Gudeon and McFadden

Archived Decisions of the Administrative Appeals Office

  TEL: +44 20 7323 9454
  FAX: +44 20 7580 2171
Updated: March 21, 2017

Immigrant Visas

In re [name omitted]: WAC 03 005 51836 (California Service Center January 18, 2005)

The denial of a research scientist’s petition was upheld on appeal. An academic scholarship did not constitute a nationally or internationally recognized prize or award for excellence in the field of endeavour, because ‘academic study is not a field of endeavor, but training for a future field of endeavor.’ Serving as a peer reviewer for journals in one’s field is routine for researchers and does not demonstrate sustained national or international acclaim. Finally, having great potential as a scientist is not the same as already having achieved the required acclaim.

In a comment with wide application, the AAO found recommendation letters from referees to be of limited value:

The opinions of experts in the field, while not without weight, cannot form the cornerstone of a successful claim. Evidence in existence prior to the preparation of the petition carries greater weight than new materials prepared especially for submission with the petition. An individual with sustained national or international acclaim should be able to produce unsolicited materials reflecting that acclaim.

Patents alone were also not enough, as ‘a patent is not necessarily evidence of a track record of success with some degree of influence over the field as a whole.’

In re [name omitted]: WAC 03 082 52096 (California Service Center February 14, 2005)

The AAO upheld the CSC’s determination that an alien had not proved that she had extraordinary ability as a ‘research assistant/graduate student.’ The reference letters produced in support of the petition were not particularly persuasive because they did not identify specific contributions made by the alien and explain how those contributions had influenced her field of activity. Rather, they simply discussed the importance of the project on which petitioner (and others) was working, provided general praise of the petitioner’s skills, and ranked her in relation to others in the field. Mere publication of articles, even in peer-reviewed journals, is not in itself evidence of extraordinary ability when one is in a field where publication is expected of all practitioners. Finally, merely showing talent is not sufficient to show that the alien is significantly above almost all others in her field.

In re [name omitted]: WAC 98 203 52577 (California Service Center March 7, 2005)

The alien’s petition was originally approved, but in connection with the alien’s Application to Register Permanent Residence or Adjust Status (I-485), the California Service Center revisited the issue and revoked its earlier approval. The AAO upheld the revocation. The alien claimed to have extraordinary ability as a senior software engineer. However, the published materials that did not mention the alien’s name were not probative, and a magazine from the university where he obtained his Ph.D. and which apparently did bear his name did not constitute ‘major media,’ In any event, the article dated nine years before the date of filing was too old to be evidence of sustained acclaim as of the date of filing. Work that he had performed more than nine years before the filing, and which was the subject of laudatory letters submitted with the petition, was also too old; ‘the petitioner needs to demonstrate sustained acclaim for those nine years.’ The AAO also found that petitioner’s evidence of acclaim consisted entirely of reference letters, and used the same language as in the January 18, 2005 decision above to state that reference letters written specifically for the petition have less weight that those that are pre-existing and unsolicited.

In re [name omitted]: LIN 03 067 50858 (Nebraska Service Center March 7, 2005)

The AAO sustained an appeal filed by the petitioner, and granted the petition. The alien claimed that she was an alien with extraordinary ability in the field of biomedical research, having focused on hypertension research in China and Japan before moving to the United States to work on breast cancer research. The NSC denied the petition on the grounds that her ‘field’ was cancer research, and that she did not have extraordinary ability in that field. The AAO found that the NSC’s decision to narrow the field was ‘disingenuous’ and that it effectively excluded relevant evidence. Restating the field to be ‘biomedical research,’ the AAO found that the alien had established three of the 10 criteria in the relevant regulations, and that she qualified as an alien of extraordinary ability. She would be continuing in her field even if, in the United States, she focused her research on cancer rather than hypertension. ‘Unlike an athlete who seeks to enter the field of coaching, a medical researcher who seeks to continue as a medical researcher, albeit with a different focus, has a plausible argument that she is continuing in her profession.’

