dismissed EB-2 Case: Molecular Diagnostics

-g d:rtr dew c 
U.S. Department of Homeland Security 
U S Citizensh~p and Immigrat~on Services 
mDt chi 1, un- Oflce ofAdmrnrstratrve Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: - Office: NEBRASKA SERVICE CENTER 
LIN 07 186 50861 
Datv~~ 0 1 2010 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center (director), denied the immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner operates a molecular diagnostic research and development business and seeks to 
employ the beneficiary permanently in the United States as an associate director of development, 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 
1 153(b)(2). 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1153(b)(2), as an alien of exceptional ability. The petitioner 
asserts that the beneficiary qualifies for Schedule A, Group I1 designation. 
Based on 8 C.F.R. $5 204.5(a)(2) and (1)(3)(i) an applicant for a Schedule A position would file a 
Form 1-140 petition, "accompanied by any required individual labor certification, application for 
Schedule A designation, or evidence that the alien's occupation qualifies as a shortage occupation 
within the DOL's Labor Market Information Pilot ~ro~ram."' The priority date of any petition filed 
for classification under section 203(b) of the Act "shall be the date the completed, signed petition 
(including all initial evidence and the correct fee) is properly filed with [U.S. Citizenship and 
Immigration Services (USCIS)]." 8 C.F.R. tj 204.5(d). 
Pursuant to the regulations set forth in Title 20 of the Code of Federal Regulations, the filing must 
include evidence of prearranged employment for the alien beneficiary. The employment is evidenced 
by the employer's completion of the job offer description on the application form and evidence that the 
employer has provided appropriate notice of filing the Application for Alien Employment Certification 
to the bargaining representative or to the employer's employees as set forth in 20 C.F.R. tj 656.10(d). 
On January 20,2009, the director denied the petition because the petitioner failed to post the position 
properly and because the petitioner failed to post the position as part of its in-house media in 
accordance with 20 C.F.R. tj 656.1 O(d)(l). 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The 
AAO considers all pertinent evidence in the record, including new evidence properly submitted upon 
appeaL2 
' On March 28, 2005, pursuant to 20 C.F.R. 5 656.17, the Application for Permanent Employment 
Certification, ETA-9089 replaced the Application for Alien Employment Certification, Form ETA 
750. The new Form ETA 9089 was introduced in connection with the re-engineered permanent 
foreign labor certification program (PERM), which was published in the Federal Register on 
December 27, 2004 with an effective date of March 28, 2005. See 69 Fed. Reg. 77326 (Dec. 27, 
2004). 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. tj 103.2(a)(l). See Matter of 
Page 3 
The record shows that the appeal is properly filed, timely, and makes an allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the 
decision. Further elaboration of the procedural history will be made only as necessary. 
A petitioner must establish eligibility at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comm. 1971). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Cornm. 1988). 
One of the requirements to meet Schedule A eligibility is that the petitioner post the position in 
accordance with 20 C.F.R. $656.10(d), which provides: 
(1) In applications filed under $ 656.15 (Schedule A), $ 656.16 
(Sheepherders), $ 656.1 7 (Basic Process); $ 656.1 8 (College and 
University Teachers), and $ 656.21 (Supervised Recruitment), the 
employer must give notice of the filing of the Application for 
Permanent Employment Certification and be able to document that 
notice was provided, if requested by the certifying officer as follows: 
(ii) If there is no such bargaining representative, by posted notice to 
the employer's employees at the facility or location of the 
employment. The notice must be posted for at least 10 consecutive 
business days. The notice must be clearly visible and unobstructed 
while posted and must be posted in conspicuous places where the 
employer's U.S. workers can readily read the posted notice on their 
way to or from their place of employment . . . In addition, the 
employer must publish the notice in any and all in-house media, 
whether electronic or printed, in accordance with the normal 
procedures used for the recruitment of similar positions in the 
employer's organization. 
(3) The notice of the filing of an Application for Permanent 
Employment Certification shall: 
(i) State that the notice is being provided as a result of the filing of 
an application for permanent alien labor certification for the 
relevant job opportunity; 
Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 4 
(ii) State any person may provide documentary evidence bearing 
on the application to the Certifying Officer of the Department 
of Labor; 
(iii) Provide the address of the appropriate Certifying Officer; and 
(iv) Be provided between 30 and 180 days before filing the 
application. 
