dismissed EB-1A Case: Microbeam Analysis

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
? U.S. Citizenship 
) and Immigration 
Services 
bz 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
JUN 2 5 2009 
LIN 07 057 5 1768 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification of the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of 
extraordinary ability in the sciences. The director determined that the petitioner had not established the 
beneficiary's sustained national or international acclaim required for classification as an alien of extraordinary 
ability. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. 5 204.5(h)(3). 
 An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. 3 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. 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. 5 204.5(h)(2). We address the evidence 
submitted and the petitioner's contentions in the following discussion of the regulatory criteria relevant to his 
case. The petitioner does not claim that the beneficiary is eligibile under any criteria not addressed below. 
In this case, the petitioner seeks classification of the beneficiary as an alien with extraordinary ability in the 
sciences, specifically as a researcher. The petitioner initially submitted supporting documents including 
information about the petitioner, the beneficiary's resume, letters of recommendation, proof of the beneficiary's 
education, awards, presentations, articles written by the beneficiary and corresponding citations, and copies of 
patents. In response to a Request for Evidence (RFE) dated February 6, 2008, the petitioner submitted 
information about publications in which the beneficiary's work appeared, additional letters of recommendation, 
additional awards, and additional information about the petitioner. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in thejeld of endeavor. 
The petitioner submitted evidence of the beneficiary's receipt of the 2006 Kurt F.J. Heinrich award for 
Outstanding Young Microbeam Analysis Society Scientist. The petitioner presented no information about this 
award including who was eligible for it or how the recipient was chosen. By the name of the award, it seems to 
be limited to scientists that are members of the Microbeam Analysis Society ("MAS") and who are of a certain 
age. The petitioner presented no evidence to show how, if the competition was restricted to scientists of a 
particular age and societal membership, the award constitutes an award for excellence in the field if it did not 
allow all of those working in the field to participate. In response to the RFE, counsel refers us to a letter written 
by w 2006 MAS President, which states that the award is peer-nominated and is awarded to 
"scientists who have made outstanding contributions to a field within the broad area of microbeam analysis. 
The award is recognized internationally and the worldwide pool of potential nominees includes all researchers 
under the age of 40 working in the field of microbeam analysis." 
In the original submission, counsel states that the beneficiary "received several important awards as a graduate 
student, including the 2000 Oxford Instruments award the AMAS-IUMAS 2000 Student Award, a 1998-2000 
Australian postgraduate award, and in 1999, the Microbeam Analysis Society's distinguished scholar award." It 
does not appear that these awards were open to professionals but were instead restricted to students. The 
petitioner presented no evidence to show either who was eligible for the competitions or how, if the 
competitions were restricted to students, the awards constitute awards for excellence in the field if they did not 
allow those working in the field, i.e. professional scientists, to participate. 
For all of the above reasons, the petitioner has failed to establish that the beneficiary meets this criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in thejield for which classiJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the beneficiary and, 
as stated in the regulation, be printed in professional or major trade publications or other major media. To 
qualify as major media, the publication should have significant national or international distribution. An alien 
would not earn acclaim at the national level from a local publication. Some newspapers, such as the New York 
Times, nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.' 
In the original submission, counsel stated that the petitioner demonstrated eligibility under this criterion through 
citations to the beneficiary's work in scholarly articles. These articles are not primarily about the beneficiary or 
I 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. 
For example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 4 
his work, but instead the articles' authors use the beneficiary's work to support their own findings. These 
citations will be considered in greater depth in the discussion below of 8 C.F.R. 5 204.5(h)(3)(vi). 
For the above stated reasons, the petitioner has failed to show that the beneficiary meets this criterion. 
(iv) 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 alliedjield of specijication for which classlJication is sought. 
The petitioner claims that the beneficiary meets this criterion due to his position as an adjunct professor at the 
State University of New York's College of Nanoscale Science and Engineering and his supervision of a 
graduate student at that school. The weight given to evidence submitted to fulfill the criterion at 8 C.F.R. 
5 204.5(h)(3)(iv) depends on the extent to which such evidence demonstrates, reflects, or is consistent with 
sustained national or international acclaim at the very top of the alien's field of endeavor. 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. 5 204.5(h)(2). Working as a professor at a university inherently involves 
judging the work of students. Duties or activities which nominally fall within a given criterion at 8 C.F.R. 
5 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent to the occupation itself 
such as a professor or teacher judging the work of his students. 
