dismissed EB-1A Case: Auditing/Accounting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: JUl 1 7 201~FFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (Ai\O) 
20 MassachusetLs Ave., N.W., MS 20()O 
Washington, DC 20:'i29-209() 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(J)(A) of the Immigration and Nationality Act; 8 U.s.c. § IISJ(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Ollice in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
he advised that any further inquiry that you might have Cllncerning your case must he 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 reconsidcr or a motion to reopen 
in accordance with the instructions on Form 1-29013, Noticc of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motion to he filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Tl1ank you" 
.,".1.'~ _, ,!~' , •. ,' 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on May 6, 2009, and is now before the Administrative Appeals Office (AAO) on 
appeaL The appeal will be dismissed, 
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 ~ l1s3(b)(1)(A), as an 
alien of extraordinary ability as an auditor/staff accountant, The director determined that the 
petitioner had not established the requisite extraordinary ability and failed to submit extensive 
documentation of sustained national or international acclaim, 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements, See section 203(b)(1)(A)(i) of the Act and 8 
C,F,R, § 204,s(h)(3), The implementing regulation at 8 CF,R, ~ 204's(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement, 
specifically a major, internationally recognized award, Absent the receipt of such an award, the 
regulation outlines ten categories of specific evidcnce. 8 CF.R. §~ 204's(h)(3)(i) through (x). The 
petitioner must submit qualifying evidence under at least three of the tcn regulatory categories of 
evidence to establish the basic eligibility requirements. 
At the time of the original filing of the petition, the petitioner submitted documentation but did not 
specifically identify to which criteria pursuant to the regulation at 8 CF.R. § 204.s(h)(3)(i)-(x), if 
any, the documentation pertained in her cover letter. Again, it was not apparent from the review of 
the record under which criteria the petitioner was claiming eligibility. The burden is on the 
petitioner to establish eligibility, not on the director to infer or second-guess the intended criteria. 
On October 30, 2006, the director issued a request for additional evidence pursuant to the regulation 
at 8 CF.R. § 103.2(b)(8) indicating each of the ten criteria under the regulation at 8 CF.R. 
§ 204.s(h)(3). In response, the petitioner submitted additional documentation and claimed 
eligibility for the awards criterion pursuant to the regulation at 8 CF.R. § 204.s(h)(3)(i), the original 
contributions criterion pursuant to the regulation at 8 CF.R. § 204.s(h)(3)(v), the leading or critical 
role criterion pursuant to the regulation at 8 CF.R. § 204.s(h)(3)(viii), and the high salary criterion 
pursuant to the regulation at 8 CF.R, § 204.s(h)(ix). 
[n his denial, the director determined that the petitioner failed to meet any of the regulatory criteria 
at 8 C.F.R. ~§ 204.s(h)(3)(i)-(x). On appeal, the petitioner claims eligibility for the membership 
criterion pursuant to the regulation at 8 C.F.R, § 204.s(h)(3)(ii), the leading or critical role criterion 
pursuant to the regulation at 8 CF.R. § 204.s(h)(3)(viii), and the high salary criterion pursuant to 
the regulation at 8 CF.R. § 204.s(h)(3)(ix). As the petitioner failed to contest the decision of the 
director or offer additional arguments for the awards criterion and original contributions criterion, 
the AAO will not further discuss them on appeal. Accordingly, the AAO considers these issues to 
be abandoned. See Sepulveda v. U.S. Att'y Gell., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hris(ov 
v. Roark, No. 09-CY-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court 
found the plaintitrs claims to be abandoned as he failed to raise them on appeal to the AAO). 
Page 3 
I. 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. 
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. 723 101" 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. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petIlloner 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 2010, 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. 2(10). Although 
the court upheld the AAO's decision to deny the petition. the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.' 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." 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 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)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, KazarialJ 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. As thc petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. ld. 
II. ELIGIBILITY AT TIME OF FILING 
On appeal. as well as in response to the dircctor's request for additional evidence, the petitioner 
submittcd documentation and claimed eligibility cntirely on events occurring after the filing of the 
petition on September 19, 2006. Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b)( I), (12). Whether referencing an immigrant or a nonimmigrant classification, case law 
requires that an alien applying for a benefit, or a petitioner seeking an immigration status for a 
beneficiary, must demonstrate eligibility for the benefit or the status at the time the petition is filed. 
See Matter of PazalJdeh, 19 I&N Dec. 884, 886 (BIA 1989) (citing Matter of Atembe, 191&N Dec. 
