dismissed O-1A Case: Medical Science

U.S. Department of Homel:~nd Security 
20 Mass. Ave. NW, Km. A31342 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: 
LIN 04 143 53690 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(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. 
mu 
hobert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a private medical group. 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. $ 1 101(a)(15)(0)(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 intensivist.' 
The director denied the petition, finding 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 beneficiary meets the requirements of an 
alien of extraordinary ability in the medical sciences and that the director disregarded the Yates Memorandum on 
the significance of prior approvals. 
Section lOl(a)(15)(0)(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 first issue to be addressed 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. 6 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: 
Evidentiaw criteria for an 0-1 alien of extraordinary ability in the fields of science, educatiott, 
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; 
The petitioner states that an intensivist is a physician specializing in intensive care medicine. 
(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 33-year old native and citizen of El Salvador. The beneficiary received his 
medical degree in 1995 at the Autonomous University of Central America, San Jose, Costa Rica. He completed 
an internal medicine internship and residency at Texas Tech University Health Sciences Center, Lubbock, Texas 
in June 1999. He next performed a critical care medicine fellowship at Mayo Clinic, Rochester, Minnesota. He 
semed as Medical Director, Intensive Care Unit (ICU) at Abbott Northwestern Hospital, Minneapolis, Pdinnesota 
from March 2002 until August 2003. The record reflects that the beneficiary was last admitted to the United 
States in 0-1 classification in November 2003. According to Citizenship and Immigration Servilzes (CIS) 
records, the beneficiary has previously held status as a J-1 exchange visitor and may therefore be subject to the 
two-year foreign residency requirement set forth at section 2 12(e) of the Act. An alien who is subject to the two- 
year foreign residency requirement is ineligible for adjustment of status and is also ineligible to receive a change 
of status to that of an H-IB nonimmigrant, without a waiver. Section 212(e) of the Act; Matter of Kim, 13 I&N 
Dec. 3 16 (Reg. Comm. 1968)' 
After reviewing the evidence submitted in support of the petition, the director found the beneficiary ineligible for 
0-1 classification based on finding that the petitioner failed to establish that the beneficiary nrleets the 
requirements of Title 8, Code of Federal Regulations, Part 2 14.2(0)(3), supra. 
On appeal, counsel for the petitioner asserts that the director erred in the adjudication of the petition. 
CIS records show that the alien is the beneficiary of an approved Form 1-129 petition seeking authorization 
to employ the alien as an H-1B nonimmigrant. (LIN 0.5 095 51 787). 
There is 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. 5 214.2(0)(3)(iii)(B). 
Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for 
excellence in theJield of endeavor. 
The petitioner asserts that the beneficiary satisfies criterion number one because he has received the following 
awards: 
Critical Care Fellow Outstanding Teacher of the Year Award, June 2001, Mayo 
Clinic. 
Admission to the Autonomous University of Central America, Costa Rica. 
Selection for research fellowship at University of California Los Angeles (UCLA). 
Selection for internship by Texas Tech University, Lubbock, Texas. 
Selection for critical care medicine fellowship at Mayo Clinic, Rochester, 
Minnesota. 
Board certification in critical care medicine. 
Invited speaker at the 10th International Christian Medical Central American 
Congress. 
Inclusion in Who 's Who. 
This criterion requires nationally or internationally recognized prizes or awards for excellence in tht: field of 
endeavor. The beneficiary received a Critical Care Teacher of the Year Award in 2001 at the Mayo Clinic. The 
director determined, and the AAO concurs, this is an institutional award, limited to staff at a single institution. As 
the beneficiary did not compete with nationally or internationally recognized experts in the field, the award 
cannot be considered evidence of the beneficiary's national or international acclaim. 
Similarly, selection for competitive internships and fellowships is limited to students. The beneficiary was not 
competing with the entire field. Board certification is contingent upon test scores rather than sustained acclaim. 
The petitioner failed to demonstrate that any of these were awards for excellence in the field of endeavor. The 
beneficiary does not satisfy this criterion. 
Documentation of the alien's membership in associations in thejield for which classrJication is sozrght, which 
require outstanding achievements of their members, as judged by recognized national or internationa/ experts 
in their disciplines or fields. 
For criterion number two, while the beneficiary is a member of the Society of Critical Care Medicine (SCCM), 
the American Medical Association (AMA), the American Thoracic Society (ATS), the Mayo Medical Alumni 
Association, and is a Diplomate of the American Board of Internal Medicine, there is insufficient evidence that 
Page 5 
these are associations which require outstanding achievements of their members, as judged by irecognized 
national or international experts in their disciplines. According to the evidence in the record, applicants for 
membership in the American Thoracic Society need only submit the signature of a sponsor who is an ATS 
member in good standing, and evidence of their demonstrated interest in the goals of the ATS. According to a 
printout from the SCCM's website. applicants simply need to have an interest in Critical Care (see 
htt~:llwww.sccm.or~mem/join body [accessed on 7/7/2001]. AMA membership is open to medical students at 
accredited medical schools, resident physicians, and physicians who agree to abide by The Principles of Medical 
Ethics. 
The petitioner has failed to establish that the above listed organizations require outstanding achievements of their 
members, as judged by recognized national or international experts in the field of endeavor. The beneficiary does 
not satisfy this criterion. 
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 classrfication is sought, which shall include the title, date and author of 
such published material, and any necessary translations. 
No evidence was submitted in relation to criterion number three. 
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 classiJcation is sought. 
