dismissed EB-1A Case: Advance Computation In Biological Engineering

identifying data deleted to 
prevent clearly unwarranttXI 
invasion of personal privacy 
PUBUCCOPy 
DATE: JUL 262012 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servicc~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 20lJO 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(1 )(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)( 1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. PIease 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 considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirements for 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)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April 1Z, ZOl1. The petitioner, who is also the beneficiary, appealed the decision with 
the Administrative Appeals Office (AAO) on May 13, ZOl1. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the field of advance 
computation in biological engineering, pursuant to section Z03(b)(l)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A).1 The director determined that the petitioner has 
not established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. 
Congress set 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 
present "extensive documentation" of the alien's achievements. See section § Z03(b )(1 )(A)(i) of the 
Act; 8 C.F.R. § Z04.5(h)(3). The implementing regulation at 8 C.F.R. § Z04.5(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 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § Z04.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a brief and a number of documents, including: (1) online printouts and 
promotional Z7, 
Z010 letter from at the 
(7) online printouts from the companies ERDAS and 
Leica infl~rnlatiion from flcdatacenter.com and Inside Higher Ed. The 
petitioner had previously provided some of these documents to the director. 
For the reasons discussed below, the AAO finds that the petitioner has not established his eligibility 
for the exclusive classification sought. Specifically, the AAO finds that the petitioner has not 
submitted qualifying evidence under at least three of the ten regulatory criteria set forth in the 
I On appeal, counsel asserts that the director erred because she failed to evaluate the petition under the correct field of 
endeavor. The AAO disagrees. Specifically, in his March 2011 response to the director's Request for Evidence (RFE), 
counsel stated that the petitioner "is a prominent and leading professor and scholar in the field of advanced computation 
in biological engineering." As such, the director evaluated the petition based on the petitioner's ability in 
bioengineering, stating that the petitioner aimed "to perfonn services as an associate professor of bioengineering." In the 
alternative, the AAO will consider the petitioner's ability in the field of advance computation in biological engineering. 
regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such, the AAO finds that the petitioner has not 
demonstrated that he is one of the small percentage who are at the very top of the field and he has 
not sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). Accordingly, the 
AAO must dismiss the petitioner's appeal. 
1. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
1. 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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
United States 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 
IOlst Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term 
"extraordinary ability" refers only to those individuals in that small percentage who have risen to the 
very top of the field of endeavor. 8 C.F.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, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USc/S, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld 
the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of the 
Page 4 
evidence submitted to meet a given evidentiary criterion.2 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 "final merits determination." Kazarian, 596 F.3d 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 failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Kazarian, 
596 F.3d at 1122 (citing to 8 C.F.R. § 204.5(h)(3». 
Thus, Kazarian 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 case, the AAO concurs with the 
director's finding that the petitioner has not satisfied the antecedent regulatory requirement of 
presenting three types of evidence under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x), and has not 
demonstrated that he is one of the small percentage who are at the very top of the field or has 
achieved sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). 
II. Prior 0-1 Visa 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); lKEA US v. United States Dep 'f of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 19(9). Because USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-
140 immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data 
Consulting, fIlC., 293 F. Supp. 2d at 29-30; see also Texas A&M Ulliv. v. Upchurch, No. 03-
1083299, 99 F. A'ppx 556, 2004 WL 1240482 (5th CiT. 2004) (finding that prior approvals do not 
preclude USCIS from denying an extension of the original visa based on a reassessment of 
petitioner's qualifications). 
The AAO is not required to approve applications or pelitlOns where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and (vi). 
Page 5 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S. Ct. 51 (2001). 
