dismissed EB-1A Case: Sciences

. r 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
JUN 20 2011 
Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Sccurity 
U.S. Citizenship and Immigration Servicc, 
Administrativc Appcab Office (;\/\0) 
20 Massachusetts Ave., N.W., MS 2090 
Washim~ton. DC 20S29-2090 
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: 
SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
;L{/JlI1incL. 
t'Perry Rhew 
-t--Chief, Administrative Appeals Office 
www.uscis.gov 
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 
established the requisite extraordinary ability through extensive documentation and sustained 
national or international acclaim. 
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. 
On appeal, the petitioner argues that she meets the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(v), (vi), and (viii). For the reasons discussed below, the AAO will uphold the 
director's decision. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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
s1 
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. and 8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(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 allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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, 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.l With respect to the criteria 
at 8 c.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS 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." Id. 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)." Id. at 
1122 (citing to 8 c.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 c.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § 1153(b)(1)(A)(i). 
Id. at 1119-20. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I 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). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on September 16, 2009, seeks to classify the petitioner as an alien with 
extraordinary ability as a research scientist. The petitioner received 
from Ohio State University (OSU) in 2002. At the time of filing, the petitioner was working as a 
postdoctoral research associate in the laboratory of 
Investigator at the 
The petitioner has submitted documentation pertaining to the 
following categories of evidence under 8 c.F.R. § 204.5(h)(3).2 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification 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. 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.3 
The petitioner did not initially claim eligibility for this regulatory criterion. In response to the 
director's notice of intent to (NOID), the 'tioner submitted a June 2,2008 article entitled 
The conclusion of the 
article lists the petitioner along with five of her coauthors and states that it was "adapted from 
materials provided University of Pennsylvania School of Medicine." The author of the preceding 
article was not identified as required by the of this The 
petitioner also submitted an article entitled 
posted on the website of The Science Network. The date of this article was not identified as 
required by the plain language of this regulatory criterion. The article from y 
mentions the petitioner in passing and the article from never mentions her. 
The regulation at 8 c.F.R. § 204.5(h)(3)(iii), however, requires that the published material be "about 
the alien.,,4 None of the preceding articles is about the petitioner. Moreover, there is no online 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
3 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. 
4 See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8,2008) (upholding a finding that 
articles about a show are not about the actor). 
Page 7 
Crafi of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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 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). In this instance, the record lacks 
documentary evidence from the publications' editorial staff demonstrating that the petitioner 
meets the elements of this regulatory criterion. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish her 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. Atty Gen., at 1228 n. 2. Accordingly, the petitioner 
has not established that she meets this criterion. 
Evidence of the alien's original scient(fic, scholarly, artistic, athletic, or business­
related contributions of major sign(ficance in the.field. 
The petitioner submitted letters of support discussing her graduate research at OSU under the 
supervision of and her 
postdoctoral research at UPSM under the supervision of 
states: 
I have known [the petitioner] since 1996 when she joined the graduate program at The 
Ohio State University. She joined my laboratory shortly thereafter and I have personally 
trained and supervised her during her graduate career. 
* * * 
While at this university, [the petitioner] was more specifically engaged in research on the 
role of specific loop regions with the flavin cofactor binding site that appeared to play an 
important role in the stabilization of an intermediate state of the cofactor that is central to 
the function of the two protein systems she was investigating. Her research provided 
definitive proof that conformational changes within these loops were tied directly to 
function. This work is of general interest in the field. All of her thesis research has been 
published in three excellent research articles, which is truly an extraordinary 
achievement. 
Regarding reference to the petitioner's published research, the regulations contain 
a separate criterion regarding the authorship of scholarly articles. 8 C.F.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. Here it should be emphasized 
that 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 
Page 8 
petitioner meet at least three separate criteria. Further, the AAO will not presume the impact of a 
given article from the reputation of the journal or conference proceedings in which it appeared. 
Rather, the petitioner must demonstrate the article's actual impact in her field. 