In addition, the petitioner claims to meet this criterion due to the beneficiary's review of manuscripts and 
editorial work for scientific journals. Because peer review is a common feature of the publication process for 
many scientific journals, service as a peer reviewer in and of itself will not satisfy this criterion without evidence 
that the alien served on the editorial board, completed a substantial number of reviews, or has otherwise 
conducted peer review of other scientists' work in a manner consistent with sustained national or international 
acclaim. In the original submission, counsel stated that the beneficiary "referees scientific papers for the 
journals Nature Materials, Nano Letters, Applied Physics Letters, Journal of Microscopy and Scanning." The 
letter from editor of Nature Materials, states that the beneficiary "has previously reviewed 
papers submitted to Nature Materials in his field of expertise, environmental scanning electron microscopy 
(ESEM) and electron beam interactions with materials." This letter does not specify how many articles were 
reviewed by the beneficiary. The letter from -, editor of Scanning, states that the beneficiary "is a 
reviewer for the journal Scanning. Reviewers chosen by Scanning are experts selected from around the globe on 
the basis of their ability to judge the scientific quality and originality of highly technical research papers . . . ." 
states that he views the beneficiary's work as a reviewer for Nature Materials as "particularly 
impressive" and to be chosen as a reviewer for Applied Physics Letters and Nano Letters "is also exceptional." 
The letter from states that reviewers for Nature Materials, Nano Letters and Applied 
Physics Letters "must not only be able to judge the scientific quality and originality, but also the impact that a 
specific original paper will make on the field of study." None of this evidence states how many reviews have 
been completed by the beneficiary or shows that serving as a reviewer requires national or international acclaim 
as opposed to being chosen for the task because of familiarity with the subject matter. 
Accordingly, the petitioner has failed to establish that the beneficiary meets this criterion. 
(v) Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related contributions of 
major signiJicance in the$eld. 
Page 5 
The petitioner submitted more than ten letters of recommendation supporting his claim of the beneficiary's 
eligibility under this criterion. The opinions of experts in the field, while not without weight, cannot form 
the cornerstone of a successful extraordinary ability claim. U.S. Citizenship and Immigration Services 
(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 (Commr. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795-796. 
Thus, the content of the experts' statements and how they became aware of the beneficiary'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, independent evidence of original contributions 
of major significance that one would expect of 
 researcher who has sustained national or international 
acclaim. 
The September 5, 2006 letter from 
 vice president and chief technology officer of the petitioner, 
states that the beneficiary "has made an important contribution to the development of detector structures 
designed for ultra-high resolution ESEM imaging of non-conductors, and ESEM analysis of hydrated materials 
[and] has made ke contributions to current understanding of the information contained in ESEM images." The 
letter from a frequent co-author of the beneficiary's and his former doctoral thesis advisor, 
states that the beneficiary developed "a novel ESEM-based, high resolution nanofabrication technique" and 
"developed the advanced theories and experimental methodologies . . . to explain ESEM charging and contrast 
formation phenomena." The letter fro- a frequent collaborator of the beneficiary's, states that 
the beneficiary "pioneered the practice of introducing reactive gases in the chamber in order to initiate chemical 
reactions directed by the electron beam." The letter written by states that the beneficiary made 
"seminal contributions to the theory of ESEM charge control and signal detection." The letter from = 
, researcher at the Lawrence Livermore National Laboratory, states that the beneficiary is at the top of 
his field for "cutting-edge electron beam techniques and interpretation of complex results from such techniques, 
especially when they are applied to novel advanced materials systems." further stated that the 
beneficiary "introduced and subsequently perfected" an ESEM theory of "charge control and the physics behind 
ESEM image contrast formation mechanisms." The letter from states that he knows of no one 
but the beneficiary "who possesses the level of ESEM expertise required" to manage and lead the ESEM 
research projects sponsored by the petitioner. 
The May 24, 2006 letter from 
 states that the beneficiary "made outstanding contributions to the 
understanding of ESEM charge control and electron image formation. Most notably, his work elucidated the 
complex mechanisms through which gaseous ions stabilize charging when a dielectric is irradiated 
simultaneously by energetic electrons and soft-landing ions." stated that the petitioner capitalized on the 
beneficiary's research by developing "ultra-high resolution magnetic immersion lens ESEM, a technique that 
implements ESEM charge control under the conditions needed for secondary electron imaging with nanometer 
resolution" and that such developments amount to "timely advances in state-of-the-art techniques." The June 8, 
2006 letter from., professor at the University of Reims, states that the beneficiary "made 
outstanding contributions to the field of [ESEM], . . . [by] develop[ing] models of the complex physical 
processes that take place when materials are probed by ESEM. . . . [T]he understanding gained from the science 
has helped understand information contained in ESEM images, and to improve ESEM detectors." 