Counsel for the petitioner wrote, ''[qor his extraordinary prowess, [the beneficiary] has been selected to serve in 
leading and critical roles in which judging the work of others is an implied and essential part of the job." The 
petitioner asserts that the beneficiary satisfies this criterion because he has supervised and judged the work of staff 
as medical director of the medical intensive care unit at Abbott Northwestern Hospital and was requested by the 
American Board of Internal Medicine to evaluate critical care examination certification questions. The evidence 
in the record does not establish that evaluating test questions is tantamount to judging the work of experienced 
professionals in the field. The regulation at 8 C.F.R. 5 214.2(0)(3)(iii) provides that "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." Evidence of 
the petitioner's participation as a judge must be evaluated in terms of these requirements. For example, 
evaluating the work of accomplished professors as a member on a national panel of experts is of far greater 
probative value than evaluating students in one's research laboratory. 
We do not find that supervising and judging the work of staff is tantamount to judging the work of others in one's 
field for purposes of this criterion. While an intensive care unit medical director may evaluate the work of 
staff, this evaluation process is inherent to a supervisory relationship. It does not, however, elevate the 
petitioner above almost all others in his field at the national or international level. We find no evidence to 
demonstrate that the petitioner has formally judged the work of established researchers (such as tenured 
professors) who have long since completed their graduate studies or postdoctoral training. The beneficiary's 
involvement in supervising staff and students is not indicative of national or international acclaim. The 
beneficiary does not satisfy this criterion. 
Evidence of the alien's original scientific, scholarly, or business-related contributions of major signifcance in 
the field. 
Page 6 
The petitioner asserts that the beneficiary satisfies this criterion by virtue of the publication of the beneficiary's 
research in the following areas: 
The use of the APACHE I11 database to determine the impact of ventilator associated pneumonia on the 
outcome of critically ill patients. 
The diagnosis of acute abdomen in the medical intensive care unit. 
Accuracy of the history, physical examination and routine tests in predicting post operative pulmonary 
complications. 
Clinical and functional imaging characteristics of Parkinsonian dementia. 
While the beneficiary has published results of his research, the record does not show that his research is 
considered of "major significance" in the field. By definition, all professional research must be original and 
significant in order to warrant publication in a professional journal. The record does not show that the 
beneficiary's research is of major significance in relation to other similar work being performed. The petitioner 
provided Citizenship and Immigration Services (CIS) with nine testimonials about the value of the beneficiary's 
work. All of the testimonials' authors wrote of the beneficiary's skill and experience. The majority indicated that 
the beneficiary made a substantial contribution to the literature in the field of intensive care. In the absence of a 
citation history, it is difficult to evaluate the impact of the beneficiary's research. 
Seven of the nine testimonials were written by former or current associates. The record does not indicate that the 
beneficiary has achieved acclaim beyond his immediate circle of associates. 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 beneficiary does not satisfy this criterion. 
Evidence of the alien's uuthorship of scholarly articles in the3eld, in professional journals, or other major 
media. 
For criterion number six, the beneficiary has published five articles and abstracts as of the date of the filing of the 
instant petition. The beneficiary indicated on his CV that he also had two additional articles "in progress" as of 
the date of the filing of the petition. The AAO will only consider those articles and abstracts 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., 17 I&N Dec. 248 (Reg. 
Comm. 1978). The petitioner submitted evidence of the "impact factor" of each publication that published an 
article co-authored by the beneficiary. The petitioner asserts that these publications have high impact factors; 
hence, the beneficiary's articles have had a significant impact on their readership. A more significant measure is 
the citation history of each of the author's articles. In the instant case, the petitioner failed to provide citation 
histories for the beneficiary's publications. In the absence of citation histories, the AAO cannot evaluate the 
impact ofthe beneficiary's work on the field of endeavor. 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. 
The director determined that the beneficiary satisfies this criterion. This portion of the director's decision will be 
withdrawn. The beneficiary has been employed as an intensive care physician and medical director of the 30 bed 
intensive care unit of the Abbott Northwestern Hospital in Minneapolis, Minnesota. To satisfy this criterion, the 
petitioner must establish that the beneficiary has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation. While the petitioner established that the 
Abbott Northwestern Hospital has a distinguished reputation, it failed to establish that the beneficiary played a 
critical or essential role for the hospital. Similarly it failed to establish that the Abbott Northwestern Hospital's 
medical intensive care unit holds a distinguished reputation. The beneficiary does not satisfy this criterion. 
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 states that the beneficiary will earn an annual salary of $220.,000. The 
petitioner provided CIS with a Jackson & Harris physician salary survey that indicates that the median salary 
for intensivists in the western region of the United States was $206,720 in 2004. The petitioner also 
submitted a wage salary indicating that pulmonologists earned an annual salary of $1 85,562 plus a 10% bonus 
on average in 2003. 
The petitioner should have provided more than just the average (mean) wage. To evaluate whether the salary 
is high, CIS needs to compare it to the median and highest wages offered nationwide to intensivists. The 
beneficiary does not satisfy this criterion. 
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 achievem~ents 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. 
2 14.2(0)(3)(ii). The beneficiary's achievements have not yet risen to this level. 
The second issue to be addressed in this proceeding is the petitioner's assertion that the director "disregarded its 
own interoffice memorandum on the significance of a prior CIS approval for a nonimmigrant petition in the 
context of a subsequent determination regarding eligibility for extension of petition validity." 
The petitioner noted that CIS approved another petition that had been previously filed on behalf of the 
beneficiary by a former employer. The director's decision does not indicate whether he reviewed the prior 
approval of the other nonimmigrant petition. If the previous nonimmigrant petitions was approved based on 
the record, the approval would constitute error on the part of the director. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g. Mutter of Church Scientologu International, 19 I&N Dec. 
593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), 248 F.3d 1139 (5th Cir. 
200 l), cert. denied, 122 S.Ct. 5 1 (200 1). 
The prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment 
of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 124048:! (5th Cir. 
2004). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, Ef U.S.C. tj 
1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.