In response to the director's NOID, the petitioner submitted citation indices from lSI Web of 
Knowledge indicating that her published work has been moderately cited. For instance, the 
petitioner's two most frequently cited articles in Cell and Biochemistry had been cited to 34 and 17 
times respectively as of the petition's September 16, 2009 filing date. The petitioner has not 
established that this moderate level of citation is indicative of original contributions of major 
significance in the field. 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. § 204.5(h)(3)(v), an alien's contributions must 
be not only original but of major significance. The AAO 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 petitioner's work. 
Assistant Professor, 
states: 
I have known [the petitioner] for over 6 years and have worked directly with her on 
several projects. Her input and technical skills were especially helpful with my research 
and resulted in much of that work being published in peer-reviewed journals. I have 
heard her present her findings at scientific conferences and have also reviewed her work, 
which I have found to be of exceptional quality. She has been primarily responsible for 
designing and developing a high-throughput assay to measure the function of the Survival 
of Motor Neurons protein (SMN), the protein that is mutated in Spinal Muscular 
Atrophy. She is applying this assay to large-scale screening of compounds to discover 
potential therapeutic drugs for Spinal Muscular Atrophy. 
While the petitioner'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. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication, presentation, or funding, must offer new and useful information to the 
pool of knowledge. 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. 
states: 
[The petitioner] is credited with designing and carrying out a novel high-throughput 
screening (HTS) assay that opened the doors to designing novel approaches for the 
treatment of SMA [Spinal Muscular Atrophy]. Her highly specialized approach helped 
identify several compounds that led to the discovery of a new function of the SMN 
Page 9 
protein. One such class of compounds that were identified by this high-content high­
throughput immunofluorescence assay was a class of protein synthesis inhibitors, which 
altered the localization of the disease-causing SMN protein within the cell. This initial 
discovery further led to the identification of a novel function of the SMN protein and its 
interacting partners in protein synthesis. Furthermore, her mastery of the complex 
biochemical techniques led [the petitioner] to discover that various cell stress signals 
regulate not only the function but also the localization of the protein. These findings 
represent remarkable advances for the national scientific community and to the 
therapeutics of SMA. Her work in this area resulted in the development of a novel 
method of discovery for inhibitors of the clinically relevant p38 MAPK pathway. 
Inhibitors of these have been utilized for the treatment of several inflammatory diseases, 
namely rheumatoid arthritis. She discovered a novel inhibitor with not only a unique 
structural scaffold but also possibly a unique mechanism of action. She is currently in the 
process of identifying the direct target of this inhibitor by conducting a high-content 
RNAi based screen. 
In addition to her major contributions towards developing potential treatments for SMA, 
[the petitioner] is also credited with major advancements of the methods through which 
SMA research is performed. Using the immunofluorescence assay, [the petitioner] 
developed the first automatic assay system that is capable of simultaneously visualizing 
as well as actually measuring SMN levels within a single cell. [The petitioner's] assay 
allows direct measurement of SMN levels in patient cells that can help evaluate the 
effectiveness of the potential therapies for SMA. Her continued research in identifying 
and characterizing novel compounds will provide potential treatment methods for SMA. 
With over 10 years of experience in biochemistry and molecular biology, [the petitioner] 
is one of only a handful of experts in the field with expertise in biochemistry and 
immunofluorescence, as well as high-content and high-throughput assays. 
At the conclusion of his letter, on the petitioner's expertise in 
biochemistry, molecular biology, and immunofluorescence. Assuming the petitioner's skills and 
expertise 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 Dep't. of Transp., 22 I&N Dec. 215, 221 (Comrnr. 1998). In order to establish 
eligibility for this regulatory criterion, the petitioner must establish that her skills and expertise have 
already resulted in original contributions of major significance in the field. ~oes not 
provide specific examples of how the petitioner's original findings have significantly impacted 
the field at large or otherwise equate to scientific contributions of major significance in the field. 
further states: 
lpn,<>rt1rYlp-nt of Neurology, OSU, states that he worked as a 
of_ at UPSM for five years. _ 
Page 10 
I have had the pleasure of knowing [the petitioner] for 6 years, and have worked directly 
with her on several projects. 