... 
(6) If an application is filed under the Schedule A procedures at 
§ 656.15. . . the notice must contain a description of the job and rate of 
pay and meet the requirements of this section. 
Additionally, section 2 12 (a)(5)(A)(i) of the Act states the following: 
Any alien who seeks to enter the United States for the purpose of 
performing skilled or unskilled labor is inadmissible, unless the 
Secretary of Labor has determined and certified . . . that 
(I) there are not sufficient workers who are able, willing, qualified 
. . . and available at the time of application for a visa and 
admission to the United States and at the place where the alien 
is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the 
wages and working conditions of workers in the U.S. similarly 
employed. 
Fundamental to these provisions is the need to ensure that there are no qualified U.S. workers 
available for the position prior to filing. The required posting notice seeks to allow any person with 
evidence related to the application to notify the appropriate DOL officer prior to petition filing. See 
the Immigration Act of 1990, Pub.L. No. 101 -649, 122(b)(l), 1990 Stat. 358 (1 990); see also Labor 
Certification Process for the Permanent Employment of Aliens in the United States and 
Implementation of the Immigration Act of 1990, 56 Fed. Reg. 32,244 (July 15, 1991). 
The posting notice accompanying the Form 1-140 petition is dated April 13, 2007 to April 25, 2007. 
It was completed more than 30 days prior to filing, but it was not posted for 10 or more consecutive 
business days. Rather, it was posted for nine consecutive business days. The AAO notes that the 
petitioner asserted in its appeal that the notice was posted from April 13, 2007 to April 26, 2007, a 
total of 10 consecutive business days. The AAO has reviewed the posting notice and finds that the 
document clearly stated that it was posted until April 25, 2007, not until April 26, 2007. The AAO 
finds that the petitioner did not make proper notice in accordance with 20 C.F.R. 9 656.10(d). 
Accordingly, the petitioner has failed to meet the regulatory requirements, which require that the 
posting notice be completed prior to filing the Schedule A application. 
Page 5 
The petitioner seeks to classifl the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability. The petitioner 
asserts that the beneficiary qualifies for Schedule A, Group I1 designation. The director did not contest 
that the beneficiary is eligible for classification as an alien of exceptional ability or a member of the 
professions holding an advanced degree. Rather, the director concluded that the petitioner had not 
demonstrated that the beneficiary qualifies for Schedule A, Group I1 designation. For the reasons 
discussed below, we concur with the director that the beneficiary's publication record, including the 
frequent and widespread citation of his work, serves to meet one of the regulatory criteria, but that the 
petitioner has not provided sufficient evidence to establish that the beneficiary meets any of the other 
regulatory criteria. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified 
immigrants who are members of the professions holding advanced 
degrees or their equivalent or who because of their exceptional ability in 
the sciences, arts, or business, will substantially benefit prospectively the 
national economy, cultural or educational interests, or welfare of the 
United States, and whose services in the sciences, arts, professions, or 
business are sought by an employer in the United States. 
The regulation at C.F.R. 5 204.5(k)(4) provides the following information regarding labor 
certification and Schedule A designation: 
(i) General. Every petition under this classification must be 
accompanied by an individual labor certification from the Department of 
Labor, by an application for Schedule A designation (if applicable), or by 
documentation to establish that the alien qualifies for one of the shortage 
occupations in the Department of Labor's Labor Market Information 
Pilot Program. To apply for Schedule A designation or to establish that 
the alien's occupation is within the Labor Market Information Program, 
a fully executed uncertified Form ETA-750 in duplicate must accompany 
the petition. The job offer portion of the individual labor certification, 
Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the 
equivalent or an alien of exceptional ability. 
The ETA Form 9089 indicates that a doctorate degree is required for the position. The beneficiary 
J ---- 1-""'" - - 
member of the professions holding an advanced degree and the position itself requires an advanced 
Page 6 
degree professional. The remaining issue is whether the petitioner has established that the beneficiary 
qualifies for Schedule A designation. 
