dismissed O-1A Case: Medical Science

U.S. Department of Homeland Security 
20 Mass Ave , NW, Rm. A3042 
Washington, DC 20529 
" 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 236 533 19 Office: VERMONT SERVICE CENTER Date: MAR 0 1 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(0)(i) of the Immigration 
. 
 , and ~ationality Act, 8 U.S.C. 5 1 10 l(a)(15)(0)(i) 
I 
ON BEHALF OF PETITIONER: 
I. 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the gffice that originally decided your 
,. - s wr 
? 7 Administrative ~~~ka~s Office 
Any further inquiry must 
, 
be made to that office. 
EAC 04 236 533 19 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center, and is now 
before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a hospital. The beneficiary is a physician. The petitioner seeks 0-1 classification of the 
beneficiary, under section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 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 ten months as a pediatric/neonatology physician. 
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 submits a brief and additional documentation. 
Section 10l(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 issue raised by the director ini 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. 1 
The regulation at 8 C.F.R: 5 2 14.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the jeld 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 0-1 alien of extraordinary ability in thejelds 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 ~obei Prize; or 
(B) At least three of the following forms of documentation: 
(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; 
EAC 04 236 53319 
Page 3 . 
(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 regulation at 8 C.F.R. $ 214.2(0)(5)(i)(A) requires, in pertinent part: 
Consultation with an appropriate U.S. peer group (which could include a person or persons with 
expertise in the field), labor and/or management organization regarding the nature of the work to be 
done and the alien's qualifications is mandatory before a petition for 0-1 or 0-2 classification can be 
approved. 
I 
The beneficiary in this matter is a native and citizen of the Republic of Korea. The record reflects that he 
received his medical degree in 1983, a Master of Science degree in 1989, and a Doctor of Philosophy degree in 
1993, all from the Seoul National University. The beneficiary served as chief of the neonatal intensive care unit in 
the pediatric department of the Seoul Red Cross Hospital, and worked as a postdoctoral fellow in pediatric 
oncology at the National Cancer Institute of the National Institutes of Health in Bethesda, Maryland beginning in 
April 2002. The beneficiary is currently a fellow in pediatric/neonatology with the petitioning organization. On 
the Form 1-129 petition, the petitioner indicated that the beneficiary last entered the United States in J-1 
nonimmigrant classification as an exchange visitor. It is noted that the beneficiary is subject to the two-year 
foreign residency requirement. 
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 sum of the evidehce was insufficient to demonstrate that he is "at the 
very top" of his field of medical science pursuant to 8 C.F.R. 5 214.2(0)(3)(ii). The director concluded that the 
record failed to show that the beneficiary was recognized as a physician of extraordinary ability whose 
achievements have been recognized in the field through extensive documentation. 
There is no evidence that the beneficiary has received a major, internationally recognized award equivalent to that 
listed at 8 C.F.R. tj 214.2(0)(3)(iii)(A). Neither is the record persuasive in demonstrating that the beneficiary has 
EAC 04 236 533 19 
Page 4 
met at least three of the criteria at 8 C.F.R. fj 214.2(0)(3)(iii)(B). The petitioner has submitted evidence pertaining 
to the following criteria.' 
Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for 
excellence in the$eld of endeavor. 
The petitioner stated that the beneficiary meets this criterion based on his receipt of a travel award by the 
International Immunocompromised Host Society (ICHS) to attend and present his research findings at the 13~ 
International Symposium on Infection. The petitioner submitted a July 29,2004 letter from Warren C. Snow, the 
secretaryltreasurer of the ICHS, confirming that the beneficiary received the ICHS travel award "for excellence in 
research so that [he] would be able to present a poster" at the symposium held on June 27-30,2004. The evidence 
indicates that the award was to aid the beneficiary's attendance at a symposium in which one of his papers 
had been selected for a poster presentation. A travel award is not an award or prize for excellence in the field 
of endeavor. As indicated by the evidence, the award was to help the beneficiary defray the expense of 
attending the symposium. 
On appeal, counsel asserts the travel award is restricted to only those few whose abstracts have been judged 
by a committee to be of "high scientific merit," and thus is evidence that the beneficiary meets this criterion. 
The petitioner submitted a copy of a September 9, 2004 letter from the executive director of the ICHS 
confirming the beneficiary's receipt of the travel award. In her letter, the executive director stated, "To win a 
Travel Award a physician must submit an abstract for poster presentation at the symposium. All abstracts 
submitted to ICHS are reviewed by the scientific committee and.only those that have high scientific merit 
may be able to win on[e] of the limited number of Travel Awards." 
