dismissed EB-1A Case: Business

(b)(6)
:u.s. Department of llotnelllnd Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: . MAl 11t 2014 Office: TEXAS SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A)of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy tci 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to· reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~(1-J;= 
Ron Rosenberg 
Chief, Administrative Appeals Office · 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a steel products manufacturing company. According to the initial filing, both the 
Form 1-140 petition and the cover letter, the petitioner seeks to classify the beneficiary as an "alien 
of extraordinary ability" in business, pursuant to section 203(b )(1 )(A) of the Immigration and 
Nationality Act (th~ Act), 8 U.S.C. § 1153(b)(1)(A). The director issued a request for additional 
evidence (RFE) that explained the deficiencies in the initial evidence. In response, the petitioner 
asserted that there was a clerical error on the original petition and that the petitioner intended to 
request a lesser classification. The director detel1llined that the petitioner was not permitted to change 
the classification sought and that the beneficiary had not met the requisite criteria for classification as an 
alien extraordinary ability. The director also noted in a footnote that the petitioner did not submit an 
approved Alien Employment Certification or an application for Schedule A designation as required for 
the lesser classification the petitioner referenced in response to the director's RFE. 
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 203(b)(1)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence for the beneficiary under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, the petitioner submits a November 1, 2012 letter contesting the director's decision and 
additional documentary evidence. The petitioner asserts that the "beneficiary's entry will substantially 
benefit prospectively the United States" and that the beneficiary meets the regulatory categories of 
evidence at 8 C.P.R. § 204.5(h)(3)(ii), (iv), (v), (viii), and (ix). In addition, the petitioner correctly 
points out that the standard of proof in this matter is "preponderance of the evidence." The 
"preponderance of the evidence" standard, however, does not relieve the petitioner from satisfying 
the basic evidentiary requirements required by the statute and regulations. Therefore, if the statute 
and regulations require specific evidence, the petitioner is required to submit that evidence. In most 
administrative immigration proceedings, the petitioner must prove by a preponderance of the evidence 
that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). 
The truth is to be determined not by the quantity of evidence alone but by its quality. /d. at 376. In 
the present matter, the documentation submitted does not demonstrate by a preponderance of the 
evidence that the beneficiary meets at least three of the regulatory criteria at 8 C.P.R. § 204.5(h)(3), 
and, therefore, that he satisfies the regulatory requirement of three categories of evidence. 
I. LAW AND REGULATIONS 
(."' 
Section 203(b) of the Act states, in pertinent part, that: 
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(1) Priority workers. --Visas shall first be made available ... to qualified inunigrants 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 hnmigration Services (USCIS) and legacy 
hnmigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking inunigrant visas as aliens of extraordinary ability. See H.R. 723 1015t 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) re4uires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). The instructions to the Form I-140, Immigrant Petition for 
Alien Worker, list the same evidentiary requirements. 
II. PROCEDURAL ISSUES 
The petitioner filed the Form I-140 on February 8, 2012. In Part 2 of the Form I-140, the petitioner 
checked box "a," indicating that it seeks to classify the beneficiary as an alien of extraordinary 
ability. In addition, the petitioner submitted a January 17, 2012 letter stating that the petitioner 
sought classification of the beneficiary as "an individual of extraordinary ability in the business 
community." In support of the petition, the petitioner submitted letters describing the beneficiary's 
work experience; an offer of employment to the beneficiary; prevailing wage information for 
"Industrial Production Managers, " "General and Operations Managers ," "Construction Managers ," 
and "Architectural and Engineering Managers"; an evaluation of the beneficiary's education, 
training and experience from Dr. Professor of Marketing at 
certificates in the German language reflecting the beneficiary ' s training courses and educational 
credentials; and information about the petitioner. · 
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On June 9, 2012, the director issued the RFE asking that the petitioner provide certified English 
language translations of all foreign language documents, documentation to establish that the 
beneficiary's entry will substantially benefit prospectively the United States, and qualifying evidence 
for the beneficiary under at least three of the ten regulatory cat~gories of evidence at 8 C.F.R. 
§ 204.5(h)(3). The director's RFE specifically stated that the petitioner had not submitted evidence for 
the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i) - (iv), (vi), (vii), and (x). In addition, the director 
pointed to specific deficiencies in the evidence submitted for the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(v), (viii), and (ix). 
