dismissed EB-1A Case: Biophysics And Biomedicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 8638300 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 21 , 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner seeks classification as an alien of extraordinary ability in biophysics and biomedicine. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation . 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not satisfied any of the initial evidentiary criteria , of which he must meet at least three . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants with extraordinary ability 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. 
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 implementing regulation 
at 8 C.F.R . § 204 .5(h)(3) sets forth a multi-part analysis . First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner 
to submit comparable material if he or she is able to demonstrate that the standards at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
II. ANALYSIS 
The Petitioner indicates that he is the founder and chief executive officer ofl I Because 
the Petitioner has not claimed or established that he has received a major, internationally recognized 
award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In denying the petition, the Director determined that the Petitioner did not fulfill any of the initial 
evidentiary criteria. On appeal, the Petitioner asserts that he meets five criteria, including through the 
submission of comparable evidence, discussed below. After reviewing all of the evidence in the 
record, we conclude that the record does not support a finding that the Petitioner satisfies the 
requirements of at least three criteria. 
A. Evidentiary Criteria 
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). 
The Petitioner claims eligibility for this criterion based on venture capital funding in his company. 
S ecificall , he rovided a letter from.__ ______ __. president and chief executive officer for 
who stated that "after a thorough due diligence, we decided to invest $3M to fund '----------r'------, 
his new company,.__ __ ---., so it could start its operations in California." In order to fulfill this 
criterion, the Petitioner must demonstrate that he received the prizes or awards, and they are nationally 
or internationally recognized for excellence in the field of endeavor. 1 Here, the Petitioner did not 
establish that he received the venture capital and that it qualifies as a nationally or internationally 
recognized prize or award for excellence in the biophysics or biomedicine field. 
As indicated inl f s letter,! I received the $3 million venture capital rather than the 
Petitioner. The description of this type of evidence in the regulation provides that the focus should be on 
the alien's receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or 
1 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
2 
prizes.2 Accordingly, the Petitioner did not demonstrate that he received the venture capital funding 
consistent with this regulatory criterion. 
Similarly, the Petitioner references screenshots entitled, "Understanding the EB-1 Requirements for 
Extraordinary Ability," from uscis.gov stating under the awards criterion: 
Note: If you have received venture capital funding or have been awarded a grant, you 
may submit evidence of the funding or grant awarded, including the amount of the funding 
or grant criteria used in awarding the funding or grant. Evidence of other investments, 
such as those from an accredited angel investor, may also be used. 
( emphasis added). 
Once more, the guidance instructs that the self-petitioner or beneficiary received the funding, grant, 
or other investment. In addition, the Petitioner did not establish that venture capital funding from 
I I qualifies as a nationally or internationally recognized prize or award for excellence in the 
field. Relevant considerations regarding whether the basis for granting the prizes or awards was 
excellence in the field include, but are not limited to: the criteria used to grant the awards or prizes, 
the national or international significance of the awards or prizes in the field, and the number of 
awardees or prize recipients as well as any limitations on competitors. 3 Moreover, as indicated above 
in the online guidance, the amount of the funding or grant criteria used in awarding the funding or 
grant may be submitted. Although I I indicated that I I conducted "a thorough 
due diligence," he did not provide detailed, specific information explaining the criteria for the venture 
~ funding. Here, the Petitioner did not show the national or international significance of anl I 
L___Jventure capital investment, nor did he establish that his biophysics and biomedicine recognizes 
it as a national or international prizes or award for excellence. 
Furthermore, the Petitioner argues that thd I venture capital investment should also be 
considered as comparable evidence. The regulation at 8 C.F.R. § 204.5(h)(4) allows for comparable 
evidence if the listed criteria do not readily apply to his occupation. 4 A petitioner should explain why 
he has not submitted evidence that would satisfy at least three of the criteria set forth in 8 C.F.R. 
§ 204.5(h)(3), as well as why the evidence he has included is comparable to that required under 8 
C.F.R. § 204.5(h)(3). 5 
Again, the Petitioner claims a venture capital investment that he did not receive. Regardless, the 
Petitioner did not demonstrate that the awards criterion is not applicable to his occupation. General 
assertions that any of the ten objective criteria do not readily apply to an occupation are not probative 
and should be discounted. 6 Furthermore, the fact that the Petitioner did not establish that he satisfies 
the awards criterion is not evidence that a biophysicist chief executive officer could not do so. In 
addition, the Petitioner did not show why he cannot offer evidence that meets at least three criteria, 
2 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 6. 