Nonetheless, the petitioner submitted no documentary evidence that this travel award is recognized nationally 
or internationally as an award for excellence in the field of medicine. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing ~atte; of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also asserts that the beneficiary meets this criterion based on the award of a visiting fellowship, 
with a subsequent renewal, at the National Cancer Institute of the National Institutes of Health. A fellowship 
is granted generally to find fibre research rather than to award an achievement in the field. While the 
fellowship committee will take the recipient's accomplishments into account, such consideration ensures that 
the fellowship funds will advance the project and is not an award for excellence in the field. 
On appeal, counsel asserts that, as the fellowship is awarded by a prestigious organization like the National 
Institutes of Health, and that the beneficiary was recruited for the position from a top-level role in Korea, this 
constituted evidence that the fellowship is nationally recognized as an award for excellence. This argument 
presupposes that any recognition by a renowned organization is, or should be, a nationally or internationally 
recognized award for excellence. However, the petitioner must establish first that the fellowship is an award, 
and second that the award is one of national or international significance based on its recognition of such by 
those in the field of endeavor. 
The petitioner also alleges that the beneficiary meets this criterion based on his receipt of a grant by the 
Ministry of Science and Technology. The petitioner, however, submitted no documentary evidence to 
' The petitioner does not claim to meet, or submit evidence relating to, the criteria not discussed in this decision. 
EAC 04 236 533 19 
Page 5 
corroborate the beneficiary's receipt of this grant and submitted no evidence to establish that this award is a 
national or international award for excellence in medicine. Id. Further, it is noted that research grants simply 
fund a scientist's work. The past achievements of the principal investigator are factors 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 is not an award to honor or 
recognize past achievement. 
The petitioner has not established that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the field for which the classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
For criterion two, the petitioner submitted evidence that the beneficiary is a member of the Infectious Diseases 
Society of America (IDSA) and the American Society for Microbiology. A review of the membership 
requirements of these organizations that was submitted by the petitioner indicates that membership is open to 
anyone who meets certain educational achievements, and is not limited to those who have made outstanding 
achievements in the field. The petitioner also stated that the beneficiary is a member of the Korean Medical 
Association, the Korean Pediatric Society and the Korean Society of Neonatology. However, the petitioner 
submitted no corroborative evidence that the beneficiary is a member of these organizations or that membership 
in the organizations is limited to those of outstanding achievements in the field of medical science. 
On appeal, counsel concurs that membership in these organizations does not satisfy this criterion, but argues that 
the beneficiary's membership should be reviewed "in context of [his] overall standing in his field." Counsel 
further states: 
It is evideit that by holding five, high level, international memberships [the beneficiary] is 
heavily involved in a range of activities in this field of research, and when this is reviewed in 
conjunction with the additional documentation helps show his stature in this field. Fulfillment 
of the various categories pertaining to extraordinary ability should be reviewed with respect to 
the overall picture." [Emphasis in original.] 
The eight regulatory criteria at 8 C.F.R. 9 214.2(0)(3)(iii) reflect the statutory demand for "extensive 
documentation" in section 10 1 (a)( 15)(0)(i) of the Act and list the minimum documentary requirements 
necessarily to establish that the beneficiary has sustained national or international acclaim in his field of 
endeavor. The documentation submitted in support of each criterion must stand alone as an indication of the 
beneficiary's acclaim in the field. 
The evidence does not establish that the beneficiary meets this criterion. 
Evidence of the alien 5 original scientific, scholarly, or business-related contributions of major significance in 
the field. 
For criterion five, the petitioner asserts that the beneficiary "has made significant and groundbreaking findings in 
his area of research." As evidence, the petitioner submitted letters from several individuals attesting to the 
beneficiary's skills and abilities. Although the authors of the letters indicate that the beneficiary satisfies this 
criterion, none provide any specifics of how the beneficiary's contributions are of a major significance to medical 
EAC 04 236 533 19 
Page 6 , 
science. Doctor 
 hief of the pediatric oncology branch at the National Cancer Institute, speaking 
albicans, stated in a letter dated August 4,2004: 
[The beneficiary] joined Dr. laboratory to study the changes in the expression 
of gene coding fo'r the innate host defense proteins when human monocytes are infected with a 
specific fungus named Candida albicans. [He] utilized DNA microarray and bioinformatics to 
assess the global changes in gene expression. This approach is unique and novel because it 
allows one to examine a large set of genes that are altered when human monocytes are infected 
with Candida albicans. To date, only limited information has been available as to which genes 
are affected after the infection because of the limitation in the assay systems. I have attended 
[.the beneficiary's] presentation a number of times, and have no doubt that his results have 
significantly impacted the field. 
