sustained EB-1A Case: Science

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PUBLIC COPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: ffice: TEXAS SERVICE CENTER Date: AUG 2 4 2010 
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. 1 153(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. 
Thank you, 
%chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained. 
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. § 1 153(b)(l)(A). 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. Specifically, the director 
concluded that the petitioner meets only two of the ten regulatory criteria, 8 C.F.R. 5 204.5@)(3)(iv) 
relating to judging the work of others and 8 C.F.R. fj 204.5(h)(3)(vi) relating to authorship of scholarly 
articles, of which an alien must meet at least three. 
On appeal, counsel argues that the beneficiary meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. 5 204.5(h)(3). For the reasons discussed below, we are satisfied that the 
petitioner meets the statutory and regulatory requirements for classification as an alien of extraordinary 
ability. 
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. 
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'' Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only 
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to those individuals in that small percentage who have risen to the very top of the field of endeavor. 
Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(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 criteria. 
(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. 
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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 11 15 (9th Cir. March 4, 2010). 
Although the court upheld the AAO's decision to deny the petition, the court took issue with the 
AAO's procedure for evaluating evidence submitted to meet a given evidentiary criterion.' With 
respect to the criteria at 8 C.F.R. 8 204.5(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. 
The court stated that the AAO's approach 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 satisfl the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. 8 204.5(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. 8 204.5(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. 8 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. 8 1153(b)(l)(A)(i). 
Id. at 1119 - 1120. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if 
qualifling under three criteria, 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. 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 identifl all of the grounds for denial in the initial 
decision. See Spencer Enter rises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. fP 2001), afd, 345 F.3d 683 (9t Cir. 2003); see also Soltane v. DOJ, 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. 5 204.5(h)(3)(iv) and 8 C.F.R. 
9 204.5(h)(3)(vi). 
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11. Analysis 
A. Evidentiary Criteria 
This petition, filed on August 21, 2009, seeks to classifj the petitioner as an alien with extraordinary 
ability as a research scientist. 
Evidence of the alien's participation, either individually or on apanel, as a judge of the work of 
others in the same or an alliedjeld of specialization for which classiJication is sought 
In his decision, the director determined that the petitioner met this criterion. The AAO concurs with the 
director's decision. 
Accordingly, the petitioner has established that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major significance in thejeld 
The record contains evidence that the petitioner's various scientific articles have been individually well 
cited and that his work as a whole has been cited at least 243 times. 
Further, the petitioner has submitted letters from various research scientists stating that the petitioner's 
original scientific contributions are of major significance in the field and providing specific examples 
of those contributions and how they have already significantly contributed in the field. We cite 
representative examples below. 
The record contains a letter fiom -, M.D., Associate Professor, Department of 
, Kyoto University, stating: - - 
For me, these original findings about carboxypeptidase M fiom [the petitioner] have provided a 
novel clue for my research and also greatly supplied a new line of research for my group. The 
evidence that [the petitioner] uncovered in his research demonstrates that such interaction of 
carboxypeptidase M with other protein partners, which is independent of its cleavage activity, 
will also be involved in the regulation of carboxypeptidase M for human placentation. This will 
be one of new directions for my researches to further elucidate how carboxypeptidase M 
modulates the human placentation. 
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The record also contains a letter from , Professor and Chairman, Department 
of Pharmacology and Toxicology,l. Dr.addressed several of 
the petitioner's findings and states: 
These discoveries confirmed the importance of quercetin in combating cancer metastasis. [The 
petitioner] was among the first pharmacologist to study this agent. Following his novel 
findings, other research groups around the world have joined this research area and have built 
upon [the petitioner's] research. For example, using the techniques described in [the 
petitioner's] studies, other researchers have found that quercetin could induce apoptosis of other 
types of cancer cells such as colorectal cancer cells, and inhibit the invasion of breast carcinoma 
cells. Similarly, pharmacologists in Japan investigated other flavones including kaempfero and 
fisetin that were found to induce apoptosis of squanoma cell carcinoma, submandibular gland 
carcinoma and promyelocytic leukemia. I can confidently say that the research of [the 
petitioner] has supplied a valuable drug candidate, quercetin, for cancer treatment and promoted 
the research and development of new anti-cancer drugs from flavones. 
