dismissed EB-1A Case: Business

, 0 
7'" 
PUBLIC COpy 
DATE: JUN t 5 2012 
IN RE: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Securit)' 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave" N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1l53(b)( I )(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 1-290B, 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. 
Thank you, 
f~ ~ .f'¢r-
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 classitication as an "alien of extraordinary ability" in business, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IlS3(b)(l)(A). The director 
determined the petitioner had not establish,xl the sustained national or international acclaim necessary 
to quality 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.S(h)(3). The implementing regulation at 8 C.F.R § 204.S(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.S(h)(3)(i) through (x). The petitioner 
must submit qualitying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, the AAO 
upholds the director's conclusion that the petitioner has not established the beneficiary's eligibility for 
the exclusive classification sought. 
L LAW 
Section 203(b) ofthe Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall tirst b: made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
Page 3 
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 10151 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.S(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 ach;.evements 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. USCL,), 596 F.3d IllS (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. I 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 112\-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 
antecedent regulatory requirement of three types of evidence. Id. 
1 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.S(h)(3)(iv) and 8 C.F.R. 
§ 204.S(h)(3)(vi). 
Page 4 
IT. ANALYSIS 
A. Prior 0-1 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
beneficiary, the prior approval does not preclude uscrs from denying an immigrant visa petition 
based on a different, if similarly phrased, classification. It must be noted that many I -140 immigrant 
petitions are denied after uscrs approves prior nonimmigrant petitions. See, e.g., Q Data 
Consulting. Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. Sava, 724 F. Supp. 11 03 (E.D.N.Y. 1989). 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 
1084,1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 FJd 
1139 (5th Cir. 2001), cert. denied, 122 S.C!. 51 (2001). 
B. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifYing. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepulveda v. US Atty Gen., 401 FJd 1226. 1228 n. 2 (l1th Cir. 2005), citing United States v. 
Cunningham, 161 FJd 1343, 1344 (11th CiT. 1998); see also Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed 
to raise them on appeal to the AAO). 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
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 orfieldv. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. Id. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which c/msification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. Id. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director concluded that the petitioner submitted qualifying evidence on behalf of the beneficiary 
under 8 C.F.R. § 204.S(h)(3)(v). Based on a review of the record of proceeding, the AAO must 
withdraw the findings of the director for this criterion. While the AAO concurs that the beneficiary'S 
contribution to MEDEX 360m Global Medical Monitor qualifies as an original business-related 
contribution of major signiticance, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires "contributions." Significantly, not ~ll of the criteria at 8 C.F.R. § 204.S(h)(3) are worded in the 
plural. Specifically, the regulations at 8 C.F.R. §§ 204.S(h)(3)(iv) and (ix) only require service on a 
single judging panel or a single high salary. When a regulatory criterion wishes to include the singular 
within the plural, it expressly does so as when it states at 8 C.F.R. § 204.S(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 signiticance from whether the singular or plural is used in a regulation.3 
The burden is on the petitioner to establish that the beneficiary meets every element of this criterion. 
Without documentary evidence demonstrating that the beneficiary has made more than one original 
contribution of major significance in her field, the AAO cannot conclude that the beneficiary meets 
this criterion. As such, the AAO withdraws the finding ofthe director for this criterion. 
3 See Maramjaya v. USClS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26,2008); Snapnames.com 
Inc. v. ChertofJ, 2006 WL 3491005 at *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 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
Page 6 
In light of the above, the petitioner has not submitted qualifYing evidence under 8 C.F.R. 
§ 204.5(h)(3)(v). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director concluded that the petitioner submitted qualifYing evidence on behalf of the beneficiary 
under 8 C.F.R. § 204.5(h)(3)(viii). Based on a review of the record of proceeding, the AAO must 
withdraw the findings of the director for this criterion. While the AAO concurs that the record contains 
sufficient evidence that the beneficiary has performed in a leading or critical role for the petitioner and 
that the petitioner has a distinguished reputation, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) requires the beneficiary to have performed in a leading or critical role for more than 
one organization or establishment with a distinguished reputation, which, as previously discussed, is 
consistent with the statutory requirement for extensive evidence. Section 203(b)(I)(A)(i) of the Act. 
The burden is on the petitioner to establish that the beneficiary meets every element of this criterion. 