In order to establish eligibility for Schedule A designation, the petitioner must establish that the 
beneficiary qualifies as an alien with exceptional ability as defined by the Department of Labor. 
20 C.F.R. 5 656.15(d). This petition seeks to classify the beneficiary as an alien with exceptional ability 
in the sciences. 20 C.F.R. fj 656.1 5(d)(1) provides, in pertinent part: 
An employer seeking labor certification on behalf of an alien to be 
employed as an alien of exceptional ability in the sciences or arts 
(excluding those in the performing arts) must file documentary 
evidence showing the widespread acclaim and international 
recognition accorded the alien by recognized experts in the alien's 
field; and documentation showing the alien's work in that field during 
the past year did, and the alien's intended work in the United States 
will, require exceptional ability. 
(Emphasis added.) In addition, the same provision outlines seven criteria, at least two of which must 
be satisfied for an alien to establish the widespread acclaim and international recognition necessary to 
qualify as an alien of exceptional ability. Given the introductory language to the criteria emphasized 
above in 20 C.F.R. fj 656.15(d)(l), the evidence submitted to meet these criteria should be indicative 
of or uniquely consistent with "widespread acclaim and international recognition" as a scientist of 
exceptional ability if that regulatory standard is to have any meaning. The petitioner has submitted 
evidence that is claimed to meet the following criteria. 
Documentation of the alien's receipt of internationally recognized prizes or awards for 
excellence in the field for which certzfication is sought. 
on appeal, counsel has asserted that research grants from the 
can serve to meet this criterion. The petitioner submitted 
evidence that the beneficiary's prior employer, received NIH grants for projects on 
which the beneficiary was the principal investigator. 
The director concluded: 
Every successful scientist engaged in research, of which there are 
hundreds of thousands, receives funding from somewhere. Obviously 
the past achievements of the principal investigator are a factor in grant 
proposals. The funding institution has to be assured that the investigator 
is capable of performing the proposed research. Nevertheless, a research 
grant is principally designed to fund future research, and not to honor or 
recognize past achievement. 
Page 7 
Counsel has asserted that the director erred in reaching this conclusion but has provided no discussion 
of how these statements are factually, logically or legally wrong. The director's conclusion is clearly 
factually sound; the petitioner relies solely on the beneficiary's research grants designed to fund future 
research. Further, we find no flaw in the director's logic or reasoning; a research grant designed to fund 
future research is not designed to recognize past excellence. Finally, the director's interpretation of the 
plain language of the regulation as requiring awards or prizes designed to recognize past excellence is 
reasonable and we know of no legal authority presenting a contrary position. Thus, we concur with the 
director's conclusion and reasoning; research grants are not awards or prizes for excellence in the field. 
Published material in professional publications about the alien, about the alien's work in the 
field for which certiJication is sought, which shall include the title, date, and author of such 
published material. 
The petitioner has submitted evidence that the beneficiary is well cited. The director analyzed these 
citations and concluded that the petitioner had not demonstrated that the beneficiary had been cited 
"as authoritative." Counsel has asserted that the director's analysis was in error. 
Articles which cite the beneficiary's work are primarily about the author's own work, not the 
beneficiary or his work. As such, citing articles, which typically cite at least tens of articles, cannot be 
considered published material about the beneficiary or his work. We do not contest that the 
beneficiary's citation record is valuable evidence which will be considered below in evaluating whether 
the beneficiary's publication record is consistent with widespread acclaim and international recognition. 
Citations, however, cannot be credibly considered articles about the beneficiary or his work and, thus, 
cannot serve to meet the plain language of this criterion. 
Evidence of the alien S participation on a panel, or individually, as a judge of the work of others 
in the same or in an alliedfield of specialization to that for which certzfication is sought. 
Counsel has asserted throughout the proceeding that the beneficiary's position as principal 
investigator for funded research projects serves to meet this criterion. The director concluded that 
the beneficiary's supervisory duties were inherent to his occupation and did not involve judging on a 
national or international scale. Once again, while counsel asserts that the director's conclusions are 
erroneous, counsel has provided no discussion or legal analysis supporting his assertion. 
