dismissed EB-1A Case: Sciences

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: EAC 03 099 5 1006 Office: VERMONT SERVICE CENTER Date: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PEpTIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
cided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
EAC 03 099 5 1006 
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. (j 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. 
On appeal, counsel asserts that the director wrongfully changed the period in which to appeal from 30 to 15 
days. Any information about the appeal period provided by the director cannot supercede the regulations. Had 
the director provided the wrong amount of time, this office would still consider the appeal timely if filed within 
the time proscribed by the regulations. That said, the director's decision in this matter gave the appeal period as 
30 days (33 if mailed) and the Form 1-290B Notice of Appeal indicates that a timely appeal would need to be 
filed by November 6, 2004, the correct date. As such, the record does not support counsels concerns on this 
matter. 
In conclusion, counsel asserts that "few people in the world can rise to the level of Research Scientist at Yale 
University, yet [the director] brushes this off without even a mention." We do not find that employment at Yale 
University creates a presumption of eligibility any more than major league status does for athletes. See 
Supplementary information at 56 Fed. Reg. 60899 (November 29, 1991). While Yale's prestige is clearly a 
factor, the regulations make very clear that the employer's distinguished reputation becomes relevant only when 
the alien plays a leading or critical role for that employer. 8 C.F.R. fj 204.5(h)(3)(viii). At the time of filing, the 
petitioner was a postdoctoral associate at Yale. which, as discussed below, is not a leading or critical role for the 
institution as a whole. The remaining regulatory criteria, and counsel's assertions relating thereto, will be 
discussed below. 
Counsel also states: 
Congress has allowed 20,000 visas per year for this category. By denying this case, [the 
director] is in fact saying that every year there are 20,000 foreigners in this country MORE 
qualified than a Yale Scientist with 39 publications who has won major prizes and who is held 
in high esteem by the top people in her profession. 
As discussed below, counsel's characterization of the petitioner's publication record is somewhat inflated. 
Regardless, the allocation number represents congressional intent to set a limit on the number of aliens, 
inclusive of those working in the arts, education, business, or athletics in addition to the petitioner's field, 
immigrating to the United States. The allocation is not a standard as to who qualifies. Nothing in the statute, 
regulations, or case law indicates that evaluation under this classification requires consideration, assuming such 
an inquiry were even possible, of whether there are 20,000 "foreigners" in the five fields covered by the statute 
who are more qualified. 
As set forth in the regulations quoted below, an alien must meet at least three of the regulatory criteria to 
establish eligibility. The director found that the petitioner did not meet any of those criteria. On appeal, counsel 
asserts that the petitioner meets five. We concur with the director that the petitioner did not meet any of the 
criteria at the time of filing. We note that even if we found that the petitioner met the contributions criterion, set 
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forth at 8 C.F.R. 5 204.5(h)(3)(v), and the scholarly articles criterion, set forth at 8 C.F.R. 5 204.5(h)(3)(vi), for 
which the most evidence has been submitted, the petitioner would only meet two criteria. For the reasons 
discussed below, the petitioner falls far short of meeting any other criterion. 
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. § 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 she has sustained national or international acclaim at the very top level. 
According to Part 6 of the petition, it seeks to classify the petitioner as an alien with extraordinary ability as a 
postdoctoral associate. While postdoctoral researchers are not precluded from establishing eligibility for this 
exclusive classification, we will not narrow the petitioner's field to those beginning their postdoctoral careers. 
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, she claims, meets the following criteria.' 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or uwards for 
excellence in the field of endeavor. 
1 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
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The petitioner submitted her 1997 Second Place award at the 5 ward for Excellent 
Thesis of Young Scientist sponsored by the Chinese Assoc . In addition, the 
petitioner received awards that appear to be local to Hunan Province. The director concluded that the petitioner 
had not established that the awards were national. 
On appeal, counsel asserts that the director should have inquired as to the national nature of the awards in a 
request for additional evidence. Counsel asserts that the award "is the highest scientific award in China." The 
petitioner submits documentation regarding the excellent thesis award that demonstrates 24 selected young 
scientists from 16 provinces competed for six awards, one first place, two second place, and three third place 
awards. 
