remanded EB-1A Case: Otolaryngology

~~LIG COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
FILE: LIN 04 210 50310 Office: NEBRASKA SERVICE CENTER Date: JUN 2 9 2@6 
IN RE: Petitioner: 
Beneficiary: 
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. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
TNSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
5 Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 04 210 50310 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The director's decision will be 
withdrawn, and the petition will be remanded for further action and consideration. 
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. 5 1 1 53(b)(l)(A), as an alien of extraordinary ability. The 
director determined the petitioner had not established the sustained national or international acclaim necessary to 
qualie for classification as an alien of extraordinary ability. 
On appeal, counsel states: "[The petitioner] has met three of ten enumerated criteria per the regulations and is, 
therefore, statutorily eligible to receive, and hereby respectfully requests, status as an alien of extraordinary 
ability." 
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. 
fj 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): 
Initial evidence: A petition for an alien of extraordinary ability 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. Such evidence shall include evidence of a one-time achievement 
(that is, a major, international recognized award), or at least three of the following: 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor; 
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(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 materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which 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 specification 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 
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 
This petition, filed on July 16, 2004, seeks to classify the petitioner as an alien with extraordinary ability as an 
otolaryngology researcher and a physician. The petitioner's initial evidence included six letters of support 
from the petitioner's colleagues and photocopies of his diplomas, transcripts, medical licensing examination 
results, and training certifications. This evidence, however, was not sufficient to demonstrate the petitioner's 
sustained national or international acclaim, or that his achievements have been recognized in his field of 
expertise. 
On April 19, 2005, the director issued a request for evidence pertaining to the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
In response, the petitioner submitted an award, four published articles that cite his work, evidence of his 
membership in three associations, and photocopies of his scholarly articles. The petitioner's response also 
included a letter from counsel discussing the petitioner's medical contributions in the field of otolaryngology. 
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On August 10, 2005, the director issued a notice denying the petition. In addressing the evidence submitted 
by the petitioner, the director's decision merely stated: 
The submitted evidence does not persuasively demonstrate the beneficiary's status as an alien of 
extraordinary ability. 
The Service acknowledges that the beneficiary meets at least three of the previously stated criteria. 
Although the submitted evidence relates to the criteria, the petitioner has not submitted evidence to 
demonstrate that the alien has sustained national or international acclaim in the alien's field of 
endeavor and the criteria required in the field of expertise. 
The beneficiary has reviewed other's work, served published [sic] over 44 publications, presented 
over 46 papers, and appears to have the respect of his peers for his combined theoretical, 
experimental, and clinical skills. However, he does not appear to have received the national or 
international acclaim associated with an alien of extraordinary ability. The standard for this 
classification is very high. The Service recognizes that the alien is extremely talented, gifted, and 
unquestionably valued by his professional associates. However, the petitioner has not established that 
the alien is one of the small percentage who have risen to the very top within the field of endeavor. 
The director's observation that "the beneficiary meets at least three of the previously stated criteria" is 
contradicted by the statement immediately following it in which the director notes that while the evidence 
submitted "relates" to the criteria, the evidence addressing the criteria is not adequate to demonstrate 
sustained national or international acclaim. While the wording of the director's decision could certainly be 
improved, we do not read the director's decision as concluding that the petitioner was eligible under the 
regulations but that the petition was not approvable. It is important to note that the controlling purpose of the 
regulation at 8 C.F.R. 5 204.5(h)(3) is to establish sustained national or international acclaim, and any 
evidence submitted to meet the regulatory criteria must therefore be to some extent indicative of such 
acclaim. A more rational interpretation of the director's decision is that the petitioner submitted 
documentation which related to or addressed three criteria, but that the evidence itself did not demonstrate 
national or international acclaim. A petitioner cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three criteria. In determining whether the petitioner meets a 
specific criterion, the evidence itself must be evaluated in terms of whether it establishes that the petitioner 
has sustained national or international acclaim; it is not simply a matter of accepting that any piece of 
evidence presented under a particular criterion automatically satisfies that criterion. By way of analogy, 
Citizenship and Immigration Services sometimes requires copies of income tax returns to establish that the 
petitioner has the ability to pay the proffered wage to the beneficiary. The petitioner, however, does not 
automatically meet this requirement by submitting a copy of an income tax return. Rather, we must consider 
the content of that income tax return; if it does not show that the petitioner can afford to pay the beneficiary, 
then the petitioner cannot credibly argue that it met its obligation merely by supplying the copy of the tax 
return. The same reasoning applies to evidence presented under the criteria 8 C.F.R. 5 204.5(h)(3). 