* * * 
[The petitioner] has developed a novel high-content high-throughput screening (HTS) 
assay which is the first automatic assay system that can simultaneously visualize the 
localization of SMN protein (i.e. its distribution between the cytoplasm and the nucleus 
of a single cell) as well as measure its amount. This is a significant contribution to the 
field as it allows direct measurement of SMN levels in patient cells and can be used to 
monitor the effectiveness of potential therapeutics for SMA. [The petitioner] is currently 
also leading a team of researchers in developing a single-step assay to measure SMN 
protein levels in different cell types. This will be a marked improvement over existing 
methods, and will reduce material costs and screening time. There is an urgent need for a 
single-step assay because it will allow researchers in academia and the pharmaceutical 
industry to rapidly and cost-effectively screen large compound libraries. Moreover, this 
type of assay has potential in a large number of diseases where target proteins are 
quantified such as cancer and neurodegenerative diseases. 
_does not provide specific examples of how the petitioner's HTS assay system for 
visualizing and measuring SMN protein is being applied by others in the field beyond UPSM and 
its immediate collaborators such as Regarding the petitioner'~ent of a single­
step assay to measure SMN protein levels in different cell types, _ opines that the 
petitioner's work "will be a marked improvement over existing methods" and "will reduce 
material costs and screening time." He further comments that the petitioner'S "assay has 
potential in a large number of diseases where target proteins are quantified." However, there is 
no documentary evidence showing that the petitioner's work had already significantly impacted 
the greater field as of the date of filing so as to be considered a contribution of major 
significance. Eligibility must be established at the time of filing. 8 c.P.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Comrnr. 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 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. 
currently 
worked as a postdoctoral fellow in 
_ states: 
of the 
laboratory at UPSM from 1998 through 2002. _ 
the petitioner] in 2002 when she interviewed for a post-doctoral position in 
lab. . .. Since that time we overlapped many times at various SMA 
research meetings. 
* * * 
Page 11 
[The petitioner] has developed a novel high-content high-throughput screening assay, 
the first automatic assay system that can simultaneously measure the amount of SMN 
protein and visualize its localization (i.e., its distribution between the cytoplasm and the 
nucleus of a single cell). The SMN protein is a protein responsible for the disease. 
Quick and accurate measurement of its levels in SMA patient cells is critical to monitor 
the effectiveness of SMA therapeutics. [The petitioner] has already used the assay to 
identify and validate promising small molecules from large compound libraries that can 
potentially be used for development of new SMA therapeutics. Her technology is certain 
to become a popular tool outside the SMA field, since it is directly applicable to any 
disease with a known protein target to which antibodies are available (such as Fragile X 
syndrome). 
does not provide specific examples of how the petitioner's research findings have 
influenced others in the field or are being applied in their work. Further, there is no documentary 
evidence showing that the petitioner's HTS assay system is frequently cited by independent 
researchers or that her innovation otherwise equates to an original scientific contribution of 
major significance in the field. 
states: 
At we actively seek collaborations with highly talented academic researchers such 
as [the petitioner], who is currently in the laboratory at the 
University of Pennsylvania School of Medicine. Since the 
I have interacted frequently with [the petitioner] and I have become familiar with her 
work through the monthly meetings held for the project. 
* * * 
[The petitioner] and her colleagues developed model cells from a patient with SMA, 
which our group is using to screen compound libraries, with the aim of finding treatments 
for SMA. She has designed a high-content high-throughput screening assay that 
simultaneously measures SMN and records an image of its cellular distribution, in each 
sample. We used this assay in ultra high-throughput format to monitor the effectiveness 
of potential lead compounds from our primary screens. This allowed us to perform in 
weeks what would have taken us years using other methods. We could rapidly validate 
our lead compounds and rank them in order of effectiveness, as well as eliminate "false 
positives." In particular, the novel feature of visualizing SMN greatly aided our selection 
criteria, as we could immediately discard those compounds that caused gross mis­
localization of the protein within cells. 
[The petitioner's] expertise has been invaluable to our drug discovery effort. In addition 
to using her assay, we also relied on her advice when selecting the lead compounds from 
the screen. I am personally very excited by the results of the screen, as the effect of 
several of the compounds in increasing SMN levels has been confirmed and validated by 
Page 12 
numerous separate measurements. Currently, we are at the lead compound development 
stage, and we continue to rely on her guidance at this crucial stage in our research. 
