dismissed EB-1A Case: Business

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massaehusefts Ave., N.W., MS 20l)O 
WashinQton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MA~ 242012 
Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. 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 
with the field office or service center that originally decided your case by filing a 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)(1)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
~~ 
"",,-,.~&d'>-
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and 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, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A) as 
a Training Manager and Territory Sales Manager. 1 The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
his sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate 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 CP.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.P.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, counsel states that the petitioner meets four of the ten regulatory categories of evidence 
at 8 CP.R. § 204.5(h)(3). More specifically, counsel asserts that the petitioner meets the regulatory 
categories of evidence at 8 CP.R. §§ 204.5(h)(3)(i), (v), (viii), and (ix). Por the reasons 
discussed below, the AAO will uphold the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
1 The record reflects that the alien filed the Form 1-140, Immigrant Petition for Alien Worker, with the Nebraska Service 
Center on February 23, 2010, listing as the petitioner under Part 1 of the form. Part 8 of 
the Form 1-140, however, was signed by the alien. The regulation at 8 C.F.R. § 103.2(a)(2) states: "An applicant or 
petitioner must sign his or her benefit request." Therefore, the alien is the petitioner in this matter. 
Page 3 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
st 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the 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). 
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 to meet a given evidentiary criterion? With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to 
satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, 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. Id. 
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.P.R. § 204.5(h)(3)(iv) and 8 c.P.R. § 204.5(h)(3)(vi). 
-Page 4 
II. ANALYSIS 
A. Evidentiary Criteria3 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
In response to the director's request for evidence (RFE), the petitioner submitted an August 18, 
2010 letter from stating: 
[The petitioner's] accomplishments include: 
• Leading candidate for Account Manager of the Year for 2010 based on year to 
date numbers; 
• Month for February, March and July 2010; 
• for selling more than 25 used units in 2009; 
• in 2009 for most Allied Sales, greatest 
for most new customers; 
• awards in 2008 for most Allied Sales and most new 
customers and 2nd place for greatest number of orders; 
• in 2007 for most new customers and 2nd 
place for 
• Mentored 2007-2008 before training program was formalized; 
• Leading role in training of new Busines~nt Representatives .. 
~ho started August 9th, 2010 and ~ho will start on August 
23rd, 2010; 
• Undertook additional responsibilities for Customer Service due to layoffs in 2009; 
• Undertook additional territory coverage due to layoffs in 2010. 
The petitioner also submitted the following: 
1. 
2. 
3. 
4. 
5. 
6. 
(dated March 16, 2010); 
August 16, 2010); 
Award for selling 25 Units (2009); 
plaque for "Most Allied Sales" (2009); 
plaque for "Most Orders" (2009); 
"Account Manager of the Month: February 2010" 
"Account Manager of the Month: March 2010" (dated 
utions "Account Manager of the Month: July 2010" (dated 
3 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
-Page 5 
7. 'Account Manager of the Month: September 2010" 
8. "Account Manager of the Month: October 2010" 
9. • •••••••••• "Account Manager of the Month: November 2010" 
(dated December 9,2010); 
10. from the Field" recognizing the petitioner for 
"Competitive Conversion," "Competitive Triumph," and "Account Conversion" 
based on the number of trucks sold. 
The preceding awards from ect institutional recognition from 
the petitioner's employer rather than nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor. Further, the AAO notes that the "Account Manager of the 
Month" awards (items 4 - 9 above) and the "Salesman of the Month" awards for March 2010 
and July 2010 (as mentioned in _ letter) were received by the petitioner subsequent 
to the petition's filing date. A p~ever, must establish eligibility at the time of filing. 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
Accordingly, the AAO will not consider awards received by the petitioner after February 23, 
2010 in this proceeding. Regardless, the petitioner did not submit evidence of the national or 
international recognition of his particular awards, such as national or widespread local coverage of 
his awards in industry or general media. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or internationally 
recognized in the field of endeavor and it is his burden to establish every element of this criterion. 
In this case, there is no documentary evidence demonstrating that the petitioner's awards were 
recognized beyond his employer and therefore commensurate with nationally or internationally 
recognized prizes or awards for excellence in the field. Accordingly, the petitioner has not 
established that he 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 director's decision, she determined that the petitioner failed to establish his eligibility for 
this regulatory criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field." [Emphasis added.] Here, the evidence 
must be reviewed to see whether it rises to the level of original business-related contributions "of 
major significance in the field." The phrase "major significance" is not superfluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3fd Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15,2003). 
The petitioner initially submitted a January 28, 2010 letter from 
[The petitioner] helped create our 'Success 4' Program which was developed specifically 
to help our new Sales Representatives with the technical aspects of our profession. This 
-Page 6 
knowledge is critical in increasing their level of confidence which leads them to more 
success and longer careers with the company. 
. tioner' s work in helping to create 
the "Success 4" Program for is recognized beyond his company 
such that his work constitutes an original business-related contribution of major significance in 
the field. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) specifically requires 
that the petitioner's original contributions be "of major significance in the field" rather than 
limited to a particular company or employer. The record lacks documentary evidence showing 
that the petitioner has made original business-related contributions that have significantly influenced 
or impacted his field at large. The opinion not without weight and has been 
considered above. 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 Matter of v­
K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting~inion testimony does not purport to 
be evidence as to "fact"). Thus, the content of _ statement and how he became aware 
of the petitioner'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 Training Manager or Territory 
Sales Manager who has made original contributions of major significance in the field. 
