dismissed EB-1A Case: Traditional Chinese Medicine

MATTER OF l-1-W-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a teacher and researcher of traditional Chinese medicine (TCM), seeks classification 
as an individual '·of extraordinary ability'" in the sciences. See Immigration and Nationality Act (the 
Act) section 203(b )(1 )(A), 8 U.S.C. ~ 1153(b )(1 )(A). This classification makes visas available to 
foreign nationals who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner had 
satisfied the initial evidence requirements set forth at 8 C.F.R ~ 204.5(h)(3) by meeting at least three 
of the ten regulatory criteria, but determined that the documentation provided was not indicative of 
her sustained national or international acclaim or her being among that small percentage who has 
risen to the very top of the field. 
The matter is now before us on appeal. In her appeal, the Petitioner argues that the evidence she 
submitted for the published material criterion at 8 C.F.R § 204.5(h)(3)(iii). the judging criterion at 
8 C.F.R § 204.5(h)(3)(iv), and the authorship of scholarly articles criterion at 8 C.F.R 
§ 204.5(h)(3 )(vi) was commensurate with sustained national acclaim at the very top of her field. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
By statute, the extraordinary ability immigrant visa classification requires that foreign nationals 
demonstrate sustained national or international acclaim and present extensive documentation of their 
achievements. Specifically, section 203(b )(1 )(A) of the Act explains that a foreign national is described 
as an individual with extraordinary ability 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, 
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(ii) the alien seeks to enter the United States to continue work m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The implementing regulation defines the term .. extraordinary ability" as referring only to those 
individuals in that small percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 
§ 204.5(h)(2). To meet this definition, the regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part 
analysis. First, a petitioner can demonstrate sustained acclaim and recognition of achievements in the 
field through a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this documentation. then she must provide sufficient qualifying evidence that 
meets at least three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
Satisfaction of at least three criteria, however. does not, in and of itself. establish eligibility for this 
classification. See Kazarian v. USC!S, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the documentation is first counted and then, if fulfilling the required number of criteria. 
considered in the context of a final merits determination); see also; Visinscaia v. Beers, 4 F. Supp. 
3d 126, 131-32 (D.D.C. 2013); R(jal v. USCIS, 772 F. Supp. 2d 1339 (W.O. Wash. 2011); lvfaller <?l 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the .. truth is to be determined not by the 
quantity of evidence alone but by its quality" and that U.S. Citizenship and Immigration Services 
(USCIS) examines ·'each piece of evidence for relevance, probative value, and credibility , both 
individually and within the context of the totality of the evidence. to determine whether the fact to be 
proven is probably true"). 
II. ANALYSIS 
A. Evidentiary Criteria 
At the time of filing the Form I-140. Immigrant Petition for Alien Worker, the Petitioner was 
working a teacher and researcher of at the Under 
the regulation at 8 C.F.R. § 204.5(h)(3), the Petitioner, as initial evidence , may present a one-time 
achievement that is a major , internationally recognized award . In this case. the Petitioner has not 
stated or shown that she is the recipient of a qualifying award at a level similar to that of the Nobel 
Prize. As such, she must provide at least three of the ten types of documentation listed under 
8 C .F .R. § 204.5(h)(3 )(i)-(x) to meet the basic eligibility requirements. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the fieldfor which class(fication is sought. 
Such evidence shall include the title. date, and author of the material. and any necessary 
translation. 
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The Director determined that the Petitioner had satisfied this regulatory criterion. The Petitioner 
stated that the following Chinese language articles were written about her: 
1. 
· in (November 2014): and 
2. 
' in (June 2014) . 
The Petitioner did not submit objective evidence of the articles such as copies or photocopies of the 
articles as they appeared in the aforementioned journals. Rather, she incorporated what she claims is 
the text from those two articles into of her September 2014 letter to USCIS that 
accompanied the petition. The Petitioner's representations regarding the publication of these articles 
do not meet her burden of proof. Matter (~{S(~ffici, 22 I&N Dec. 158, 165 (Comm·r 1998) (citing 
Matter (~(Treasure Craft ofCal(fornia, 14 I&N Dec. 190 (Reg'l Comm·r 1972)). 