~ that his research team at used the petitioner's HTS assay in collaboration 
with _ laboratory, but there is no evidence demonstrating that the petitioner's work is 
recognized beyond this project such that her work constitutes original contributions of major 
significance in the field. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires that the contributions be "of major significance in the field" rather than limited to a 
particular research institution and its collaborative partner. While the petitioner's assay system 
improved screening efficiency for monitoring certain compounds in an effort to find treatments 
for SMA, there is no evidence showing that her work equates to an original contribution of major 
significance in the field. 
at the Center for 
Technology Transfer, University of Pennsylvania, states: 
I evaluate the commercial potential of inventions arising from laboratory investigations, 
create effective patent prosecution strategies to protect useful inventions, and license 
technology and/or associated intellectual property rights to partners in the commercial 
sector for the advancement of said inventions .... 
I have submitted numerous patent applications and have been personally responsible for 
the ones from [the petitioner]. While both her patents, a method for testing and screening 
protein synthesis inhibitors as well as a method for testing and screening p38 MAP 
Kinase modifiers was filed in early 2007, they were both only recently internationally 
published in December 2008. Both of these have considerable value, especially for the 
treatment of cancer and inflammatory diseases. Her experience in this research area is 
remarkable and it has been a pleasure working with her. She was quick to catch even 
minor mistakes in the application. 
In s comments, the petitioner submitted documentation indicating that 
she and filed two patent applications in 2007 that were published in December 
2008. Even if the petitioner were to establish that the preceding published applications resulted 
in patents, which she has not, the grant of a patent demonstrates only that an invention is 
original. A patent is not necessarily evidence of a track record of success with some degree of 
influence over the field as a whole. See Matter of New York State Dep't. of Transp., 22 I&N 
Dec. 215, 221 n. 7, (Comrnr. 1998). Rather, the significance of the innovation must be 
determined on a case-by-case basis. [d. In this instance, there is no documentary evidence 
indicating widespread medical or commercial implementation of the petitioner's testing and 
screening methods at the time of filing or that they otherwise constitute contributions of major 
significance in the field. 
Facility, University of Pennsylvania, states: 
Page 13 
In a collaborative effort with [the petitioner] identified a number of drug 
candidate compounds using a novel high-content high-throughput screen. One such 
compound was unstable, and decomposed to a smaller structure, presumably the active 
compound within the cell. She decided to determine the structure of this compound, as 
this information might prove advantageous to the drug synthesis process. I have served 
as consultant in this effort, as the structure is being determined using NMR. I have been 
greatly impressed to witness [the petitioner] prepare the compound for NMR through an 
elaborate series of steps, that combine biochemistry (several rounds of column 
purification) with cell biology (activity measurements using one of her unique assays). It 
is no simple task, and only her cross-disciplinary expertise has allowed her to succeed. 
We have now completed 1- and 2-dimensional NMR on this compound, and are close to 
describing its structure. It has been an exciting opportunity to work on this project, as a 
potential drug for SMA would be a great breakthrough for disease research. 
_describes his and the petitioner's collaborative work with but he does not 
provide not provide specific examples of how the petitioner's work has notably influenced others 
in the field or otherwise constitutes original contributions of major significance the field. 
of the 
University of Pennsylvania, states: 
Department of Chemistry, 
I have collaborated with [the petitioner] on her project to identify the specific mass of a 
potential lead compound for the treatment of Spinal Muscular obtained from her 
high-throughput high-content screen done in collaboration with This 
compound was of interest, as it fully corrected the "splicing defect," a hallmark of cells 
from patients with SMA. This compound decomposed in solution, while still maintaining 
activity. A smaller, yet active, compound decreases the cost and time for chemical 
synthesis by several orders of magnitude. Therefore [the petitioner] thought it critical to 
identify the structure of the decomposition product. 
[The petitioner] optimized a method for isolation of the product, which required a strong 
understanding of biochemical techniques, as well as of cell biology. In order to determine 
structure by nuclear magnetic resonance (NMR), she proceeded in a stepwise, logical 
fashion; first starting with the exact mass obtained by mass spectrometry. This gave her 
the elemental composition of the compound, which allowed her to use modeling software 
to derive at a small number of possible structures. This in tum facilitated eventual 
structure determination by NMR. 
