dismissed O-1A Case: Biotechnology

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. NW, Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 06 014 52770 Office: VERMONT SERVICE CENTER Date: sEP29UY16 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. # 1 10 1 (a)( 1 5)(0)(i) 
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 
EAC 06 0 14 52770 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Vermont Service Center, 
and is now before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. 
The petitioner is a biotechnology company. The beneficiary is a scientist. The petitioner seeks 0-1 
classification of the beneficiary, under section 101 (a)(15)(0)(i) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1101(a)(15)(0)(i), as an alien with extraordinary ability in science. The petitioner 
seeks to employ the beneficiary temporarily in the United States for a period of three years as a research 
scientist. 
The director denied the petition, finding that the petitioner failed to establish that the beneficiary had 
sustained acclaim and was one of the small percentage who had risen to the very top of his field. 
On appeal, counsel for the petitioner submits a brief and contends that the beneficiary meets three of the 
regulatory criteria and that the director did not properly assess certain evidence and disregarded other 
documentation. 
Section 101 (a)(15)(0)(i) of the Act provides classification to an alien who 
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, and seeks to enter the United 
States to continue work in the area of extraordinary ability[.] 
Section 1 0 1 (a)(15)(0)(i) of the Act, 8 U.S.C. 5 1 1 0 1 (a)(l5)(0)(i). 
The corresponding regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a 
level of expertise indicating that the person is one of the small percentage who have 
arisen to the very top of the field of endeavor. 
The regulation at 8 C.F.R. tj 214.2(0)(3)(iii) prescribes: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science, 
education, business, or athletics. An alien of extraordinary ability in the fields of 
science, education, business, or athletics must demonstrate sustained national or 
international acclaim and recognition for achievements in the field of expertise by 
providing evidence of: 
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or 
(B) At least three of the following forms of documentation: 
EAC 06 0 14 52770 
Page 3 
(I) Documentation of the alien's receipt of nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(2) 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; 
(3) Published material in professional or major trade publications or major media 
about the alien, relating to the alien's work in the field for which classification is 
sought, which shall include the title, date, and author of such published material, 
and any necessary translation; 
(4) 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 allied field of specialization to that for 
which classification is sought; 
(5) Evidence of the alien's original scientific, scholarly, or business-related 
contributions of major significance in the field; 
(6) Evidence of the alien's authorship of scholarly articles in the field, in 
professional journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential capacity 
for organizations and establishments that have a distinguished reputation; 
(8) Evidence that the alien has either commanded a high salary or will command 
a high salary or other remuneration for services, evidenced by contracts or other 
reliable evidence. 
The beneficiary in this matter is a native and citizen of India. The record reflects that he received his 
doctoral degree in Chemistry from the Indian Institute of Technology in Madras in 2003 and came to 
the United States as a postdoctoral fellow in the Department of Biological Chemistry at Johns Hopkins 
University School of Medicine. The record shows that the beneficiary was last admitted to the United 
States on December 28, 2004, as a J-1 nonimmigrant exchange visitor, subject to the two-year foreign 
residency requirement. The beneficiary's specific field is variously referred to in the record as 
"synthetic carbohydrate organic chemistry and glycobiology research," "glycoproteins and [the] use of 
enzymes in carbohydrate synthesis," "structural glycobiology," and "chemical glycobiology." 
The record contains no evidence that the beneficiary has received a major, internationally recognized 
award equivalent to that listed at 8 C.F.R. 5 214.2(0)(3)(iii)(A). Neither is the record persuasive in 
demonstrating that the beneficiary has met at least three of the criteria at 8 C.F.R. § 214.2(0)(3)(iii)(B). 
We address the relevant criteria below. Counsel does not claim that the beneficiary meets any other 
criteria. 
EAC 06 014 52770 
Page 4 
(1) Documentation of the alien's receipt of nationally or internationally recognizedprizes or awards 
for excellence in the field of endeavor. 
Counsel initially claimed the beneficiary met this criterion through his receipt of a fellowship from the 
Council of Scientific and Industrial Research (CSIR) in India. The beneficiary's curriculum vitae states 
that he received the "Junior and Senior Research fellowship" from CSIR in 1996 when he began his 
doctoral studies at the Indian Institute of Technology. In his support letter, - 
Executive Director of Research and Development at Shasun Chemicals and Drugs, Ltd. in India and the 
beneficiary's former professor, explains that the beneficiary began his doctoral studies: 
after successfully clearing the national level competitive examination conducted by Council of 
Scientific Industrial Research and University Grants Commission. More than one thousand 
students write this examination each year and only a few, the top 10% are awarded this 
scholarship. This examination is more or less of the same standard as that of the qualifjing test 
conducted by US universities at the beginning of the Ph.D. Program. 
The ~etitioner submitted no documentarv evidence of his CSIR fellowshir, or the criteria for awarding. 