It is significant that the regulation is not worded to require evidence that the alien has judged the 
work of others. Rather, the plain language of the regulation requires evidence of the alien's 
participation on a panel or individually as "a judge." The requirement that the alien have 
participated as "a judge" implies participation in an official judging position. A supervisor, while 
responsible for overseeing the work of his subordinates, is not participating as "a judge" of those 
subordinates. Moreover, the mere act of leading a research team is not indicative of or uniquely 
consistent with widespread acclaim and international recognition as a scientist of exceptional ability. 
We concur with the director that the record lacks evidence that the beneficiary has participated as "a 
judge" of the work of others. Without evidence that the beneficiary has served in an official judging 
Page 8 
position indicative of widespread acclaim and international recognition as a scientist of exceptional 
ability, such as but not limited to, as a judge of work under consideration for a recognized award, on 
an editorial board or as a grant reviewer, we cannot conclude that the beneficiary meets this 
criterion. 
Evidence of the alien's original scientific or scholarly research contributions of major 
significance in thejeld for which certijcation is sought. 
According to the regulation at 20 C.F.R. $ 656.15(d)(l)(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. 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 impact of the beneficiary's work. 
Initially, counsel asserted that the patent application, reference letters and six citations submitted 
with the petition establish the beneficiary's eligibility under this criterion. Noting that the reference 
letters were from the beneficiary's immediate circle of colleagues and that some of the letters were 
dated several years prior to the filing date of the petition, the director requested new reference letters 
that "clearly indicate the impact the beneficiary's research has had on his field." In response, the 
petitioner submitted two new letters. One of the new letters focuses on the importance of the 
beneficiary's area of research and the other is from a former close colleague. Counsel subsequently 
asserted that the director erred in "dismissing letters of support describing original contributions of 
the beneficiary because the letters were either written several years ago, not dated, or written by 'the 
beneficiary's supervisor,"' but did not elaborate further. 
Regarding the patent application, this office has previously stated, in a precedent decision involving a 
lesser classification, that a patent is not necessarily evidence of a track record of success with some 
degree of influence over the field as a whole. See Matter of New York State Dep 't. of Transp., 22 I&N 
Dec. 21 5,22 1 n. 7, (Cornrn. 1998). Rather, the significance of the innovation must be determined on a 
case-by-case basis. Id. Thus, a patent application cannot, by itself, serve as evidence of a contribution 
of major significance. The record does not indicate, for example, that there has been widespread 
interest in licensing the beneficiary's patent-pending innovation. 
We acknowledge that the beneficiary has been widely cited. This evidence, as discussed below, reflects 
on the beneficiary's publication record and is a significant consideration in our conclusion that the 
beneficiary meets the scholarly articles criterion set forth at 20 C.F.R. $ 656.15(d)(l)(vi), discussed 
below. Such evidence could also serve to support reference letters that address the beneficiary's 
contributions of major significance. For the reasons discussed below, however, we concur with the 
director that the reference letters in this matter are insufficient. 
At the outset, we note that USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comrnr. 
1988). However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the 
Page 9 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795; see also Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comrnr. 1998) (citing' Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Regl. Comrnr. 1972)). 
In evaluating the reference letters, we note that letters containing general, poorly supported 
assertions of widespread acclaim, discussions of the importance of the area of the beneficiary's 
work or vague claims of contributions are less persuasive than letters that specifically support the 
beneficiary's purported widespread acclaim and international recognition as exceptional, such as by 
identifying contributions and providing specific examples of how those contributions have 
influenced the field. In addition, letters from independent references who were previously aware of 
the petitioner through his reputation and who have applied his work are the most persuasive as they 
are consistent with widespread acclaim and international recognition. Overall, the letters in the 
record do not provide information consistent with widespread acclaim and international recognition; 
for example, as discussed below in more detail, they do not provide specific examples of how the 
beneficiary's work is already being applied in the field and none of the letters are from independent 
references actually applying the beneficiary's work or who have been influenced by the beneficiary. 