This work focused attention on a new area of cancer pharmacology investigations. Following 
the research of [the petitioner] several research groups from USA, China, Singapore, and other 
countries are developing monoclonal antibodies and small molecular weight inhibitors of PRL- 
3 for treating cancer metastasis. 
This finding c~~rmed that CPM possessed a more complicated role in controlling blood 
pressure through its interaction with BlR. This finding supplied a new direction for developing 
drugs to modulate blood pressure. This comprehensive analysis of kinin-killikrein system has 
changed the way pharmacologists approach the study of CPM and emphasizes the challenging 
nature of the kinin-kallikrein system. The importance and significance of this research by [the 
petitioner] has been quickly recognized worldwide. NewsRX, the largest website of global 
health news, highlighted the findings. It was immediately discussed in a review article, and 
other international research groups have used his data to investigate CPM interaction with 
angiotensin-converting enzyme. 
The preceding experts have not merely reiterated the regulatory language of this criterion, they have 
clearly described how the petitioner's scientific contributions are both original and of major 
significance in the field. Several of the experts have explained how they currently use the petitioner's 
findings in their own work. Moreover, in support of the preceding experts' statements, the petitioner 
submitted documentation showing more than two hundred independent citations to his published 
findings. These citations are solid evidence that other researchers have been influenced by his work 
and are familiar with it. This evidence corroborates the independent experts' statements that the 
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petitioner has made original contributions of major significance in his field. The record reflects that the 
petitioner's contributions are important not only to the institutions where he has worked, but throughout 
the greater field as well. Leading scientists from around the world have acknowledged the value of the 
petitioner's work and its major significance in the pharmacological field. 
Accordingly, the petitioner has established that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the Jield, in professional or major 
trade publications or other major media 
In his decision, the director determined that the petitioner met this criterion. The AAO concurs with the 
director's decision. 
Accordingly, the petitioner has established that he meets this criterion. 
In this case, the petitioner 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. 5 204.5(h)(3). 
C. Final Merits Determination 
In accordance with the Kazarian opinion, we must 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. 4 204.5(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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(l)(A)(i), and 8 C.F.R. 
5 204.5(h)(3). See also Kazarian, 596 F.3d 1115 at 1119 - 1120. 
In 2004, the petitioner received his Ph.D. from the School of Life Sciences at Nanjing University in 
China and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. 
H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). His publication record of 19 published articles at the 
time of filing not only meets the criterion at 8 C.F.R. 5 204.5(h)(3)(vi), his articles are consistently 
well-cited, with well over two hundred independent cites to his body of work as of the petition's 
filing date. See Kazarian, 596 F.3d 1 1 15 at 1 121 (citations may be relevant to the final merits 
determination of whether an alien is at the very top of his field). This citation record is also 
consistent with a determination that his original contributions of major significance, discussed in 
detail in the reference letters, are consistent with national or international acclaim. The petitioner 
submitted reference letters from experts in the field, detailing the petitioner's specific contributions 
and explaining how those contributions have influenced the field. Moreover, the petitioner has 
participated in the peer-review process for numerous journals. Thus, the petitioner's achievements 
are commensurate with sustained national or international acclaim at the very top of his field. 
Page 8 
111. Conclusion 
In review, while not all of the petitioner's evidence carries the weight imputed to it by counsel, the 
petitioner has submitted evidence qualifLing under three of the ten categories and established a "level 
of expertise indicating that the individual is one of that small percentage who have risen to the very 
top of thei[ir] field of endeavor" and "sustained national or international acclaim." His achievements 
have been recognized in his field of expertise. The petitioner has established that he seeks to 
continue working in the same field in the Untied States. The petitioner has established that his entry 
into the United States will substantially benefit prospectively the Untied States. Therefore, the 
petitioner has established eligibility for the benefit sought under section 203 of the Act. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.