3 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 6. 
4 See USCTS Policy Memorandum PM-602-0005.1, supra, at 12. 
5 Id. 
6 Id. 
3 
including this criterion. In fact, as indicative above, the Petitioner claims to meet four other criteria. 
Further, the Petitioner did not explain why the other criteria, such as judging and high salary, do not 
apply to his occupation. 7 
Accordingly, the Petitioner did not demonstrate that he fulfills this criterion, including through the 
submission of comparable evidence. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 8 C.F.R. § 204.5(h)(3)(iii). 
The Petitioner argues that he satisfies this criterion based on articles posted on findbiometrics.com, 
biometricupdate.com, techworld.com, and digitaljoumal.com. In order to meet this criterion, the 
Petitioner must demonstrate published material about him in professional or major trade publications 
or other major media, as well as the title, date, and author of the material. 8 
As it relates to the findbiometrics.com article, the Petitioner argues that it "is a transcript of an 
interview with [him], thd IChairmanl I and the interviewer," and "[t]he interviewer 
was the Findbiometricsl f Although the article contains a transcription of 
the interview within the article, the Petitioner did not demonstrate the author of the material. In 
1
act,
1 while the article confirms thatl I "recently had the opportunity to speak with [them]," 
I I is referenced in the third person, implying that he did not author it. Here, the Petitioner did 
not demonstrate the author of the article. The inclusion of the author is not optional but a regulatory 
requirement. See 8 C.F.R. § 204.5(h)(3)(iii). 
Moreover, the findbiometrics.com, biometricupdate.com, and techworld.com articles do not reflect 
published material about the Petitioner; instead, the articles are about l I and biometric 
technology. Although the Petitioner is mentioned as the inventor of the technology or founder of 
I I the articles discuss the technology. For instance, the Petitioner responds to questions 
regarding 'I I in the findbiometrics.com article such as: "[ c ]an you describe I lfor 
our readers, please?"; "how do you apply to identify and authenticate?"; "[i]t is a very 
fascinating technology, where did the concept for the~---~come from?"; "What are the unique 
benefits of physiological biometrics?"; "[ w ]hat happens in case of a lost phone?"; and [ w ]hy is on­
device authentication important for I Is solution?" Likewise, the articles from 
biometricupdate.com and techworld.com report on I t with the Petitioner quoted regarding 
the technology, but are not about him. Articles that are not about an alien do not fulfill this regulatory 
criterion. See, e.g., Negro-Plwnpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles regarding a show are not about the actor). 
7 The Petitioner also argues that his "being an invited, main-stage speaker at prestigious conferences" is comparable to the 
display at artistic exhibitions and showcases criterion at 8 C.F.R. § 204.5(h)(3)(vii). Again, the Petitioner did not show 
that at least three of the listed criteria do not readily apply to his occupation, he did not explain why he has not submitted 
evidence that would satisfy at least three of the criteria, and he did not establish why the evidence he has included is truly 
comparable to that required under 8 C.F.R. § 204.5(h)(3). Therefore, the Petitioner did not demonstrate that he may use 
comparable evidence to demonstrate his eligibility. 
8 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 7. 
4 
Furthermore, the Petitioner did not establish that any of the websites represent professional or major 
trade publications or other major media. While he provided "About Us" and "Media Information" 
screenshots from the websites promoting themselves, the Petitioner did not present objective, 
probative evidence to corroborate the websites' assertions. USCIS need not rely on the self­
promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C.D. CA July 6, 
2007), aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that self-serving assertions on the cover of 
a magazine as to the magazine's status is not reliant evidence of a major medium). Here, the Petitioner 
did not offer independent evidence, such as website traffic figures from third parties, demonstrating 
the websites' standings as major media. 9 
Finally, the two digitaljournal.com articles are dated after the Petitioner filed his initial petition. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Accordingly, we need not further 
address these articles on appeal. 
For these reasons, the Petitioner did not show that he meets this criterion. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner argues that he satisfies this criterion based on patents, research, innovation in building 
clinical studies, and founding of an international nonprofit organization. In order to satisfy the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only has he made original 
contributions but that they have been of major significance in the field. 10 For example, a petitioner 
may show that the contributions have been widely implemented throughout the field, have remarkably 
impacted or influenced the field, or have otherwise risen to a level of major significance in the field. 