427, 429 (BIA 1986); Matter of Drigo, 18 I&N Dec. 223, 224-225 (BlA 1982); Matter of 
Bardouille, 18 I&N Dec. 114,116 (BIA 1981». A petition may not be approved if the beneficiary 
or the self-petitioner was not qualified at the priority date. See Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971); see also Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Rcg'l 
Comm'r 1978) regarding nonimmigrant petitions. The Regional Commissioner in Matter of Wing's 
Tea House, 16 I&N Dec. 158, 160 (Reg'l Comm'r 1977) emphasizes the importance of not 
obtaining a priority date prior to being eligible, based on future experience, This follows the policy 
of preventing affected parties from securing a priority date in the hope that they will subsequently 
be able to demonstrate eligibility. In fact, this principle has been extended beyond an alien's 
eligibility for the classification sought. For example, an employer must establish its ability to pay 
the proffered wage as of the date of filing. See Matter afGreat Wall, 16 I&N Dec. 142, 144-145 
(Act. Reg'l Comm'r 1977), which provides that a petition should not become approvable under a 
new set of facts. Ultimately, in order to be meritorious in fact, a petition must meet the statutory 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
he yond Ihose sel liJrlh in the regulalions at g C.F.R. * 204.S(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
Page 5 
and regulatory requirements for approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 
257, 2lij (4th Cir. 20(8). 
Accordingly, the documentary evidence identified below will not be considered to establish the 
petitioner's eligibility. 
III. ANALYSIS 
A. Evidentiary Criterii 
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 hy recognized national or international experts in their disciplines or 
fields, 
The plain language of the regulation at 8 C.F.R. § 204,5(h)(3)(ii) requires "[d]ocumentation of the 
alien's membership in associations in the field for which is classification is sought, which require 
outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields," In order to demonstrate that membership in an association 
meets this criterion, a petitioner must show that the association requires outstanding achievement as 
an essential condition for admission to membership, Membership requirements based on 
employment or activity in a given field, minimum education or experience, standardized test scores, 
grade point average, recommendations by colleagues or current members, or payment of dues do 
not satisfy this criterion as such requirements do not constitute outstanding achievements, Further, 
the overall prestige of a given association is not determinative; the issue here is membership 
requirements rather than the association's overall reputation, 
On appeal, the petitioner claims: 
On May 8, 2009, the tile [sic] of Certified Public Accountant (CPA) was conferred 
upon me by the State of New York, At the time of my initial application, mention 
was made regarding my successful completion of the CPA course work and exam, 
It is apparent from [the director's decision] that my eflorts to become a CPA were 
not taken into consideration in reaching [the director's] decision, This was the 
correct decision because, at the time my request was examined and considered by 
[USCIS '] oHice, I was not a CPA. This time, however, I have enclosed evidence to 
support this outstanding achievement. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discus~cd in this 
dcdsion. 
Page () 
The petitioner also submitted a copy of her AICPA general membership application, dated June I, 
2009, and an email, dated June 8, 2009, from NYSSCPA confirming receipt of her membership 
application. Moreover, the petitioner submitted a certificate from the University of the State of New 
York retlecting that the petitioner qualified to be a CPA on May 8, 2009. 
As the petitioner's claims of eligibility are based on events occurring after the filing of the petition, 
they cannot be considered for tbis criterion. Eligibility must be established at tbe time of filing. 8 
C.F.R. §§ 103.2(b)(l), (12). Wbether referencing an immigrant or a nonimmigrant classification, 
case law requires that an alien applying for a benefit, or a petitioner seeking an immigration status 
for a beneficiary, must demonstrate eligibility for tbe benefit or the status at the time the petition is 
filed. See Matter ofPazandeh, 19 I&N Dec. at 886 (citing Matter of At em be, 19 I&N Dec. at 429; 
Matter o/Drigo, 18 I&N Dec. at 224-225; Matter o/Bardoltille, 18 I&N Dec. at 116). A petition 
may not be approved if the beneficiary or the self-petitioner was not qualified at the priority date. 
See Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Michelin Tire Corp., 17 I&N Dec. at 
249 regarding nonimmigrant petitions. The Regional Commissioner in Matter oj Wing's Tea 
Holtse, 16 I&N Dec. at 160 emphasizes the importance of not obtaining a priority date prior to 
being eligible, based on future experience. This follows the policy of preventing affected parties 
from securing a priority date in the hope that they will subsequently be able to demonstrate 
eligibility. In fact, this principle has been extended beyond an alien's eligibility for the 
classification sought. For example, an employer must establish its ability to pay the proffered wage 
as of the date of filing. See Matter of Great Wall, 16 I&N Dec. at 144-145, which provides that a 
petition should not become approvable under a new set of facts. Ultimately, in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. Ogltndipe v. Mltkasey, 54 I F.3d at 261. 