This ability to combine different biochemical techniques is a hallmark of a true 
biochemist. . . . Such expertise is precious, and it is my professional opinion that [the 
petitioner's] outstanding abilities as a biochemist as well as a cell biologist make her 
indispensable to our science. 
Page 14 
It is not enough to be skillful and knowledgeable and to have others attest to those talents. An 
alien must have demonstrably impacted his or her field in order to meet this regulatory criterion . 
••••• describes the petitioner's work and praises her expertise, but he does not provide specific 
examples of how the petitioner's work at UPSM has impacted the field at large. 
The AAO notes that the above letters are all from the petitioner's collaborators and immediate 
colleagues. While such letters are important in providing details about the petitioner's work on 
various projects, they cannot by themselves establish that her work is recognized beyond her 
professional acquaintances. The opinions of experts in the field are not without weight and have 
been considered above. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Comm'r. 1988). 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; 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 experts' 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, independent evidence that one would expect of a scientific 
researcher who has made original contributions of major significance. Without supporting 
evidence showing that the petitioner's work equates to original contributions of major 
significance in her field, the AAO cannot conclude that she meets this 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 her authorship of seven scholarly articles that were published as of 
the petition's filing date and, thus, has submitted qualifying evidence pursuant to 8 C.F.R. 
§ 204.5(h)(3)(vi). Accordingly, the petitioner has established that she meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The petitioner submitted documentation showing that she presented her work at various scientific 
meetings and conferences as evidence for this criterion. The petitioner's field, however, is in the 
sciences rather than the arts. The plain language of this regulatory criterion indicates that it 
applies to artists. See Kazarian, 596 F. 3d at 1122 (in which the 9th Circuit determined that it is 
neither arbitrary, capricious, nor an abuse of discretion to conclude that scientific presentations at 
scientific conferences do not qualify as display of the petitioner's work at artistic exhibitions or 
showcases pursuant to 8 C.F.R. § 204.5(h)(3)(vii)). The ten criteria in the regulations are designed 
to cover different areas; not every criterion will apply to every occupation. The petitioner's 
presentations at scientific meetings and conferences are more relevant to the "authorship of 
scholarly articles" criterion at 8 C.F.R. § 204.5(h)(3)(vi), a criterion that she has already met. 
Page 15 
In light of the above, the petitIOner has not established that she meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has peiformed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner submitted letters of support discussing her graduate research at OSU under the 
o~and her postdoctoral research at UPSM under the supervision of _ 
While the petitioner has performed admirably on the research projects to which she 
was assigned, there is no evidence showing that her subordinate roles were leading or critical for 
the preceding universities. For example, there is no organizational chart or other evidence 
documenting how the petitioner's positions fell within the general hierarchy of her research 
institutions. The AAO notes that the petitioner's role at OSU was that of a student. Moreover, 
the petitioner's current postdoctoral appointment at UPSM is designed to provide specialized 
research experience and training in her field of endeavor.5 The petitioner's evidence does not 
demonstrate how her temporary appointments differentiated her from the other research scientists 
employed by the preceding institutions, let alone their tenured faculty and principal investigators. 
The documentation submitted by the petitioner does not establish that she was responsible for the 
preceding institutions' success or standing to a degree consistent with the meaning of "leading or 
critical role." Accordingly, the petitioner has not established that she meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted a University of Pennsylvania pay statement for September 2009 
indicating that she earns a monthly salary of $4,458.33 or $53,499.96 annually. The petitioner 
also submitted "Salary Guidelines" for Postdoctoral Scholars from Stanford University's 
website. The "Salary Guidelines" list the National Institutes of Health (NIH) minimum annual 
pay level for a postdoctoral scholar with 7 years of research experience as $51,552. The AAO 
notes that the petitioner's salary is less than $2,000 above the NIH "minimum" pay level. The 
plain language of this regulatory criterion requires evidence of "a high salary or other significantly 
high remuneration for services, in relation to others in the field." [Emphasis added.] A minimum 
pay level established by the NIH for postdoctoral scholars is not a proper basis for comparison. 
The petitioner must submit evidence showing that she has earned a high salary or other 
significantly high remuneration in relation to others in her field (including tenured research 
professors), not simply a salary that is above the minimum level for postdoctoral researchers. 
