dismissed EB-1A Case: Neuroscience

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: OK 1 9 2005 
EAC 03 0 12 50041 
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. 4 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s 1s the decision of the Adm~nistrative Appeals Office in your case. All documents have been returned to 
the office that or~glnally decided your case. Any further inqulry must be made to that office. 
,!" 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office 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. tj 11 53(b)(l)(A), as an alien of extraordinary ability in the 
sciences. The director determined the petitioner had not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel asserts that the director erred in denying the petition prior to issuing a request for additional 
evidence. Assuming the director erred, the most expedient remedy is to consider any evidence that might have 
been submitted in response to such a request on appeal. We will consider the new evidence submitted below. 
The regulation at 8 C.F.R. 5 103.2(bj(12), however, requires that any evidence submitted in response to a 
request for additional evidence establish eligibility as of the date of filing. See also Mutter ofKuligbak, 14 l&N 
Dec. 45, 49 (Reg. Comm. 1971). We note at the outset that much of the new evidence submitted on appeal 
relates to accomplishments, such as publications and citations, that occurred after the date of filing. Thus, they 
cannot establish the petitioner's eligibility as of that date. 
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 to the United States will substantially benefit prospectively 
the United States. 
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. 8 204,5(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 he has sustained national or international acclaim at the very top level. 
This petition seeks as an alien with extraordinary ability as a "visiting fellow." The 
petitioner's mentor indicates that the petitioner's title at the time of filing was "Visiting 
Postdoctoral Fellow." Postdoctoral appointments are typically entry-level research positions for recent Ph.D. 
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recipients. While nothing in the statute or regulations precludes postdoctoral researchers from establishing 
eligibility, we will not narrow the petitioner's field to recent Ph.D. recipients. The petitioner must compare with 
the most experienced and renowned members of the field. 
The regulation at 8 C.F.R. 9 204.5(h)(3) indicates that an alien can establish sustained national or international 
acclaim through evidence of a one-time achievement (that is, a major, international recognized award). Barring 
the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied 
for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The 
petitioner has submitted evidence that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationully recognized prizes or awards for 
excellence in the$eld of endeavor, 
Initially, the petitioner submitted his 2002 Fellows Award for Research Excellence (FARE) from the National 
Institutes of Health; two research awards from the Shanghai Branch of the China Medical Association and a 
third class award from the Chinese army. In his initial brief, counsel asserted that the FARE award is presented 
to "a select group of postdoctoral fellows who have performed outstanding scientific research'' and includes a 
$1,000 travel award to present the work at a conference. Counsel further asserts that the awards from the 
Shanghai Branch of the China Medical Association are presented to 10 out of 100 papers submitted to the 
conferences. 
The director concluded that the petitioner had not established the significance of these awards. On appeal, the 
petitioner submits evidence regarding the FARE award, confirming counsel's assertion that it is limited to 
postdoctoral fellows. The petitioner does not submit any evidence regarding the significance of his other 
awards. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena. 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983): Mutter of Ramirez-Sirnchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
Postdoctoral appointments are entry-level positions for newly graduated doctoral students. Awards limited to 
postdoctoral researchers cannot establish that the petitioner is one of the very few at the top of his fieid. 
In light of the above, we concur with the director that the petitioner has not established that he meets this 
criterion. 
Documrntution of the alien's membership in as.sociations in the field for which clas.sification is sought, 
which require outstanding aclzievements of their members, as judged by recognized nutionul or internutional 
experts in their disciplines 0rJeld.s. 
Initially, the petitioner submitted evidence of his membership in the Society for Neuroscience. Counsel initially 
stated that member candidates must be sponsored by two regular or emeritus members and submit a curriculum 
vitae and bibliography. The director concluded that the petitioner had not established that the society requires 
outstanding achievements of its members. 
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
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. 5 
On appeal, counsel asserts that member candidates must submit an application form "showing their outstanding 
contributions in the field." The petitioner submits Internet materials about membership in the society. These 
materials confirm that a member must be sponsored by two members and submit a curriculum vitae and 
bibliography. The materials do not confirm, however, that the application must show "outstanding contributions 
in the field." As stated above, the unsupported assertions of counsel do not constitute evidence. Id. 
We note that, according to the materials submitted on appeal, the society is the world's largest of professionals 
devoted to studying the brain. Dues are required with the submission of a membership application and 
notification is provided within one to two weeks of filing the application. Such information is not consistent 
with an association where recognized national or international experts are judging membership applications as 
to whether the candidates have outstanding achievements in the field. Sponsorship by current members of a 
large association and experience in the field are not outstanding achievements. We note that the materials 
reference an "emeritus" membership category. As the record does not reflect that the petitioner is an emeritus 
member, it appears that the society has a higher membership level than the level obtained by the petitioner. 