III. ANALYSIS 
A. Evidentiary Criteria3 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner can establish sustained national or 
international acclaim and that his achievements have been recognized in the field of endeavor by 
presenting evidence of a one-time achievement that is a major, internationally recognized award. In 
this case, the petitioner has not asserted or shown through his evidence that he is the recipient of a 
major, internationally recognized award at a level similar to that of the Nobel Prize. As such, the 
petitioner must present at least three of the ten types of evidence under the regulations at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
On appeal, counsel asserts that the petitioner meets this criterion. The evidence In the record 
references the petitioner's following achievements: 
1. 2002 National Science Foundation (NSF)'s CAREER Award, 
2. 2004 Northeast Agricultural and Biological Engineering Conference's (NABEC) Young 
Engineer of the Year Award, 
3. 2006 American Society of Agricultural and Biological Engineers' (ASABE) Information and 
Electrical Technologies Division (lET) Select Paper Award, in recognition of authorship of 
an outstanding 2006 annual meeting paper, 
4. 2008 ASABE Certificate of Appreciation, in recognition of substantial contributions as an 
invited reviewer for the lET Select Paper Award, 
5. 2004 and 2005 University of Maryland's Certificates of Appreciation, in recognition of the 
petitioner's participation as a mentor, and 
6. 2005 Charles Herbert Flowers High School's Mentor Appreciation Certiticate. 
-' The petitioner docs not claim that the petitioner meets the regulatory categories of evidence not discussed in this 
decision. 
Page 6 
Based on the petitioner's evidence, the AAO finds that the petitioner has not met this criterion, 
because none of the awards or prizes the petitioner received constitutes a nationally or 
internationally recognized prize or award for excellence in the field of advance computation in 
biological engineering, First, NSF's CAREER Award is not a nationally or internationally 
recognized prize or award for excellence, According to online printouts from the NSF, the 
CAREER Award, also known as the Faculty Early Career Development Program, is presented to 
"faculty members beginning their independent careers ... to enable [them] to develop careers as 
outstanding researchers and educators who effectively integrate teaching, learning and discovery." 
Similarly, according to University of Maryland's fall 2002 material entitled "Information 
Technology: Setting the Pace for the Future," the CAREER Award or program "is presented 
annually to junior faculty members who show promise in their research activities and demonstrate 
innovative ideas for education." Both the NSF online printouts and the University of Maryland 
material show that the award or program is not aimed to recognize an awardee's excellence in the 
field. Rather, the award is to encourage the awardee to "develop [into an 1 outstanding researchers." 
Moreover, the petitioner has not provided evidence on the total number of "young faculty members" 
applied for the award or or the number of people selected for the award or program in 2002. 
Neither who stated that the petitioner "is one of a handfu.!_2!.~!:!~!!!..:md 
have ever received" NSF's CAREER Award, nor __ , a 
professor at who stated that the 
petitioner'S of its high-caliber 
applicants with less than 10% of the top group of awardees from underrepresented groups" sheds 
light on the number of award applicants or selectees in 2002. 
In addition, the materials suggest that the "award" is actually a research grant. Research grants are 
not awards for excellence; rather they simply fund a scientist's work. Every successful scientist 
engaged in research, of which there are hundreds of thousands, receives funding from somewhere. 
Obviously the past achievements of the principal investigator are a factor in grant proposals. The 
funding institution has to be assured that the investigator is capable of performing the proposed 
research. Nevertheless, a research grant is principally designed to fund future research, and not to honor 
or recognize past excellence. 
Regardless, the petitioner has not presented a copy of the award certificate, a letter or any 
documentation from NSF showing that he was a selectee for the award or program in 2002. The 
regulation at 8 C.F.R. § 103.2(b)(2) provides that the non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. The same regulation also provides the 
procedure for documenting the non-existence or unavailability for required evidence and the 
requirements for submitting secondary evidence or affidavits. The petitioner has not complied with 
that regulation or submitted secondary evidence or affidavits. 
Second, the AAO finds that the petitioner' is not a 
nationally or internationally recognized award or prize for excellence in the field of advance 
computation in biological engineering. According to online printouts from NABEC, the" 
Page 7 
is "for outstanding accomplishments in research, design, extension or 
other areas in the field of agricultural and biological engineering." The printouts further provide that 
the award is open only to NABEC members who are at the age of forty or under. Counsel claims 
that the "award is not minimized because it required the winner to be a member and under the age of 
40." While the AAO acknowledges the possibility that an age-restricted award or prize could be 
nationally or . it is the petitioner's burden to demonstrate that each award 
is so recognized. Neither who 
was the only scientist in 2004 to receive NABEC's 
other evidence in the record indicates the number of people eligible for the or were nominated 
for the award in 2004. Ultimately, the petitioner has not demonstrated that the award is recognized 
beyond the organization that issued it through objective or independent evidence such as but not 
limited to media coverage of the award selections. 