The petitioner's attempt to use minimum salary guidelines and to exclude the salaries of research 
professors in her field does not allow for an appropriate basis for comparison in determining a 
high salary "in relation to others in the field." See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Commr. 1994) (considering a professional golfer's earnings versus those of the top earners in the 
United States Professional Golfers' Association Tour). The evidence submitted by the petitioner 
5 "Biological scientists with a Ph.D. often take temporary postdoctoral research positions that provide specialized 
research experience." See http://www.bls.gov/oco/pdf/ocos047.pdf, accessed on May 27, 2011, copy incorporated 
into the record of proceedings. 
Page 16 
does not establish that she has received a high salary or other significantly high remuneration for 
services in relation to others in the field as of the petition's filing date. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish her 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 and will not further discuss it on appeal. Sepulveda v. U.S. Att'y Gen., 401 
F.3d 1226, 1228 n. 2 (llth Cir. 2005). Accordingly, the petitioner has not established that she 
meets this criterion. 
Summary 
In this case, the AAO concurs with the director's determination that the petitioner has failed to 
demonstrate her receipt of a major, internationally recognized award, or that she meets at least 
three of the ten categories of evidence that must be satisfied to establish the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A 
final merits determination that considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the AAO will next conduct 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," 8 c.F.R. § 204.5(h)(2); 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." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 
596 F.3d at 1119-1120. In the present matter, many of the deficiencies in the documentation 
submitted by the petitioner have already been addressed in the preceding discussion of the 
regulatory criteria at 8 C.F.R. §§ 204.5(h)(3)(iii) - (ix), . 
Regarding the documentation submitted for 8 C.F.R. § 204.5(h)(iv), the nature of the petitioner's 
judging experience is a relevant consideration as to whether the evidence is indicative of his 
recognition beyond his own circle of collaborators. See Kazarian, 596 F. 3d at 1122. Aside from 
the petitioner's failure to submit documentary evidence originating from the publications' editorial 
staff designating the petitioner as a reviewer, establishing that she completed the reviews, or 
specifying their dates of completion, the AAO cannot conclude that the petitioner's level and 
frequency of peer review (only four manuscripts) is commensurate with sustained national or 
international acclaim at the very top of the field of endeavor. The AAO notes that peer review of 
manuscripts is a routine element of the process by which articles are selected for publication in 
scientific 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's 
editorial staff 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 her 
field, such as evidence that she has received and completed independent requests for review from 
Page 17 
a substantial number of journals or served in an editorial position for a distinguished journal, the 
AAO cannot conclude that her level and frequency of peer review is commensurate with 
sustained national or international acclaim at the very top of the field of endeavor. For instance, 
Dr. resume states that he has served on the editorial boards of six journals. 
Regarding the petitioner's original research findings discussed under 8 C.F.R. § 204.5(h)(3)(v), as 
stated above, they do not appear to rise to the level of contributions of "major significance" in the 
field. Demonstrating that the petitioner's work was "original" in that it did not merely duplicate 
prior research is not useful in setting the petitioner apart through a "career of acclaimed work." 
H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The report also says that "an alien must (1) 
demonstrate sustained national or international acclaim in the sciences, arts, education, business or 
athletics (as shown through extensive documentation) .... " Id. Research work that is unoriginal 
would be unlikely to secure the petitioner a master's degree, let alone classification as a cardiology 
researcher of extraordinary ability. To argue that all original research is, by definition, 
"extraordinary" is to weaken that adjective beyond any useful meaning, and to presume that most 
research is "unoriginal." 
With regard to the documentation submitted for 8 c.F.R. § 204.5(h)(vii), in the fields of science 
and medicine, acclaim is generally not established by the mere act of presenting one's work at a 
scientific meeting or conference along with numerous other participants. Nothing in the record 
indicates that the presentation of one's work is unusual in the petitioner's field or that invitation 
to present at venues where the petitioner's work appeared was a privilege extended to only a few 
top researchers. Many professional fields regularly hold conferences and symposia to present 
new work, discuss new findings, and 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 elevate the petitioner 
above almost all others in her field at the national or international level. 