In light of the above, the petitioner has not established that he meets this criterion. 
Published muterials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which classrfication is sought. Such evidence shull include the 
title, date, and author of the material, and any necessagv translation. 
Initially, counsel asserted that the "several" articles citing the petitioner's work in "highly renowned peer- 
reviewed journals" serve to meet this criterion. The petitioner submitted his own review article, which cites his 
2000 Science News article that mentions the work of the petitioner's collaborator, 
eported in 1998 and "last year." The etitioner does not list any 1998 or 1999 publications or 
a collaboration wi d n his curriculum vitae. 
The director concluded that the petitioner had not submitted a citation record consistent with national or 
international acclaim. On appeal, the petitioner submits the citation history of his articles published after the 
date of filing. Such evidence is not relevant to the petitioner's eligibility as of that date. See 8 C.F.R. 
5 103,2(b)(12); Maiter cqKatigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
Even if the reference in Science News is to work coauthored by the petitioner, the regulation at 8 C.F.R. 
3 204.5(h)(3)(iii) requires that the published materials be "about the alien." We cannot conclude that an article 
that does not mention the petitioner by name is "about" him. In general, articles which cite the petitioner's work 
are primarily about the author's own work, not the cited work. Review articles cover a large topic, and typically 
are not "about" any particular work cited. As such, articles that cite the petitioner's work cannot be considered 
published material about the petitioner. Thus, the petitioner has not established that he meets this criterion. 
Evidence of the alien 's participation, either individuaIly or on a punel, m u judge of the work of others in the 
sume or un ulliedjield of specification for which cla.~safcation is sozrght. 
The record reflects that the petitioner has refereed articles for Neuroscience Letters. The record reftects that the 
journal initially requested that the petitioner's advisor,-review the article who then assigned the 
duty to the petitioner. Being requested to review an article by one's own advisor is not evidence of national or 
international acclaim. 
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Moreover, we cannot ignore that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Thus, peer review is routine in the field; not every peer reviewer enjoys sustained national or 
international acclaim. Without evidence that sets the petitioner apart from others in his field, such as evidence 
that he has reviewed an unusually large number of articles, received independent requests from a substantial 
number of journals, or served in an editorial position for a distinguished journal, we cannot conclude that the 
petitioner meets this criterion. 
Evidence of the alien's original scientljic, .scholarly, artistic, athletic, or business-related contributions of 
mqjor significance in thejield. 
The petitioner's field, like most science, is research-driven, and there would be little point in publishing 
research that did not add to the general pool of knowledge in the field. According to the regulation at 
8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only original but of major signi.ficance. We 
must presume that the phrase "major significance" is not superfluous and, thus, that it has some meaning. 
See Wuliers v. Metro. Educ. Enters., 5 19 U.S. 202,209 (1997); Bailey v. U.S., 5 16 U.S. 137, 145 (1 995). To 
be considered a contribution of major significance in the field of science, it can be expected that the results 
would have already been reproduced and confirmed by other experts and applied in their work. Otherwise, it 
is difficult to gauge the impact of the petitioner's work. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a successful 
claim of sustained national or international acclaim. Citizenship and Immigration Services (CIS) may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
lnternationul, 19 I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible for making the 
final determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters from 
experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795-796. CIS may even give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. 
Id. at 795; See also Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crcrfr 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Given the statutory requirement for "extensive 
documentation" and the ten regulatory criteria requiring specific evidence of accomplishments, we must 
conclude that evidence in existence prior to the preparation of the petition carries greater weight than new 
materials prepared especially for submission with the petition. An individual with sustained national or 
international acclaim should be able to produce unsolicited materials reflecting that acclaim. 
In evaluating the reference letters, we note that letters containing mere assertions of widespread acclaim and 
vague claims of contributions are less persuasive than letters that specifically identify contributions and 
provide specific examples of how those contributions have influenced the field. On appeal, counsel asserts 
that the director was inconsistent in requiring evidence from independent experts but also asserting that the 
independent letters submitted were not from experts previously familiar with the petitioner's work. We do 
not find such concerns inconsistent. The statutory standard is national or international "acclaim." Thus, it 
can be presumed that an eligible alien will have a reputation that extends beyond his immediate circle of 
colleagues. Letters from independent references who were previously aware of the petitioner through his 
reputation are far more persuasive than letters from independent references who were not previously aware of 
the petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and work 
and provide an opinion based solely on this review. We acknowledge, however, that the petitioner did 
submit letters from independent researchers who were aware of the petitioner's work though publications and 
conference presentations. We will consider those letters below. 