L, 
CSIR fellowships. Nonetheless, - letter indicates that CSIR fellowships are 
awarded on the basis of an examination and for the purpose of supporting top-scoring students' 
- - 
graduate research. 
 While they may be prestigious, f~llo~ships, scholarships and other forms of 
competitive financial aid are not nationally or internationally recognized prizes or awards because only 
other students - not established scientists - compete for such hnding. Moreover, the beneficiary 
received his CSIR fellowship in 1996, nearly a decade before this petition was filed and the record does 
not show that the beneficiary has received any other awards or prizes in his field after 1996. Hence, the 
beneficiary's CSIR fellowship does not demonstrate sustained national acclaim. Accordingly, the 
beneficiary does not meet this criterion. 
(2) Documentation of the alien's membership in associations in the field for which classijkation is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
Counsel did not initially claim that the beneficiary met this criterion. In his response to the director's 
Request for Evidence (RFE), counsel claimed the beneficiary satisfied this criterion through his 
associate membership in the American Society for Biochemistry and Molecular Biolo 
The record does not support this claim. The petitioner submitted a letter from dim& 
Executive Officer of ASBMB, who confirms that the beneficiary is an associate member of the Society. 
explains that ASBMB has over 10,000 members and that "Associate membership is 
available to individuals sponsored by a Regular member of the Society who can attest to the interest of 
the candidate in biochemistry and molecular biology." further states that associate 
members "may not vote, hold elective office, nominate new members, or sponsor papers by non- 
members at the Society's annual scientific meeting. Associate members are eii 
Regular membership when they satisfy the requirements of a Regular member." 
state, and the petitioner did not submit evidence of, ASBMB's specific 
EAC 06 01 4 52770 
Page 5 
indicates that associate membership is available to any individual who is interested in 
biochemistry and molecular biology and is sponsored by a regular member and that associates have a 
lower grade of membership than regular members. The record is devoid of any evidence that ASBMB 
requires outstanding achievements of its associate members, as judged by recognized national or 
international experts. Consequently, the beneficiary does not meet this criterion. 
(.I) Evidence ofthe 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 classzfication is sought. 
Counsel initially claimed that the beneficiary satisfied this criterion because he helped his postdoctoral 
fellowshi su ekisor review articles for scientific journals in their field. In his 0ct6ber 3,2005 support 
1 etter Drofessor and Director of the Department of Biological Chemistry at the Johns 
Hopkins University School of Medicine and the beneficiary's postdoctoral supervisor, states that the 
beneficiary "has proven his capability to be in a position to judge the work of other scientists aiding me 
to peer-review articles for such high-ranked journals such as the Journal of American Chemical Society, 
Journal of Biological Chemistry, Cancer Research." The record is devoid of any evidence that the 
petitioner himself served as a peer reviewer for any scientific journals in his field or that he otherwise 
participated on a panel, or individually, as a judge of the work of others in his field or other allied areas. 
The beneficiary does not satisfy this criterion. 
(5) Evidence of the alien's original scientzfic, scholarly, or business-related contributions of major 
signzficance in the field. 
As evidence of his original scientific contributions, the petitioner submitted copies of the beneficiary's 
publications, citations to his work, and 12 support letters from scientists in his field or related 
specialties who discuss the value of the beneficiary's work. The record indicates that at the time of 
filing, the petitioner was engaged in his first postdoctoral fellowship. Professor the 
beneficiary's doctoral advisor, describes the following major contributions of the beneficiary's doctoral 
work: 
a) design and synthesis of several B-1 -N-arnido saccharides from glycosylarnines; b) enzymatic 
synthesis of disaccharide analogs using glycosidases as biocatalysts; c) structural 
characterization of the enzymatically synthesized oligosaccharides by two dimensional NMR 
methods and d) a systematic and detailed investigation of the molecular assembly of the models 
X-ray crystallography. 
Head of the Molecular Glycobiology Group at the Centre National de la Recherche 
Scientifique in France, states that the beneficiary's doctoral work "represents a major advance in the 
field of structural glycobiology." The value of the beneficiary's doctoral work is also discussed in 
several of the other support letters submitted. The record further shows that between 1998 and 2005, 
the beneficiary published five articles related to his doctoral work in Carbohydrate Research, Journal of 
Carbohydrate Chemistry, Biochemical and Biophysical Research Communications, Tetrahedron: 
Asymmetry, and Acta Crystallographica. The beneficiary is the lead author of three of these articles, 
EAC 06 014 52770 
Page 6 
two of which have been cited once each in the publications of other researchers. Two articles of which 
the beneficiary is the second author have been cited a combined total of five times in the publications of 
other researchers. 
In his December 6, 2005 letter, counsel states that citations to the beneficiary's articles have been 
published in top-ranked journals, however, counsel submits no evidence of the journal's rankings to 
support his assertion. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In his November 10, 2006 letter, professor the beneficiary's postdoctoral fellowship supervisor, 
- - 
states that the beneficiary has provided major contributions to science in the area of glycibiology. 
