remanded EB-1A Case: Scientific Research

FILE: 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER Date: * @ 5 2881 
EAC 06 059 5 1924 
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 PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The decision of the 
director will be withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A). 
Without analyzing the evidence under the objective regulatory criteria relevant to the classification 
sought, the director appears to have made a subjective determination that 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 submits a brief and additional evidence. For the reasons discussed below, we find 
that the director's decision cannot be upheld as it essentially renders the regulatory criteria meaningless. 
Thus, we must remand the matter to the director for a decision based on the regulatory provisions that 
must be followed in enforcing the statutory provisions in the Act. 
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. 
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-9 (November 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. 
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It should be reiterated, however, that the petitioner must show that she has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a research fellow. 
The regulation at 8 C.F.R. tj 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). Baning the alien's receipt of such an award, the regulation at 8 C.F.R. 
tj 204.5(h)(3) outlines the following 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. 
(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 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In the final decision, the director stated that the petition, as filed, "lacked any supporting 
documentation." This statement is a factual error as the petition was initially supported by nine labeled 
exhibits, some of which included several documents. Without identifying any specific deficiencies in 
the evidence submitted, the director issued a request for additional evidence listing the above criteria 
and stating: 
[CIS] understands that the majority of people that apply for this classification will meet 
three of the ten criteria listed above. What [CIS] looks for is how does the beneficiary's 
accomplishment differ or separates themselves from their peers that have met those 
above criteria. 
You will need to explain how the beneficiary is different or above their peers as it 
relates to their peers. As of right now the beneficiary's meting of those above criteria is 
not different from her peers, who have qualified under each of those items. 
In the final denial, the director stated: 
It is not enough to simply meet three out of the eight criteria. If this were the case every 
individual who applies for the El 1 classification would qualify for the El 1 
classification since every person meets the eight criteria in some way or another. 
First, as quoted above, there are ten regulatory criteria, not eight. Regardless, we are not persuaded that 
"every person" can meet all of the regulatory criteria or that the petitioner must distinguish herself from 
other members of the field who do meet the criteria. Rather, the regulation provides that the criteria 
themselves are a means for evaluating eligibility. The director cites no legal support for the implication 
that a subjective and general finding that the alien does not enjoy sustained national or international 
acclaim can replace an evaluation of the evidence under the regulations. That said, a petitioner cannot 
establish eligibility for this classification merely by submitting evidence that simply relates to at 
least three criteria. In determining whether a petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim, the statutory standard in this matter. In other words, while the director is 
correct that the evidence submitted must set the petitioner apart from other members of the field, that 
analysis is an appropriate consideration when determining whether the petitioner meets a given 
criterion, not in a generic manner that essentially renders the regulatory criteria meaningless. 
The director's discussion suggests a finding that the petitioner has not received lesser nationally or 
internationally recognized awards pursuant to 8 C.F.R. €j 204.5(h)(3)(i). We concur with this finding; a 
visiting fellow "award," consisting of a stipend to support future research, is not an award in 
recognition of past excellence. We note that the regulation at 8 C.F.R. €j 204.5(h)(3) does not specify 
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which criteria need to be met, so long as three are satisfied. Thus, the petitioner's failure to satisfy the 
awards criterion is not a sufficient basis for denying the petition without consideration of the remaining 
criteria claimed. 
The director acknowledges the petitioner's publication record, but fails to reach a conclusion as to 
whether the scholarly articles criterion at 8 C.F.R. 5 204.5(h)(3)(vi) is satisfied. As implied by the 
director, the publication of scholarly articles is inherent to the field of scientific research. That fact, 
however, does not suggest that every researcher "meets" this criterion. At issue in analyzing whether 
the petitioner's publication record is indicative of or consistent with national or international acclaim is 
the community's reaction to her published articles. In this matter, the petitioner has been heavily cited. 
Thus, we find that the petitioner meets this criterion and need establish only that she meets an 
additional two criteria. 
In light of the above, this matter will be remanded for consideration of the evidence as it relates to the 
remaining regulatory criteria. In evaluating the evidence submitted to meet the remaining criteria 
claimed, the director shall consider the following: 
1. 
 The regulation at 8 C.F.R. 5 204.5(h)(3)(ii) requires membership in associations 
that require outstanding achievements of their members. The director shall consider 
whether the petitioner has established that the American Association of Irnrnunologists 
and the American Society for Cell Biology require outstanding achievements of their 
members. As part of this analysis, the director may consider what is inherent within the 
field. For example, "achievements" such as advanced degrees and securing a reference 
fiom a current member are not outstanding if widespread within the field. 
2. 
 The regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires that the published materials 
be "about" the alien. The director shall consider whether the articles that cite the 
petitioner's work are primarily "about" the petitioner. 
3. 
 If it is the director's contention that the petitioner has not made contributions of 
major significance to her field, pursuant to the regulation at 8 C.F.R. €j 204.5(h)(3)(v), 
the director should provide specific reasons for this conclusion. Possible considerations 
include the source of the reference letters and the contents of those letters. 
 For 
examples, letters fiom independent sources who were previously aware of the 
petitioner's work and have been influenced by her work carry the most weight. We 
note, however, that the petitioner's heavy citation record is also relevant evidence that 
the director does not appear to have considered. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. 
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ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing and entry of a new decision which, if 
adverse to the petitioner, is to be certified to the Administrative Appeals Office for 
review.