dismissed O-1A Case: Medical Science

US. Department of Homeland Security 
20 Mass. Ave. NW, Rm. A3042 
Washington, DC 20529 
FILE: WAC 03 209 54393 Office: CALIFORNIA SERVICE CENTER Date: JUN 1 3 2005 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 10 l(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 1 10 1 (a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Ofice in your case. All documents have been returned to 
the office that originally decided your cue. Any further inquiry must be made to that office. 
9 Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a health care provider. The beneficiary is a physician. The petitioner seeks 0-1 classification of 
the beneficiary, under section IOl(a)(15)(O)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1 101 (a)(lS)(O)(i), as an alien with extraordinary ability in medical science. The petitioner seeks to employ the 
beneficiary temporarily in the United States for a period of three years as an endocrinologist. 
The director denied the petition, fmding that the petitioner failed to establish that the beneficiary has sustained 
recognition as being one of a small percentage at the very top of his field of endeavor. 
On appeal, counsel for the petitioner submits a brief asserting that the record shows that the beneficiary is an alien 
with extraordinary ability in his field. 
Section IOl(a)(lS)(O)(i) of the Act provides classification to a qualified alien who has extraordinary ability in the 
sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international 
acclaim, whose achievements have been recognized in the field through extensive documentation, and who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The issue raised by the director in this proceeding is whether the petitioner has shown that the beneficiary 
qualifies for classification as an alien with extraordinary ability in medical science as defined by the statute and 
the regulations. 
The regulation at 8 C.F.R. fj 2 14.2(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. 5 214.2(0)(3)(iii) states, in pertinent part, that: 
Evidentiary criteria for an 0- I alien of extraordinary ability in the jeld 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: 
(1) 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; 
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(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 is a 33-year old native and citizen of the Philippines. The record reflects that he received his 
undergraduate and medical degrees at George Washington University. He completed an internship and residency 
in internal medicine, and an endocrinology fellowship with Baylor College of Medicine. The record reflects that 
the beneficiary was last admitted to the United States in H-1B nonirnmigrant classification. 
After reviewing the evidence submitted in support of the petition, the director found the beneficiary ineligible for 
0-1 nonimmigrant classification based on finding that the petitioner failed to establish that the beneficiary meets 
the requirements of Title 8, Code of Federal Regulations, Part 214.2(0)(3), supra. 
On appeal, counsel for the petitioner asserts that the director erred in the adjudication of the petition. 
There is no evidence that the beneficiary has received a major, internationally recognized award equivalent to that 
listed at 8 C.F.R. § 214.2(0)(3Xiii)(A). Neither is the record persuasive in demonstrating that the beneficiary has 
met at least three of the criteria at 8 C.F.R. 5 214.2(0)(3)(iii)(B). 
Documentation of the alien's membership in associations in theJield for which class@cation is sought, which 
require outstanding achievements of their members, as judged by recognized national or international experts 
in their disciplines or$elds. 
Initially, the petitioner indicated that the beneficiary satisfied criterion number two by virtue of his membership in 
the American Association of Clinical Endocrinologists and The Endocrine Society. The director determined, and 
the AAO concurs, that the petitioner failed to establish that these are associations that require outstanding 
achievements of their members. The petitioner does not contest this finding on appeal. 
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Published material in professional or major trade publications or major media about the alien, relating to the 
alien's work in the Feld for which classification is sought, which shall include the title, date and author of 
such published material, and any necessary translations. 
For criterion number three, the petitioner submitted evidence that on March 1, 2004, the beneficiary was invited 
as a guest speaker for a television show, Medical Monday, to lecture on current trends in diabetes treatments. 
However, this appearance took place well after the petition was filed on July 10,2003. 
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 or beneficiary becomes eligible under a new set of 
facts. Maner of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The beneficiary was invited to 
appear on a television show eight months after the filing of the instant petition. The petitioner failed to 
establish that the beneficiary satisfied this criterion as of the date of the filing of the petition. 
Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major 
media. 
For criterion number six, the beneficiary has published one article, "Changes in Metabolic Profile" in the Jozanal 
of Acquired Immune DeJciency Syndomes. However, this article was published on August 15, 2003, after the 
filing date of the petition. The record indicates that the beneficiary submitted another article for publication, but 
submitted no evidence that the article had been published. The AAO will only consider those articles that had 
been published as of the date of the filing of the petition. 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 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., supra. The 
beneficiary does not satisfy this criterion. 
Evidence that the alien has been employed in a critical or essential capacity for organizations and 
establishments that have a distinguished reputation. 
Counsel for the petitioner asserts that the beneficiary's former employer, Baylor College of Medicine, has a 
distinguished reputation. The AAO concurs that BayIor has a distinguished reputation. However, the petitioner 
failed to establish that the beneficiary has been employed in a critical or essential capacity for any organizations 
and establishments. The beneficiary has been employed as a resident, a fellow, and an intern at an esteemed 
medical institution. While employment with such institutions is evidence of a degree of recognition, such staff or 
assistant positions are not considered employment in a "critical or essential capacity." The beneficiary does not 
satisfy this consultation. 
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. 
For criterion number eight, the petitioner initially indicated that it would pay the beneficiary an annual base salary 
of $160,000. In response to a request for additional evidence, the petitioner indicated that it was raising the 
beneficiary's salary to $200,000. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 3 103.2(b)(8). When 
responding to a request for evidence, a petitioner cannot change the terms of its job offa. The petitioner must 
establish that the beneficiary satisfied the criterion as of the date of the filing of the position. If significant 
WAC 03 209 54393 
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changes are made to the initial request for approval, the petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. Therefore, the analysis of this criterion 
will be based on the job description submitted with the initial petition. 
The petitioner provided CIS with the U.S. Department of Labor prevailing wages for physicians and surgeons 
in the geographical area where the petitioner is located (Glendale, California). The petitioner asserts that the 
proffered wage ($1 60,000) exceeds the prevailing wage ($145,600). The petitioner also submitted a salary 
survey for endocrino~ogists in the Glendale, California area, indicating that the median wage is $1 67,724 and 
those in the 75% percentile earn $189,820. 
Although the survey submitted indicates that the beneficiary would receive more than the prevailing wage for 
medical scientists and physicians in the geographical area of the petitioner, the survey submitted is 
geographically too restrictive. This criterion must be indicative of national acclaim in the field. The petitioner 
should have submitted wage survey information for all endocrinologists on a nationwide basis. The petitioner 
should have provided the highest wages offered nationwide to endocrinologists. The beneficiary does not 
satisfy this criterion. 
The petitioner submitted five testimonials. The testimonials' authors all speak highly of the beneficiary. It is 
noted that all of the authors are fonner advisors, or colleagues of the beneficiary. While these testimonials speak 
highly of the beneficiary, letters written by those with professional ties to the beneficiary do not establish that the 
beneficiary is well known beyond his immediate circle of colleagues, as one might expect of a person who had 
made an original contribution of major significance in the field. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive. See 137 Cong. 
Rec. S18247 (daily ed., Nov. 16, 1991). In order to establish eligibility for extraordinary ability, the statute 
requires evidence of "sustained national or international acclaim" and evidence that the alien's achievements have 
been recognized in the field of endeavor through "extensive documentation." The petitioner has not established 
that the beneficiary's abilities have been so recognized. In order to establish eligibility for 0-1 classification, the 
petitioner must establish that the beneficiary is "at the very top" of his field of endeavor. 8 C.F.R. 5 
214.2(0)(3)(ii). The beneficiary's achievements have not yet risen to this level. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 
1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.