the medical field at a level indicative of 
contributions of major significance. As previously discussed, eligibility must be established at the 
time of filing the petition. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. Matter of Izummi, 22 I&N Dec. at 175. While the petitioner's medical research studies are no 
doubt of value, it can be argued that any research must be shown to be original and present some 
benefit if it is to receive funding and attention from the scientific community. Any Ph.D. thesis or 
postdoctoral research, in order to be accepted for graduation, publication, presentation, or funding, 
must offer new and useful information. It does not follow that every physician who performs 
original research that adds to the general pool of knowledge has inherently made a contribution of 
"major significance" in the field. 
Dr. 
states: 
Associate Professor of Medicine, 
(b)(6)
Page 11 
[The petitioner's] work ... showed, for the first time, that a potential mechanism of lung 
injury is the activation of the signaling pathway. Furthermore, by using 
specific pharmacologic inhibitors of this pathway, he was able to significantly attenuate 
ventilator-induced lung injury. In another study, [the petitioner] and his colleagues 
demonstrated that the activation of the endothelial protein C receptor (EPCR) by its ligand, 
activated protein C (APC), the proven therapy in severe infections, has remarkable 
protective effects against lung injury. Obviously, taken together, these findings represent 
major breakthroughs that will ultimately help to streamline new modalities to better treat and 
hopefully cure this devastating condition. 
Dr. comments that the petitioner's "findings represent major breakthroughs that will 
ultimately help to streamline new modalities to better treat and hopefully cure" acute lung injury, 
but he does not provide specific examples of how the petitioner's original work had already 
significantly impacted the field or otherwise qualified as a scientific contribution of major 
significance in the field at the time of filing the petition. As previously discussed, eligibility must 
be established at the time of filing. 8 C.P.R.§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Jzummi, 22 I&N Dec. at 175. 
Dr. 
states: 
Associate Professor of Medicine, 
[The petitioner] masters all the cellular, biologic and molecular laboratory techniques that 
allowed him to explore the role of the enzyme xanthine oxidoreductase (XOR) in the 
cytoskeletal remodeling and capillary permeability associated with the pathogenesis of 
ventilator-induced lung injury. In addition, he studied the role of endothelial protein C 
receptor (EPCR) in vascular remodeling using a murine model of hypoxia-induced 
pulmonary hypertension. Moreover, he was involved in another project assessing the role of 
simvastatin, a lipid-lowering drug, in a rat model of monocrotaline-induced pulmonary 
hypertension. His cornerstone findings opened the door to a whole new era of research that 
will now target those pathways for finding drugs that can hopefully cure these common and 
devastating diseases, a task that is currently impossible. Due to its scientific importance, his 
research has led to the publication of several outstanding papers in frontline peer-reviewed 
scientific journals, including the 
and ' among others. In addition, his work has 
been cited by many other researchers in professional journals, as many as ten times in less 
than two years. 
Dr. states that the petitioner has mastered "all the cellular, biologic and molecular laboratory 
techniques that allowed him to explore the role of the enzyme xanthine oxidoreductase (XOR) in 
the cytoskeletal remodeling and capillary penneability associated with the pathogenesis of 
ventilator-induced lung injury," but assuming the petitioner's research skills are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Department of Transportation, 22 
I&N Dec. 215, 221 (Comm'r 1998). In addition, Dr. asserts that the petitioner's "findings 
opened the door to a whole new era of research that will now target those pathways for finding 
(b)(6)
Page 12 
drugs that can hopefully cure these common and devastating diseases, a task that is currently 
impossible." Dr. comments on the future promise of the petitioner's research and the impact 
that may result from his work, rather than how the petitioner's past research already qualifies as a 
contribution of major significance in the field. The assertion that the petitioner's research results 
have "opened the door" to possibly finding a cure is not adequate to establish that his findings are 
already recognized as major contributions in the field. Once again, eligibility must be established at 
the time of filing the petition. 8 C.F .R. § 103 .2(b )(1 ), (12); Matter of Katigbak, 14 I&N Dec. at 49 . 