In the case here, the petitioner has not claimed or submitted documentary evidence retlecting her 
memberships in associations prior to the filing of the petition. The AAO notes that as the plain 
language of tbc regulation at 8 C.F.R. § 204.S(h)(3)(ii) requires "membership in associations," the 
submission of documentary evidence that simply reflects the petitioner's request for membership 
with AICPA and NYSSCPA does not demonstrate that she is an actual member of the associations. 
Moreover, the petitioner failed to submit any documentary evidence establishing that membership 
with AICPA and NYSSCPA require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. The AAO is also not 
persuaded that successfully passing a standardized examination and completing the minimal 
requirements for licensure as a CPA is tantamount to outstanding achievements, as well as they are 
not judged by recognized national or international experts in their disciplines or fields consistent 
with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
For the reasons discussed above, the petitioner failed to demonstrate, at the time of the filing of her 
petition, that she is a member of associations in her field that require outstanding achievements, as 
Page 7 
judged by recognized national or international experts in their disciplines or field. It IS the 
petitioner's burden to establish every element of this regulatory criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence that the alien has perj(Jrmed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[eJvidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation," In general, a leading role is evidenced from the role itself, and a critical 
role is one in which the alien was responsible for the success or standing of the organization or 
establishment. 
On appeal, the petitioner claims eligibility for this criterion based on her employment with _ 
_ . A review of the record of ret1ects that the petitioner submitted a letter, dated 
January 8, 2007, at~ffering 
the petitioner the In addition, the dated 
January 17, 2008, from at who 
stated that the petitioner has been employed by since January 29, 2007, as an 
auditor. 
As the petitioner's claim of eligibility is based on her employment occurring after the filing of the 
petition, it cannot be considered for this criterion. Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)( I), (12). Whether referencing an immigrant or a nonimmigrant 
classification, case law requires that an alien applying for a benefit, or a petitioner seeking an 
immigration status for a beneficiary, must demonstrate eligibility for the benefit or the status at the 
time the petition is filed. See Matter of Pazandeh, 19 I&N Dec. at 886 (citing Matter of At em be, 19 
I&N Dec. at 429; Matter of Drigo, 18 I&N Dec. at 224-225; Matter of Bardouille, 18 I&N Dec. at 
116). A petition may not be approved if the beneficiary or the self-petitioner was not qualified at 
the priority date. See Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Michelin Tire 
Corp., 17 I&N Dec. at 249 regarding nonimmigrant petitions. The Regional Commissioner in 
Matter oj Wing's Tea House, 16 I&N Dec. at 160 emphasizes the importance of not obtaining a 
priority date prior to being eligible, based on future experience. This follows the policy of 
preventing affected parties from securing a priority date in the hope that they will subsequently be 
able to demonstrate eligibility. In fact, this principle has been extended beyond an alien"s eligibility 
for the classification sought. For example, an employer must establish its ability to pay the 
proffered wage as of the date of filing. See Matter of Great Wall, 16 I&N Dec. at 144-145, which 
provides that a petition should not become approvable under a new set of facts. Ultimately, in order 
to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval 
as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d at 261. 
In the case here, the petitioner has not claimed or submitted documentary evidence ret1ecting her 
leading or critical role with an organization or establishment that has a distinguished reputation prior 
Page 8 
to the filing of the petition. The AAO notes that the petitioner failed to demonstrate that her role 
• is leading or critical. and the petitioner failed to establish that _ 
has a distinguisbed reputation. 
Moreover,~ner were to submit supporting documentary evidence showing that her 
role with __ meets tbe elements of this criterion, which she h,Ls not, section 
203(b)(1)(A)(i) of the Act requires the submission of extensive evidence. Consistent with that 
statutory requirement, the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(viii) requires a 
leading or critical role with more than one organization or establishment. 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 
does 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'·letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has 
meaning. In a difterent context, federal courts have upheld USCIS' ability to interpret significance 
from whether the singular or plural is used in a regulation. See Maramjaya v. USC/S, Civ. Act. No. 
06-2158 (RCL) at 12 (D.C. Cir. March 26, 20(8); Snapnames.com Inc. v. Chertoff, 2006 WL 
3491005 at * 10 (D. Or. Nov. 30, 2(06) (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). In the case the claimed 
eligibility for this criterion based on her role with only one organization 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that she meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in 
a leading or critical role for organizations or establishments that have a distinguished reputation 
prior to the filing of the petition, the AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence that the alien has commanded a high salary ur other siRnijicantly hiRh 
remuneration for services, in relation to others in the field. 
