dismissed EB-1A Case: Research And Software Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
WBUC COPY 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: JUN 1 0 2005 
2110 
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. 3 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center on August 8, 2003.' On March 3, 2004, the petitioner filed an appeal, which the director deemed 
untimely and treated as a motion to reopen. After granting the motion, the director issued a decision on May 
19, 2004 affirming the denial of the petition. On June 3, 2004, the petitioner filed a subsequent appeal, which 
the director also deemed untimely and treated as a motion to reopen. After granting the motion, the director 
issued a decision on July 27, 2004 once again affirming the denial of the petition. On August 11, 2004, the 
petitioner filed a timely appeal, which is now before the Administrative Appeals Office. 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 the petitioner had not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall fust 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. 
5 204.5(h)(2). The specific requirements for supporting documents to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that 
the petitioner must show that he has earned sustained national or international acclaim at the very top level. 
The record reflects that counsel entered his appearance on March 5, 2003 by providing a Form G-28, Notice of Entry 
of Appearance as Attorney, in response to the director's request for evidence. The record contains no indication that 
counsel was issued a copy of the August 8, 2003 notice of denial. The regulation at 8 C.F.R. S 292.5(a), however, 
requires that such notice be provided to the attorney of record. 
This petition, filed on July 13, 2002, seeks to classify the petitioner as an alien with extraordinary ability as a 
researcher and software engineer. At the time of filing, the petitioner was working in the Bioinformatics 
Department at Genaissance Pharmaceuticals, Inc. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence that, he claims, meets the following criteria. 
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 orfields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must show that 
the association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or current 
members, or payment of dues, do not satisfy this criterion as such requirements do not constitute outstanding 
achievements. In addition, it is clear from the regulatory language that members must be selected at the 
national or international level, rather than the local or regional level. Therefore, membership in an association 
that evaluates its membership applications at the local or regional chapter level would not qualify. Finally, 
the overall prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
The petitioner submitted evidence of his membership in the American Mathematical Society an 
The Scientific Research Society. The rec the bylaws or e o lcla 
membership requirements of the America 
m 
show that these societies 
require outstanding achievements of their ing that the petitioner was 
evaluated by national or international experts in consideration of his membership. 
In a letter responding to the director's request for evidence, counsel states that the petitioner's invitation to the 
Institute for Advanced Study at Princeton "is perhaps the single greatest honor a mathematician could have 
and only the very best are in fact invited." A 1995 brochure from this institution states: 
The Institute for Advanced Study in Princeton, New Jersey, is an independent private institution 
devoted to the encouragement and patronage of learning. 
Some 160 memberships are awarded annually to postdoctoral scholars from universities and research 
institutions throughout the world. 
The School of Mathematics is an international center of research and postdoctoral training . . . . 
Fifty to sixty mathematicians are invited to the School [of Mathematics] each year to study with the 
Faculty and to pursue research projects of their own. 
Membership in the Institute for Advanced Study is open to recent Ph.D. graduates seeking to further their 
advanced training. We cannot artificially restrict the petitioner's field to exclude all those professional 
mathematicians who do not submit applications for "postdoctoral training" positions. We further note that the 
petitioner has provided no evidence of the specific criteria for admission to the School of Mathematics. 
In this case, the record contains no evidence to establish that the preceding entities require outstanding 
achievement of their members in the same manner as highly exclusive associations such as the U.S. National 
Academy of Sciences. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which class$ication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, 
as stated in the regulations, be printed in professional or major trade publications or other major media. To 
qualify as major media, the publication should have significant national or international distribution. 
In a letter accompanying the petition, the petitioner claimed eligibility under this criterion based on the 
witness letters provided in support of the petition and a database listing on the American Mathematical 
Society's website with access to reviews of his published articles. The record, however, includes no evidence 
showing that the preceding reviews were published or the extent of their distribution. In regard to the 
comments from the petitioner's witnesses, such evidence is not qualifying "published materials about the 
alien." We find that the evidence presented here is not adequate to demonstrate the petitioner's sustained 
national acclaim in major media. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an alliedfield of spec$ication for which class$ication is sought. 
