Case Study: AAO Sustained an EB1-A Appeal of Petition on Behalf of a Nanomaterials Researcher

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. s 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. This petition seeks to classify the petitioner as an alien with extraordinary ability in nanomaterials science and nanotechnology. At the time of filing, the petitioner was employed as a Device Engineer, Research & Development Group, Department of Technology, SanDisk Corporation.

USCIS Decision: The director of Texas Service Center determined the petitioner had not established that the beneficiary qualifies for classification as an alien of extraordinary ability.

USCIS’s Reasons of Denial:Specifically, the director does not think the petitioner’s evidence has met the criterion of original contribution. In addressing the evidence of orginal contribution, the director ‘s decision only considered cites to articles for which the petitioner was identified as “first author.”

AAO’s Decision: Disagreeing with the USCIS, the AAO found that the petitioner’s evidence meets at least three of the regulatory criteria.

1. 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 allied field of specification for which classification is sought.

The AAO concured with the director’s finding that the petitioner meets this regulatory criterion.

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

The petitioner submitted letters of support discussing his original research contributions. The AAO citeed several representative examples :

A. Professor of Electrical Engineering, Stanford University, states:

“Although I do not know the petitioner personally, I am aware of his work through his publications on nanomaterial fabrication, especially carbon nanotube electronics. . . . The petitioner invented a nano-sphere lithography (NSL) method combined with photolithography to grow dense aligned single walled carbon nanotubes for integrated circuits. . . . [The petitioner’s] method broke new grounds to produce carbon nanotube arrays with simultaneous control over the nanotube orientation, position, density, diameter, and even chirality, making these structures viable building blocks for future nanoelectronics and ultrahigh-speed electronics.”

“The petitioner also made substantial contribution to the development of superconducting and ferromagnetic nanocables. . . . ”

Professor at Department of Physics and Astronomy, University of California, Los Angeles, states:

” I have not met the petitioner personally and my comments in this letter regarding his contributions are based on his scientific papers published in the prestigious peer-reviewed journals, such as Applied Physics Letters and Journal of the American Chemical Society. The petitioner] ha[s] published more than 25 co-authored research papers in peer-reviewed journals, which have been extensively cited (more than 580 times within the last five years). Based on the exceptional quality and heavy impact of [the petitioner’s papers], I can certainly attest his significant contributions to the area of nanomaterials.”

Researcher from Eloret Corporation/National Aeronautics and Space Administration Ames Research Center, states:

” The petitioner was the first to introduce the concept of “multilevel data storage” to the field of molecular electronics. . . . .”

“In addition, the petitioner developed a revolutionary device architecture consisting of …”

In addiiton, in support of the preceding experts’ statements, the petitioner submitted documentation showing hundreds of independent cites to his published findings.

The AAO disagreed with the USCIS on only counting the citations of articles for which the petitioner was identified as “first author.” The AAO stated that as modern scientific research endeavors routinely involve collaborative efforts, they found no statutory, regulatory, precedential, or evidentiary basis to conclude that USCIS should not assign weight to collaborative scientific research such as the petitioner’s. It could be argued that the director was simply seeking stronger evidence of the petitioner’s prominent role in his research studies. However, statements from the petitioner’s first-author collaborators submitted on appeal confirm that he played an integral role in their jointly published research.

The AAO considered that the citation records submitted initially and on appeal showing hundreds of cites to articles coauthored by the petitioner are solid evidence that other researchers have been influenced by his work and are familiar with it. This evidence corroborates the experts’ statements that the petitioner has made original contributions of major significance in his field. The record reflects that the petitioner’s contributions are important not only to the institutions where he has worked, but throughout the greater field as well. Leading scientists have acknowledged the value of the petitioner’s work and its major significance in the fields of nanomaterials science and nanotechnology. Accordingly, the petitioner has established that he meets this criterion.

3. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.

The petitioner submitted evidence of his authorship of numerous articles in publications such as Journal of the American Chemical Society, Advanced Materials, Nano Letters, and Applied Physics Letters. As previously discussed, the petitioner also submitted evidence of hundreds of articles that cite to his work. Accordingly, the AAO found that the petitioner has established that he meets this criterion.

The AAO concluded that in this case, the petitioner has satisfied three of the regulatory criteria required for classification as an alien of extraordinary ability. 8 C.F.R. s 204.5(h)(3).

Totality Test:

The AAO found that the totality of the evidence establishes an overall pattern of sustained national acclaim and extraordinary ability. The petitioner has also established that he seeks to continue working in the same field in the United States and that his entry into the United States will substantially benefit prospectively the United States. Therefore, the AAO determined that the petitioner has overcome the stated grounds for denial and thereby established eligibility for immigrant classification under section 203(b)(1)(A) of the Act and the appeal is sustained.

from Chen Immigration Law Associates

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