Third, the AAO finds that the petitioner's 
nationally or internationally recognized award 
computation in biological engineering. The 
that the award was for his article 
that the petitioner was awarded 
The record, however, lacks evidelnce on 
. his~, 2010 letter 
his _manuscript. 
for this award or the 
nomination or selection process for the award in 2006. Similarly, counsel's brief on appeal fails to 
point to any evidence in the record relating to the the 
cite to sufficient evidence in the record showing that 
is a nationally or internationally recognized award or prize for excellence. 
Fourth, the petitioner has not provided sufficient evidence showing that any of his other 
achievements constitute nationally ~lli!:~!!!!! awards or 
These achievements include the 
scholarship that 
claimed to have been ~ 
place finish in the ~. 
(now part and (6) the petitioner's 
participation in symposiums and evidence showing that the 
awards or the petitioner's participation III symposIUms and conferences constitute nationally or 
internationally recognized awards or prizes of excellence. Specifically, the petitioner has not 
presented evidence on either the nomination or selection process for the awards or symposium or 
conference participation, or any other indication that they constitute nationally or internationally 
recognized awards or prizes for excellence. 
Accordingly, based on the petitioner's evidence, the AAO finds that he has not presented 
documentation of his receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor. The petitioner has not met this criterion. See 8 C.F.R. 
§ 204.5(h)(3)(i). 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
In her April 12, 2011 decision, the director found that the petitioner has not met this criterion. On 
appeal, counsel has not challenged this finding. Accordingly, the AAO concludes that the petitioner 
has abandoned this issue, as he did not timely raise it on appeal. Sepulveda v. United States All y 
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the United States District Court found the plaintiffs 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
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. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
In her April 12, 2011 decision, the director found that the petitioner has met this criterion. 
evidence in the record, including the petitioner's 
in recognition of substantial contributions as an invited reviewer for the 
the AAO concurs with the director's finding. In short, the petitioner has met 
See 8 C.F.R. § 204.5(h)(3)(iv). 
Evidence of the alien '.I' original scientific, scholarly, artIstIc, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
counsel asserts that the petitioner meets this criterion based on his development of the 
and that "[the petitioner] has been cited more than 5 times for his 10 scientific 
manuscripts have been cited more than 100 times." The petitioner has 
provided a number of documents to show he meets this criterion. include: 6, 2010 
lroll'es~;or and 
SourceForge.net showing to lVl<tn';l! 
was downloaded 1,509 times, (6) an online printouts from 
petitioner's articles have been cited by other scientists, 
dated May 2010. 
showing that the 
curriculum vitae, 
Based on the evidence in the record, the AAO finds that the petitioner has not met this criterion, 
because he has not shown contributions of major significance. First, counsel has not pointed to any 
inclepenlderlt and objective evidence in the record establishing that the' the 
Foundation under 
name. Although 
software. ~.net article 
that __ is presently de',el,oDf!d 
specifically show that it was the 
evidence that the software was downllo:adt!d 
has not provided information on the people who downloaded the software, i.e., whether they are 
scientists, or more importantly, whether they are experts in the field of advance computation in 
biological engineering who have been influenced by the software, or whether they are laypersons. 
Not every piece of usable software is a contribution of major significance in the designer's field. 
Counsel also has not provided evidence on whether all the downloads were completed by different 
people or entities, or whether some downloads were com~e people or entities. In 
short, the AAO has insufficient evidence to find that the~" software constitutes a 
contribution of major significance in the field. 
Second, the AAO finds that the petitioner has not shown through the citations of his articles or 
manuscripts that he has made contributions of major significance in the field. While the petitioner 
has a large number of citations in the aggregate, none of his individual articles have garnered more 
than 20 citations individually and most have garnered only between one and five citations each. The 
petitioner has not presented any evidence showing that this citation level is indicative of or 
consistent with a scientist who has made contributions of major significance in the relevant field. 