. There is no documentary evidence showing that the petitioner's original work has been extensively 
applied in the medical field, that his published findings were heavily cited by independent 
researchers, or that his work otherwise equated to original scientific contributions of major 
significance in the field. According to the citation evidence submitted by the petitioner, none of his 
articles in 
were cited to more than 1 7 times per article. The petitioner has not established 
that this moderate level of citation rises to the level of original scientific contributions of major 
significance in the field. The petitioner's field, like most science, is research-driven, and there 
would be little point in presenting or publishing findings that did not add to the general pool of 
knowledge in the field. As previously discussed, the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires 
that the petitioner's contributions not only be original but of"major significance" in the field. 
Dr. Associate Professor of Medicine, 
and Associate Editor for 
states: 
[The petitioner] is an accomplished scientist who has made major contributions in our 
understanding of the pathophysiology of acute lung injury. He was actively involved in an 
important study on the "Protective role of signaling in mechanical 
stress through inhibition of p38 mitogen-activated protein kinase in mouse lung" that was 
recently published in Because of the importance of his 
findings, I have cited his study in my own publication, 
' an editorial that was 
published in 2010 in 
Dr. asserts that the petitioner "has made major contributions in our understanding of the 
pathophysiology of acute lung injury," but merely repeating the language of the statute or 
regulations does not satisfY the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, No. 95 civ 10729, 1997 WL 188942 at *1, *5 (S.D.N.Y.). The petitioner has not 
established that the level of citation of his articles in 
is indicative of scientific 
contributions of major significance in the field. In addition, while Dr. states that she cited to the 
petitioner's study in her own publication, there is no documentary evidence showing that the 
petitioner's work was of major significance in the medical field as a whole. 
Dr. Department of Physiology, states: 
(b)(6)
Page 13 
This letter is written in reference to [the petitioner] and his original research. I have cited 
his work m my own 
publication, His work has 
definitely contributed to the better understanding of the role of oxidative damage in various 
disease processes . 
I know of [the petitioner] through his original research - I have not worked or collaborated 
with him in research and have become aware of him through his research, which aided me 
with my own. 
Dr. asserts that he cited to the petitioner's research article and that the petitioner's work "has 
definitely contributed to the better understanding of the role of oxidative damage in various disease 
processes ," but Dr. does not provide specific examples of how the petitioner's findings have 
been implemented throughout the medical field or were otherwise of major significance in the field. 
Dr. , Associate Professor ofMedicine, states: 
My focus of research lies within the realms of ventilator-associated lung injury animal 
models. In my own publication, 
I 
--~--.---
have cited [the petitioner's] work "Activated protein e protects against ventilator-induced 
pulmonary capillary leak." I would like to note that I know of [the petitioner] through his 
original research and I have not worked or collaborated with him neither clinically nor 
through research. His work has clearly advanced the understanding of the protein e system, 
showing that it is a crucial participant in vascular barrier homeostasis. This original concept 
has aided me in advancing my own research work. 
Dr. states that he cited to the petitioner's work and that the petitioner's concept aided him 
in advancing his own research, but Dr. fails to provide specific examples of how the 
petitioner's original work impacted the medical field at a level indicative of a scientific contribution 
of major significance. According to the citation evidence submitted by the petitioner, his article 
entitled "Activated protein e protects against ventilator-induced pulmonary capillary leak" has been 
cited to a dozen times since its publication in 2009. The petitioner has not established that this 
moderate level of citation is indicative of a scientific contribution of major significance in the 
medical field. 
The opinions of the petitioner's references are not without weight and have been considered by both 
the director a!)d the AAO. users may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (eomm'r. 
1988). users is, however, ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. !d. The submission of reference letters supporting the 
petition is not presumptive evidence of eligibility; users may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 
I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be 
evidence as to "fact"). Thus, the content of the references' statements and how they became aware of 
the petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
(b)(6)
Page 14 
independent evidence that one would expect of physician researcher who has made original 
contributions of major significance in the field. Without additional, specific evidence showing that 
the petitioner's original work has been unusually influential, widely applied throughout his field, or 
has otherwise risen to the level of contributions of major significance, the AAO cannot conclude 
that he meets this regulatory criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner has documented his authorship of scholarly articles and, thus, has submitted qualifying 
evidence pursuant to 8 C.P.R. § 204.5(h)(3)(vi). Accordingly, the AAO affirms the director's finding 
that the petitioner's evidence meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
On appeal, counsel states: 
As a leading physician and researcher, [the petitioner] has played critical roles in each and 
every hospital in which he has worked, in his clinical practice, elite research and educating 
fellow doctors with his own elite skills. 
