dismissed EB-1A Case: Business

(b)(6)
DATE: FEB 2 7 Z013 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigrati on Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103 .5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. ' 
Thank you, 
)it!Dr--
Ron Rosenberg!",-
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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I j. 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in business , specifically as a 
· medical consultant, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Acr(the Act), 
.8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. 
Congress 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 )(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.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.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements . 
On appeal, counsyl asserts that the petitioner submitted sufficient evidence to meet four of the 
regulatory criteria. Counsel maintains that the director e,ither ignored or failed to give sufficient weight 
to the submissions. Considering all of the evidence in the record, the petitioner has not established 
eligibility for the benefit sought by a preponderance of the evidence. 
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 de.scribed 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 
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(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
51 
Con g., 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. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.ER. § 204.5(h)(3) requires that the petiti.oner 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 eyidence 
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. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted tb meet jl given evidentiary criterion. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while users may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteri~, those concerns should have 
been raised in a subsequent "final merits determination." ld. 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 A~O 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)." /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. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
1 
Spt:cifically, 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 C.F.R. 
§ 204.5(h)(3)(vi). 
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II. ANALYSIS 
A Evidentiary Criteria 2 · 
Documentation of the alien's membership in associations in the field fhr which class[fication is 
sought, which require outstanding achievements of their members,· as judged by recognized national 
or international experts in their disciplines or fields. 8 C.F.R. § 204 .5(h)(3)(ii). 
The petitioner initially submitted materials relating to this criterion along with her initial 1-140 petition. 
The director did not· make a specific finding regarding this criterion in the denial decision and the 
petitioner does not identify any factual or legal error relating to this criterion on appeal. Consequently, 
USCIS concludes that the petitioner abandoned this claim. See Sepulveda v. US Att 'y Gen., 401 F.3d 
1226, 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th 
Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, * 9 (E.D.N.Y. Sept. 
30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's vvork 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). 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must be about the petitioner and the contents must relate to the petitioner's work in the field 
under which she seeks classification as an immigrant. The published material must also appear in 
professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item 's title, date, and author and if the published item is in a foreign language , the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
On appeal, counsel asserts that the petitioner submitted two articles that were in major media. Counsel 
also maintains that the petitioner was featured in a television appearance, for which there is a translated 
transcript as part of the record. The record includes a ~lanket certification for the various publications 
submitted, including the translated transcription of the television program. "Petitioners and applicants 
for immigration benefits are required by regulation to provide certified English translations of any 
foreign language · documents they submit. ~' Matter of Nevarez , 15 I&N Dec. 550 , 551 (BIA 1976) 
(citing8 C.F.R. § 103.2(b), now · promulgated at 8 C.F.R. § 103.2(b)(3)) which states: "Anydocument 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
Page 5 
containing foreign language submitted to USCIS shall be accompanied by a full English language 
translation which the translator has certified as complete and accurate, and by the translator's 
certification that he or she is competent to translate from the foreign language into English." The 
language utilized within the regulation implicitly precludes a single certification that validates several 
translated forms of evidence unless the certification specifically lists the translated documents. Without 
a single translator's certification for each foreign language form of evidence,' or a translator's 
certification specifically listing the documents it is validating, the certification cannot be regarded to be 
certifying any specific form of evidence. The final determination of whether evidence meets the plain 
language requirements of a regulation lies with USCIS. See Matter of Caron International, 19 I&N 
Dec. 791, 795 (Comm'r 1988) (finding that the appropriate entity to detennine eligibility is USClS). 
Consequently, the foreign language documents that the petitioner presented as evidence of published 
material do not qualify as probative, credible evidence for this criterion. 
Notwithstanding the problem with certification and translation noted above, counsel maintains that the · 
monthly circulation of 50,000 issues of and monthly circulation of 70,000 issues of 
is sufficient to demonstrate that these publications are professional or major trade 
publication or other major media. The petitioner has failed to submit evidence showing that either one 
of the publications are professional or major trade publications. Similarly, the bare numbers are 
insufficient to determine whether they are indicative of publications that can be considered major media 
in Japan. The petitioner has failed to submit comparative evidence of distribution that would inform 
whether the above circulation numbers are reflective of regional or special interest publications, or are 
in fact consistent with other national or international publications that are accepted as major media in 
Japan. Significantly, other publicatio~s that have expressed interest in speaking with the petitioner but 
had yet to publish anything about her show circulation numbers in the hundreds of thousands. To 
qualify as major media, the publication should have significant national or international distribution , 
For example, some newspapers, such as the nominally serve a particular locality but · 
would qualify as major media because of significant national distribution, unlike small local community 
papers. 
Finally, the television appearance was not about the petitiOner relating to her work. Rather, t.he 
petitioner was brief! y interviewed as part of a larger story about fertility. 