In response to the RFE, the petitioner submitted no further documentary evidence. Instead, the 
petitioner's response consisted of an August 30, 2012 letter stating: 
It has come to our attention that a clerical error was made .... The Form I-140, Immigrant 
Petition for Alien Worker was completed incorrectly. Part 2 should have been noted as Box D 
"A member of the professions holding an advanced degree or an alien of exceptional ability 
(who is NOT seeking a national Interest Waiver)." Instead a clerical error was made and Box A 
"An alien of extraordinary ability" was checked. 
At this time, we respectfully request the initial submission be adjudicated as an alien of 
exceptional ability rather than an alien of extraordinary ability. In support of this request, we 
have submitted newly signed ... Form I-140, Immigrant Petition for Alien Worker. 
As the petitioner did not submit certified English language translations of the foreign language 
documents, documentation to establish that the beneficiary's entry will substantially benefit 
prospectively the United States, or qualifying evidence for the beneficiary under at least three of the ten 
regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3), the director denied the petition on March 
18, 2013. With regard to the petitioner's request for a change of classification to "an alien of 
exceptional ability" pursuant to section 203(b )(2) of the Act, as stated above, the petitioner initially 
checked box "a" under Part 2 of the Form I -140 petition requesting to classify the beneficiary as an 
alien of extraordinary ability. The petitioner also signed the Form I-140 under penalty of perjury, 
certifying that "this petition and the evidence submitted with it are all true and correct." There is no 
statute, regulation, or case law that permits a petitioner to change the classification of a petition. 
Further, the Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for 
the specifically 
requested classification, the agency is not required to consider, sua sponte, whether 
the alien is eligible for an alternate classification; Brazil Quality Stones, Inc., v. Chertoff, 286 Fed. 
Appx. 963 (9th Cir. July 10, 2008). 
Furthermore, USCIS is statutorily prohibited. from providing a petitioner with multiple adjudicatiqns 
for a single petition with 
a single fee. The initial filing fee for the Form I-140 covered the cost of the 
director's adjudication of the I-140 petition under section 203(b)(1)(A) of the Act. Pursuant to 
section 286(m) of the Act, 8 U.S.C. § 1356, USCIS is required to recover the full cost of 
adjudication. In addition to the statutory requirement, Office of Management and Budget (OMB) 
Circular A-25 requires that USCIS recover all direct and indirect costs of providing a good, resource, 
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or service.1 If the petitioner seeks classification of the beneficiary under a different immigrant visa 
classification, then the petitioner must file a separate Form I-140 petition, with the accompanying 
fee, requesting the new classification. 
In denying the petition, the director noted the references to first preference classification both on the 
Form I-140 itself and the cover letter. The director then cited to Matter of Izummi, 22 I&N Dec. 
169, 176 (Cornrn'r 1998), which concluded that a petitioner may not make material changes to a 
petition, such as requesting a different classification, in an effort, to make a deficient petition 
conform to USCIS requirements. The director also concluded that the petitioner had not overcome 
the deficiencies the director identified· in the RFE; thus, the petitioner had not established the 
beneficiary's eligibility for the original classification sought. In a footnote, the director also noted 
that the petitioner had not submitted the requisite Alien Employment Certification or Schedule A 
application required for the lesser classification. · 
On appeal, the petitioner does not explain how the director's analysis was incorrect based on the 
evidence of record at the time of the decision. Instead, the petitioner submits new evidence and 
discussion addressing the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(ii) and (iv) for the first time, and 
additional evidence and arguments pertaining to the regulatory criteria at 8. C.F.R. § 204.5(h)(3)(v), 
(viii), and (ix). 