Specifically, we refer to initially submitted support letters from 
describing [the petitioner's] role as a Research Scientist since 2006 and also since 
2009 as a House Staff Physician and the leading and critical roles he performed providing 
patient care and teaching, as well as his work furthering his original research. 
Aside from counsel's appellate brief does not specifically point to the leading or 
critical roles performed by the petitioner at any other hospitals. A passing reference without 
substantive arguments is insufficient to raise that ground on appeal. Des ravines v. US. Atty. Gen., 
343 Fed.Appx. 433, 435 (11th Cir. 2009). 
In addition, counsel states: 
We respectfully submit that [the petitioner] also stands out from his peers through the variety of 
ways in which he regularly reviews the work of medical professionals within his field of 
Medical research. . . . [The petitioner] has been asked to judge the work of numerous other 
senior physicians who do not have his expertise. . . . Please see previously submitted copies of 
the invitations from journal editors for [the petitioner] to review articles submitted to their 
journals. 
The regulations contain a separate criterion regarding the petitioner's participation as a judge of the 
work of others in his field. 8 C.P.R. § 204.5(h)(3)(iv). The documentation pertaining to the 
petitioner's participation as a judge has already been addressed earlier in this decision. Regardless, the 
petitioner has not established that his roles as a peer reviewer for journals, a teacher, and a staff 
supervisor at the institutions that employed or trained him were equivalent to performing in a leading 
or critical role for organizations or establishments that have a distinguished reputation. For example, 
(b)(6)
Page 15 
the petitiOner has not established that his two instances of participation as 
manuscripts submitted to 
constitute a leading or critical role for the preceding journals. 
The record adequately demonstrates that 
a peer reviewer of 
and 
have a distinguished reputation. The next issue to be determined is whether 
the petitioner has performed in a leading or critical role as a research scientist and in his "position 
on the at 
1 
The petitioner submitted a letter from Dr. 
stating: 
Assistant Professor of Medicine, 
[The petitioner] was selected to work at in the division of 
Pulmonary and Critical Care Medicine, the largest program of its kind, and of similar 
programs, the one awarded the highest research funding each year. His recruitment here 
already speaks extremely highly of his outstanding skills. Indeed, in a very short period of 
time, he distinguished himself by his numerous publications in prestigious peer-reviewed 
journals and many other manuscripts under review. 
* * * 
Specifically, using sophisticated research techniques, [the petitioner] showed that the 
activation of the endothelial protein C receptor (EPCR) by its ligand, activated protein C 
(ASPC), the endogenous anticoagulant and proven sepsis therapy, has remarkable protective 
effects against hypoxia-induced pulmonary hypertension. This work is of utmost importance 
for the fight against this deadly disease. 
* * * 
I am delighted to closely collaborate with [the petitioner] in performing the challenging 
tasks of compiling and analyzing clinical data focusing on the "overuse of proton pump 
inhibitors among academic and non-academic 
hospitalists" and the "role of interdisciplinary 
communication in the treatment of narcotic-induced constipation in the Hos ital Setting." 
The results of these projects will· be presented at the eeting 
and the meeting .... Without [the petitioner's] insightful 
and original work these projects would not have succeeded. His critical thinking and 
analytic skills are exemplary, and his aptitude for designing and conducting complex 
research projects is profound. He is one of the few physician-scientists able to multi task and 
to bring high-quality research to fruition in such short periods of time. 
3 The ' is a medical residency training program offered at 
"The goal of our residency training program is to train future leaders in medicine. To that end, the department 
provides three years of comprehensive training in general internal medicine. The program offers a wide variety of 
experience in acute and ambulatory medicine and many opportunities to develop scholarship in research, teaching and 
patient care." See accessed on May 22, 2013 , copy 
incorporated into the record of proceeding. 
(b)(6)
Page 16 
In summary, [the petitioner] truly played a leading role that was critical to the success of our 
research projects, as well as to the advancing of our medical center's goals. 
Dr. concludes his letter by asserting that the petitioner "played a leading role that was 
critical to the success of our research projects," but merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd , 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner , No. 95 civ 10729, 1997 WL 188942 at *1 , *5 (S.D.N.Y.). 