- Assistant Professor of Medicinal Chemistry at the University of Utah, 
explains that the beneficiary "developed the Expressed Protein Ligation str -synthesis 
of differentially post-translationally modified forms of c-Myc." Professo states that 
the beneficiary's work "is expected to throw light on the molecular 
- 
cells." The record shows that at the time of filing, the beneficiary had published one article related to his 
postdoctoral work with professor In his November 10, 2006 letter, ~rofessortates that the 
beneficiary also delivered an invited lecture at the of Clinical Pharmacology, GS Medical 
School and KEM Hospital in Mumbai, India on Professo behalf. 
Apart fiom the support letters, the beneficiary's six published articles and their combined total of seven 
citations in the publications of other researchers, the record contains no other evidence of the 
significance of the beneficiary's work to his field. Although the support letters indicate that the 
beneficiary's work is highly valued by 12 scientists in his field or related specialties, the record does not 
demonstrate that the beneficiary has made contributions of major significance to his field in a manner 
consistent with sustained national or international acclaim. 
 The beneficiary does not satisfy this 
criterion. 
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or 
other major media. 
As discussed above under the fifth criterion, the record shows that the beneficiary has published six 
articles in scientific journals and that his work has been cited seven times in the publications of other 
researchers. The beneficiary is the lead author of four articles, only two of which have been cited once 
each. Two articles of which the beneficiary is the second author have been cited a combined total of 
five times. On his curriculum vitae the beneficiary lists an additional article that he co-authored as 
being in press and in his November 10, 2005 letter, Professor Hart states that he anticipates 
beneficiary "will be a co-author on at-least 3 to 5 papers in top-flight journals" that Professor 
laboratory will be submitting in the coming year. We cannot consider such statements as evidence o 
the beneficiary's authorship. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
EAC 06 014 52770 
Page 7 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978). 
On appeal, counsel cites an article entitled, "Glycoscience Finally Comes of Age," as evidence that 
"glycoscience is a rarified field in which publications are not as frequent as most scientific fields." The 
article does not support counsel's assertion. Although the authors refer to glycoscience as "the 
neglected stepchild of molecular biology" and note that the field has attracted substantially less research 
funding and private investment than other scientific areas, they do not indicate that publication of 
glycoscience research is significantly less frequent than in other scientific fields. Indeed, in their short 
article, the authors cite articles published by 3 1 different research teams. 
The beneficiary's publication and citation record does not indicate that his articles have significantly 
influenced other scientists in his field or related specialties in a manner consistent with sustained 
national or international acclaim. Accordingly, the beneficiary does not meet this criterion. 
(7) Evidence that the alien has been employed in a critical or essential capacity for organizations 
and establishments that have a distinguished reputation. 
In his November 10,2005 letter, Professor 
E 
tates: 
[The beneficiary] has worked with me for the last three years as a very critical member of the 
Department [of Biological Chemistry at the Johns Hopkins Medical School]. [He] has trained 
several post-doctoral fellows and graduate students in the both the [sic] synthetic and 
instrumental aspects of organic chemistry and biochemistry in our Department and in other 
Departments as well in [sic] the Johns Hopkins University. Virtually all problems in organic 
synthesis in the Department were referred to [the beneficiary]. . . . [He] has been irreplaceable 
in my laboratory and the Department for the past three years. His contributions have been truly 
critical for the sustained growth of my laboratory at the Johns Hopkins Medical School. 
While Professor clearly views the beneficiary as a critical and essential member of his laboratory, 
the record does not indicate that he has been employed in a critical or essential capacity for the 
Department of Biological Chemistry or the Johns Hopkins Medical School as a whole. We do not 
question the distinguished reputation of the Johns Hopkins Medical School. However, at the time of 
filing, the beneficiary was employed as a postdoctoral fellow. Such a position is not considered 
employment in a "critical or essential capacity," as would employme 
researcher or principal investigator. Moreover, in their support letters, 
, both Assistant Professors in the Department of Biological Chemistry at Johns Hopkins 
University School of Medicine, discuss the value of the beneficiary's research conducted in Professor 
laboratory, but do not indicate that the beneficiary is employed in a critical or essential capacity 
for the Department as a whole. Accordingly, the beneficiary does not meet this criterion. 
In order to establish eligibility for extraordinary ability classification, the statute requires evidence of 
the alien's "sustained national or international acclaim" and evidence that the alien's achievements have 
been recognized in the field of endeavor through "extensive documentation." Section 101 (a)(l5)(0)(i) 
EAC 06 014 52770 
Page 8 
of the Act, 8 U.S.C. 5 1101(a)(15)(0)(i). The petitioner has not established that the beneficiary's 
achievements have been so recognized. The regulation further requires the petitioner to establish that 
the beneficiary is "one of the small percentage who have arisen to the very top" of his field. 8 C.F.R. S; 
2 14.2(0)(3)(ii). The record does not demonstrate that the beneficiary has ascended to this level. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. $ 1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.