In re [name omitted]: WAC 03 118 54147 (California Service Center April 19, 2005)

A self-petition by an art director in the field of entertainment advertising was denied by the California Service Center and the denial was upheld on appeal. The AAO found that the original decision was flawed and that the beneficiary qualified as to two criteria, but not as to the crucial third. Again, the AAO discounted letters solicited in preparation for the visa petition and found that they carried ‘less weight than pre-existing, independent evidence of the petitioner’s contributions to his field.’ In addition, evidence of the petitioner’s income, without evidence of the income of other art directors, was insufficient to show that he had commanded ‘significantly high remuneration for services, in relation to others in the field.’

In re [name omitted]: LIN 03 095 51836 (Nebraska Service Center April 26, 2005)

In upholding the denial of a self-petition filed by a scientific researcher in an undisclosed field, the AAO emphasised that this visa classification is ‘highly restrictive’ and ‘is not meant to be easy to obtain….This classification is for individuals at the rarefied heights of their respective fields; an alien can be successful, and even win praise from experts in the field, without reaching the top of that field.’ An alien who showed that he participated as a judge of the work of others in his field was also required to show that he was chosen for such participation precisely because his had ‘sustained national or international acclaim.’ Failing this, the evidence produced by the alien petitioner was found to satisfy only two of the regulatory criteria, falling short of the three required for approval. The researcher was found to be not yet at the top of his field; even unanimous agreement by experts that he would reach such a level in the future would not be enough to grant extraordinary ability classification at this point in his career.

In re [name omitted]: WAC 02 193 53169 (California Service Center April 26, 2005)

The California Service Center denied a senior designer of computer games immigrant classification as an alien of extraordinary ability and the decision was upheld by the AAO. Reviews of the games to which he had contributed were published on the Internet but the AAO reminded the petitioner that ‘not every Internet posting can be considered major media.’ In addition, material that appeared after the filing of the petition could not be considered on appeal, since the petitioner must establish the beneficiary’s eligibility as of the date of filing. This decision does include the helpful statement that ‘the statutory requirement that the petitioner establish that the alien will “substantially benefit prospectively the United States” is a secondary requirement typically presumed of most aliens of extraordinary ability.’

In re [name omitted]: EAC 02 258 52288 (Vermont Service Center April 27, 2005)

The petitioner in this case sought classification of himself as an alien with extraordinary ability in an unspecified occupation. His academic credentials and teaching experience were in the field of physics and his career achievements were in the unrelated field of international affairs. Although understandably perplexed by the petition, the AAO considered all the evidence, some of which was over 30 years old, and found that it did not show him as having extraordinary ability in either field.

In re [name omitted]: EAC 02 252 51707 (Vermont Service Center April 27, 2005)

The AAO upheld the denial of the self-petition seeking immigrant status as an author and poet—an alien with extraordinary ability in the arts. The AAO reiterated that the mere submission of documentation related to three of the ten criteria does not in itself demonstrate the required national or international acclaim. Rather, ‘the evidence itself must be evaluated in terms of whether it is indicative of or consistent with sustained national or international acclaim.’ Awards limited by region or age are not probative of such acclaim, in the absence of evidence that the awards are nationally or internationally recognized. In addition, although the evidence submitted to meet each criterion need not be recent, there must be evidence that any prior acclaim has been sustained up until the time the petition was filed. Finally, evidence that petitioner’s books of poetry had sold a certain number of copies did not show that he had enjoyed commercial success, in the absence of evidence that would allow the USCIS to compare those sales with those of other poets.

In re [name omitted]: WAC 03 100 52345 (California Service Center April 27, 2005)

A petition seeking immigrant status for a research scientist was denied, and the denial upheld on appeal, although the AAO found that contrary to the California Service Center’s finding, the alien had in fact published scholarly articles on which others had relied. A citation index showing that the beneficiary’s published articles had been cited a total of 338 times was persuasive in demonstrating widespread interest in, and reliance on, the alien’s work. However, the petition eventually failed to prove three criteria as required, predominantly because the alien was seen as having great potential in his field, rather than having already accomplished great things. Promise in one’s field is not enough to justify a finding of extraordinary ability.