The petitioner has now demonstrated that the award was national in scope, although the materials do not support 
counsel's assertion that the award is the highest scientific award in China. The plain language of the regulation, 
however, requires that the awards be nationally recognized awards for excellence in one S field. We must 
presume that the use of the word "recognized" is not superfluous and, thus, that it has some meaning. See 
Walters v. Metro. Educ. Enters.,5 19 U.S. 202, 209 (1997); Bailey v. US., 516 U.S. 137, 145 (1995). As 
stated above, the regulation at 8 C.F.R. $204.5(h)(2) defines extraordinary ability as a level of expertise such 
that the individual is one of that small percentage who have risen to the very top of the field. Once again, we 
must presume that this language was included in the regulations for a purpose. Id. In order to give this 
definition any meaning, the evidence submitted to meet the regulatory criteria that follow must be evaluated as 
to whether it is indicative of or consistent with ranking at the top of one's field. This interpretation represents a 
consistent approach by this office to all cases in this classification. As stated above, we will not narrow the 
petitioner's field to students or those in the early stages of the postdoctoral career. Experienced experts in 
the field do not compete for excellent student theses awards. Thus, receipt of such an award is not indicative 
of an individual who is one of the very few at the top of her field. While we acknowledge that the award is 
indicative of a high quality of work in comparison with other students nationally, by itself it cannot serve to 
meet this criterion. 
Documentation of the alien's membership in associations in the field for which classification is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
The petitioner submitted evidence of her membership in the Chinese Association of Physiology Science as of 
1997. The director concluded that the petitioner had not demonstrated the membership requirements for this 
association. Counsel does not challenge this assertion on appeal and we concur with the director. 
Published materials about the alien in professional or major trade publications or other ntajor media, 
relating to the alien's work in the field for which classiJication is sought. Such evidence shall include the 
title, date, and author of the ntaterial, and any necessav translation. 
The director stated that the petitioner had not demonstrated that her work had been cited. On appeal, counsel 
asserts that one of the petitioner's articles has been cited 37 times. Counsel further asserts that the citation 
record for the remaining articles "has not been checked." Counsel provides no explanation for this failure. 
Previously in his brief, counsel asserts that the petitioner's cited work has also received "considerable attention 
from the lay press," and that he is submitting some examples of such attention. 
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The petitioner submitted a comment on her work that appeared in the same issue as her article in Nature 
Medicine, a review of this work in Nature Reviews that does not specifically mention the article or the 
petitioner, a press release issued by Yale University that does not mention the petitioner by name, and a Yale 
Bulletin piece that does not mention the petitioner by name. The petitioner also submitted the citation evidence 
supporting counsel's assertion that her article in Nature Medicine has been cited 37 times as of the date of 
appeal. Only two of the articles citing the petitioner's work were published prior to the date of filing, February 
5.2003. 
Articles which cite the petitioner's work are primarily about the author's own work, not the petitioner. As such, 
they cannot be considered published material about the petitioner. The review article appeared in the same issue 
as the petitioner's article and, thus, did not garner any recognition for the petitioner beyond those already 
reading the journal. We will, however, consider this evidence below as it relates to the significance of the 
petitioner's publication record. Even if we were to consider frequent citation as evidence to meet this criterion, 
and we typically do not, a petitioner must establish eligibility as of the date of filing. See 8 C.F.R. 
tj 103.2(b)(12); Matter of Katigbak, 14 1&N Dec. 45, 49 (Comm. 197 1). As of that date, the petitioner had 
only been cited twice, one of which was the commentary. 
The materials submitted on appeal do not support counsel's assertion that the petitioner's work garnered 
"considerable attention from the lay press." A press release by the petitioner's own employer is not as 
persuasive as independent journalistic coverage. School publications, such as the Yale Bulletin, cannot be 
considered major media. Finally, these materials do not mention the petitioner by name and, thus, cannot be 
considered published materials "about" the petitioner if that word is to have any meaning. 