Dr. rites that the beneficiary's work in this area "for the first time, identified comprehensively the 
genes that are altered in the host in response to infection by Candida albican. This work is extremely important in 
- 
;lucidatin* hanges in gene expressions that would appropriately exert the immune reaction to a pathogen." 
While Dr. 
 stated that the beneficiary's work is "extreme1 im o ant," he does not state how this work 
represents a contribution of major significance to medicine. Dr. Yndicated that the beneficiary's work 
has potential for contributing significantly to medicine, stating that he has "no doubt that the results that [the 
beneficiary] has generated will significantly advance-our understanding in immune responses during infection." 
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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
~r.the chief of experimental immunology branch at the National Cancer Institute, also wrote of 
this research3y the beneficiary, but did not indicate in his letter of July 14,2004, that the research results were of 
major significance. On appeal, the petitioner submits letters from others in the field of cancer research. 
D-an associate professor of pediatrics with the petitioning organization, states in a letter of 
, September 24,2004: 
In Korea, sepsis was the most common cause of death among the prematurely born infants. 
[The beneficiary's] focus was on how to reduce infection in neonates and improve the survival 
rate of neonates . . . [He] investigated possible causes of infection by comparing neonatal 
sepsis between preterm and full term infants and his work greatly increased the survival rate at 
the NICU. These methodologies have direct applicability to helping us deal with our own 
issues with infection. 
Dr. 
 dean of the Gachon Medical College and Director of Pediatrics, states in a letter dated 
September 12,2004; stated that the beneficiary is "one of the top neonatologists" in Korea. ~r.mfurther states: 
[The beneficiary's] constant interests in improving treatments for the neonatal infection which 
is the leading cause of death among the prematurely born infants have lead [sic] to numerous 
critical publications. [He] hypothesized that surfactants which was [sic] mainly used to treat 
the respiratory distress syndrome in neonates could also counteract the non-specific 
inflammation caused by various lung diseases. Based on his hypothesis he applied surfactant 
 - 
treatments to other respiratory diseases in neonates and showed that surfactant treatments 
could be effective therapy for lung diseases beyond just the respiratory distress syndrome in 
EAC 04 236 533 19 
Page 7 
neonates. [Hlis hypothesis was later confirmed by other reports . . . [Wis theory . . .has helped 
to improve the health of neonates. [The beneficiary] is also a pioneer in hepatitis disease in 
neonates . . . [The beneficiary] and colleagues developed a novel monoclonal antibody termed 
ASSA-1 that could reacts [sic] with hepatitis virus in mothers and infants to screen for those 
requiring preventive treatments . . . [The beneficiary's] expertise and contribution in this area 
was invaluable in preventing neonates from acquiring hepatitis virus. 
Again, while the authors speak of the importance of the beneficiary's research, these testimonials fail to 
demonstrate specifically how the beneficiary's research has significantly impacted his field. 
The petitioner also submitted evidence of the beneficiary's published work. However, the petitioner has not 
submitted evidence that the beneficiary's publications are considered to be 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. In review, the evidence fails to show that beneficiary has sustained 
national or international acclaim and recognition for major achievements in the field of medicine. The 
beneficiary does not satisfy this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major 
media. 
The petitioner stated that the beneficiary has published 24 articles with an additional one accepted for publication. 
The petitioner submitted evidence that the beneficiary's work has been published in the Journal of Viral 
Hepatitis, Transplantation Proceedings, the Medical Journal of the Red Cross Hospital, Journal of the Korean 
Pediah-ic Society, the Korean Journal of Anatomy and the INJE Medical Journal. The petitioner also submitted 
evidence that the beneficiary has presented abstracts of his work at international conferences. 
In the scientific research community, publication of one's work is expected, even among researchers who are still 
in an academic training environment. Publication of scholarly articles is not automatically evidence of sustained 
acclaim; we must consider the research community's reaction to those articles. 