In addition , the Petitioner submitted two ·'Notarized Translation[ s ]" (dated September 2014 and 
September 2015) certifying that she is '·fluent (conversant) in English and Chinese languages. and 
that the Chinese Documents and the corresponding English Translation in the package for permanent 
residence application are true and accurate translation."' The regulation at 8 C.F.R. § 103.2(b)(3) 
provides in pertinent part: 
Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified 
as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
Although the record contains the Petitioner's notarized translations, it is unclear \vhich of the 
submitted evidence. if any, to which they pertain. The submission of a single translation 
certification that does not specifically identify the document or documents it accompanies does not 
meet the requirements of the regulation at 8 C.F.R. § 103.2(b)(3). Because the Petitioner did not 
submit certified translations that identified any specific articles. we cannot determine whether the 
evidence supports her claims . Accordingly, the translated text from the two listed articles is of 
limited probative value. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a photocopy of 
in 
(June 2014), but the accompanying English language translation did not identify the 
author and it was not certified by the translator as required by the regulation at 8 C.F.R. 
§ 103 .2(b )(3 ). Without copies of the first two articles as allegedly published in 
or properly certified English language 
translations for all three of the aforementioned articles, the Petitioner has not established that she 
meets this regulatory criterion. Therefore, the Director's determination on this issue is withdra\vn . 
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Evidence of the alien 's participation. either individually or on a panel, as a judge (?f the 
work l~{ others in the same or an alliedfi eld of spec{fication for ·which class{fication is 
sought. 
The Petitioner provided a letter from editor of stating that she ··has served as 
a peer reviewer'' for the journal. Attached to the letter was a list of 11 manuscripts that the Petitioner 
reviewed for the journal over a three year period . This evidence supports the Director ' s finding that 
the Petitioner meets this regulatory criterion. 
Evidence of the alien ·s authorship l?{ scholarly articles in the field, in pr<?fessional or 
major trade publi cations or other major media. 
The Director determined that the Petitioner had satisfied this regulatory criterion. The Petitioner 
stated that she authored the following Chinese language articles: 
1. ' 
2. 
3. 111 
4. 
5. 
and 
6. 
m 
The Petitioner did not objective evidence of her articles in the aforementioned journals. Instead, she 
incorporated what she contends arc abstracts from the six articles into her September 2014 letter to 
USCIS that accompanied the petition . In addition, although the Petitioner provided 
uncertified English language translations for the articles numbered 
2 and 3 above on of 
her September 2014 letter , she did not submit the original articles in the Chinese language . Because 
the Petitioner did not submit copies of the original Chinese language articles along with properl y 
certified English language translations as required by the regulation at 8 C.F.R. § 103.2(b)(3). we 
cannot determine whether the evidence supports the Petitioner's claims . Accordingly, the Director's 
determination that the Petitioner meets this regulatory criterion is withdrawn. 
B. Summary 
For the reasons discussed above, we find that the Petitioner has not submitted the requisite initial 
evidence, in this case, evidence that satisfies three of the ten regulatory criteria at 8 C.F .R. 
§ 204.5(h)(3). 
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C. Final Merits Determination 
Had the Petitioner included the requisite material under at least three evidentiary categories. in 
accordance with Kazarian, our next step of analysis would be a final merits determination that 
considers all of the submissions in the context of whether she has achieved: (1) a .. level of expertise 
indicating that [she] is one of that small percentage who have risen to the very top of the field of 
endeavor:· and (2) ·'that the [Petitioner] has sustained national or international acclaim" and that her 
"achievements have been recognized in the field of expertise.'' 8 C.F.R. § 204.5(h)(2), (3 ): see also 
Kazarian. 596 F.3d at 1119-20. As the Petitioner has not done so, the proper conclusion is that she 
has not satisfied the antecedent regulatory requirement of presenting initial evidence set forth at 8 
C.F.R. § 204.5(h)(3)(i)-(x). See Kazarian, 596 F.3d at 1122. 
Although we need not provide the type of final merits determination referenced in Kazarian. our 
review of the record in the aggregate does not support a finding that the Petitioner has achieved the 
level of expertise required for the classification sought. For example, even if the Petitioner had 
submitted copies of the three published articles submitted under 8 C.F.R. § 204.5(h)(3 )(iii) along 
with properly certified English language translations. there is no circulation evidence for the journals 
showing that their coverage is indicative of national or international acclaim. Furthermore. the three 
articles mentioning the Petitioner were limited to a five month period from June 2014- November 
2014. According to the Petitioner's curriculum vitae. she has worked in the field of traditional 
Chinese medicine since 2007. The Petitioner has not shown that three published articles about her 
over a research career spanning seven years at the time of filing are indicative of her sustained 
national acclaim at the very top of the field. 