In light of the above, the petitioner has not demonstrated that she meets this criterion. 
Evidence of the alien's original scientijc, scholarly, artistic, athletic, or business-related contributions of 
major signljicance in the3eld. 
The director concluded that the petitioner had not demonstrated the impact of her articles and that the letters 
were not adequately supported by unsolicited materials reflecting acclaim. On appeal, counsel asserts that the 
director's "boilerplate garbage" represents "a truly pathetic way for an uninformed examiner to dismiss the 
tremendous accomplishments of a Yale scientist." While we concur with the director's position that reference 
letters prepared in support of a petition are more persuasive when supported by unsolicited materials indicative 
of acclaim. we will consider the letters in more detail below. 
The petitioner submitted several reference letters attesting to her skills, talent and importance to ongoing 
projects. While aliens who qualifL for this classification are presumably talented, attestations of talent cannot 
form the sole basis for eligibility for the classification sought. Rather, the statutory standard for this 
classification is whether the petitioner has national or international acclaim. The relevant consideration for this 
regulatory criterion is whether, at the time of filing, the petitioner had already made contributions of major 
significance to her field and was recognized as having done so beyond her immediate circle of colleagues. In 
evaluating the letters below, we emphasize that letters identifying specific contributions and explaining their 
impact are more persuasive than letters providing general praise. Similarly, letters from independent experts 
previously aware of the petitioner's reputation in the field are more persuasive evidence of acclaim than letters 
from colleagues, although letters from colleagues are important in explaining the details of the petitioner's work. 
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her Ph.D. from Hunan Medical University in 1999, after which she joined the laboratory 
at Yale University School of Medicine. As stated above, the petitioner's thesis at Hunan 
a national young scientist thesis award. The only discussion of this work, however, 
comes from Yunlai Chan. a professor at the Universihr of Illinois College of Medicine who met the petitioner , . - 
while on sabbatical at Yale University. xplains that the petitioner investigated Ca2+, the 
trigger of the heart's contraction process. able to perform microsurgery on small - - 
animals, the petitioner "mana ed to investi ate" new inotropic agents that can improve Ca2+ sensitivity without 
increasing intracellular Ca2+. 
C 
asserts that success in such an investigation "would 
of designing drugs t at can ma e the] heart working [sic] better and more efficiently." 
however, does not assert that the petitioner was able to improve Ca2+ sensitivity without increasing 
intracellular Ca2+, nor does he identify a pharmaceutical company (or any other research institution) that has 
begun applying the petitioner's results towards the development of a designer drug. 
raises the petitioner's skills, asserting that she brought new approaches to Yale University. 
that the petitioner "continues to contribute to the development of important new animal model 
systems and new avenues of investigation," his actual discussion of the petitioner's accomplishments is limited 
to their potential impact. Specifically, he states: 
Many of these contributions have the capacity to significantly alter the manner in which 
patients are treated clinically. For example, [the petitioner's] efforts recently have led to the 
first ever demonstration that genes could be regulated in vivo using an artificial transcription 
factor. This approach may revolutionize the field of gene therapy. 
(Emphasis added.) then discusses the petitioner's collaboration with the Salk Institute, where she 
helped by which blood vessel growth is controlled." He concludes that the results 
of this work "may lead to new therapies for cancer and ischemic heart disease." (Emphasis added.) 
The remaining letters from Yale faculty and other collaborators are general and mostly provide general praise of 
the petitiooer's dedication and skills. These attributes are not at issue. While some of the references refer 
ntributions." they fail to explain how the petitioner's work has already impacted the field. 
'ale University, states only that the petitioner's area of research "holds 
mschemic heart disease, heart failure, as well as other critical areas of 
an associate professor at the University of California, Los Angeles who has 
, asserts that her work on transcriptions factors regulating genes in live animals . . 