The petitioner also submitted information printed from website 
about the "Maxipacker" High Density Racking System, but there is no documentary evidence 
showing that the petitioner was the originator of this system. Counsel states that the petitioner 
"has brought forth his expertise in specialized products such as high density Pallet shuttle storage 
~d that the petitioner's "expertise in this type of product will help differentiate 
...-product offerings." Assuming the petitioner's skills and expertise are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Department of Transportation, 
22 I&N Dec. 215, 221 (Comm'r 1998). Regardless, there is no evidence showing that the 
petitioner's work equates to original business-related contributions of major significance in the 
field. 
that_ 
Counsel states: 
[the petitioner] worked for_ 
ve he built strong 
corporatIons as He created a 
mentoring program for new sales representatives and enhanced training program for new 
sales representatives. 
Page 7 
The record, however, does not include evidence showing that the 
petitioner created the preceding programs for s new sales 
representatives. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). Regardless, there is no evidence demonstrating that the petitioner's mentoring and 
training programs for constitute business-related 
contributions of major significance in the field. 
In response to the director's RFE, the petitioner submitted a training manual he put together for 
his entitled "RHSI T· "On the submits additional _ 
There is 
no the field 
beyond As previously discussed, contributions 
limited to the petitioner's company or employer do not equate to original contributions of major 
significance to the field as a whole. There is no documentary evidence demonstrating that the 
petitioner's work rises to the level of original business-related contributions of "major 
significance" in the field. For example, the record does not indicate the extent of the petitioner's 
influence on other training managers and territory sales managers in the field, nor does it show 
that the industry has specifically changed as a result of his work. Without additional, specific 
evidence showing that the petitioner's original work has been unusually influential, widely 
applied throughout his field, or has otherwise risen to the level of contributions of major 
significance, the AAO cannot conclude that he 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 submitted documentation u· lu .. ~aULll1', 
Sales Manager for 
petitioner 
SCIS need not rely on self-promotional material. See Braga v. 
Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 2007) aff'd 317 Fed. Appx. 680 (9
th 
Cir. 2009) 
(concluding that the AAO did not have to rely on self-serving assertions on the cover of a magazine 
as to the magazine's status as· The director found that the petitioner has performed in 
a leading or critical role for that the petitioner had failed to 
establish that the company On the petitioner submits 
information and articles about 
parent company III 
immediate employer has a 
aOI~urnerltatl0n pertmmng to 
however, is not sufficient to demonstrate that the petitioner's 
.... !=::, .... ,,, .. ,,,,, reputation. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires evidence 
that the petitioner has performed in a leading or critical role for distinguished "organizations or 
-Page 8 
establishments" in the plural. The use of the plural is consistent with the statutory requirement for 
extensive evidence. Section 203(b )(1 )(A)(i) of the Act. Significantly, not all of the criteria at 
8 CF.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 CF.R. 
§§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high salary. 
When a regulatory criterion wishes to include the singular within the plural, it expressly does so as 
when it states at 8 CF.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. 
In a different context, federal courts have upheld USCIS' ability to interpret significance from 
whether the singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-
2158 (RCL) at *1, *12 (D.C Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 
3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 CF.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). Therefore, even if the 
petitioner were to submit documentary evidence showing that his role and 
Solutions' reputation meet the elements of this regulatory criterion, which not, 
language of the regulation at 8 CF.R. § 204.5(h)(3)(viii) requires evidence of a leading or critical 
role for more than one distinguished organization or establishment. 
In light of the above, the petitioner has not established that he 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. 
In response to the director's RFE, the petitioner submitted his Forms W-2, Wage and Tax 
Statements, reflecting gross pay of 
_ The petitioner also submitted prevailing wage search results from the U.S. Department 
Labor for "Training and Development Managers" and "Sales Managers" in California. 
According to the submitted prevailing wage search results for Training and Development 
Managers, the Level 3 (experienced) wage is _per year and the Level 4 (fully competent) 
wage is _ per year. Further, according to the ~prevailing wage search results 
for Sales Managers, the Level 3 (experienced) wage is _per year and the Level 4 (fully 
competent) wage is _ per year. The preceding Level 3 and Level 4 prevailing wage 
levels are well above the petitioner's yearly gross pay. The petitioner also submitted "National 
Salary Data" from www.payscale.comindicating a pay range of for Sales 
Training Managers and a pay range of Regional Sales Managers. The 
petitioner's yearly gross earnings fall well below the upper pay level of_for Sales 
Training Managers and 7 for Regional Sales Managers. Thus, the preceding information 
from www.pavscale.com and the U.S. Department of Labor fails to demonstrate that the 
petitioner's yearly gross earnings constitute a "high salary or other significantly high remuneration 
for services, in relation to others in the field." [Emphasis added.] The petitioner has failed to 
establish that he has earned a high salary or significantly high remuneration in comparison with 
those performing similar work. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994) 
(considering professional golfer's earnings versus other PGA Tour golfers); see also Grimson v. 
INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other 
NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of 
. ' 
Page 9 
NHL defensive player to salary of other NHL defensemen). Accordingly, the petitioner has not 
established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (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 
antecedent regulatory requirement of three categories of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 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 questions of fact and law. See Solfane 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)(1) of the Act; section 
204(b) of the Act; DRS 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).