At issue on appeal is whether the director erred in his determination that the petitioner did not submit 
qualifying evidence for the beneficiary under at least three of the ten regulatory categories of categories 
of evidence at 8 C.F.R. § 204.5(h)(3). See 8 C.F.R. § 103.3(a)(l)(v) (requiring summary dismissal if 
specific errors of law or fact are not iqentified.) At filing, through the regulations and the form 
instructions, the petitioner was on notice of the required evidence. The petitioner did not submit the 
required evidence at filing. In the RFE, the petitioner was specifically advised of the deficiencies 
regarding the regulatory criteria at 8 C.F.R. § 204.5(h)(3) and afforded the opportunity to provide 
additional evidence. The petitioner did not submit the requested evidence in response to the RFE, 
submitting only a request for change of classification. A benefit request shall be denied where 
evidence submitted in response to the director's request for evidence does not establish filing 
eligibility at the time the petitioner filed the benefit request. 8 C.F.R. § 103.2(b )(12). Further, if the 
petitioner or applicant does not respond to a request for evidence or to a notice of intent to deny by 
the required date, USCIS may summarily deny the benefit request as abandoned, denied the benefit 
request based on the record, or deny for both reasons. 8 C.F.R. § l03.2(b )(13)(i). 
A petitioner must establish eligibility at the time of filing and each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and other USCIS 
instructions. See 8 C.F.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). The purpose of an RFE is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established as of the time the petition is filed. See 8 C.F.R. 
§ 103.2(b )(8), (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denyingthe petition. 8 C.F.R. § 103.2(b)(14). As the petitioner did not 
, 1 See http://wv..w.whitehouse.gov/omb/circulars /a025/a0 25.html. 
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submit required evidence, the director correctly determined that the petitioner had not established the 
beneficiary's eligibility for the benefit sought. 
With regard . to the new documentary evidence and arguments submitted on appeal, where a 
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity 
to respond to that deficiency, the petitioner may not offer evidence for the first time on appeal. See 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988). 
As the director was correct in his determination that the petitioner had not established the 
beneficiary's eligibility for the benefit sought, the director's decision to deny the petition is affirmed. 
III. ANALYSIS 
A. Case Law 
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. 2010). Although the court 
upheld the decision to deny the petition, the court took issue with our 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." /d. at 1121-22. 
The court stated that our 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 we 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 we concluded)." /d. 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. On appeal, · counsel asserts that the circuit decision in 
Kazarian must be read in conjunction with Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994), 
Muni v. INS, 891 F. Supp. 440, 443 (N.D. Ill. 1995), and other district court decisions. Buletini states: 
"Once it is established that the alien's evidence is sufficient to meet three of the criteria listed in [the 
regulation] , the alien must be deemed to have extraordinary ability unless the INS sets forth specific 
and substantiated reasons for its .finding that the alien, despite having satisfied the criteria, does not 
meet the extraordinary ability standard." 860 F.Supp. at 1234. The following year, the Muni court 
included a fmal section entitled "Totality of the Evidence" in which it evaluated whether the evidence 
submitted established national or international acclaim. The .court expressly stated: "While the 
satisfaction of the three-category production requirement does not mandate a finding that the petitioner 
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. § 204.5(h)(3)(iv) and 8 CF.R. § 204.5(h)(3)(vi). 
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has sustained national or international acclaim and recognition in his field; it is certainly a start." Muni, 
891 F. Supp. at 445-46. The court went on to fault the legacy Immigration and Naturalization Service 
for not articulating why the evidence did not establish such acclaim. 
The concept that adjudication of this classification involves more than counting evidence is also 
apparent from Matter of Price, 20 I&N Dec. 953 (Assoc. Comm'r 1994). In that decision, the 
agency did not simply "count" the evidence, but rather assessed it 
under the regulatory standards at 
8 C.F.R. § 204.5(h)(2), (3). 
This decision will review the evidence under the plain language requirements of each criterion claimed. 
As the petitioner did not submit qualifying evidence for the beneficiary under at least three criteria, the 
proper conclusion 
is that the petitioner has failed to satisfy the regulatory requirement of three types 
of evidence. /d. 
B. Evidentiary Criteria at 8 C.F.R. § 204.5(h)(3) 
At the time of filing, the beneficiary was working as Director, Cold Roll Mill for thr petitioner. The 
·petitioner has submitted documentation pertaining to the following categories of evidence under 
8 C.F.R. § 204.5(h)(3).3 
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. 