In re [name omitted]: WAC 03 101 53745 (California Service Center April 27, 2005)

An electrical and computer engineer failed in his self-petition for an immigrant visa on the grounds of extraordinary ability, and the denial was upheld by the AAO on appeal. Petitioner appeared to rely upon a number of achievements accomplished as a student, including prizes won, membership in (student) organizations, and original contributions in his field. The USCIS rejected these accomplishments, pointing out that they showed only that he was particularly good as a student—not as an engineer.

A cautionary note: In this case, the fact that the petitioner had many accomplished people as his referees was a double-edged sword, as the accomplishments of petitioner’s referees was held against him: ‘We note here that the majority of witnesses in this case, when compared to the petitioner, hold higher positions of authority as research supervisors, directors, department heads, and company executives. This criterion, like all of the criteria, is intended to separate the petitioner from the majority of his colleagues in the electrical engineering field. Therefore, when determining the petitioner’s eligibility, it is entirely appropriate to compare the petitioner’s role to that of his witnesses. In this case, it is immediately apparent that the importance of the role of individuals such as [name omitted in original] and Professors [name omitted in original] exceeds that of the petitioner.’

In re [name omitted]: WAC 03 005 50214 (California Service Center April 29, 2005)

The alien, petitioning on his own behalf, was a physicist and researcher into composite materials. Although the alien’s foreign employer had received an internationally recognized award that was attributable to him, thereby satisfying one of the 10 regulatory criteria, he was found not to satisfy any others, and the denial of immigrant classification was upheld. Published material regarding projects on which the alien had worked, but which did not mention him, were dismissed as irrelevant, as were printouts of the results of two internet searches of his surname. ‘The lists show only that the petitioner’s name (like billions of others) appears on the internet.’ An invitation to co-chair a conference to be held in the future was disallowed as evidence that he had served as a judge of the work of others. Patents standing alone were not significant to prove that he had made original scholarly contributions of major significance. Finally, letters from scientists with whom the alien had worked were discounted: ‘Recommendation letters solicited by an alien for his petition carry less weight than pre-existing, independent evidence of major contributions that one would expect of a scientist with sustained national or international acclaim.’

Nonimmigrant Visas (O-1)

In re [name omitted]: LIN 02 296 53935 (Nebraska Service Center January 26, 2005)

The petition of a dance studio seeking to employ an alien as a dance instructor and performer was denied, and that denial upheld on appeal. The alien’s nomination to the Slovakian national ballroom dancing team was found not to be a ‘significant national award.’ Articles in the Slovakian language and offered to the USCIS without translation could not be considered as proof, and neither could unsupported assertions of the petitioner’s attorney. Referees’ letters were discounted because they were ‘vague as to both the beneficiary’s acclaim and achievements.’ Finally, the AAO pointed out that although the proffered US salary of $30,000 was above the median earnings of dancers nationwide it was well below the wage earned by the top 10 percent of dancers. There was no discussion by the AAO as to whether a salary in the top 10 percent would have been sufficient to constitute ‘a high salary…in relation to others in the field.’

In re [name omitted]: SRC 04 204 53136 (Texas Service Center April 29, 2005)

The AAO upheld on appeal the Texas Service Center’s denial of O-1 status as an alien of extraordinary ability in the arts—specifically, in the playing of the Indian tabla. Publicity showing that the beneficiary had given a number of public performances was not enough to show that he had been a lead or starring participant or that the productions or events in question had distinguished reputations. Although an appropriate US peer group had given a favourable opinion—that the alien was in fact of extraordinary ability—the AAO pointed out that the consultation, although required by regulation, is advisory only and not binding on the USCIS.

© 2017 Gudeon & McFadden. All rights reserved. Disclaimer