The petitioner submitted evidence from the American Mathematical Society's website reflecting that he 
Mathematical Reviews between 1998 and 2002. The petitioner also submitted a letter 
from xecutive Editor, Mathematical Reviews, to the petitioner, stating: "The literature is 
growing rapidly and we need additional reviewers to keep up with this growth, speed up the reviewing process, 
. - 
and improve the quality of reviews by having specialists in all fields. . . . We ask our reviewers to be prepared to 
handle one article a month on the average." 
We note here that peer review of manuscripts is a routine element of the process by which articles are selected 
for publication in scholarly journals. Occasional participation in peer review of this kind does not 
automatically demonstrate that the petitioner has earned sustained national or international acclaim at the very 
top of his field. Reviewing manuscripts is recognized as a professional obligation of those who publish in 
scholarly journals. For example, authors who repeatedly decline requests to review will be asked to submit their 
own manuscripts to other journals. Normally a journal's editorial staff will enlist the assistance of numerous 
professionals in the field who agree to review submitted papers. It is common for a publication to ask several 
reviewers to review a manuscript and to offer comments. The publication may accept or reject any reviewer's 
comments in determining whether to publish or reject submitted papers. 
Without evidence that sets the petitioner apart from others in his field, such as evidence that he has peer- 
reviewed an unusually large number of manuscripts for publication in various scientific journals, received 
multiple independent requests for his services from a substantial number of journals, or served in an editorial 
position for a distinguished journal (in the same manner as some of his witnesses, such as - , Harvard University, who served as an editor of Inventiones Mathematicae, om 
rofessor of Mathematics, Penn State University, who served on the editorial board 
Mathematical Society), we cannot conclude that the petitioner meets this 
criterion. 
Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The petitioner submitted several letters in support of the petition. 
ho taught a number theory course taken by the petitioner at Sichuan University, 
[The petitioner] has written five important papers published or to appear in internationally renowned 
math journals. His work concerns the Birch and Swinnerton-Dyer conjecture, one of the most famous 
unresolved burning questions in mathematics. In fact, the Clay Foundation has announced a one 
million dollar award to whomever solves this conjecture. Using all sorts of techniques, [the petitioner] 
verified various parts of this conjecture in certain cases. Given the current state and the degree of 
difficulty of this conjecture (which is far from being proven), each positive result is an important step 
forward. It is rather rare to find a new Ph.D. who has achieved like [the petitioner] . . . . 
After receiving his Ph.D., [the petitioner] has been working in industry in the area of biotechnology. 
By using his skills and knowledge acquired in mathematics, he has developed a new theory for testing 
Hardy-Weinberg equilibrium, which is well-suited for genetic research where there is a small sample 
size, a situation for which the classical test for Hardy-Weinberg equilibrium fails. 
While solving the Birch and Swinnerton-Dyer conjecture and receiving the award from the Clay Foundation 
would represent a "contribution of major significance" in mathematics, the petitioner has not shown that 
verifying "various parts of this conjecture in certain cases" rises to the same level of acclaim. The petitioner's 
contributions appear to be incremental rather than fundamental. indicates that the petitioner has made 
Page 6 
impressive contributions as "a new Ph.D.," but her observations do not significantly distinguish the 
petitioner's contributions from those of established professionals (such as mathematicians who hold 
professorships at prominent universities). 
states: "I am acquainted with [the petitioner] 
because he was a graduate student in the Department of Mathematics and Statistics at Boston University 
during the years 1996-2000.'' urther states: "I can attest both as a number theorist and as a 
member of his thesis defense committee to the sophistication of his work in number theory." 
f Mathematics. Boston University, was the petitioner's thesis supervisor= 
r's "combination of research skills with his broad mathematical talents place 
him in an excellent position to make significant contributions to mathematics and biology." 