While the petitioner had published seven scholarly articles at the time of filing based on her research 
at OSU and UPSM, the Department of Labor's Occupational Outlook Handbook (OOH), 2010-11 
Edition, (accessed at www.bls.gov/oco on May 27, 2011 and incorporated into the record of 
proceedings), provides information about the nature of employment as a postsecondary teacher 
(professor) and the requirements for such a position. See http://www.bls.gov/oco/pdf/ocos066.pdf. 
The handbook expressly states that faculty members are pressured to perform research and publish 
their work and that the professor's research record is a consideration for tenure. Moreover, the 
doctoral programs training students for faculty positions require a dissertation, or written report on 
original research. Id. Further, the OOH states specifically with respect to the biological sciences 
that a "solid record of published research is essential in obtaining a permanent position performing 
basic research, especially for those seeking a permanent college or university faculty position." See 
http://www.bls.gov/oco/pdf/ocos047.pdf.This information reveals that original published research, 
whether arising from research at a university or private employer, does not set the researcher apart 
from faculty in that researcher's field. 
Moreover, the petitioner's citation history is a relevant consideration as to whether the evidence is 
indicative of the petitioner's recognition beyond his own circle of collaborators. See Kazarian, 
Page 18 
596 F. 3d at 1122. As previously discussed, the documentation submitted by the petItIOner 
indicates that her body of work has been moderately cited as of the petitioner's filing date. This 
level of citation is not sufficient to demonstrate that the petitioner's articles have attracted a level 
of interest in her field commensurate with sustained national or international acclaim at the very 
top of her field. 
Regarding the documentation submitted for 8 C.F.R. § 204.5(h)(3)(ix), the petitioner submitted 
evidence indicating that her salary is less than $2000 above the NIH minimum annual pay level 
for a postdoctoral scholar with 7 years of research experience. The petitioner, however, must 
submit evidence showing that her salary places her among that small percentage at the very top 
of the field rather than simply above the minimum level for those with the same number of years 
of experience. See 8 C.F.R. § 204.5(h)(2). Minimum pay guidelines are not an appropriate basis 
for comparison in demonstrating that a salary that is indicative of or consistent with national or 
international acclaim at the very top of the field. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. At the time of filing, the 
petitioner was working at UPSM as a postdoctoral research associate. The petitioner relies 
primarily on four manuscript reviews, seven research articles published prior to the petition's filing 
date with her research supervisors ___ and citation evidence showing that her 
work has been several conference presentations with _, two published 
patent applications with the praise of her current and former colleagues, and the 
affirmation of her colleagues that her work is important to UPSM where she works in an inherently 
temporary position. 
Many of the petitioner's references' credentials are far more impressive than those of the petitioner. 
For example, _ states that he is a tenured faculty member in the Department of 
Biochemistry at OSU. He further states: 
My research has been funded almost continuously for about 20 years, primarily from the 
National Institutes of Health. My research group and I have published >60 research 
articles in some of the top peer-reviewed biochemical journals .... I have served as the 
thesis advisor for 20 graduate students and have supervised research projects for 
numerous undergraduate students. I also serve as instructor for undergraduate- and 
advanced graduate-level courses .... In addition, I served as Chair of the Department of 
Biochemistry, a position held since July 1, 2000 for 8 years .... 
resume indicates that he served as co-editor 
and performed peer review for more than a dozen distinguished journals. 
is the Investigator at His resume states 
that he is an Elected Fellow of the American Academy of Arts and Sciences and an Elected Member 
of the European Academy of Sciences. Further, _ has served on the editorial boards of 
RNA, Molecular Cell, Experimental Cell Research, Cromosoma, The New Biologist, and Molecular 
and Cellular Biology and authored 177 publications. 
Page 19 
According to his resume, _ has 
authored more than twenty publications and 17 abstracts. 
While the petitioner need not demonstrate that there is no one more accomplished than herself to 
qualify for the classification sought, it appears that the very top of her field of endeavor is far above 
the level she has attained. In this case, the petitioner has not established that her achievements at the 
time of filing were commensurate with sustained national or international acclaim as a research 
scientist, or being among that small percentage at the very top of the field of endeavor. 
III. Conclusion 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203 (b)(1 )(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO 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 at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.