Accordingly, the petitioner has failed to satisfy the requirements pursuant to 8 C.P.R.§ 204.5(h)(3)(iii). 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The petitioner submitted multiple testimonial letters in support of this criterion that various medical 
professionals submitted on the petitioner's behalf. The medical professionals or individuals who are 
~onpe_cte~ with a -~e?~cal _ faci_li~t~ who wr~te a ~~tter or ~~u~tiple letters in _support of the. pe_titioner 
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... 
All of the authors of the submitted letters remark on the excellent quality of the petitioner's work and 
notes that she is a top medical consultant orthat the petitioner's business is the best, or one of the best 
medical consultant compames and include language that parrot the language of the statute or the 
regulations. 
For example, ____ j writes: 
[The petitioner's] business model as an independent medical facility not bound to any 
particular U.S. medical facility is critical to her ability to serve her client's best interests 
by selecting the most appropriate healthcare provides rather than sending them all to a 
U.S. facility that she represents. This business model is unique, and sets her apart from 
all other medical consultancies both in terms of quality and effectiveness .... This is 
certainly an original contribution of major signifiCance in medical consultancy. 
Similarly, states: 
Based on my experience of working with [the petitioner] for these many years, I assure 
you that her business model - and the execution of her business model - is uniquely 
comprehensive .... The fact that she has built deep and lasting alliances with some of 
the best healthcare facilities in this country , is due to her stellar reputation and 
international acclaim as a business professional in the medical Consultancy field. She is 
a leader in the field, who has set the standard for other medical consultancy services to 
follow .... I therefore urge approval of her petition for U.S. permanent residence as a 
business person who demonstrates extraordinary ability, who has risen to the very top of 
her field of endeavor. . · 
letter 
typifies the testimonial letters, which attest, in 
various ways, to the petitioner 's excellence in her work and the importance of her services to her clients. 
Nonetheless, while the petitioner's superior services provided through her medical consultant business 
has resulted i~ positive· feedback from clients, there is insufficient documentation to suggest that her 
· business has had a major impact in the field of medical consulting. Furthermore, merely repeating the 
language of the statute or regulations does not satisfY the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. v. Savct., 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
(b)(6)
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In addition, some of the testimonial letters that the petitioner provides undermine the petitioner's claim 
that her business constitutes an original contribution. · states that: "As the 
- - • •• • - • • - y --~ since 1990, I regularly work with medical consultants from 
around the world who are interestel in obtaining our hospital's services for their patients. " 
also notes: "[The petitioner] and her company are the simply the most competent, 
comprehensive medical consultancy ·with which I have ever worked." The letters indicate that the 
petitioner provides a more thorough and comprehensive international medical Consultancy, but the 
record suggests that there are other international medical consultants. USCIS must presume that the 
word "original" and the phrase "major significance" are not superfluous and, thus, that they have 
some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) 
quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). Thus, the petitioner cannot 
establish her medical consuhant business as an original contribution of major significa .nce in the field of 
medical consulting, as required by the plain language of the regulation. 
/ 
Lastly, notwithstanding the fact that the petitioner's medical consultant business is not original , the 
petitioner fails to satisfy the regulatory requirements for this criterion because her medjcal consultant 
business is a singular contribution. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires evidence of "contributions" in the plural, which is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. 
§ 204.5(h)(3) are worded in the plural. Thus, the AAO can infer that the plural in the remaining 
regulatory criteria has meaning. 
For all the reasons discussed above, the AAO must conclude that the petitioner failed to establish with 
relevant and probative evidence that he meets this criterion and affirm the director ' s finding in this 
regard. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
This criterion anticipates that a leading role should be apparent by its position m the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the petitioner's impact on the organization or the establishment's activities. 
The petitioner's performance in' this role should establish whether the role was critical for 
·organizations or establishments as a whole . The petitioner must demonstrate that the organizations 
or establishments (in the plural) have a distinguished reputation. While neither the regulation nor 
precedent speak to what constitutes a distinguished reputation, Merriam- Webster's online dictionary 
defines distinguished as, "marked by eminence, distinction, or excellence." 3 Dictionaries are not of 
themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. at 306 . Therefore, it is the petitioner ' s burden to demonstrate that 
the organizations or establishments claimed under this criterion are marked by eminence, distinction, 
·
1 
See http ://www.merriam-wcbstcr.com /dic rionary/distinguishcd , accessed on February 4, 2013. 
(b)(6)
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excellence, or a similar reputation: The petitiOner must submit evidence satisfying all of these 
elements to ineet the plain language requirements of this criterion. 
The director determined that the petitiof)er failed to satisfy the requirements of this _criterion because 
the record is insufficient to demonstrate that the petitioner's company, 
Inc.; is an organization with a distinguished reputation. The director further determined .that that the 
petitioner did not serve in a leading or critical role in the various medical institutions in the U.S. 
including: 
The petitioner claims these medical facilities 
are organizations with which she has developed collaborations ot alliances. The director observed 
that the record does not establish that the beneficiary has worked_ for these organizations as an 
employee. 