The Petitioner argues that he provided patents tol I and references his own previously 
submitted letter that states 'I I is currently in discussions with several large technology 
companies, and companies that contract with U.S. Government agencies, to license our patented 
technology" and "[ d]iscussions with companies such as IBM, Dell, Google/ Android, and Verizon, 
take several months of negotiations to work out Master Service Agreements." (emphasis added). In 
addition, he references a letter froml I general manager of I l who indicated 
that the Petitioner's "breakthroughs will strengthen America's cyber security defenses and hardens our 
nation's critical infrastructure," and "[t]he I !technology has been identified as a 'security 
breakthrough' that will protect consumer wireless commerce and finance transactions for over a billion 
mobile devices." (emphasis added). Moreover, he references a letter from I I 
9 See USCTS Policy Memorandum PM 602-0005.1, supra, at 7 (providing that evidence of published material in 
professional or major trade publications or in other major media publications about the alien should establish that the 
circulation, on-line or in print, is high compared to other circulation statistics and show the intended audience of the 
publication). 
10 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9 (finding that although funded and published work may 
be "original," this fact alone is not sufficient to establish that the work is of major significance). 
5 
professor, who opined that "[t]his technology will impact sectors across a wide spectrum, from 
financial transactions, to personal mobile devices, to national security. ( emphasis added). 
In general, a patent generally recognizes the originality of an invention or idea but does not necessarily 
establish a contribution of major significance in the field. Although the Petitioner expresses optimism 
and others opine that his work shows promise, he did not demonstrate how his work already qualifies 
as a contribution of major significance in the field, rather than prospective, potential impacts. Here, 
the significant nature of his patents resulting inl I technology has yet to be determined. 
Likewise, the Petitioner references two articles from pcmag.com and opusresearch.net. The 
pcmag.com article was published after the initial filing of the petition. See 8 C.F.R. § 103.2(b )(1 ). 
Regardless, the articles do not indicate thatl I technology has influenced the field in a 
significant manner to be considered a contribution of major significance in the field. Instead, the 
articles report on newl released technolo ies, such as l lhas develo ed a roduct called the 
I I that canL_ ___ ....-----------.... ____________ __Jidentify 
and validate the erson" and ' has atented a method to measure the user's 
.__ ______________________ _, by sesnsors [sic] that are already on 
smartphones," without elaborating on its impact in the field. The articles, for example, do not discuss 
the effect o±i I in the field or whether it has been widely applied or used. Furthermore, the 
Petitioner did not demonstrate that the minimal reporting of two articles represents an original 
contribution of major significance consistent with this regulatory criterion. 
Similarly, as it relates to his patents used byl J the Petitioner references a letter from~I __ _, 
I I an angel investor, who stated that the Petitioner "created an entirely new technology based 
on the mobile phonq I sensor to monitor I I changes," and 
the U.S. Food and Drug Administration (FDA) approved the technolog;y inl I approximately 
six months prior to the filing of the petition. Although! I indicated that "this product is 
now on the market," she did not elaborate and discuss the extent of the usage in the field or how it has 
somehow impacted or influenced the overall field beyond I I 11 In addition, the Petitioner did 
not demonstrate how FDA approval alone constitutes a contribution of major significance in the field. 
Moreover, the Petitioner argues that the product "will allow consumers to have direct access to their 
I I and empower consumers to take control ofl ~ (emphasis added). 
Again, the Petitioner speculates on the potential of the product rather than how it has already 
significantly impacted the field in a major way. 
Furthermore, the Petitioner references three articles that reported on possible, upcoming te~es 
ofl I but did not indicate wides read usa e in the field. For instance, "[t]he objectl___J is 
working on is "[ o ]ther sensors, some still 
in development, will measure.__ ________________ _,functions," "[e]ventually, 
both theory and experience show, a product can become pretty good," and "[the] company hopes to 
have the device available as a mass market consumer product" (bits.blogs.nytimes.com). ( emphasis 
added). Moreover, 'I lis attempting to get its device approved as a~--------~" 
11 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9; see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-35 
(D.D.C. 2013) (upholding a finding that a ballroom dancer had not met this criterion because she did not corroborate her 
impact in the field as a whole). 
