EB-1 Evidentiary Criteria: Claiming the “Major Media” Criterion (Do NewsRx articles Qualify?)

Victoria Chen, J.D., Esq.

“Major Media” criterion: “Published material about the alien in professional or major trade publications or other major media relating to the alien’s work in the field for which classification is sought.”

EB-1 categories have consistently had a very high standard of law, especially EB1A Alien of Extraordinary Ability and therefore we at Chen Immigration Law Associates have always evaluated all the credentials of our clients carefully before we claim any evidentiary criterion. Attorneys at Chen Immigration Law Associates are clearly aware that claiming criteria with weak evidence will only weaken the case and invite RFE (Request of Evidence).

As our clients wishing to claim the “major media” criterion, there are several things we at Chen Immigration Law Associates consider before compiling evidence to comply with this criterion. Moreover, there are two key guidelines under this criterion, which are itemized below and interpreted to give an overview and analysis of the standard of law herein.

Determining whether the published material was related to the specific foreign national’s work in the field of endeavor.

According to the USCIS: “the published material should be about the alien relating to his or her work in the field, not just about his or her employer or another organization that he or she is associated with. Note that marketing materials created for the purpose of selling the alien’s products or promoting his or her services are not generally considered to be published material about the beneficiary.”

We at Chen Immigration Law Associates are of the opinion that the article or published material used as evidence under this criterion should be primarily focused on the foreign national and/or the research/work which the foreign national has performed in the field of endeavor. For example, if the theme or focus of the article is a description of the foreign national’s research – whether that is through a technical discussion or through an analysis of the implications of such – that evidence would qualify under this guideline. However, if the article is merely a highlight of the employer’s current status or contributions, it would be hard to claim this criterion, unless the foreign national was a key contributor to the employer contributions discussed. A highly useful aspect of this evidence would be a direct quote from the foreign national, along with a reference line (either besides the quote or at the bottom of the text), stating that the speaker is a member of the project in focus. Likewise, if the article specifically names or notes the foreign national’s name, this is very useful in the case to claim this criterion. Below are two examples of actual articles taken from the New York Times, which provide a better picture of this distinction.

Qualifying Evidence – http://www.nytimes.com/2012/03/06/science/iceman-had-brown-eyes-and-hair-and-was-lactose-intolerant.html?ref=science

[In this article, it is clear that Albert Zink is both an author of the study, and the article certainly focuses on his research work. This would easily qualify under the “major media” criterion, while also aiding in proving sustained international acclaim and ascension to the very top of the field.]

Inadequate Evidence – http://www.nytimes.com/2012/03/06/business/after-ratings-drop-ford-reworks-touch-screens.html?_r=1&ref=technology

[While this article focuses on a technological development at Ford Motor Company, and a foreign national may have been directly involved in this work. It is hard to claim this evidence under the major media criterion due to its lack of focus on any particular researcher or specific technological advancement. Unless one could acquire a testimonial letter from either of the Ford executives quoted in the article or inherently involved in the process, which states that the foreign national in question was the key contributor, it would be extremely hard to affix the acclaim of this development to any one scientist, engineer, or researcher. Similarly, an immigration officer would most likely discount this article due to the broad discussion, and its essential disregard for the critical technological developments leading to the advancement.]

Furthermore, one should notice that these excerpts are taken from the New York Times, a publication with a substantial reputation and a large media presence and circulation. This is precisely done to demonstrate the second guideline provided by the USCIS that revolves around this classification and is included below.

Determining whether the publication qualifies as a professional publication, major media publication, or major trade publication.

According to the USCIS: “Evidence of published material in professional or major trade publications or in other major media publications about the alien should clearly identify the circulation (on-line or in print) and intended audience of the publication, as well as the title, date and author of the material.