In fact, the petitioner has not submitted any letters from independent experts in the field. 
the petitioner's and founder, discusses his recruitment of the 
beneficiary to Arnbion, Inc. and serts that, prior to joining 
Ambion, the beneficiary had "extensive and impressive research experience of fundamental and applied 
RNA, studies on the regulation of the pre-rnRNA splicing machinery, numerous scientific publications, 
technology in a series of contract research and manufacturing products with a large pharmaceutical 
company. While asserts that the beneficiary's level of productivity was exceptional, he 
does not explain the significance of any of the beneficiary's or discuss their success or use 
beyond Ambion other than to assert that the beneficiary also worked with a large pharmaceutical 
company. The record contains no confirmation of the beneficiary's work with a large pharmaceutical 
company. 
information, also assertin that "several" of the beneficiary's products were "a strong commercial 
success for Ambion." *further asserts that the new system for synthesizing capped RNA he 
developed with the beneficiary is five times more efficient and that capped RNA "is being used in the 
manufacture of cancer vaccines by companies such as Thus,oncludes that the 
beneficiary's work has "important implications for human health." oes not assert that 
or any other company has already adopted the beneficiary's system for synthesizing capped 
RNA or is considering doing so. The record contains no letters from researchers at Wyeth or other 
cancer vaccine manufacturers asserting that they have adopted the beneficiary's system for synthesizing 
capped RNA. 
Page 10 
The petitioner also submitted evidence regarding his Ph.D. research. the beneficiary's 
Ph.D. research advisor at the sserts that the beneficiary's Ph.D. research 
produced significant and novel findings. ~hiie otes that this work was published, he 
provides no examples of how this work has influenced the field through application in other 
laboratories. The petitioner also submitted a 1998 report on the benefici 's thesis rating it as 
"exceptionelle." Finally, the petitioner submitted a 1999 letter from rector of the 
serting that the benefici 's thesis committee, of 
which mas a member, gave the beneficiary the highest grade. aharact ekes 
the beneficiary as "a scientist with a strong potential" and predicts that the beneficiary "will" make a 
personal imprint on science. 
The petitioner later submitted two new letters, one from a former consultant for Ambion and current 
consultant for the petitioner, and the other fiom a member of the de~artment in 
doctoral work at the 
discusses the importance of miRNA molecules and asserts that the 
beneficiary is good at gathering data on miRNAs, but fails to identifj specific contributions and explain 
how they have influenced the field. asserts that at the beneficiary 
"provided key insights into the mechanisms by which KH domain-containing proteins, such as the P- 
- - 
protein and its human orthologues, regulate the processing of specific target 
underlying developmental programs in a tissue specific manner." Dr. 
does not provide examples of how this work is being applied in the field. 
The beneficiary'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. All of the letters 
are from the beneficiary's immediate circle of colleagues. While such letters are usehl in explaining 
the beneficiary's role on a specific project, they cannot, by themselves, establish that the beneficiary 
enjoys widespread and international recognition as a scientist of exceptional ability. While the 
record includes numerous attestations of the important of the area of the beneficiary's work, none of 
the references provide examples of how the beneficiary's work is already influencing the field other 
than a vague assertion that the beneficiary's products have been commercially successful. The 
letters provide no other speczfic information consistent with widespread acclaim and international 
recognition. While the evidence demonstrates that the beneficiary is a talented researcher with 
potential, it falls short of establishing that he had, at the time of filing, already made contributions of 
major significance consistent with widespread acclaim and international recognition as a scientist of 
exceptional ability. Thus, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's authorship of published scientijic or scholarly articles in the field for 
which certijication is sought, in international professional journals or professional journals with 
an international circulation. 
The record contains evidence that the beneficiary has authored several articles and is widely and 
frequently cited. Thus, we concur with the director's conclusion that the beneficiary meets this 
criterion. 
The documentation submitted in support of a claim of Schedule A exceptional ability must clearly 
demonstrate that the alien has achieved widespread acclaim and international recognition. The 
petitioner has shown that the beneficiary is a talented medical researcher, who has won the respect of 
his collaborators, employers, and mentors. The record, however, stops short of documenting the 
beneficiary's widespread acclaim and international recognition for exceptional ability in the sciences. 
Therefore, the petitioner has not established that the beneficiary is qualified for the benefit sought. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.