"represents a unique approach to gene therapy that may lead to therapeutics." 
a research associate professor in the Department of Ne r lo at Northwestern University, 
know of the petitioner "through her presentations."2 discusses the petitioner's 
work with HIFla, a major transcriptional cellular responses to hypoxia shown to be elevated in 
ischemic heart. According t the petitioner "found that, in addition to its role as a critical mediator of 
cellular responses to important basal effects on cardiac and vascular physiology as well as -. 
on the bas of several genes, including those involved in vascularization, metabolism and calcium 
handling." plains the skills need to perform such work and asserts that the results are "important to 
2 According to her curriculum vitae, as of the date o -r, the petitioner had only presented her 
work at a single conference. 
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clinical trials for cardiovascular system disorders." He does not identify any such trails that are applying the 
petitioner's work. Regarding the petitioner's transcription work discussed abovestates that it "may 
significantly augment the success of clinical gene therapy approaches for heart disease." This statement appears 
to be speculation, aoes not identify any places where the petitioner's work is being applied. 
ierra-Honigmann, Director of Tissue Repair and Regeneration Laboratory at Cedars-Sinai 
Medical Center, asserts that the petitioner's project is "promising" and, with further research, has the "potential" . . 
for human application. Such iualified praise is not indicative of an individual who has already made a 
contribution of major significance to the field of cardiology. 
irector of Research at the Cardiovascular Institute in Chicago, notes that the petitioner has 
important inter-institutional collaborations and asserts that his laboratory will be 
collaborating with the petitioner on an upcoming project. While these collaborations are clearly an opportunity 
for greater exposure in the field, they do not necessarily imply that the petitioner has already garnered national 
or international acclaim. 
On appeal, the petitioner submits three more letters from independent members of the field. While they claim to 
know of the petitioner's work through her publications, it is not clear whether they were aware 
a request for a reference letter that included copies of the petitioner's articles. 
professor at the Medical College of Wisconsin, notes the importance of the 
that her work "will likely lead to new ways to prevent ischemic vascular disease." The 
petitioner was also the first to show that "HIF-la plays a central role in coordinating energy availability and - - - -- 
utilization in the heart." This work has "important implications for many disease states in which cardiac oxygen 
skills that allowed her to insert a 
n associate professor at Columbia University, 
asserts that the achievement for such a 
young researcher." As stated above, however, we will not narrow the petitioner's field to those just beginning 
their postdoctoral careers. 
Director of the Laboratory of Tumor Biology and Cancer Gene Therapy at Duke University 
that the significance of the petitioner's work is evident from the commentary in Nature - 
Medicine and the coverage in "the lay press." As discussed above, however, the record is absent evidence of 
any coverage in the "lay press." Specifically, a press release from Yale University itself, which may or may not 
d in a major newspaper, does not constitute evidence of journalistic coverage in the "lay 
not provide examples of lay press coverage or explain how he has first hand knowledge of 
such coverage. A copy of a single article that actually appeared in the "lay press," which has not been 
submitted, would have far more evidentiary value than multiple claims of such coverage. 
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 significance. We 
must presume that the phrase "major significance" is not superfluous and, thus, that it has some meaning. 
See Walters v. Metro. Educ. Enters.,519 U.S. at 209; Bailey v. US., 516 U.S. at 145. 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 
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impact of the petitioner's work. As discussed above, the petitioner's independent references do not claim to be 
influenced by the petitioner's work. While the record includes numerous attestations of the potential impact of 
the petitioner's work and it appears to have generated some interest in the field, none of the petitioner's 
references provide examples of how the petitioner's work is already influencing the field. While the evidence 
demonstrates that the petitioner is a talented researcher with tremendous potential, it falls somewhat short of 
establishing that the petitioner had already made contributions of major significance that were recognized as 
such as of the date of filing. Thus, the petitioner has not established 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. 
Initially, counsel asserted that the petitioner had authored seven articles, including a first-authored article in 
Nature Medicine. The petitioner submitted six articles3 and evidence that she presented her work at a 
conference. The director referenced his discussion for the previous criterion, which included his concern that 
the record lacked evidence of citations. 