We at Chen Immigration Law Associates are of the opinion that the publication in which the article or material describing the foreign national’s work is published should be one that has a defined circulation – whether virtual, physical or both – and one that has a considerable reputation – whether that is in the field of endeavor, in general academia or in the popular spotlight. Therein, the Administrative Appeals (AAO) has provided additional guidance in qualifying under this aspect of the criterion. According to the AAO, “To qualify as major media, the publication should have significant national or international distribution. An alien would not earn acclaim at the national level from a local publication. Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify as major media because of significant national distribution, unlike small local community papers.” Therefore, the publication in which the material about the foreign national is published must be a widely-recognized press or trade publication. Publications which merely have a regional or local distribution are much harder to claim as evidence under this criterion. For example, the Detroit Free Press may be a major media publication in Michigan, but few people outside the state access the publication, and the circulation is relatively restricted to a small geographic area. On the contrary, USA Today or The Washington Post, are nationally-recognized publications, and are even circulated in regions outside of the United States. Moreover, trade or general academic publications have a similar yet more peculiar standard of law. Herein, while ScienceDaily.com is primarily virtually circulated, it is listed as the 1,064 most visited site in the United States, according to Alexa.com (a free web analytics website and useful tool when discerning whether the publication qualifies under this criterion). In addition, ScienceDaily.com has information directly available on its website with credits from the New York Times and the Wall Street Journal attesting to the publications acclaim. As such, the publications website is another way to understand the publications circulation, audience, and overall reach – virtually and physically. And finally, in regards to major trade publications, while they are probably the most difficult to argue under this criterion, they can still serve as qualifying publications. However, “major” is the key word again in this setting. A trade publication which is only distributed (virtually accessed or subscribed) regionally or to a small number of members of the field would not qualify under the criterion. There must be evidence of its impact or extensive reach within the field of endeavor, and accordingly, there must be some acclaim associated with the publication. Overall, the facets of circulation, reach, audience, and acclaim do seem quite arbitrary, and in reality, they are. This is precisely why statistics or objective pieces of evidence, such as credits from other major media publications, are crucial in compiling a sound argument for qualification under the criterion.

Nevertheless, there has been a dramatic upswing in the amount of foreign national’s wishing to claim this criterion in their petition package. This is due to the rise in popularity of websites like NewsRx.com and Highbeam.com. It should be noted that these websites publish a large amount of articles, and publishing press releases about research work without any human reporter – both discounting their value in the petition. The AAO has even made a statement about NewsRx.com in a recent appeal, stating:

“The petitioner submitted information from the website of NewsRx. The materials indicate that the New York Times characterized NewsRx as “the world’s largest producer of weekly health information.” Other major media reference the publication as comprehensive and extensive. The materials do not explain how NewsRx selects its topics and, in fact, indicate that the publication utilizes an Artificial Intelligence Journalist rather than human journalists who investigate recent research or editors who select which research will be covered. As stated above, the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published material include the identity of the author. The “articles” in NewsRx are actually press releases prepared and authored by the journals publishing the petitioner’s work rather than independent journalists. Moreover, the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires evidence of published material about the petitioner. Compare 8 C.F.R. § 204.5(i)(3)(i)(C) (requiring evidence of published material about the alien’s work). The press releases in NewsRx are not “about” the petitioner relating to his work but abstracts of the petitioner’s work.”

In light of this statement, we at Chen Immigration Law Associates are of the opinion that websites like NewsRx that do not include an author are difficult to claim under the “major media” criterion. However, this is not to say that every article published in NewsRx is inadmissible evidence. There are some articles that do in fact state that the article was prepared by the editors of NewsRx, and is not merely a press release or re-publication of the abstract via the original publishing journals editors. An example of such is http://www.newsrx.com/health-articles/2935698.html. This article clearly states the researcher responsible for the work, notes that the article was prepared by NewsRx editors, and includes a brief technical discussion of the research work and its implications. In addition, the organizations website does include information about its noteworthy Google PageRank and Amazon’s Alexa.com ranking. This can serve as evidence qualifying the publication, but again, since this article is solely available on-line, the precise circulation statistics still remains as a difficult task. Therefore, while articles published on websites like NewsRx.com can serve as qualifying evidence under this criterion, one must ensure that the article was prepared by actual reporters or editors at the publication rather than a mere re-publication of the abstract submitted by the original journal. And finally, the article must focus on the foreign national who is petitioning for permanent residency, and not purely credit the organization or supervisor of the research. In this situation, we again, would need a testimonial letter from the person credited, and the evidence will most likely inherently discounted.

Thus, before attempting to claim this criterion, like any other criterion, we at Chen Immigration Law Associates always consider the comprehensive and detailed standards of law. All cases are different, and the USCIS has set up each criterion for the flexible interpretation of all parties. Therefore, while it is always illogical to completely disregard evidence, proper consideration and consultation is the optimal means of determining which criterions to argue in the petition package. Useful links are provided below for preliminary research in the decision of whether one’s evidence meets the standard of law under the “major media” criterion.

http://www.uscis.gov/USCIS/Outreach/Interim%20Guidance%20for%20Comment/Kazarian%20Guidance%20AD10-41.pdf – USCIS memo regarding evidentiary criteria for EB-1 petitions

www.wikipedia.org – Although Wikipedia is controversial for its open-access editing privileges, the site will show references for publication statistics, including circulation, reach, and prestige.

***Reproduction is welcome but source must be explicitly indicated: http://www.wegreened.com ***

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