The plain language of the regulation at 8 C.F.R. Q 204.5(h)(3)(ix) requires "[e]vidence that the alien 
has commanded a high salary or other significantly high remuneration for services, in relation to 
others in the field." In other words, the petitioner must not only submit evidence that she has 
commanded a salary but also submit evidence that her salary is high when compared to others in the 
field. 
On appeal, the petitioner claims eligibility for this criterion based on her salary with _ 
_ The petitioner also submitted a copy of her 2008 Form W-2, Wage and Tax Statement 
reflecting gross wages of $64,213.72. Moreover, a review of the job offer letter from 
reflects that the petitioner was offered a base salary of $50,O()() for 2007. 
Page 9 
As the petitioner's claim of eligibility is based on her salary occurring after the filing of the petition, 
it cannot be considered for this criterion. Eligibility must be established at the time of filing. 8 
C.F.R. §§ 103.2(b)(1), (12). Whether referencing an immigrant or a nonimmigrant classification, 
case law requires that an alien applying for a benefit, or a petitioner seeking an immigration status 
for a beneficiary, must demonstrate eligibility for the benefit or the status at the time the petition is 
filed. See Matter of Pazandeh, 19 I&N Dec. at 886 (citing Matter of Atembe, 19 I&N Dec. at 429; 
Matter of Drigo, 18 I&N Dec. at 224-225; Matter ofBardouille, 18 I&N Dec. at 116). A petition 
may not be approved if the beneficiary or the self-petitioner was not qualified at the priority date. 
See Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Michelin Tire Corp., 17 I&N Dec. at 
249 regarding nonimmigrant petitions. The Regional Commissioner in Maller oj Wing"s Tea 
HOlLse, 16 I&N Dec. at 160 emphasizes the importance of not obtaining a priority date prior to 
being eligible, based on future experience. This follows the policy of preventing affected parties 
from securing a priority date in the hope that they will subsequently be able to demonstrate 
eligibility. In fact, this principle has been extended beyond an alien's eligibility for the 
classification sought. For example, an employer must establish its ability to pay the proffered wage 
as of the date of filing. See Matter of Great Wall, 16 I&N Dec. at 144-145, which provides that a 
petition should not become approvable under a new set of facts. Ultimately, in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. Ogundipe v. MlLknsey, 541 F.3d at 261. 
The AAO notes that on appeal the petitioner submitted a screens hot from ,vww.bcck~r(;J2.a.com 
reflecting that the 2009 accountant salaries for senior CPAs in large firms are projected to be at 
$175,450. When compared to the petitioner's salary of $64,213.72, the record is not demonstrative 
of her commanding a high salary when compared to others in her field. The evidence submitted by 
the petitioner does not establish that she has commanded a high salary in relation to experienced 
professionals in her occupation. See Matter of Price , 20 I&N Dec. 953,954 (Assoc. Comm'r 1994) 
(considering a professional goiter's earnings verSllS other PGA Tour golfers); see also Grimson v. 
INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL 
enforcers); Mum v. INS, 891 F. Supp. 440, 444-45 (N. D. III. 1995) (comparing salary of NHL 
defensive player to salary of other NHL defcnsemen). The AAO notes that in Ma{{~r of Racill(" 
1')95 WL 15331') at *4 (N.D. III. Feb. 16, 1')95), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is 
not a comparison of Racine's ability with that of all the hockey players at all levels 
of play; but rather, Racine's ability as a professional hockey player within the NHL. 
This interpretation is consistent with at least one other court in this district, Grimson 
v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 C.F.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 
li08,)8-99. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that 
the alien has commanded a high salary or other significantly high remuneration for services, in 
relation to others in the field" For the reasons discussed, the petitioner failed to demonstrate that 
Page 10 
she has commanded a high salary when compared to others in her field prior to the filing of the 
petition. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
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 has risen to the very top of the field of endeavor. 
Even if the petitioner had 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: (I) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir 1 field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." il 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, il U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed . 
. 1 The AAO maintains de novo review of all questions of LIel and law. See Sultane v. DOl, 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 mailer. 8 C.F.R. § 103.5(a)(I)(ii). See a/so section 103(a)(I) of the Act: section 
204(h) of the Act: DHS Delegation Number 0150.1 (effective March 1,2003): 8 C.F.R. § 2.1 (20U3): 8 c.r.R. 
§ Im.t(t)(3)(iii) (20m): Matter of Aarelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
users, is the sole authority with the jurisdiction to decide visa petitions).