Without documentary evidence demonstrating that the beneficiary has performed in a leading or 
critical role for more than one organization or establishment with a distinguished reputation, the 
AAO cannot conclude that the beneficiary meets this criterion. As such, the AAO withdraws the 
finding of the director for this criterion. 
In light of the above, the petitioner has not submitted qualifYing evidence under 8 C.F.R. 
§ 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high remuneration jor 
services, in relation to others in the field 
The director concluded that the petitioner did not submit qualifYing evidence on behalf of the 
beneficiary under 8 C.F.R. § 204.5(h)(3)(ii). On appeal, counsel asserts that "USCIS only looked at the 
salary data" and "the regulation require[s] consideration of the total remuneration." While the AAO 
does not disagree, the petitioner failed to submit qualifYing evidence that the beneficiary's total 
remuneration was significantly high in relation to others in the field. Counsel incorrectly asserts that 
had USCIS "compared the [b]eneficiary's 2010 total remuneration to the 2010 Department of Labor 
data, the results would have shown the [b]eneficiary's total remuneration exceeded every metropolitan 
statistical area at its highest level 4 determination." First, the submitted salary data does not provide 
information regarding total remuneration. Therefore, this is not a meaningful comparison. Second, as 
stated in the director's notice of intent to deny, "U.S. Department of Labor prevailing wage rate 
information alone does not generally establish whether the salary or other remuneration is 
'significantly' higher than that of others in the field." The director also states that, if such prevailing 
wage rate evidence is submitted, "it should be accompanied by other corroborative evidence showing 
that the wage rate is high relative to others working in the field." Third, salary information for those 
performing work in a related, but distinct occupation, with different responsibilities is not a proper 
Page 7 
basis for comparison. Rather, the petitioner must submit documentary evidence of the earnings of 
those in the beneficiary's occupation performing similar work at the top level of the field.4 In this 
instance, the record is void of information regarding the top salaries for other professionals who 
perform similar duties. The duties listed on the provided wage information for Emergency 
Management Specialists are as follows: "Coordinate disaster response or crisis management 
activities, provide disaster preparedness training, and prepare emergency plans and procedures for 
natural (e.g., hurricanes, floods, earthquakes), wartime, or technological (e.g., nuclear power plant 
emergencies, hazardous materials spills) disasters or hostage situations." According to the provided 
duties of the offered position, the beneficiary "directs [i]ntemational [p]rovider relations" and her 
duties include "ongoing assessment of the company's contracts for provider services ... creating and 
reviewing credentialing guidelines for international hospitals, clinics, air ambulance operators and 
international medical consultants ... and maintaining the functionality of the MEDEX 360m Global 
Medical Monitor" for an international medical assistance company. The duties for the provided 
wage are not closely related enough to the beneficiary's duties to constitute evidence that the 
beneficiary's salary or remuneration is high "in relation to others in the field." 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 NHL defensive player to salary of other NHL 
defensemen). 
In light of the above, the petitioner has not submitted qualifYing evidence under 8 C.F.R. 
§ 204.5(h)(3)(ix). 
C. Summary 
As the petitioner did not submit qualifYing evidence on behalf of the beneficiary under at least three 
criteria, the proper conclusion is that the petitioner has failed to satisfY the antecedent regulatory 
requirement of three types of evidence. 
4 While the AAO acknowledges that a district court's decision is not binding precedent, we note that in 
Matter of Racine, 1995 WL 153319 at *4 (N.D. III. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. III. September 9, 
1993), and the definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Page 8 
III. CONCLUSION 
On appeal, counsel asserts that "[i]f USCIS had reviewed the international evaluations, there would 
have been strong evidence that the Beneficiary is at [the] top of her field and has sustained national and 
international acclaim for her achievements in the field." Had the petitioner submitted the requisite 
evidence on behalf of 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 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. 5 
Rather, the proper conclusion is that the petitioner failed to demonstrate that the beneficiary has 
satisfied the antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(l)(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. 
5 The AAO maintains de novo review of all questions of fact and law. See Solfane v. DOJ, 381 FJd at 145. 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)(l)(ii). See also section 103(a)(I) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March I, 2003); 8 C.F.R. § 2.1 (2003); 
8 C.F.R. § 103. I (f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458,460 (BIA 1987) (holding that legacy 
INS, now USClS, is the sole authority with the jurisdiction to decide visa petitions).