dismissed EB-1A Case: Acupuncture

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachu~etls Ave., N.W., MS 2090 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
DA TE:NOV 0 3 l012 Office: TEXAS SERVICE CENTER FILE: 
IN RE: Petitioner: 
Ikndiciary: 
PETITION: Immigrant Petition for Alien Workcr as an Alicn of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act, 8 U.s.c. § Il53(0)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appcals Office in your casc. All of the documents 
related to this mailer have oeen returned to the office that originally dccided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considen..:d, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-29013, Notice of Appeal or Motion, with a fee of $630. The 
specilic reljuiremcnts lor filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 
30 day" of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
;#-( 0~---
Perry Rhew 
Chief. Administrative Appeals Office 
www.uscis.go\l 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeaL The appeal will be 
dismissed. 
According to Part 6 of the Form 1-140 petition, the petitioner seeks classification as an "alien of 
extraordinary ability" pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the 
Act), 8 U.S,C ~ IIS3(b)(l)(A) as an "other health care practitioner." The petitioner is a licensed 
acupuncturist. Medicine falls within the sciences. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification as an 
alien of extraordinary ability. 
Congress sct a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and prescnt 
"extcnsive documentation" of the alien's achievements. See section 203(b )(1 )(A)(i) of the Act and 
8 CF.R. § 204.5(h)(3), The implementing regulation at 8 CF.R. § 204,5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regolation outlincs 
ten categories of specific objective evidence. 8 CF.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regolatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, upon 
review of the entire record, including the evidence submitted on appeal, the AAO upholds the director's 
conclusion that the petitioner has not established eligibility for the exclusive classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) 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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
Page J 
(iii) the alien's entry into the United States will substantially benetit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong., 2d Sess. 59 
(1990); 511 Fed. Reg. 110897, 110898-99 (Nov. 29, 1991). The tenn "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. ld.; 
8 C.P.R. * 204.5(h)(2). 
The regulation at 8 C.F.R. * 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2() IO, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AACr s decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion. I With respect to the criteria at 8 C.F.R. 
* 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent ,·tinalmerits detennination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that ··the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
tililcd to submit sutticicnt evidence, "the proper conclusion is that the applicant has failed to satisfY the 
regulatory requirement of three types of evidence (as the AAO concluded)." ld. at 1122 (citing to 
S C.F.R. § 204.5(h)(J». 
Thus, Kazariall sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. While counsel asserts on appeal that the 
director erred in failing to conduct a final merits determination, as the petitioner did not submit 
qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of three types of evidence. Id. 
I Specifically. the court slated that the AAO had unilaterally imposed novel suhstanlive or evidentiary 
requirements heyond Ihnse set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Panl: -+ b 
II. ANALYSIS 
A. Evidentiary Criteria2 
Docl/menlalion o( Ihe alien's receipt of lesser nationally or internationally recognized prizes or 
awards jill' ('xcdlellc(' in the field of endeavor. 
~~~'s receipt of the 
was qualifying evi.delGce 
The record docs not support this conclusion. The record lacks evidence of the criteria for the award 
and the expertise of the judges such that the petitioner has established that it is an award for 
excellence in medicine, rather than recognition of a commitment to freedom and peace through 
medicine. 
Regardless. consistent with the statutory requirement for extensive evidence, the plain language of the 
regulation at S C.F.R. § 204.5(h)(3)(i) requires the petitioner's receipt of prizes or awards. 
Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the 
regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a 
single high salary. When a regulatory criterion wishes to include the singular within the plural, it 
expressly docs so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be 
in the fonn of "Ietter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria 
has meaning. In a different context, federal courts have upheld USCIS' ability to interpret significance 
from whether the singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-
2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff; 2006 WL 3491005 at 
* 10 (D. Or. No\,. 30. 20(6) (upholding an interpretation that the regulatory requirement for "a" 
bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree 
rather than a combination of academic credentials). 
"a paper 
petitioner nor asserts the certificate is evidence 
under this criterion. Furthermore, there is no evidence that the certificate has any recognition beyond 
the presenting organization. 
In light of the above. the petitioner has not established that he meets the plain language requirements 
of this regulatory criterion. 
, The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
Documenlalion orlhe alien's membership in associations in the field for which classification is 
soul{ht, which require outstanding achievements of their members, as judged by recognized national 
or illiernational experts in their disciplines or fields, 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal. the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepuil'<'lia ". u.s Art\· Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. 
ClIIlllilll{hulIl, 161 F.3d 1343, 1344 (lIth Cir. 1998); see also Hristov v. Roark, No. 09-CY-27312011, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed 
to raise them on appeal to the AAO). 
Puhlished material ahout the alien in professional or major trade publications or other major 
media, relatinl{ 10 the alien's work in Ihefieldfor which classification is sought. Slich evidence 
shall illclude Ihe litle, date, and author of the material, and any necessary translatioll. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. ld. 