The director's decision is deficient in that it lacks any meaningful analysis explaining why the specific evidence 
submitted by the petitioner fails to demonstrate sustained national or international acclaim. The director's 
decision cited the ten criteria at 8 C.F.R. 5 204.5(h)(3), but the discussion that followed did not sufficiently relate 
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to those criteria. 
 Review of the record indicates that the petitioner claims eligibility based on an award, 
association memberships, original contributions, and authorship of scholarly articles pursuant to the regulatory 
criteria at 8 C.F.R. $5 204.5(h)(3)(i),(ii),(v), and (vi). The director's decision failed to specifically address these 
criteria and explain how the evidence submitted for each criterion was not adequate to demonstrate sustained 
national or international acclaim. 
8 C.F.R. 5 204.5(h)(3)(i) calls for documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. We find that the petitioner's award from the 
Indiana University School of Medicine (dated May 27, 2005) reflects institutional recognition rather than 
national or international recognition. Further, this award was issued to the petitioner subsequent to the filing 
date of the petition. 
 A petitioner, however, must establish eligibility at the time of filing. 
 8 C.F.R. 
5 103.2(b)(12); see Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Subsequent developments in the 
petitioner's career cannot retroactively establish that he was already eligible for the classification sought as of the 
filing date. 
8 C.F.R. 5 204.5(h)(3)(ii) calls for 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. In this case, there is no evidence of the 
membership bylaws or official admission requirements showing that the petitioner's associations require 
outstanding achievement for admission to membership or that prospective members are evaluated by national 
or international experts in consideration of their admission to membership. 
8 C.F.R. 5 204.5(h)(3)(v) calls for evidence of the alien's original scientific, scholarly, artistic, athletic, or 
business-related contributions of major significance in the field. It is noted that the letters of support 
discussing the petitioner's contributions consist entirely of those who have supervised him or worked directly 
with him. Such letters are not first-hand evidence that the petitioner has earned sustained acclaim for his 
contributions outside of his affiliated institutions. If the petitioner's reputation is limited to his close 
colleagues, then he has not achieved national or international acclaim regardless of the expertise of his 
witnesses. Without extensive documentation showing that the petitioner's work has been unusually 
influential or highly acclaimed throughout the greater field, it cannot be concluded that his work rises to the 
level of a contribution of major significance. 
8 C.F.R. 5 204.5(h)(3)(vi) calls for evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media. We find that authoring scholarly articles is 
inherent to the sciences. For this reason, evidence showing the influence of the petitioner's articles becomes 
necessary to set him apart from other otolaryngology researchers. If a given article in a prestigious journal 
(such as the Proceedings of the National Academy of Sciences of the U.S.A.) attracts the attention of other 
researchers, those researchers will cite the source article in their own published work, in much the same way 
that the petitioner himself has cited sources in his own articles. Numerous independent citations would 
provide solid evidence that other researchers have been influenced by the petitioner's work and are familiar 
with it. If, on the other hand, there are few or no citations of an alien's work, suggesting that that work has 
gone largely unnoticed by the greater field, then it is reasonable to conclude that the alien's work is not 
nationally or internationally acclaimed. In the present case, we do not find that an aggregate of four cites to 
the petitioner's work sets him apart from almost all others in his field. 
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In conclusion, we find that the director's decision is so vague that it does not present the petitioner with an 
opportunity to mount a meaningful rebuttal on appeal. Therefore, this matter is remanded to the director for 
the purpose of issuing a new decision in order for the director to properly address the petitioner's evidence as it 
relates to the pertinent regulatory criteria set forth at 8 C.F.R. 5 204.5(h)(3). The director's new decision shall 
set forth the specific deficiencies in the evidence outlined above and any further deficiencies as noted by the 
director in order to afford the petitioner an opportunity for a meaningful rebuttal. 
ORDER. 
 The director's decision is withdrawn. 
 The petition is remanded for further action and 
consideration consistent with the above discussion and entry of a new decision which, if adverse 
to the petitioner, is to be certified to the Administrative Appeals Ofice for review.