As previously discussed, the Petitioner submitted evidence demonstrating that she peer-reviewed 11 
manuscripts for a single journal, as of the petition· s September 3. 20 14, filing date. The 
letter from stated: "Reviewers. such as the Petitioner, play a key part in detern1ining \Vhat 
the journal accepts for publication. We normally choose leading experts \Vith a national reputation in 
the field.'' The record, however. did not include any documentation ret1ecting prestige 
or standing in the field. For instance, the Petitioner did not provide objective evidence of the 
journal's ranking amongst other journals or its impact factor. 
The Petitioner also provided a September 2015 letter from the chief editor of the 
stating that she "has been invited to be an editorial board member" for the journal. The 
record, however. did not contain any evidence showing that the Petitioner had participated in an 
editorial capacity for as of September 3. 2014. Eligibility must be established 
at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! 
Comm'r 1971 ). Accordingly. we cannot consider any editorial board services performed after the 
date the petition was filed as evidence to establish the Petitioner's eligibility at the time of tiling. 
Regardless, the petitioner has not established that her level of peer review for 
and is commensurate with sustained national or international acclaim at the very top 
of her field of endeavor. Scientific and medical journals are peer-reviewed and rely on many 
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professionals to review submitted articles 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. Thus. peer review is routine in the field and not every peer reviewer enjoys national or 
international acclaim. Without evidence that sets the Petitioner apart from others in her field. such 
as evidence that she has completed numerous independent requests for review from a substantial 
number of journals or served in an editorial position for a distinguished journal as of the petition's 
filing date. we cannot conclude that her level of participation in the peer review process is 
commensurate with being at the very top of the field. 
Furthermore. had the Petitioner provided copies of her scholarly articles in professional journals 
along with properly certified English language translations, she has not shown that her publication 
record of six articles sets her apart from almost most others in her field or is otherwise indicative of 
sustained national or international acclaim. The U.S. Department of Labor's Occupational Outlook 
Handbook (OOH). 2016-17 Edition provides information about the nature of employment as a 
postsecondary teacher (professor) and the requirements tor such a position. S'ee 
http://www. b Is. gov I ooh/ education-training -and-library /postsecondary- teachers.htm#tab- 3, accessed 
on May 9, 2016, a copy of which is incorporated into the record of proceedings. The 00 l! states that 
'·postsecondary teachers must find balance between teaching students and doing research and 
publishing their findings'' and that their research record is a consideration for advancement. In addition. 
doctoral programs require graduate students to prepare "a doctoral dissertation, which is a paper 
presenting original research in the student's field of study.'' See http://www.bls.gov/ooh/education­
training-and-library/postsecondary-teachers.htm#tab-4, accessed on May 9. 2016. copy incorporated 
into the record of proceedings. This information reveals that authorship of scholarly articles arising 
from research at institutions such as 
does not necessarily set the individual apart from other faculty in that 
researcher's field. 
Moreover, the Petitioner's citation history is a relevant consideration as to whether the evidence is 
indicative of recognition beyond her research collaborators. See Kazarian. 596 F. 3d at 1122. With 
respect to the Petitioner's published and presented work, there is no presumption that every published 
article or conference presentation demonstrates national or international acclaim; rather. the 
Petitioner must document the actual impact of her article or presentation. An extensive number of 
favorable independent citations for an article or presentation is an indicator that other researchers are 
familiar with the work and have been influenced by it. A small number of citations. on the other 
hand. is generally not probative of the work's impact in the field. In this instance, the Petitioner 
provided a Chinese language webpage that she claims shows 10 cites to her research 
articles, but the accompanying English language translation was not certified by the translator as 
required by the regulation at 8 C.F.R. § 103 .2(b )(3 ). Regardless. the Petitioner has not established 
that ten cites to her body of research work is indicative of sustained national or international acclaim 
at the very top of her field. 
The Petitioner contends that ""the citation of Senior expert in the field of 
is as low as 3 times during 4 years" and that research articles .. usually have low citations due 
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to characteristics of the discipline." The Petitioner provided a Chinese language _ 
webpage that showed three cites to research articles, but the accompanying English 
language translation was not certified by the translator in accordance with the regulation at 8 C.F.R. 