Indeed, the petitioner has not provided any evidence on how frequently an average scientist's 
writings are cited, or how frequently the writings of a scientist who has made contributions of major 
significance are cited. As such, the AAO cannot make the relevant comparison when considering 
the petitioner's citations. 
Third, although the letters from the petitioner's references show that the petitioner is a capable 
scientist, they do not show that his research constitutes contributions of major significance. 
Specifically, stated that the petitioner's research "provide[d] new insight 
that has been useful in minimizing the negative biological and environment aspects of pesticides in 
the environment," he did not state that the "new insights" have already impacted the field at a level 
consistent with a contribution of major significance. In other words, he has not stated that the 
petitioner research constitutes contributions of major significance in the field. 
Similarly, although stated that the petitioner "developed an advanced software 
program to solve nonlinear, unsaturated flow equations by the method of finite differences, and used 
it to do overnight runs on groups of PCs in [] computer labs," he did not s~pport 
showing that the program constitutes a contribution of major significance. __ claim 
Page 10 
that the petitioner's research is "applicable to cancer treatment (managing cancer cells), the control 
of invasive species, bioterrorism prevention (controlling bioagents), and environmental protection 
(controlling pollutant movement)" is insufficient to show "major significance" because there is no 
evidence in the record that independent researchers in the petitioner's field have already used the 
petitioner's program in any of the mentioned areas and that the program has led to success in those 
areas, 
According to the petitioner's research addresses "stochastic transport modeling, 
f!I1llbedded control systems, decision support systems, finite elements and image 
meshing." further stated that the petitioner's "broad focus includes human health, 
environmental and ecological phenomena and agricultural science that impact health as well as 
biomedical devices and tissue engineering." Although stated that the petitioner's 
research has a broad reach, he did not state that the research has already been proven useful or 
significant in the various areas, let alone proven to be a contribution of major significance in any of 
the areas. 
According to the petitioner "has achieved top notoriety for his research on unified 
computational techniques apply uniformly across Biological Engineering sub-disciplines, from 
~ineering, through bioenvironmental engineering to biomedical engineering." 
~ further stated that the petitioner "pioneered a state-of-the-art Decision Support 
System (DSS) approach for the control of environment pollutants in watersheds that is so flexible 
that he could also apply it to the control of active biological agents in landscapes and to the control 
of diseases in living organisms." stated that "these are precisely the type of 
planning tools that [are] need[ ed] to help protect [against] a broad range of potential biological 
disasters in the environmental, ecological, bioterrorism and to help efficiently 
mitigate the aftermath of such disasters." statements, the record 
lacks evidence that the petitioner's research has had an impact in the advance computation in 
biological engineering, let alone an impact that constitutes a contribution of major significance in the 
field. Moreover, the AAO notes that the petitioner has not provided sufficient objective and 
independent evidence indicating that the petitioner has had made an impact in the field such that he 
has made a contribution of major significance. 
Fourth, in his brief filed in support of the appeal, counsel asserts that the petitioner's "advanced 
computation techniques have been used to conduct significant research projects where [the 
petitioner] acted as a Principal Investigator or Co-Principal Investigator with grant~ 
''1>0,0'+,:174 from institutions including government agencies such as _ and _ 
within the span of 9 years." Counsel then lists a number of 
projects. Initially, the AAO notes that the information relating to the petitioner's involvement in the 
listed projects appears to be from the petitioner's May 2010 curriculum vitae. Counsel, however, 
has not presented any independent or objective evidence to support the petitioner's involvement in 
the projects. USCIS need not rely on self-promotional material. 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 (Assoc. Comm'r 1998) (citing Matter of 
Page 11 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972». Moreover, a receipt of a 
grant to develop a computational tool, technique or program is insufficient to show the significance 
of the developed tool, technique or program once developed. In other words, evidence that the 
petitioner has received funds to conduct research does not mean that the petitioner's ultimate 
research findings constitute contributions of major significance in the field. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however, "[w)e not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available."' ld. 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). 