Page 6 
These letters do not provide specific examples of how the beneficiary's contributions have influenced the field 
of electron microscopy nor do any of them demonstrate how the beneficiary's contributions amount to 
contributions of major significance to the field as a whole. Even though the second group of letters were written 
from scientists with whom the beneficiary has not worked directly, the ten regulatory criteria at 8 C.F.R. 
5 204.5(h)(3) reflect the statutory demand for "extensive documentation" in section 203(b)(l)(A)(i) of the Act. 
Opinions from witnesses whom the petitioner has selected do not represent extensive documentation. 
Independent evidence that already existed prior to the preparation of the visa petition package carries greater 
weight than new materials prepared especially for submission with the petition. 
The March 3 1,2008 letter from tates that the beneficiary's contribution to the field is evidenced by "his 
impressive publication record" and the invitations issued for him to present at conferences and symposia. The 
letter from - agrees with conclusions. While the beneficiary'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. It does not follow that every researcher who 
performs original research that adds to the general pool of knowledge has inherently made a contribution of 
major significance to the field as a whole. The beneficiary's field, like most science, is research-driven, and 
there would be little point in publishing research that did not add to the general pool of knowledge in the 
field. According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not superfluous 
and, thus, that it has some meaning. To be considered a contribution of major significance in the field of 
science, it can be expected that the results would have already been reproduced and confirmed by other 
experts and applied in their work. Otherwise, it is difficult to gauge the impact of the beneficiary's work. 
The petitioner also submitted evidence that patents had been applied for based on the beneficiary's work. A 
patent is not necessarily evidence of a track record of success and influence over the field as a whole. See 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15, 22 1 n. 7, (Commr. 1998). Rather, the 
significance of the innovation must be determined on a case-by-case basis. Id. 
 does not 
indicate that they have licensed or marketed the beneficiary's patented device. The impact of the device on 
the scientific community is not documented in the record. In addition, the letter from states that 
one of the patent applications was abandoned "due to the discovery of related prior art that would have made 
patent enforcement impractical." 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
(vi) Evidence of the alien's authorship of scholarly articles in the Jield, in professional or major trade 
publications or other major media. 
Frequent publication of research findings is inherent to success as an established scientist and does not 
necessarily indicate the sustained acclaim requisite to classification as an alien with extraordinary ability. 
Evidence of publications must be accompanied by documentation of consistent citation by independent 
experts or other proof that the alien's publications have had a significant impact in his field. The petitioner 
submitted the following articles authored by the beneficiary: "Electron flux controlled switching between 
electron beam induced etching and deposition;" "Field-enhanced secondary electron emission: imaging 
defect distributions in dielectrics;" "Secondary electron imaging of nonconductors with nanometer 
resolution," published in the 2006 Applied Physics Letters; "Two-stage gas amplifier for ultrahigh resolution 
low vacuum scanning electron microscopy," published in the 2006 Review of Scient2Jic Instruments; 
"Secondary electron contrast in low-vacuum/environmental scanning electron microscopy of dielectrics" 
published in the 2005 Applied Physics Reviews; "Charging Processes in Low Vacuum Scanning Electron 
Microscopy," published in the 2004 Microscopy and Microanalysis; "Interpretation of secondary electron 
images obtained using a low vacuum SEM," published in the 2003 Ultramicroscopy; "Cathodoluminescence 
Efficiency Dependence on Excitation Density in n-Type Gallium Nitride," published in the 2003 Microscopy 
and Microanalysis; "Quantification of electron-ion recombination in an electron-beam-irradiated gas 
capacitor," published in the 2002 Journal of Physics; "On the role of electron-ion recombination in low 
vacuum scanning electron microscopy," published in the 2002 Journal of Microscopy; "X-ray spectrometry 
investigation of electrical isolation in GaN," published in the 2002 Journal of Applied Physics; "Depth- 
resolved cathodoluminescence microanalysis of near-edge emission in 111-nitride thin films," published in the 
2001 Journal of Applied Physics; "Effects of excitation density on cathodoluminescence from GaN" and 
"Cathodoluminescence depth profiling of ion-implanted GaN," published in the 2001 Applied Physics 
Letters; "Imaging charge trap distributions in GaN using environmental scanning electron microscopy" and 
"Nanoindentation of epitaxial GaN films," published in the 2000 Applied Physics Letters; "The Effects of 
Space Charge on Contrast in Images Obtained Using the Environmental Scanning Electron Microscope" and 
"The Role of Induced Contrast in Images Obtained Using the Environmental Scanning Electron Microscope," 
published in the 2000 Scanning; "Depth profiling of GaN by cathodoluminescence microanalysis," "Direct 
experimental evidence for the role of oxygen in the luminescent properties of GaN," "Detection of Cr 
impurities in GaN by room temperature cathodoluminescence spectroscopy," and "Depletion layer imaging 
using a gaseous secondary electron detector in an environmental scanning electron microscope," published in 
the 1999 Applied Physics Letters; "Electron Beam Induced Impurity Electro-Migration in Unintentionally 
Doped GaN," published in the 1999 MRS Internet Journal of Nitride Semiconductor Research; and "Monte 
Carlo Modeling of Cathodoluminescence Generation Using Electron Energy Loss Curves," published in the 