In the November 1, 2012 letter submitted in support of the appeal, the petitioner asserts for the first 
time in these proceedings that the beneficiary meets this regulatory criterion based not on his 
membership in associations, but on his leadership role as chairman of t:.::h:.:e....!::::::=-::::-----:--:---
of the The petitioner's 
aeJlellate submission includes an October 5, 2012 letter from Manager of 
and former chairman of 
fmm '2001 - 2007, stating that the beneficiary was "asked to become Chairman 
ofthe in May of2012 and is conducting his first meeting in October" 2012 
in California. As the beneficiary's chairmanship ofthe post-dates 
the filing of the petition in February 2012, it is not probative of the beneficiary's eligibility at the 
time of filing. Again, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(1), 
(12); Matter of Katigbak, 14 I&N Dec. at 49. 
Regardless, the petitioner did not claim that the beneficiary was eligible for the regulatory criterion 
at 8 C.F.R. § 204.5(h)(3)(ii) initially or in response to the director's RFE. The director's RFE listed 
the category of evidence at 8 C.F~R. § 204.5(h)(3)(ii) and specifically stated: ''No evidence has been 
provided for this criterion." The petitioner's response to the RFE did not offer any specific 
3 On appeal, the petitioner does not claim that the beneficiary meets any of the regulatory categories of evidence not 
discussed in this decision. Therefore, we have not considered whether the beneficiary meets the remaining categories of 
evidence. 
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arguments or evidence to overcome the director's finding. As such, the director did not err in 
determining that the petitioner had not established the beneficiary's eligibility for this criterion. 
Where a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the petitioner may not offer evidence for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. at 764; see also Matter of Obaigbena, 19 I&N Dec. at 
533. 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
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. 
The petitioner asserts for the first time in these nroceedim!s that the beneficiarvmeets this regulatory 
criterion based on his role as for the 
and his coordination of "the review and selection of potential papers that will be presented at the 
association's Annual Conference." According to the October 5, 2012 letter from 
however, the beneficiary was "asked to become _ in May of 
2012" and did not conduct his first meeting until October 2012. As the beneficiary's chairmanship 
of the post-dates the filing of the petition, it is not probative 
evidence to establish his eligibility at the time of filing. Again, eligibility must be established at the 
time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Regardless, the petitioner did not claim that the beneficiary was eligible for the regulatory criterion 
at 8 C.F.R. § 204.5(h)(3)(iv) initially or in response to the director's RFE. The director's RFE 
included the category of evidence at 8 C.F.R. § 204.5(h)(3)(iv) and specifically stated: "No 
evidence has been provided for this criterion." The petitioner's response to the RFE did not offer 
any specific arguments or evidence to overcome the director's finding. Again, as the issue was 
never raised as a claim of eligibility before the director, the director did not err in determining that 
the petitioner had not established the beneficiary's eligibiljty for this criterion. Where a petitioner 
has been put on notice of a deficiency in the evidence and has been given an opportunity to respond 
to that deficiency, the petitioner may not offer evidence for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. at 764; see also Matter ofObaigbena, 19 I&N Dec. at 533. 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the November 1, 2012 letter submitted on appeal, the petitioner states: "[The petitioner] provided 
a letter with its original petition describing [the beneficiary's] original contributions, which was 
supplemented by industrv exoert letters." The petitioner initially submitted a January 17, 2012 letter 
of support from Corporate Counsel of the petitioning organization, and three letters 
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from the beneficiary's former colleagues discussing his work experience (which the petitioner 
identified as Exhibit A in the initial submission). 
With regard to the beneficiary's "contributions to the industrial management field," Ms. stated 
only: "[The beneficiary's] accomplishments and original contributions have been recognized 
throughout the business world. In this regard, please see Exhibit A letters from prominent business 
organizations attesting to [the beneficiary's] contributions." The preceding letter from Ms. of 
the petitioning company did not provide a description of the beneficiary's original contributions as 
the petitioner claims on appeal. USCIS need not accept primarily conclusory assertions. 1756, Inc. 
v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). In addition, 
although Ms. asserted that the beneficiary's "original contributions have been recognized 
throughout the business world," the three letters in Exhibit A are 
limited to the beneficiary's former 
coworkers who discuss the beneficiary's contributions to his employer. Vague, solicited letters from 
colleagues that do not specifically identify original contributions in the field or provide specific 
examples of how those contributions influenced the field are insufficient. Kazarian, 580 F.3d at 
1036. In 2010, the Kazarian court reiterated that the 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. Regardless of the field, the plain language of the phrase 
"contributions of major significance in the field" requires evidence of an impact beyond one's employer 
and clients or customers. See Visinscaia v. Beers, --- F. Supp. 2d ---, 2013 WL 6571822, at *6, 8 
(D.D.C.\Dec. 16, 2013) (upholding a fmding that a ballroom dancer had not met this criterion because 
she did not demonstrate her impact in the field as awhole ). 