ho met the petitioner at the Isaac Newton Institute for Mathematical Science at 
at Boston University, states: 
[The petitioner's] work in pure mathematics was in algebraic number theory and more precisely on 
elliptic curves and on p-adi~e~resentations. These are both extremely exciting and active 
sub'ects for research. One indication of this is that they both played key roles in the celebrated proof by 
- completed in collaboration with me) of Fermat's last theorem about ten years ago. (This result made the front page of the New York Times, inspired a Nova special, a musical, . . . . ) The 
topic of p-adicepresentation of p-adic fields is playing an increasing key role in much of 
number theory. . . . It is extremely important for number theory in the USA that we develop expertise 
in this area. [The petitioner's] perhaps the leading researcher in 
this area in the USA. [The ontribution to this subiect in his 
Ph.D. thesis, providing a significant extension of the very important recent work of and 
Colmez on explicit reciprocity laws in the theory of p-adic Galois representations. 
Reputation by demonstrate the petitioner's nation 
international acclaim. that the petitio 
representations is of proof by 
adic & 
or "the very 
important recent work o We accept that the petitioner has contributed to the pool 
of knowledge in his mathematicians view him as a "leading - 
researcher" in the same manner as or example. 
niversity of Washington, also met the petitioner at the 
Isaac Newton Institute for Mathematical Science at Cambridge University. hat he and 
the petitioner later collaborated on a research project at the University of Washington. w sserts 
that the petitioner has made "outstanding contributions to the theory of L-functions, Birch and Swinnerton- 
Dyer conjectures concerning elliptical curves, and the theory of the exponential maps occurring in conjectures 
- 
Associate Professor of Public Health and Genetics, Yale University School 
Page 7 
I first knew [the petitioner] when I served as a statistical consultant for Genaissance Pharmaceutical Inc. 
and got to know more of him when he took my course on "Statistical Methods in Human Genetics" in 
the fall semester of 2001. 
Within a short period of time at Genaissance, [the petitioner] has made important contributions to the 
algorithm developments that are at the heart of the company's foundation. In particular, he developed a 
novel approach to studyingquilibrium, a key step in identifying either potential 
errors in genotyping studies or candidate genes associated with complex diseases, e.g. cancer and 
hypertension. 
[The petitioner] has found a mathematical formula for the heterozygote distribution for genotypes in a 
population, which can be used to prove that the test is equivalent to the classical chi-square test. This 
piece of work is not only an outstanding contribution to Genaissance, but it is also an important 
contribution to the fields of biostatistics and bioinformatics. 
indemuth, Director of Algorithm Development, Genaissance Pharmaceuticals, Inc.. asserts that 
a scientific publication showing that the petitioner's theory is equivalent to the classical chi square test is now 
"in preparation." The record, however, contains no evidence showing that the petitioner's mathematical 
theory was published as of the petition's filing date. See Matter of Katigbak, 14 I&N Dec. 45 (Cornm. 1971). 
New circumstances that did not exist as of the filing date cannot retroactively establish eligibility as of that date. 
Nor is there evidence showing that other biotechnology companies seek to utilize the petitioner's mathematical 
formula or view it as a major contribution. 
'n a letter submitted in response to the director's 
request for evidence, states that director of Biostatistics at Genaissance Pharmaceuticals asked him "to 
the test that [the petitioner] developed for assessing 
equilibrium." 
The test used by the petitioner and his colleagues is an alternative to the classical chi-square test, and it 
is valid for small data sets, because unlike the chi-square test it makes no distributional assumptions. 
The challenge in implementing this sort of "exact" test is to write an algorithm that avoids listing all the 
possibilities; it is sufficient to compute the number of time each possibility could occur. [The 
petitioner's] algorithm is very efficient in this regard, and in fact it is so efficient that Genaissance uses 
it for all genotypes, even those for which a chi-square approximation could be used. 