Counsel on appeal maintains that the petitioner need not have performed a leading or critical role as an 
employee of the organization. There is nothing in the regulations to suggest that a third party consultant 
to an organization can serve in a leading or critical role to the organization at large. See 8 C.F.R . 
§ 204.5(g)(l) '(evidence of experience shall consist of letters from employers). Counsel on appeal 
·maintains that the director failed to comment on the voluminous documentation of the quality of work 
the petitioner performed on behalf of patients, consisting primarily of numerous emails from clients 
seeking referrals to U.S. medical institutions. However, USCIS determines the truth not by the quantity 
of evidence alone but by its quality. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 
citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989). Evidence that the petitioner is able to 
attract and maintain clients is not probative to whether she has perfonned a le~1ding or critical role for 
the institutions to which she refers those clients. More specifically, the importance of the services that 
the petitioner provided to individual patients does not necessarily indicate that the petitioner's role was 
critical to the various medical organizations. There is no evidence in the record suggesting that the 
number of patients that she worked with at each organization constituted a significant portion of the 
organization's patients such that the petitioner can claim a critical role on behalf of the treating 
·organization, rather than a critical role for the individual patient. 
Significantly, while the record . includes complimentary testimonial letters from individuals in .the 
organizations listed in the above paragraph , the letters do not indicate that the petitioner's was critical to 
the success of the organization. The medical organizations that petitioner mentions have obtained their . 
reputation independent of the petitioner and there is insufficient evidence in the record that the 
petitioner's work was critical to the organization as a whole. 
Even if the petitioner had established the distinguished reputation of the company she founded, the 
regulation requires evidence of a leading or critical role for organizations or establishments in the plural, 
consistent with the statutory requirement for extensive evidence. 
Consequently , the AAO agrees with the director's findings and affim1s his conclusions with regard to 
this criterion. 
(b)(6)
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Evidence that the alien has commanded a high salary or other significantly high remuneratioli for 
services~ in relation to others in the freld. 8 C.F.R. § 204.5(h)(3)(ix). 
Counsel claims the petitioner's eligibility for this criterion ·for the first time on appeal. The 
petitioner did not claim that she met this criterion or submitted evidence relating to this criterion 
along with the Form 1-140 petition and accompanying documents. The petitioner then failed to 
.claim eligibility for this criterion and submit evidence in response to the director's Request for 
Evidence (RFE). 
The methods vary by which a petitioner can be notified of evidentiary requirements. For example, a 
petitioner is considered to be on notice through the specific requirements outlined within the 
regulations, or through various forms of communication from USCIS to a petitioner or applicant 
noting an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 
764 , 766 (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) notified the petitioner of the specific 
filing requirements to demonstrate eligibility under the extraordinary ability classification. In 
addition, the instructions to the Form I-140 petition state that the petitioner "rnust attach evidence 
with [the] petition showing that the alien has sustained national or international acclaim" and then 
lists the ten regulatory . criteria. The director's RFE requested supplemental documentation for 
various criteria and the petitioner submitted a response along with additional evidence. Therefore, 
the petitioner in this instance had multiple opportunities to present evidence and allege eligibility 
before the director prior to the director's issuance of the denial based on the merits of the underlying 
petition. The petitioner must claim every criterion that the petitioner would like to be considered 
before the director. In instances when the petitioner was notified of the types of evidence that are 
required to demonstrate eligibility and was afforded the opportunity to provide the evidence pfior to 
the issuance of an adverse decision, new eligibility claims will not be considered on appeal. See 
Matter ofSoriano, 19I&N Dec. at 766. 
If the petitioner would like for USCIS to consider claims to additional eligibility criteria, this must 
be accomplished through the filing of a new petition. See id. at 766. Cf Matter ofJimenez, 21 I&N 
Dec. 567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first 
time on appeal are not properly before the Board of Immigration Appeals and that the Board will not 
issue a determination on the matter.) Although .the AAO maintains de novo review of appellate 
cases and a petitioner may supplement the record in regards to previous claims, a petitioner may not 
raise a previously unclaimed eligibility criterion on appeal. Matter ofSoriano, 19 I&N Dec. at 766. 
B. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. 
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III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[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. 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. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal. will 
be dismissed. 
ORDER: The appeal is dismissed. 
4 
The AAO maintains de novo review of all questiOilS of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(l) of the Act; section 204(b) of the Act; DHS Deiegation Number 0150.1 (effective March 1, 2003); 
8 CTR. § 2.1 (2003); 8 C.F.R. § 103.1(1)(3)(iii) (2003); Matter of Aurelio, 19 1:-&-'-No Dec. 458, 460 (BIA 
1987) (holding that legacy INS,. now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).