The director's RFE acknowledged the petitioner's submission of the preceding letters, but found that 
they were not sufficient to demonstrate the beneficiary's original contributions of major significance 
in the field because they focused on the beneficiary's duties and performance in relation to others at 
the company. 
The opinions of the beneficiary's references are not without weight and have been considered by the 
director. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 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 reference letters supporting the petition is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795-796; see also Matterof 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"). Thus, the content of the references' statements and how they became aware of the 
beneficiary's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence that one would expect of a business professional in the steel industry who has 
made original contributions of major significance in the field. While the petitioner asserts. on appeal 
that USCIS cannot reject unchallenged expert testimony, USCIS may evaluate the content of those 
letters in deciding their probative value. See also Visinscaia, 2013 WL 6571822, at *6 (concluding 
that USC IS' decision to give limited weight to uncorroborated assertions from practitioners in the field 
was not arbitrary and capricious). 
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The director requested further evidence demonstrating that the beneficiary's contributions were 
original and of major significance in the field. The director's RFE listed examples of the types of 
evidence that could assist the petitioner in demonstrating the beneficiary's eligibility for the 
regulatory criterion at 8 C.F.R. § 204.5(h)(3)(v). The petitioner's response to the RFE, however, did 
not offer any specific arguments or evidence to overcome the director's findings. Thus, the director 
did not err in determining that the petitioner had not established the beneficiary's eligibility for this 
criterion. 
The petitioner's appellate letter further states: "We now provide additional letters that describe in 
further detail [the beneficiary's] original contributions of major significance in the field." Regarding 
the additional letters of support now submitted with the appeal, where a petitioner has been put on 
notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the petitioner may not offer evidence for the first time on appeal. See Matter of Soriano, 
19 I&N Dec. at 764; see also Matter ofObaigbena, 19 I&N De.c. at 533 .. 
In light of the above, the record supports the director's finding that the petitioner did not establish 
that the beneficiary meets this regulatory criterion. · 
Evidence that the alien has performed 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 evidence that the 
beneficiary "has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." Ms. , however, comments on what the beneficiary "will" be doing as 
Director of the for the petitioner rather than explaining how he has already 
"performed" in a leading or critical role in the position. Ms. 's speculation about the duties she 
expects the beneficiary to perform is not evidence, and does not establish that he had already 
performed in a leading or critical role for the petitioner at the time of filing. Again, eligibility must 
be established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 
49. 
In addition, Ms. asserted that the beneficiary performed "leading roles" for "major 
organizations" including 
and Ms. 's letter mentioned the beneficiary's job 
responsibilities for the preceding companies, but did not point to any specific documentation or 
evidentiary exhibits in support of the beneficiary' s eligibility for this regulatory criterion. 
The petitioner's initial evidence included a letter from l, Vice President of 
Human Resources for , mentioning the beneficiary's work for 
and in the 1980s and 1990s, including his experience as "Head of the 
technology department for pickling, rolling and skin pass mill." In addition, the etitioner initially 
submitted the letter from General Manager of Technical Sales at 
listing the beneficiary's duties as "Project Manager of Technical Sales in the Strip Processing Lines 
Division" at The petitioner also submitted a letter from 
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General Manager at ~ , stating that the beneficiary worked for that company as a 
Sales Manager and an Assistant Manager of Business Area Management. 