Vague, 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 
v. USc/S, 580 F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d 1115 (9th Cir. 2010).4 The 
opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron lnt'!, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately responsible 
for making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may, as this decision has done above, evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 
2008) (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. ld. at 795; see also Matter of Soffici, 22 I&N Dec. at 165 (citing Matter 
of Treasure Craft of Cabfornia, 14 I&N Dec. at 190). 
The letters considered above primarily contain bare assertions of acclaim and vague claims of 
contributions without specifically identifying contributions and providing specific examples of how 
those contributions rise to a level consistent with major significance in the field. Merely repeating 
the language of the statute or regulations does not satisfY the petitioner's burden of proof. Fedin 
Bros. Co., Ltd., 724 F. Supp. at 1108, affd, 905 F. 2d at 41; Avyr Associates, Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y. 1997). Similarly, USCIS need not accept primarily conclusory 
assertions. 1756, Inc. v. United States Att 'y Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). The 
petitioner also failed to submit sufficient corroborating evidence in existence prior to the preparation 
of the petition, which could have bolstered the weight of the reference letters. 
4 In 2010. the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the 
alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. 
Page 12 
Accordingly, based on the petitioner's evidence, the AAO finds that he has not presented evidence 
of his original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field of advance computation in biological engineering. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
Based on the evidence in the record, the AAO concurs with the 
has met this criterion. See 8 C.F.R. § 204.5(h)(3)(vi). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
asserts that the petitioner has performed in a leading or critical role for 
Specifically, counsel states that "while working [as an assistant professor) 
a school whose engineering program ranks. in the nation ... , [the 
petitioner] received the " Counsel further states that the director erred 
in "fail[ingJ to adequately consider e~software called that 
[the petitioner) developed while at the~ 
A leading role should be evident based not only on the petitioner's title but the duties associated with 
the position. A critical role should be apparent from the petitioner's impact on the organization or 
establishment as a whole. The petitioner did not submit an . chart demonstrating how his 
role fits within the hierarchy of Rather, the petitioner relies on the 
petitioner's funding grant and letters. 
~"'IIWUU<;l has not met this criterion. 
the~ 
dlllllUllgU the_ 
states that the 
school "[is] honored once again this year with a significant number of CAREER Award recipients," 
it does not state that any of the award recipients, induding the petitioner a leading or 
critical role for the school. Second, the August 27, 2010 letter similar! does not 
show that the petitioner has performed a leading or critical role for In 
his letter,"stated that the expiration of the petitioner's 
the school's bioengineering department negatively. Specifically, 
campus, and most critically [could not] teach his 
approximately 20 students who had registered for his course 
course that is in such demand that [the school] chose to offer it [in fall 2010], 
students would not be unduly hindered in their progress to degree completion." 
that "[the petitioner's] inability to teach the course, and the absence of other professors to pick up 
this course, [resulted in the school] scrambling to work out something for these students - not the 
desired outcome for any concerned." Although the letter indicates that Bioengineering Department 
had to "work out something for [the] students," it does not state that the department was unable to 
find a replacement professor. Moreover, even if the AAO were to conclude that the petitioner has 
performed a leading or critical role for the Bioengineering Department, it would find that the 
petitioner has not met this . . because he has not shown that he has performed a leading or 
critical role for the an organization or establishment that has multiple 
academic departments. 
Third, the petitioner's development of the 
performed a leading or critical role for 
pointed to any evidence in the 
net article entitled 
As discussed, counsel has not 
the software. The 
states that 
at the Part of its development 
work supported by under Grant No. 
The article does not mention the petitioner by name. Moreover, although counsel has 
nrr,vlIjpej evidence that the software was downloaded 1,509 times by unidentified individuals from 
October 2006 to March 2011, counsel has not establishes the 
petitioner's role, let alone a leading or critical role, for the 
Finally, the plain language of the regulation at 8 c.P.R. § 204.5(h)(3)(viii) requires evidence that the 
petitioner has performed a leading or critical role for organizations and establishments, in plural, 
with a distinguished reputation. This requirement is consistent with the statutory requirement for 
extensive documentation. See section 203(b )(1 )(A)(i) of the Act. As even if the AAO were to 
conclude that the petitioner has performed a leading or critical role for the it 
would not conclude that he has met this criterion, because the record lacks evidence showing that the 
petitioner has performed a leading or critical role for a second organization or establishment that has 
a distinguished reputation. 