In his initial brief, dated October 8, 2002, counsel asserts that the petitioner has 17 years of experience as an 
influential researcher in neuroscience. The petitioner obtained his medical degree from the Weifang College of 
Medicine in July 1985. He worked as a physician from that date until August 1991. The petitioner obtained his 
Ph.D. in Neurology and Neuroscience in July 1996 from the Changcheng Graduate School of Medicine. The 
petitioner worked as a fellow at that school until April 1998 and as an associate professor and neurologist at the 
Second Medical University of Shanghai until September 1999. In October 1999, the petitioner joined the 
National Institutes of Health (NIH) as a visiting postdoctoral fellow. 
a professor at the Chinese PLA General Hospital Military Post Graduate Medical School, discusses 
the petitioner's work in China. ~hilmoes not explain how he knows of the petitioner's work, the 
petitioner's published articles, art of the record of proceeding, reflect thatcoauthored several articles 
with the petitioner. asserts that the petitioner's work on the mechanisms of stroke was 
"groundbreaking." More specifically,~sserts that the petitioner found "that cerebral ischemia can 
induce up-regulation of the hypothalamic-pituitary-adrenal axis, resulting in an increased level of cortisol in the 
blood flow, and that this increased cortisol can reduce the break-down of the blood-brain barrier caused by 
ischemic insult." The petitioner "also found that cerebral ischemia can induce an increased level of vasoactive 
intestinal peptide in the arasympathetic nerves innervating cerebral arteries, which can dilate cerebral blood 
vessels. While characterizes these results as significant contributions to the scientific knowledge of H' cerebral ischem~a, he does not provide examples of treatments or research that has been influenced by the 
petitioner's results. 
Chief of the Molecular Neurobiology Section at the National lnstitute of Mental Health (NIMH), 
NIH, asserts that the petitioner's work at NIH focuses on the neuroprotective effects of lithium against ischemic 
stroke induced brain injury. While at NtH, the petitioner "demonstrated that lithium possesses neuroprotective 
effects against cerebral ischemia." The petitioner presented this work at a 2001 conference and, as of the date of 
filing, had "submitted" an article for publication.concludes that these results demonstrate that 
"lithium can be considered as a promising drug to be in the treatment of ischemic stroke patients" 
and formed the basis for the petitioner's FARE award further states: 
At the same time [the petitioner] has collaborated with other investigators and found (1) 
prostaglandin A, protects striatal neurons against excitotoxin injury in a rat brain model 
[citation omitted]; [and] (2) JNK and p38, as well as their down-stream AP-I binding activation 
and p53 phosphorylation, play a prominent role in mediating glutamate excitotoxicity [citation 
omitted]. Moreover, he found that the neuroprotective effects of lithium are mediated, at least 
in part, by suppressing NMDA receptor activation of the MAPK pathway. 
does not provide examples of how any of this work has been replicated or otherwise applied in the 
field outside of the petitioner's own circle of colleagues. 
a research assistant professor at the Uniformed Services University of the Health 
, asserts that he is providing a review of the petitioner's credentials.does not 
acknowledge an ersonal connection to the petitioner or his mentor. We note, however, that his curriculum 
vitae and that o -reveal several recent collaborations between the two rerearcherserves 
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on the Stanley Foundation Affective Disorder ~ehvorkraises the petitioner's 
does not assert that this work has influenced the way ischemia is treated. also 
praises the petitioner's recent work with lithium, explaining that the petitioner "has taken this research a step 
further by showing that the neuroprotective effects of this drug are associated with an increased synthesis of 
heath shock protein 70 (Hsp 70) and increased DNA binding of the transcription factor responsible for this 
increased, heat shock factor I." oncludes: "Although the primary precipitating event in the 
mechanism of lithium's therapeutic effects is, as yet unknown, I am convinced that heat shock p 
is the earliest known event of that mechanism. [The petitioner's] work is seminal in this regard 
does not indicate that this final work had been published as of the date of filing. Work that has yet to be 
disseminated in the field cannot be considered to have alread influenced the field to such a degree as to be 
considered a contribution of major significance. Finally  isc cusses the petitioner's work with 
excitotoxicity, but fails to explain how this work has already influenced the field. 