6 
I I so far has been approved by the [FDA] as an 'investigative device, meaning it can be 
used in the context of a study," and "[t]he company is in the midst ofl I trials with the 
I I device, and has longer term regulatory path to get I I cleared to analyze 
I I (biogs. wsj .com) ( emphasis added). In addition, 'I I CEO ... expects to 
begin shipping a $199 consumer version of his I I sometime next year, pending [FDA] 
approval," "we're in a transition period because we still need dedicated devices and sensors to bring 
I ldata to our phones," "[t]he possibilities are incredibly powerful- es]ecially as the device gets 
cheaper," and 1 I appears to be building not just a powerfo] device but a platform of 
I I data that has the potential to interest many industry players" (fortune.com). 
( emphasis added). Once again, the articles discuss the current development and potential of the 
technology at some point in the future; however, the articles do not reflect that I ~echnology 
through the Petitioner's patents have already been considered majorly significant in the field. 
In addition, the Petitioner contends that he conducted original research into~ ldrgs for 
cancer therapy and references letters froml I professor, an ~----~ Once 
more, the letters speculate on the potential and possibility without showin the ast or present impact 
of his research. For example, "[h]is first application for th· platform is cancer, 
and I have heard that animal studies are promising" '----~ ( emphasis added). Here, D 
I Is letter indicates that the Petitioner's research is ongoing and is at the animal study stage 
without explaining how the research has affected the field in a major way. Moreover, I I 
speculated that "this opens the way for a truly novel class of drugs that can be applied to specific 
medical problems," "[the Petitioner's] work will have important impacts on a variety of research 
efforts," and "I am confident that this work will revolutionize cancer therapy." ( emphasis added).D 
I tlid not demonstrate that the Petitioner's cancer research has already been applied to specific 
medical problems, has already important impacts on a variety of research efforts, or has already 
revolutionized cancer therapy. 
Further, the Petitioner claims that he "presented a new and novel way to build clinical studies in 
biophysics, which has since been followed by other scientists" and reference~.__ ___ _____.ts letter. 
According tol I the Petitioner "was so advanced in his reasoning, that even our Faculty 
Dean and most scientists around us, could not believe this" and "[ n ]ow scientists in various countries 
followed him in this, as he was right!" However, did not farther elaborate and explain 
the extent of other scientists following his work. Instead, '-----~ references the publication of 
his research in a journal. Publications and presentations are not sufficient under 8 C.F.R. 
§ 204.5(h)(3)(v) absent evidence that they were of "major significance." See Kazarian v. USCIS, 580 
F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d 1115. In addition, the record reflects that the 
Petitioner provided citatory evidence from Google Scholar showing that this paper, published in 2009, 
has received only three citations. Generally, citations can serve as an indication that the field has taken 
interest in a petitioner's research or written work. However, the Petitioner has not sufficiently shown 
that the three citations to his work are commensurate with contributions of major significance. Here, 
the Petitioner did not articulate the significance or relevance of the citations to his journal article. 
Although his citations indicate a few in the field cited to his article, the Petitioner did not establish that 
these citation numbers rise to the level of major significance consistent with this regulatory criterion. 12 
12 See USCTS Policy Memorandum PM 602-0005.1, supra, at 8-9 (providing an example that peer-reviewed articles in 
7 
Moreover, the Petitioner argues that his "original research o reversed the erce tion 
of1 I leading to Balkan Srndromel' and references letters from.__ ________ __, 
professor, andl I former Minister of Defense. The letters, however, do not 
support the Petitioner's assertions, nor do they explain how his contributions have been of major 
significance in the field. Although the letters mention "Balkan Syndrome," they do not discuss that 
'I I reversed the perception ofl I leading to Balkan Syndrome." Instead, 
the letters contain vague and unclear statements. For example,! I claimed that the 
Petitioner "could build the confidence of all external revirwers, so that the results of this study were 
well accepted by all politics and scientists concerned," and._____ I stated that the Petitioner "could 
stop and reverse al lcampaign againstl I and agains~stngovernments involved in 
the Balkanss [sic]" and "[h ]is contribution percolated throughoutc=::]"an'd back then I I was 
hailed as an example amongst other nations." Here, the letters do not sufficiently explain how the 
Petitioner's research reversed the perception ofl I bombing, nor do they contain detailed 
information establishing that his research resulted in a majorly significant contribution in the overall 
field. In addition while the Petitioner indicated that he ublished an article entitled, I I 
'------------------------------------' " in Health 
Physics, the record reflects that it received 18 citations from others. Again, the Petitioner did not 
demonstrate that such citations are commensurate with an original contribution of major significance 
in the field. 