1998 Scanning. 
With the original petition, the petitioner submitted a self-generated list of 155 articles citing the beneficiary's 
work. From the IS1 Web of Knowledge list submitted in response to the WE, the petitioner presented 
evidence that the beneficiary's articles have been cited 367 times. From that list, we are unable to determine 
how many independent citations were made to the beneficiary's work as opposed to citations in one of the 
beneficiary's articles to others authored by him, however, it seems as if the vast majority of citations were 
made by independent articles. When compared to the beneficiary's references, however, the beneficiary's 
record pales in comparison: has authored "more than 150 referred articles (in International 
Journals), f "coauthored over 125 papers," and has "published numerous (over 
eighty) articles in prime international journals in areas of physics, materials science, and nanotechnology." 
From the information submitted about his recommenders, it seems as if the top of the profession is at least 
one step above the current position of the beneficiary. 
To demonstrate the standing of the journals that published the beneficiary's articles, the petitioner submitted 
the following letters: the letter submitted from - editor of Nature Materials states that the 
publication "is the leading journal in materials science." The material submitted regarding Microscopy and 
Microanalysis indicates that it is "an [ilnternational ljlournal for the [b]iological and [plhysical [slciences." 
Page 8 
letter states that "applied physics and microscopy journals such as Applied Physics Letters, Nano 
Letters, Journal of Applied Physics, Physical Review B, Nanotechnology, Ultramicroscopy, Journal of 
Microscopy and Scanning . . . vets all submissions in a rigorous peer-review processes in which the editors 
solicit experts to anonymously review and asses [sic] each paper. . . . The criteria of originality, timeliness 
and impact on the field of study are particularly stringent in the journals Applied Physics Letters and Nano 
Letters." The letter from states that Nature Materials, Nano Letters, Applied Physics Letters, 
Journal of Applied Physics, Journal of Physics D, Physical Review B, Review of Scientzjic Instruments, 
Ultramicroscopy, Journal of Microscopy and Scanning . . . are prestigious international journals that publish 
original papers submitted by academics and industry researchers from around the globe." 
While the beneficiary has published scholarly articles in professional publications, and therefore meets this 
criterion, his publication record does not support a finding that he is one of the small percentage at the top of his 
field or that he has earned sustained national or international acclaim as a scientist. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
In order to meet this criterion, a petitioner must establish the nature of the alien's role within the entire 
organization or establishment and the reputation of the organization or establishment. The information 
submitted about the petitioner indicates that it generated $592.5 million in net sales in 2007 and a growth rate of 
23.6% during that year. The letter from 
 states that the petitioner "designs, manufactures, markets 
and services systems that are used in research, development and manufacturing of objects on the nanoscale." 
The petitioner presented no other evidence of its reputation such as rankings of laboratories, news articles about 
the company, or other indicia of its reputation. A statement concerning earnings and growth is insufficient to 
establish a business's reputation or to show that it is perceived by others within the industry as an organization 
with a distinguished reputation. 
The letter from 
 states that the beneficiary has made important and key contributions to certain of the 
petitioner's projects. The letter from states that the beneficiary made certain discoveries for the 
petitioner leading to five patent applications and that he "present1 mana es and is the technical leader of five 
university ESEM research projects funded by [the petitioner]." dd notes that the beneficiary's patents 
and papers are all "coauthored by numerous individuals" including himself. There is no evidence demonstrating 
how the beneficiary's role differentiated him from the other researchers with the petitioner, let alone more senior 
management (including m Although and the petitioner clearly value the beneficiary's 
skills and contributions, no evidence was presented to show that the beneficiary performs in a leading or critical 
role for the petitioner. 
Accordingly, the petitioner has failed to establish that the beneficiary meets this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. tj 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his field. The record in this case 
does not establish that the beneficiary had achieved sustained national or international acclaim as a researcher 
placing him at the very top of his field at the time of filing. He is thus ineligible for classification as an alien 
with extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 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. 5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.