§ 103.2(b)(3). Nevertheless. the Petitioner's citation example for just one researcher does not 
offer an appropriate basis for comparison relative to others in the field. In addition. the Petitioner 
mentions that '"the authored a 
paper entitled· that 
"'has only been cited 30 times as showed on " Even if the Petitioner had provided 
documentation of the article's citation history from _ , which she has not. selecting 
only one article from body of published work does not provide an appropriate basis for 
comparison with the Petitioner's work. Without further corroborating evidence, the Petitioner has 
not demonstrated that her citation history is commensurate with sustained national or international 
acclaim in the field. 
Similarly, although the record includes reference letters that discussed the Petitioner's research 
accomplishments, they did not establish her status as nationally or internationally acclaimed in 
and among that small percentage who has risen to the very top of the field of endeavor. For example. 
a professor in the 
stated that the Petitioner "'has been recognized nationally/internationally for her expertise in 
the field of and that her '"research results of integrative medicine have been at the forefront 
in her field, widely recognized by her peers," but did not provide specific examples of how her work 
has widely affected treatment practices in the medical field, has been of major significance to 
practitioners, or was otherwise nationally or internationally acclaimed. 
a professor at indicated that the 
Petitioner's •·expertise has enabled her to achieve national recognition and has established her as an 
outstanding scientist at the top of her specialty." The record does not however, include evidence to 
substantiate statement. In addition, president and chief executive otlicer 
of mentioned that the Petitioner presented her work at the 
The 
Petitioner supplied corroborating evidence showing that her research was presented at the 
aforementioned conferences, but did not offer specific information about the conferences. their 
reputation in the field, or the process for selecting presenters. Although refers to them 
as "'prestigious international conferences," the record does not contain objective material to 
substantiate this characterization. Furthermore. there is no information regarding the selection 
criteria for presented work. Conference presentations at research symposia are often regarded a 
necessary activity in medical research fields. 
The Petitioner provided additional letters from Curator of 
an independent practltwner, chief editor of 
the and These references indicated that the Petitioner was a 
"very top researcher'' with ''extraordinary ability" and 
a national reputation. Statements that repeat 
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the language of the statute or regulations do not satisfy the Petitioner's burden of proof. See Fedin 
Bros. Co., Ltd. v. Sava, 724F. Supp. 1103,1108 (E.D.N.Y. 1989),a.ff'd, 905 F. 2d41 (2dCir. 1990); 
Avyr Associates. Inc. v. Meissner, No. 95 CIV. 10729, *1, 5 (S.D.N.Y. Apr. 18, 1997). The 
references also mentioned the Petitioner's research, published and presented work, and peer review 
activity as support for their opinions. They did not, however, establish that the Petitioner's 
achievements set her among that small percentage who has risen to the very top of the field of 
endeavor. 
The opinions of experts in the field are not without weight and have been considered above. USC IS 
may, in its discretion, use as advisory opinions statements offered as expert testimony. See Matter of 
Caron Int'l, 19 I&N Dec. 791,795 (Comm'r 1988). However, USCIS is ultimately responsible for 
making the final determination regarding a foreign national's eligibility for the benefit sought. !d. 
The submission of letters from experts supporting the petition is not presumptive proof of eligibility; 
USCIS may, as this decision has done above, evaluate the content of those letters as to whether they 
support the foreign national's eligibility. See id. at 795; 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 .. facC). 
USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Caron Int '!, 19 I&N Dec. at 795: see also Visinscaia, 4 
F. Supp. 3d at 134-35 (upholding our decision to give minimal weight to solicited letters from 
colleagues or associates that do not provide details on contributions of major significance in the 
field). 
In summary, 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. The Petitioner has not sho\\n that her 
achievements at the time of filing were commensurate with sustained national or international acclaim 
as a teacher and researcher. 
III. CONCLUSION 
The Petitioner has not provided documentation that meets at least three of the ten categories listed at 
8 C.F.R. § 204.5(h)(3) and has not demonstrated by a preponderance of the evidence that she is an 
individual of extraordinary ability in the field of A review of the submissions in the aggregate 
does not confirm that the Petitioner has achieved sustained national or international acclaim or that she 
is among the small percentage at the very top of her field. The Petitioner, therefore, has not established 
eligibility under section 203(b )(1 )(A) of the Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
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Matter of H-W-
ORDER: The appeal is dismissed. 
Cite as lvfatter of H-W-, ID# 16799 (AAO June 13, 2016) 
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