Finally, the Petitioner contends that he "founded an international nonprofit organization to shift public 
health policy towards alternatives tq ~-" Further the Petitioner stater that "ft ]he international, 
non-profit organization that he founded to su ort research and therapy is called 
I l and stands fo " He submits a screenshot 
from You Tube indicating that "[h ]is widespread advocacy for the use of.__ _ _. is shown by his fairly 
recent Tedx talk." Moreover, he refers td Is letter: 
[The Petitioner's] earlier career also made tremendous advancements in the use of 
I 1 0 I to thwart the problem ofl I resistance. He conducted clinical 
trials on patients and created an international non-profit to raise the profile of 
I I as a replacemeE§t fo . He have la keyrote address on his work 
at the renowned Pasteur Insf · nd gave a Ted talk on this topic, 
highlighting the work ahead. is now a recognized approach at research 
agencies in both the EU and in the U.S. There is now a growing perception that this 
approach may be a solution for our.__ ______ ~ cns1s. 
Although the documentation indicates his involvement in research in I I and LJ 
therapy, the Petitioner did not demonstrate that he has made original contributions of maJor 
significance in the field. Here, I I did not elaborate on the Petitioner's "tremendous 
advancements," nor did he explain howl I has impacted or influenced the field in a 
significant way. In addition, the Petitioner did not establish how speaking at the Pasteur Institute or 
scholarly journals that have provoked widespread commentary or received notice from others working in the field, or 
entries (particularly a goodly number) in a citation index which cite the individual's work as authoritative in the field, may 
be probative of the significance of the person's contributions to the field of endeavor). 
8 
giving a Ted talk resulted in significant or widespread attention. Publications and presentations are 
not sufficient under 8 C.F.R. § 204.5(h)(3)(v) absent evidence that they were of "major significance." 
Kazarian, 580 F.3d at 1036, aff'd in part, 596 F.3d at 1115. 
In addition, the Petitiol er arfues that "[t]he Google Scholar listing of his work shows numerous 
articles with the words or I I' in the title of the article," and "[t]he first two pages 
of the Google Scholar listing show at least seven articles pertaining tol I with citations per article 
ranging from 344 to 69." Once again, the Petitioner did not articulate the significance or relevance of 
the citations to his articles. For example, he did not demonstrate that these citations are unusually high 
in his field or how they compare to other articles that the field views as having been majorly 
significant. 
As discussed above, the Petitioner's letters do not contain specific, detailed information explaining the 
unusual influence or high impact his research or work has had on the overall field. Letters that 
specifically articulate how a petitioner's contributions are of major significance to the field and its 
impact on subsequent work add value. 13 On the other hand, letters that lack specifics and use 
hyperbolic language do not add value, and are not considered to be probative evidence that may form 
the basis for meeting this criterion. 14 Moreover, USCIS need not accept primarily conclusory 
statements. 1756, Inc. v. The US. Att'y Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that he has made original contributions of major significance in the field. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although 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 which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form I-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); 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). Furthermore, our authority 
over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is comparable 
to the relationship between a court of appeals and a district court. Even if a service center director has 
approved a nonimmigrant petition on behalf of an individual, we are not bound to follow that finding 
in the adjudication of another immigration petition. See La. Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
13 See USCTS Policy Memorandum PM 602-0005.1, supra, at 8-9. 
14 Id. at 9. See also Kazarian, 580 F.3d at 1036, aff'd in part, 596 F.3d at 1115 (holding that letters that repeat the regulatory 
language but do not explain how an individual's contributions have already influenced the field are insufficient to establish 
original contributions of major significance in the field). 
9 
III. CONCLUSION 
We find that the Petitioner does not satisfy the criteria relating to awards, published material, and 
original contributions. Although he claims eligibility for two additional criteria on appeal, relating to 
scholarly articles at 8 C.F.R. § 204.5(h)(3)(vi) and leading or critical role at 8 C.F.R. 
§ 204.5(3)(3)(viii), we need not reach these additional grounds. As the Petitioner cannot fulfill the 
initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(h)(3), we reserve these issues. 15 
Accordingly, we need not provide the type of final merits determination referenced in Kazarian, 596 
F.3d at 1119-20. Nevertheless, we advise that we have reviewed the record in the aggregate, 
concluding that it does not support a finding that the Petitioner has established the acclaim and 
recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and he is one of the small percentage who has risen to 
the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F .R. § 204.5(h)(2). 
Although the Petitioner documented his experience and conducted research, the record does not 
contain sufficient evidence establishing that he is among the upper echelon in his field. 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
15 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
10