No citation history of the beneficiary's articles has been submitted. Published articles by the beneficiary that 
have been cited by others would more meaningfully establish that the beneficiary enjoys a measure of 
influence through his publications. The petitioner has not demonstrated that the beneficiary's work has had a 
major impact on his field of endeavor. The evidence is insufficient to establish that the beneficiary satisfies 
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 meets this criterion; however, the AAO does not concur with this 
determination. This portion of the director's decision shall be withdrawn. 
Counsel asserts that the beneficiary meets this criterion based on his position as Chief of Neonatal Intensive Care 
Unit, Department of Pediatrics Gachon Medical College and Chief of Neonatal Intensive Care Unit of the 
Department of Pediatrics at Seoul Red Cross Hospital. As evidence, the petitioner relied upon the beneficiary's 
curriculum vitae. The petitioner submitted no corroborating evidence from these institutions that the beneficiary 
was employed in the stated capacity or that the positions were of a critical or essential nature to these medical 
EAC 04 236 533 19 
Page 8 
institutions. Additionally, the petitioner submitted no evidence that the Gachon Medical College or the Seoul Red 
Cross Hospital have distinguished reputations. See Matter of Soffici, 22 I&N Dec. at 165. 
Counsel also states that the beneficiary meets this criterion based on his fellowships at the National Cancer 
Institute of the National Institut 
 the petitioning organization. As evidence, counsel cites to 
the August 4,2004 letter by Dr. 
 e senior investigator and chief of the Immunocompromised 
Host Section, Pediatric Oncolo 
 nal Cancer Institute, who stated that the beneficiary's work 
-- 
has been "highly acclaimed as roviding critical information in the understanding of host defense against invasive 
candidiasis." However, Dr does not state that the beneficiary served in a critical capacity for the National 
Cancer Institute. The petitioner * su mitted no evidence that the fellowship with the petitioning organization is in a 
critical or essential capacity for the petitioner. While employment with such institutions is evidence of a degree of 
recognition, fellowship positions, without more, are not considered employment in a critical or essential capacity 
as would, for example, a department head or lead researcher on major projects. 
The petitioner has not established that the beneficiary meets 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. 
While the petitioner did not initially claim that the beneficiary met this criterion, the acting director determined 
that the evidence did not establish that the criterion had been met. As counsel addressed this_finding on appeal, we 
will also address it in our decision. 
The petitioner stated that it would pay the beneficiary an annual salary of $42,156. In her decision, the acting 
director stated that the proffered salary "is well below the average pediatrician's salary and does not compare to 
other salaries earned by the top pediatricians in the field." The director did not reference the evidence upon which 
she relied to make her determination. 
On appeal, counsel states that the beneficiary will be performing clinical research and that his salary should not be 
compared with those of a pediatrician. The petitioner submitted a copy of an excerpt from the U.S. Department of 
Labor's Occupational Outlook Handbook, which indicates that, in 2002, the median annual earnings of medical 
scientists, excluding epidemiologists, were $56,980, with the middle percent earning between $40,180 and 
$82,720. Counsel states that the "proffered salary fits squarely in the general terms of this field." 
Nonetheless, to establish that the beneficiary meets this criterion, the petitioner must establish that the 
beneficiary's salary is high in relation to others in the field. The evidence indicates that the beneficiary's earnings 
will be less than that of over half of those in the medical science field, and does not approach the $1 14,640 paid to 
the top 10% in his field. 
The beneficiary does not meet this criterion. 
Beyond the decision of the director, we note that the petitioner has not submitted the mandatory consultation 
required by the regulation at 8 C.F.R. 5 214.2(0)(5)(i)(A), which states, in pertinent part: 
Consultation with an appropriate U.S. peer group (which could include a person or persons with 
 , 
expertise in the field), labor andlor management organization regarding the nature of the work to 
be done and the alien's qualifications is mandatory before a petition for 0-1 or 0-2 classification 
can be approved. 
% 
EAC 04 236 533 19 
Page 9 
The record contains no documentation indicating that the petitioner obtained a consultation in accordance with 
the above regulation. The petitioner, instead, submitted an advisory opinion from one of its own professors. This 
letter from the petitioner does not meet the intent and purpose of the regulation and without the required 
consultation, the nonimmigrant visa petition cannot be approved. This deficiency constitutes an additional ground 
for denial of the petition. 
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 identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also 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 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. 
i 
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. $ 214.2(0)(3)(ii). The beneficiary's achievements have not yet risen 
to this level. 
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. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.