U.S. Citizenship and Immigration Administrative - Aliens... U.S. Citizenship and Immigration Services

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  • U.S. Citizenship and ·Immigration Services

    MATTER OF S-S-T-

    APPEAL OF TEXAS SERVICE CENTER DECISION

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: SEPT. 28, 2016

    PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

    The Petitioner, a cardiologist who is currently engaged in research on Takotsubo cardiomyopathy, seeks classification as an individual of extraordinary ability in the sciences. See Immigration and Nationality Act (the Act) section 203(b)(1)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference classification makes visas available to those who can demonstrate their extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in their field through extensive documentation.

    The Director, Texas Service Center, denied the petition. The Director determined that the Petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R. § 204.5(h)(3), which necessitates either 1) documentation of a one-time major achievement, or 2) materials that show he meets at least three often regulatory criteria listed under 8 C.F.R. § 204.5(h)(3)(i)-(x).

    The matter is now before us on appeal. In his appeal, the Petitioner submits no new evidence but argues that the Director erred in concluding that he did not meet the original contributions criterion or the leading or critical role criterion.

    Upon de novo review, we will dismiss the appeal.

    I. LAW

    The Petitioner may establish his eligibility by demonstrating extraordinary ability through sustained national or international acclaim and achievements that have been recognized in the field through extensive documentation. Specifically, section 203(b)(1)(A) of the Act states, in pertinent part:

    Aliens with extraordinary ability. -- An alien is described in this subparagraph if-

    (i) the alien 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,

  • Matter of S-S-T-

    (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

    (iii) the alien's entry into the United States will substantially benefit prospectively the United States.

    The term "extraordinary ability" refers only to those individuals "in that small percentage who have risen to the very top ofthe field of endeavor." 8 C.F.R. § 204.5(h)(2). The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained acclaim and the recognition his achievements in the field through a one-time achievement (that is a major, internationally recognized award). If a petitioner does not submit this documentation, then he must provide sufficient qualifying evidence indicating that he meets at least three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x).

    Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this classification. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the documentation is first counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011); Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by its quality" and that .USCIS examines "each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true").

    II. ANALYSIS

    A. Evidentiary Criteria

    Under the regulation at 8 C.F.R. § 204.5(h)(3), the Petitioner, as initial evidence, may document a one- time achievement that is a major, internationally recognized award. In this case, the Petitioner has not claimed or shown that he is the recipient of a qualifying award at a level similar to that of the Nobel Prize. As such, the Petitioner must provide at least 3 of the 1 0 types of documentation listed under 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements.

    On appeal, the Petitioner specifically challenges the Director's findings relating to regulatory criteria at 8 C.F.R. §§ 204.5(h)(3)(v) and (viii). As the Petitioner does not continue to maintain that he meets, and has not argued that the Director erred in regard to, any other enumerated criteria, they will not be discussed in this decision.

    For the reasons discussed below, the Petitioner has not demonstrated that he meets either of the claimed criteria.

    Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an alliedfield of specification for which class(fication is sought.

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  • (b)(6)

    Matter of S-S-T-

    The Director found that the Petitioner satisfied the plain language of this criterion. Upon a review of the record, we agree that the Petitioner has provided evidence of his peer review of scholarly articles submitted for publication in medical journals. Specifically, the Petitioner presented emails confirming the completion of the peer review of at least two scientific articles submitted for publication to

    As a result, the Petitioner has satisfiedthe plain language . of this criterion.

    Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in thefield.

    The Petitioner claims to meet this criterion based upon his research in differentiating Takotsubo cardiomyopathy (TC) from acute myocardial infarction (ACI). To satisfy this criterion, a petitioner's contributions must be both original and of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). The term "original" and the phrase "major significance" are not superfluous and, thus, they have some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3d Cir. 1995), quoted in APWU v. Potter, 343 F.3d 619,626 (2d Cir. 2003). Regardless of the field, the phrase "contributions of major significance in the field" requires substantiated impacts beyond one's employer, clients or customers. See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met this criterion because she did not demonstrate her impact in the field as a whole).

    To demonstrate that his research in TC constitutes an original scientific contribution of major significance, the Petitioner refers to testimonial letters; the citation to his published works; the fact that he was a principal investigator on two research studies, one of which won a prize for a poster presentation; and the fact that his articles have been published in prestigious journals.

    The Petitioner submitted eight testimonial letters from other cardiology researchers, each of which discussed his work on TC and its differentiation from ACI. The authors all explained the originality of the work. However, none of them described, in definite terms, any measurable impact that the Petitioner's findings have made upon the field of cardiology. For example, chairman,

    noted the Petitioner's principal investigatory role on a research project involving ACI. The project involved reviewing the cases of cardiology patients during . the five years prior to the study and measuring "electrocardiographic (ECG) changes in TC patients." The Petitioner found the ECG changes to be very different from those observed "in a typical heart attack." described the Petitioner's finding as "very significant" for cardiologists. He further maintained that the Petitioner's "research described all the ECG abnormalities, which helps cardiologists diagnose and differentiate TC from a heart attack, which is extremely important due to much higher chances of patient survival and prognosis in TC." While noting the importance of the Petitioner's finding, does not explain how the Petitioner's differentiation of TC from ACI has impacted the field of cardiology in any measurable manner. · Specifically, he states, "[The Petitioner's] research in [TC] is undoubtedly original and significantly contributes to medical literature, helping physicians and cardiologists all over the world to better understand the pathophysiology of TC and helping in its accurate diagnosis." However, he did not

    3

  • (b)(6)

    Matter of S-S-T-

    identify any physicians or cardiologists who have appropriated the Petitioner's findings or entities that have implemented his research to aid in the diagnosis of TC.

    chairman emeritus, Department of Medicine, discussed the importance of the Petitioner's research findings, stating:

    [T]akotsubo symptoms were previously thought to be indistinguishable from those of acute myocardial infarction (MI) or heart attack, but in this study, [the Petitioner] described the electrocardiographic (ECG) changes in patients with Takotsubo Cardiomyopathy (TC) and showed that these ECG changes are distinctive and differ from those typically seen in acute MI.or a heart attack.

    In evaluating the Petitioner's research on TC which he published in two articles, noted "[The Petitioner] has given the international medical community of cardiologists a better understanding and insight into