In short, [the petitioner's] theory and its implementation are very important parts of a very impressive 
system employed by Genaissance in order to achieve its important scientific and commercial goals. 
The preceding letters indicate that the petitioner's work has benefited projects undertaken by his employer, 
but his ability to significantly impact the fields of mathematics, bioinformatics, or biostatistics beyond his 
employer's immediate projects has not been adequately demonstrated. 
Washington's observation, which limits comparison of the petitioner to those in his approximate age group, 
does not indicate that that petitioner's contributions are unusual for an established mathematician who has 
long since completed his or her educational training. rther states that the petitioner's 
"thesis will surely spawn significant advances over thenext few years." The assertion that the petitioner's 
thesis holds future promise, however, is not adequate to establish that petitioner's findings are already 
nationally or internationally acclaimed as a major contribution. 
great potential to be ranked with well-known mathematichns in history." The visa classification sought by 
the petitioner, however, is intended for aliens already at the top of their respective fields, rather than for those 
individuals progressing toward the top at some unspecified future time. 
Two of [the petitioner's] works which I know well are his papers "On Explicit Reciprocity Laws over 
Formal Groups" and "On a Trivial Zero Problem," both recently published in the International Journal 
of Mathematics and Mathematical Sciences. T 
work of two prominent French mathematician 
second paper, [the petitioner] uses his explicit 
about the value of the derivative at k=l of a certain D-adic L-function of k. . . . I understand that [the 
petitioner] had \vorked some time before with a first-rate 
mathematician. The fact that he collaborated with [the petitioner] is an indication of the latter's 
strength. 
The petitioner's appellate submission included evidence showing that the above papers cited in- 
letter were published in the International Journal of Mathematics and Mathematical Sciences in 2004. A 
petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(12); see Matter of 
Katigbnk at 45. Evidence relating to subsequent developments in the petitioner's career cannot retroactively 
establish that he was already eligible for the classification sought as of the filing date. We accept that petitioner's 
work has yielded some useful and valid results; however, it is apparent that any Ph.D. thesis or mathematics 
paper, in order to be accepted in for publication, must offer new and useful information to the pool of 
knowledge. It does not follow that every individual whose scholarly research is accepted for publication has 
made a major contribution in his field. Without extensive documentation showing that the petitioner's 
published findings have been unusually influential or highly acclaimed throughout the greater field, we 
cannot conclude that he fulfills this criterion. The petitioner's publications will be further addressed under the 
next criterion. 
Yunbiao Lu, Staff Fellow of the Immuno-pathology Section of the National Institutes of Health, states: 
I have read [the petitioner's] paper o uilibrium, which represents original, creative, 
and insightful contributions to our u ype distribution in an ethnic group. . . . [The 
petitioner's] discovery could lead the discovery of the more precise correlations between the drug 
response and the HAP markers, which people in the world are still using the imprecise permutation test 
to discover this relationship. 
With regard to the witnesses of record, many of them discuss what may, might, or could one day result from 
the petitioner's work, rather than how his past efforts rise to the level of a contribution of major significance 
in mathematics. In the present case, we cannot conclude that petitioner's past contributions far exceed those 
of established mathematicians. 
We further note that almost all of the testimonials in this case were written by individuals from institutions 
affiliated with the petitioner. This fact indicates that while the petitioner's work is valued by his current and 
former colleagues, others outside his immediate circle are largely unaware of his findings and do not attribute 
the same level of importance to his work. With regard to the personal recommendation of individuals from 
institutions where the petitioner has studied and worked, the source of the recommendations is a highly 
relevant consideration. These letters are not first-hand evidence that the petitioner has earned sustained 
acclaim for his contributions outside of his affiliated institutions. If the petitioner's reputation is limited to 
those institutions, then he has not achieved national or international acclaim regardless of the expertise of his 
witnesses. An individual with sustained national or international acclaim should be able to produce ample 
unsolicited materials reflecting that acclaim. 