On appeal, counsel asserts that the petitioner has a "fabulous" publication record including 39 articles, abstracts 
and presentations.4 The petitioner submits her current curriculum vitae that lists 14 published articles, nine of 
which were published as of the date of filing, 13 abstracts, four of which were clearly published prior to the date 
of filing, and three conference presentations, one of which occurred prior to the date of filing. In support of 
these claims, the petitioner submitted a copy of an article published in 2001 but not submitted previously, an 
article published online by the FASEB Journal in 2004, and several abstracts, three of which were clearly 
published prior to the date of filing. Thus, the petitioner has now documented authorship of seven articles and 
three abstracts published as of the date of filing. As stated above, the petitioner also submits her citation record 
for a single article, reflecting 37  citation^.^ 
The regulation at 8 C.F.R. 5 204.5(h)(3) states that a petition for the classification sought "must be accompanied 
by evidence that the alien has sustained national or international acclaim and that his or her achievements have 
been recognized in the field of expertise." The regulatory criteria then follow as subparagraphs under this 
paragraph. The evidence submitted to meet any criterion must be evaluated as to whether it is indicative of or 
consistent with national or international acclaim if that statutory standard is to have any meaning. This office 
consistently finds that duties inherent to an occupation cannot serve to meet a given criterion. 
The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report and 
Recornmendutions, 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 andlor 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 
3 The petitioner submitted another article, published in Acta Phr 
list the petitioner as an author. Rather, the authors ar . 
4 In comparison, we note that one of the petitioner's references 
I 
authored over 170 scientific articles. 
5 In comparison, we note that one of the petitioner's references 
been cited more than 3,000 times. 
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who have not yet begun "a full-time academic andlor research career." This report reinforces our position that 
publication of scholarly articles in the sciences is not automatically evidence of sustained acclaim; we must 
consider the research community's reaction to those articles. 
As of the date of filing, the petitioner had documented authorship of seven articles, three abstracts, and 
presented her work at one conference. We acknowledge that the petitioner has published in extremely 
prestigious journals, including Nature Medicine and the Proceedings of the National Academy of Sciences. As 
of the date of this appeal, at least one of the petitioner's articles has been moderately cited. The statutory 
standard for this classification is "national or international acclaim." The petitioner must be able to demonstrate 
such acclaim as of the date of filing. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. 
While the petitioner's publication record is consistent with some national exposure as of the date of filing, 
the most persuasive evidence of the impact of the petitioner's published articles, the citations, were not 
significant as of the date of filing. 
In light of the above, the petitioner has not established that she met this criterion as of the date of filing. 
Evidence that the alien has performed in a leading or critical role for organizations or establishment.s that 
have a distinguished reputation. 
Counsel relies on the reference letters discussed above to meet this criterion. Under counsel's analysis, the 
petitioner's original published results produced at a distinguished university would serve to meet the 
contributions criterion, the scholarly articles criterion, and this criterion. Such an analysis renders the necessity 
of meeting at least three regulatory criteria (and the statutory requirement for extensive documentation) 
meaningless. 
We have already considered the petitioner's contributions while at Yale University above. At issue for this 
criterion, however, are the role the petitioner was hired to fill and the reputation of the entity that hired her. We 
do not contest the distinguished reputation of Yale University as a whole. At the time of filing, however, the 
petitioner filled the role of postdoctoral associate. We cannot conclude that the role of postdoctoral associate is 
a leading or critical role for Yale University as a whole beyond the obvious fact that Yale requires the services 
of its numerous postdoctoral associates to participate in the research occurring at that institution. Thus, we 
concur with the director that the petitioner does not meet this criterion. 
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 herself as a cardiology 
researcher to such an extent that she may be said to have achieved sustained national or international acclaim or 
to be within the small percentage at the very top of her field. The evidence indicates that the petitioner shows 
immense talent as a postdoctoral associate, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field, including the most experienced and accomplished members of 
the cardiology field. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of 
the Act and the petition may not be approved. 
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The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 136 1. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.