E,'idence or Ihe alien ~\' oril{inal scientific, scholarly, artislic, alhlelie, or husiness-related 
contrilmlions of major sil{nificance in the field. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidenee was qualifying. On appeal, counsel asserts that in addition to the two relen!QS~ !!:!!!~ 
selected as a Distinguished Paper" at the 
The regulations contain a separate criterion regarding the 
. § 204.5(h)(3)(vi). If the regulations are to be interpreted with 
any logic, it must he presumed that the regulation views contributions as a separate evidentiary 
requirement from scholarly articles? The simple fact that the petitioner's findings were presented at a 
conference does not crcate a presumption that the findings, upon dissemination in the field, impacted 
the field, or are otherwise original contributions of major significance. Nevertheless, the presentation 
of the unpublished paper will be considered under 8 C.F.R. § 204.5(h)(3)(vi). The AAO notes that the 
certificate was also discussed under the awards criterion above. 
states that the petitioner's 
, Publication and presentations are not sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence 
that they were of "major significance." Kazarian v. USc/S, 580 F.3d 1030, 1036 (9'h Cir. 20(9) affd in part 
5% F.Jd 1115 (9th Cir. 2(10). In 2010, the Kazarian court reaffirmed its holding that the AAO did not abuse 
its discretion in linding that the alien had not demonstrated contributions 01 major significance. 596 F.3d at 
1122. 
Page () 
"many scientilic breakthroughs" are impressive, that the petitioner's "research on treating Parkinsonl's] 
Disease with oriental medicine initiated the beginning to a possible cure" and that the petitioner "has 
talent in clinic experience and unique expertise in developing innovative 
solutions." a licensed acupuncturist, states that the petitioner "was the first to 
present a successful case of . cured' Parkinson patient [sic]," has "a proven track record of 
accomplishments" and "play[s] a leading role in the design and development of innovative solutions to 
many health prohlcms." However, the record contains no documentary evidence, absent the conference 
presentation discussed in more detail below, to support the petitioner's claim that he "cured" one 
patient of Parkinson's disease. Furthermore, neither letter demonstrates that the petitioner'S findings 
have been reproduced and confirmed by other experts and applied in their work. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Crafi of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Similarly, USCIS need not 
accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 
F. Supp. 9. 15 (D.C. Dist. 1990). 
Moreover. as stated above, all medicine, regardless of ongm, falls under the sciences. A 
contribution in science is apparent from its confirmation and application by other scientists, typically 
in peer reviewed publications, rather than anecdotal affirmations. Notably, the record contains 
information from Parkinsons.org affirming that alternative medicine treatments for Parkinson's 
disease "are increasingly validated by western medicine," but the record contains no evidence that 
the petitioner'S unique methods, as opposed to acupuncture in general, have been so validated. 
Rather, this website, which acknowledges the lack of placebo control studies of acupuncture for 
Parkinson's disease. states only that acupuncture "can assist with sleep disturbances" and "may be 
crfective in increasing feelings of well being and relaxation." Documents in the record from another 
website. www.umm.edu.referenceastudyshowinganimprovementinParkinson·sdisease from 
acupuncture treatment. but the website does not reference the petitioner or his methodology. The 
petitioner's ability to perform a traditional form of therapy is neither original nor a contribution of 
major significance. Ultimately, the petitioner must have already made contributions of major 
signilicance to meet this criterion, speculation as to a future impact in the field of Parkinson's 
treatment or acupuncture practice is insufficient. 
The Board of Immigration Appeals (the Board) has stated that testimony should not be disregarded 
simply because it is "selfserving" See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also clarified, however: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." [d. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner 
to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998) . 
• ' solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the field are insufficient. Kazarian 
Page 7 
V. USClS, 5110 F.3d 1030, 1036 (9th Cir. 20(9) aff'd in part 596 F.3d 1115 (9th Cir. 2(10).' USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony, See Matter 
IIf Cayon Il1leT/lational, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible f()r making the tinal determination regarding an alien's eligibility for the bene lit sought. 
Iii. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. S!'e id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2(08) (noting that 
expert opinion testimony does not purport to be evidence as to "fact"). USCIS may even give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158,165 (Comm'r. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!' Comm'r. 1972)). 
In light of the above, the petitioner has not established that he meets the plain language requirements 
of this regulatory criterion. 
Evidence of the alien's authorship olscholarly articles in the field, in professional or major trade 
pllhlic{ltio/lS IIr other major media. 
The director's decision stated that "[n]o evidence was submitted for this criterion." The AAO notes 
that in the initial filing and in response to the director's request for evidence, 
his . ngs at one of several parallel sessions at the 
was evidence under 8 C.F.R. § 204.5(h)(3)(v). On appeal, 
The plain language of the regulation requires the articles to be in professional or major trade publication 
or other major' record contains evidence of the presentation of the petitioner's 
findings at the there is no evidence that the paper has been published. The 
submitted evidence is not from a journal or conference proceeding publication, but is simply a four 
page print out of a manuscript. Furthermore, even if the AAO found that the presentation of the paper 
at a parallel session qualified, which it does not, the plain language of the regulations requires 
authorship of scholarly articles, in the plural. 
In light of the above, the petitioner has not established that he meets the plain language requirements 
of this regulatory criterion. 
B. Summary 
As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is 
that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
" In 211 I II. the Kazariall court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to lthe alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory 
langLlag~.·· 596 F.3d at 1122. 
Page S 
Ill. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[irJ tield of endeavor" and (2) "that the alien has sustained national or international 
acelaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
** 204.5(h)(2) and (3): see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination.' Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.s.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
, The AAO maintains de novo review of all questions of fact and law. See Soltane v. Do.l, 381 F.3d 143, 145 
(3d Cir. 2(04). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 100.5(a)(1)(ii). See also section 
1 O3(a)( I) of the I\et: section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2(03): 8 
C.F.R. ~ 2.1 (20m); s C.F.R. ~ 1113.1(l)(3)(iii) (2003); Matter of Altrelio, 19 I&N Dec. 458, 460 (BIA 1987) 
(holding that legacy INS, now USClS, is the sole authority with the jurisdiction to decide visa petitions).