The petitioner also submitted a letter of support from Dr. stating: "As an Internal 
Medicine physician-scientist, [the petitioner] plays an integral role in treating and saving the lives of 
countless patients, as well as advancing modem science. . . . I am certain that his practice will 
continue to benefit patients throughout the U.S .. . . " Dr. letter then provides two examples 
of serious patient medical conditions diagnosed by the petitioner and goes on to discuss the 
petitioner'sresearch activities at 
In general, a leading role is evidenced from the role itself, and a critical role is one in which the alien is 
responsible for the success or standing of the organization. While the petitioner performed admirably 
on the research projects and medical tasks to which he was assigned, there is no evidence 
demonstrating that his roles as a researcher and resident physician on the were 
leading or critical for the For example, there is no 
organizational chart or other evidence documenting where the petitioner's position fell 
within the general hierarchy of the physicians, faculty, and researchers employed by Johns Hopkins. 
The AAO notes that the petitioner 's role on the involved "three years of 
comprehensive training in general internal medicine." The petitioner 's evidence does not 
demonstrate how his temporary medical residency training appointment differentiated him from the 
numerous other physicians and researchers working at let alone the Hospital and 
School of Medicine's professors and department heads. The documentation submitted by the petitioner 
does not differentiate him from other researchers and physicians so as to demonstrate 
his leading role, and fails to establish that he was responsible for the Hospital and School of Medicine's 
success or standing to a degree consistent with the meaning of"critical role." 
The petitioner asserts that he performed in a leading and critical role for the 
The petitioner submitted a letter of support from 
Dr. Staff Scientist, Intramural Research Program, 
stating: 
The in the NIA provides a stimulating academic setting 
for a comprehensive effort to understand aging through multidisciplinary investigator­
initiated research. In addition, an effort is made to encourage synergistic interactions and 
collaborations . Over the past two years, we were delighted to closely collaborate with [the 
petitioner] in the design and conduct of couple of research projects in the areas of genetic 
and environmental risk factors for dementia and metabolic syndrome. 
* * * 
(b)(6)
Page 17 
Our recent research projects which focused on the 
and the 
' are ones of the most challenging areas of expertise nowadays, particularly in 
nutrition and epidemiology. [The petitioner] played an instrumental role in the success of 
these projects by bringing to the table the clinical skills of an excellent medical doctor and 
the scientist's thoughtful expertise in scientific methodology and critical appraisal of 
published literature. [The petitioner] has an in-depth knowledge of all the different aspects 
of the scientific problems to which the group was confronted, and a complete dedication to 
seeking solutions to those problems and sharing them with the other members of the group. 
The record adequately demonstrates that the has a distinguished reputation. While the 
petitioner collaborated on research with the _ there is no evidence demonstrating that his role 
within the was leading or critical to the The documentation submitted by the petitioner 
does not differentiate him from the ther researchers and staff scientists so as to demonstrate his 
leading role, and fails to establish that he was responsible for the success or standing to a degree 
consistent with the meaning of"critical role." 
The petitioner also asserts that he has performed m a leading or critical role for the 
While 
the record adequately demonstrates that the has a 
distinguished reputation, there is no evidence showing that the Faculty of 
Medical Sciences has a distinguished reputation. In addition, the petitioner failed to submit evidence 
(such as letters of support from the faculty) explaining how his role was leading or critical to the 
preceding institutions as a whole. The regulation at 8 C.F.R. § 204.5(g)(l) requires that evidence of 
experience "shall" consist of letters from employers. Moreover, there is no organizational chart or 
other evidence documenting where the petitioner's medical residency positions fell within the general 
hierarchy of the of Medical Sciences and the 
The petitioner failed to submit evidence differentiating him from the 
institutions' other physicians and faculty so as to demonstrate his leading role, and fails to establish that 
he was responsible for the institutions' success or standing to a degree consistent with the meaning of 
"critical role." 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
III. CONCLUSION 
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. 
(b)(6)
Page 18 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence submitted is not indicative of a level of expertise consistent with the small percentage at the 
very top of the field or sustained national or international acclaim, the AAO need not explain that 
conclusion in a final merits determination.4 Rather, the proper conclusion is that the petitioner has 
failed to satisfY the antecedent regulatory requirement of three categories of evidence. !d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the 
petition may not be approved. 
The AAO may deny an application or petition that fails to comply with the technical requirements 
of the law even if the Service Center does not identifY all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 145 (3d Cir. 
2004)(noting that the AAO conducts appellate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section 204(b) of 
the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) 
(2003); Matter of Aurelio , 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole 
authority with the jurisdiction to decide visa petitions).