In conclusion, we find that the documentation presented in regard to this criterion is not adequate to support a 
finding that the petitioner's work is nationally or internationally recognized throughout his field as a major 
contribution. 
Evidence ofthe alien's authorship of scholarly articles in the$eld, in professional or major trade 
publications or other major media. 
The petitioner provided evidence of his authorship of articles appearing in publications such as Advances in 
Mathematics and Mathematical Proceedings of the Cambridge Philosophical Society. We do not find, 
however, that publication of scholarly articles is presumptive evidence of sustained national or international 
acclaim; we must also consider the greater scientific community's reaction to those articles. When judging the 
influence and impact that the petitioner's work has had, the very act of publication is not as reliable a gauge 
as is the citation history of the published works. If a given article in a prestigious journal (such as the 
Proceedings of the National Academy of Sciences of the U.S.A.) attracts the attention of other researchers, 
those researchers will cite the source article in their own published work, in much the same way that the 
petitioner himself has cited sources in his own publications. Numerous independent citations would provide 
firm evidence that other researchers have been influenced by the petitioner's work and are familiar with it. If, 
on the other hand, there are few or no citations of an alien's work, suggesting that that work has gone largely 
unnoticed by the greater field, then it is reasonable to conclude that the alien's work is not nationally or 
internationally acclaimed. In the present case, there is no evidence showing that the petitioner's published 
papers are widely cited. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputution. 
In order to establish that he performed in a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of his role within the entire organization or 
establishment and the reputation of the organization or establishment. 
In a letter accompanying the petition, the petitioner asserts that he performed in a leading or critical role as a 
reviewer for Matlzematical Reviews. The petitioner's occasional participation as a peer reviewer for this 
journal was already addressed under the "judge of the work of others" criterion. We note here that the petitioner 
was never employed by Mathematical Reviews, nor did he ever serve in a leading or critical capacity in the 
same manner as that of an editor or editorial board member, for example. 
The petitioner also claims that he performed in a leading or critical role as a researcher and software engineer 
at Genaissance to the director's request for evidence, the petitioner 
submitted a letter from Senior Vice President, Medical Affairs and Informatics, 
Genaissance petitioner "is currently at Genaissance Pharmaceuticals 
analyzing the correlation between genetic variability and drug response, which is . . . vital to Genaissance's 
business." 
In this case, there is no evidence showing that Genaissance Pharmaceuticals, Inc. has earned a distinguished 
o other companies in the pharmaceutical industry (such as - Nor is there evidence establishing the relative importance of the petitioner's duties 
bv his comvanv. It is certainlv reasonable to conclude that the relative 
projects to which he was assigned, but there is no evidence showing the extent to which the petitioner has 
exercised substantial control over personnel or research decisions executed on behalf of Genaissance 
Pharmaceuticals as a company. 
For the above reasons, we find that the petitioner's evidence falls short of establishing that he has performed 
in a leading or critical role for a distinguished organization, or that his involvement has earned him sustained 
national or international acclaim. 
Evidence tlzat the alien has commanded a high salary or other sign$cantly high remuneration 
for services, in relation to others in thejield. 
In a letter accompanying the petition, the petitioner stated that he was earning a salary of $71,700 as of April 
2002. The petitioner submitted copies of three pay statements from Genaissance Pharmaceuticals as evidence of 
his salary. The petitioner, however, offers no basis for comparison to show that this salary is significantly high in 
relation to others in his field. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim, is one of the small percentage who has risen to 
the very top of the field of endeavor, and that the alien's entry into the United States will substantially benefit 
prospectively the United States. The petitioner in this case has failed to demonstrate that he meets at least three 
of the criteria that must be satisfied to establish the sustained national or international acclaim necessary to qualify 
as an alien of extraordinary ability. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent that he may 
be said to have achieved sustained national or international acclaim or to be within the small percentage at the 
very top of his field. The evidence is not persuasive that the petitioner's achievements set him significantly above 
almost all others in his field at the national or international level. Therefore, the petitioner has not established 
eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.