As acknowledged by the director, the petitioner did submit letters from researchers who a ear to be 
of the petitioner, aIthough not all of these researchers provide their curricufum vitae. 
P- a senior scientist in the Division of Neurology at Huddinge University Hospital, Karolins a Institute in 
Sweden, does not explain how etitioner's work. He lists the petitioner's results 
obtained in China and at NIH. Chief of the Unit of Clinical and Biochemical 
Pharmacology at NIH, asserts of the petitioner's "background, achievements 
reiterates the results discussed above. The petitioner provides a 
similar letter from Section, National Institute of Neurological 
how this work has influenced the author's 
own work or the work of others in the field. 
professor at the University of Alabama, indicates that he knows of the petitioner's work 
throughfhes publications and interactions at conferences,explains the importance of the 
petitioner's work with lithium, a drug already approved by the U.S. Food and Drug Agency (FDA) and for 
which much information about its affect on people is already known. srerts that the petitioner has not 
only "identified a drug capable of providing considerable protection to the brain from the massive damage that -. 
can be caused by ischemic stroke, but he has also begun to- identify the biochemical mechanisms accounting for 
this protective effect." an associate professor at the University of Chicago, further asserts 
that another work on lithium is that "the drug is effective even when 
administered after the onset of cerebral-ischemia, as would be the case in the clinic." - 
The above letters establish that, as a result of the petitioner's work, some in the field are persuaded that lithium 
has great potential as a treatment for ischemic strokes. The record, however, lacks press coverage in scientific 
or the general press reporting these results as a major breakthrough in stroke treatment, as would be expected for 
a new treatment for strokes. The record further lacks evidence that these results, as of the date of filing, had 
been replicated by outside researchers. In addition, the petitioner has not demonstrated that clinics or 
emergency room doctors are considering using lithium in treating stroke victims. Finally, as of the date of filing, 
the petitioner had only published some of this work and none of his work had been widely and frequently cited. 
In light of the above, we find that the petitioner has not established that he met this criterion as of the date of 
filing. 
Evidence of the alien's authorship of scholarly articles in the jeld, in pryfessional or major trade 
pubiication,~ or other major media. 
The petitioner submitted evidence that he had authored 11 published articles and four abstracts. The petitioner 
also appears to have presented his work at four conferences. The Association of American Universities' 
Committee on Postdoctoral Education, on page 5 of its Report und Recommendations, March 3 1, 1998, set forth 
its recommended definition of a postdoctoral appointment. Among the factors included in this definition are the 
acknowledgement that "the appointment is viewed as preparatory for a full-time academic andfor research 
career," and that "the appointee has the freedom, and is expected, to publish the results of his or her research or 
scholarship during the period of the appointment." Thus, this national organization considers publication of 
one's work to be "expected," even among researchers who have not yet begun "a full-time academic and/or 
research career." This report reinforces our position that publication of scholarly articles is not automatically 
evidence of sustained acclaim; we must consider the research community's reaction to those articles. 
As discussed above, the petitioner initially submitted his own review article that cites his previous work and an 
article that mentions his advisor's work but does not clearly cite work authored by the petitioner. While self 
citation is a normal and expected practice, it cannot establish the petitioner's reputation beyond his colleagues. 
Thus, this citation record is not indicative of or consistent with national or international acclaim. 
On appeal, the petitioner submits evidence that his articles published after the date of filing have been cited 16, 
14 and three times. This evidence, however, does not establish the petitioner's eligibility as of the date of filing 
as the petitioner's work, now cited, was not even published as of that date. Thus, the petitioner has not 
established that he met this criterion as of the date of filing. 
Evidence ofthe dispEuy of the alien's work in thefwld ut artistic exhibitions or showcuses. 
The petitioner claims to meet this criterion. The plain language of this criterion reveals that it relates to the 
visual arts. While the regulation at 8 C.F.R. 9 204.5(h)(4) allows for the submission of "comparable" evidence 
where a criterion is not "readily applicable," we find that conference presentations are far more comparable to 
published articles and, thus, we have considered the petitioner's conference presentations under the criterion set 
forth at 8 C.F.R. tj 204.5(h)(3)(vi), discussed above. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim and is one of the small percentage who has risen 
to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a researcher to 
such an extent that he may be said to have achieved sustained national or international acclaim or to be within 
the small percentage at the very top of his field. The evidence indicates that the petitioner shows talent as a 
researcher, but is not persuasive that the petitioner's achievements set him significantty above almost all others 
in his field. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(I)(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. $ 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.