In general, a leading role is evidenced from the role itself, and a critical role is one in which the alien 
is responsible for the success or standing of the organization. The petitioner did not provi<:Je an 
organizational chart or other similar evidence to establish where the beneficiary's managerial 
positions fit within the overall hierarchy of the above companies such that the petitioner has 
established the leading nature of the beneficiary's roles. The submitted documentation also does not 
establish that the beneficiary contributed to the companies in a way that was significant to their 
success or standing in the steel industry. Accordingly, the initial eYidence did not establish that the 
beneficiary served in leading or critical roles for the petitioner; 
and Furthermore, the petitioner did not submit documentary ev1aence 
showing that 
and . had distinguished reputations uring the time penoa tnat tne oenencmr 
worked with those companies. 
With regard to thepetitioner's reputation, the petitioner submitted the company's annual report for 
2010/2011, its marketing materials, and information about the company posted on its website. The 
promotional nature of the information a company generates internally about itself, however, is not 
sufficient to demonstrate that the company has a distinguished reputation. USCIS need not rely on 
self-promotional material. Cf Braga v. Poulos, No. CV 06 5105 SJO, aff'd 317 Fed. Appx. 680 
(C.A.9) (concluding that the AAO did not have to rely on self-servmg assertions on the cover of a 
magazine as to the magazine's status as major media). In addition, the petitioner submitted two local 
news articles posted on the websites of (Alabama and 
(Alabama) that discuss the petitioner's opening of a large steel mill in Alabama and the scope 
of the construction project. The articles, however, do not discuss the petitioner's reputation within 
the field. Accordingly, the petitioner did not submit objective documentary evidence showing that the 
petitioner has a distinguished reputation. 
The director's RFE acknowledged the petitioner's submission of the "statistical documentation" 
from the petitioner's annual report and marketing materials, but stated that the petitioner had not 
demonstrated "that the beneficiary has performed in leading or critical 
roles for organizations or 
establishments that have a distinguished reputation." The director requested further evidence 
demonstrating that the beneficiary meets the requirements of the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(viii). The director's RFE listed examples of the types of evidence that could assist the 
petitioner in demonstrating the beneficiary's eligibility for this regulatory criterion. The petitioner's 
response to the RFE, however, did not offer any further evidence or arguments to demonstrate that 
the beneficiary has perfqrmed in a leading or critical role for organizations or establishments that have 
a distinguished reputatio~. Therdore, the director did not err in determining that the petitioner had 
not established the bepeficiary's eligibility for this criterion. 
The petitioner's appellate letter states: 
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NON-PRECEDENT DECISION 
Page 12 
[W]e now provide additional testimonials confirming [the beneficiary's] leading and critical 
roles with [the petitioner], with and with 
Further, we now provide additional testimonials confirming [the 
beneficiary's] leading and critical roles with several organizations, which also confirm the 
~istinguished reputations of these organizations. 
Regarding the new testimonial evidence now submitted with the appeal, where a petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, we will not accept evidence offered for the first time on appeal. See Matter of Soriano, 
19 I&N Dec. at 764; see also Matter of Obaigbena, 19 I&N Dec. at 533. 
In light of the above, the record supports the director's finding that the petitioner did not establish 
that the beneficiary meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner initially submitted an October 15, 2010 letter from the petitioner to the beneficiary 
offering him a salary of"$190,000 annually through 2013." The petitioner, however, did not submit 
documentary evidence (such as payroll records or a Form W-2, Wage and Tax 
Statement, from the 
petitioner) to demonstrate the actual salary the beneficiary had already earned. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
In addition, the petitioner submitted July 13, 2011 "Online Wage Library - FLC [Foreign Labor 
Certification] Wage Search Results" for the Alabama area indicating that the Level 4 (fully 
competent) prevailing wage for Industrial Production Managers was $104,894 yearly, for General 
and Operations Managers was $125,549 yearly, for Construction Managers was $89,877 yearly, and 
for Architectural and Engineering Managers was $122,554 yearly.5 The petitioner, however, must 
submit evidence showing that the beneficiary has earned a high salary or other significantly high 
remuneration relative to others in the field, not just a salary that is above the amount paid to the 
majority of fully competent managers in the Alabama area. Furthermore, the accompanying 
occupational descriptions for "Construction Managers" and "Architectural and Engineering 
Managers" were not similar to the beneficiary's job duties as Director of a in the steel 
industry such that the salaries for those two occupational categories would represent appropriate 
bases for comparison in demonstrating that the beneficiary's salary was high in relation to others in 
the field. 