Accordingly, based on the petitioner's evidence, the AAO finds that he has not presented evidence 
that he has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation. The petitioner has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(viii). 
-Page 14 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to ~thers in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
On appeal, counsel asserts that the petitioner meets this criterion. As supporting evidence, the 
petitioner has provided: (1) a June 23, 2009 letter from _, indicating that the petitioner's 
12-month salary starting from July 2009 was $97,792, (2) the petitioner's Form W-2 Wage and Tax 
Statements for 2006, 2008 and 2009, (3) the petitioner's Maryland Resident Tax Returns for 2006 
and 2007, (4) an online printout from flcdatacenter.com relating to salary information for biological 
scientists in the Bethesda, Gaithersburg and Frederick 
April 2008 online printout from Inside Higher Ed, entltl<~d 
Based on the evidence in the record, the AAO finds that the petitioner has not met this criterion. 
First, the flcdatacenter.com printout relates to wages between July 2010 and June 2011. The 
petitioner, however, has provided evidence on his salary from 2006 to 2009, not his 2010 or 2011 
salary. Second, the flcdatacenter.com printout relates to the salary of biological scientists, not a 
position held by the petitioner, which was an assistant professor. Regardless, the level 4 wage in this 
occupation is $107,162, which is more than the petitioner's salary. Although on appeal, counsel 
claims that the petitioner's assistant professor position is comparable to a biological scientist, 
counsel has not presented any evidence to support his assertion. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). Third, the flcdatacenter.com printout is limited to the Bethesda, Gaithersburg 
and Frederick areas in Maryland. As such, even if the AAO were to find that the online printout 
relates to the petitioner's salary in the relevant year and work, the AAO would be without sufficient 
evidence to conclude what is an average salary of someone in the field nationally. 
Fourth, the petitioner has not sufficient evidence showing that the information contained in 
the April 2008 article is accurate or reliable, or evidence that Inside 
Higher Ed is a the article provides the average salary for an 
assistant professor, it does not provide any salary information specifically for someone who is a 
bioengineering assistant professor. Counsel also has not provided any document showing that the 
specific academic area of an assistant professor is irrelevant to the average salary of the assistant 
professor. Regardless, the article lists the average salary for assistant professors as $61,359 but the 
third column, which is partially obliterated, shows a salary of over $96,000. Without the complete 
article, however, the AAO cannot determine what the third column represents. Moreover, the plain 
language of the regulation requires a comparison of the petitioner's salary with others in the field, 
not the occupation. The petitioner's field includes not just assistant professors, but also full 
professors. 
Sixth, the AAO declines to consider the petitioner's grant as part of 
his salary or remuneration for services, because other than counsel's assertion, the record contains no 
evidence in support of such a finding. In fact,~ states that only $24,448 of the -~,;,;~-~.'­
total salary derived from contracts and grants. While pertaining to a different year, 
Page 15 
letter reveals that the majorIty of grant money funding research does not go the principal 
investigator's salary or other remuneration for services. Finally, evidence of the average wage in an 
occupation does not demonstrate what a high wage is in that occupation. Merely documenting 
wages above the average wage in the occupation is insufficient evidence under the plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(ix), which requires evidence of a high salary or other 
significantly high remuneration in relation to others in the field. 
Accordingly, the AAO finds that the petitioner has not presented evidence that he has commanded a 
high salary or other significantly high remuneration for services, in relation to others in the field of 
advance computation in biological engineering. The petitioner has not met this criterion. See 
8 C.P.R. § 204.5(h)(3)(ix). 
IV. 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 have 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 field of endeavor," and (2) "that the alien has sustained national or international 
acclaim and that his or his achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 P.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 determinationS Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of presenting three types of evidence. Kazarian, 
596 F.3d at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(A) of the Act and the 
petition may not be approved. 
, The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). 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 maller. 8 C.F.R. § 103.5(a)(I)(ii); see also INA §§ 103(a)(I), 204(b); DHS Delegation 
Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 
19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to 
decide visa petitions). 
, , 
Page 16 
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.