The petitioner must present evidence of objective earnings data showing that the beneficiary has 
earned a "high salary" or "significantly high remuneration" in comparison with those performing 
similar work during the same time period. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
5 A "prevailing wage" is defmed as "trade and public work wages paid to the majority of workers in a specific area." See 
http:Uwww.businessdic tionary .com/defi nition!prevailing-wage.html, accessed on May 13, 2014, copy incorporated into 
the record of proceeding. 
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Page 13 
Comm'r 1994) (considering professional golfer's earnings versus other PGA Tour golfers); see also 
Skokos v. U.S. Dept. of Homeland Sec., 420 F.App'x 712, 713-14 (9th Cir. 2011) (finding average 
salary information for those performing lesser duties is not a comparison to others in the field); 
Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus 
other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of 
NHL defensive player to salary of other NHL defensemen). 
The director's RFE acknowledged the petitioner's submission of the petitioner's job offer letter to 
the beneficiary and the wage information from the FLC Data Center, but found that they were not 
sufficient to demonstrate that the beneficiary has commanded a high salary or other significantly 
high remuneration for services in relation to others in the field. 
The petitioner's letter in support of the appeal states: "The Service's disregard of the Department of 
Labor's Office of Foreign Labor Certification Online Wage Library has no basis. This resource is a 
particularly strong and long standing tool .... " The "prevailing wage" information the petitioner 
submitted from the U.S. Department of Labor's Online Wage Library reflected the yearly wage paid 
to the majority of fully competent managers in the Alabama area and, therefore, was not 
sufficient to demonstrate that the beneficiary has commanded a high salary relative to others in the 
field. Thus, the director did not err in requesting that the prevailing wage information be 
accompanied by further evidence showing that the beneficiary's salary was "high relative to others 
. working in the field." 
The director's RFE listed examples of various types of evidence that could assist the petitioner in 
demonstrating the beneficiary's eligibility for the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ix). 
For instance, the director listed examples such as "Copies of the beneficiary's W-2 or 1099 forms for 
years in which the beneficiary has received high salary in the field of endeavor" and a "List 
compiled by credible professional organization(s) of the top earners in a field." The petitioner's 
response to the RFE, however, did not offer any further evidence or arguments to demonstrate that 
the beneficiary commanded a high salary relative to others in his specific field. Thus, the director 
did not err in determining that the petitioner had not established the beneficiary's eligibility for this 
criterion. 
The petitioner's appellate letter further states: "[W]e are providing additional salary documentation 
to corroborate the Department of Labor data previously provided." Regarding the new salary data 
the petitioner now submits with the appeal, where a petitioner has been put on notice of a deficiency 
in the evidence and has been given an opportunity to respond to that deficiency, we will not accept 
evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. at 764; see also 
Matter ofObaigbena, 19 I&N Dec. at 533. 
In light of the above, the record supports the director's finding that the petitioner did not establish 
that the beneficiary meets this regulatory criterion. 
C. Summary 
The petitioner has failed to submit evidence for the beneficiary satisfying the antecedent regulatory 
requirement of three categories of evidence. 
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IV. MOOTNESS 
Finally, a review of USCIS records indicates that the petitioner has filed other Form I-140 petitions in 
the beneficiary's behalf, two of which USCIS ap roved. The beneficiary filed a Form I-485 
Application to Adjust Status, receipt number which USC,IS approved on May 7, 
2014. Because the beneficiary has adjusted to lawful permanent resident status, the matter at hand is 
moot. 
· V. 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 for the beneficiary 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 ofthe[ir] 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." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. Although we 
conclude 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, we need not explain that 
conclusion in a final merits determination. 6 Rather, the proper conclusion is that the petitioner has 
failed submit evidence for tlie beneficiary satisfying the antecedent 
regulatory requirement of three 
categories of evidence. /d. at 1122. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the 
Act and the petition may not be approved. Moreover, the matter is moot based on the beneficiary's 
adjustment to lawful permanent resident status. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
6 Appellate review for employment-based petitions is on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th 
Cir. 2012); Soltane v. DOJ , 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). In any 
future proceeding, the jurisdiction to conduct a final merits determination is the office that made this decision, the most 
recent in this matter~ 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; 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).