dismissed EB-1A Case: Cardiology

DATE: DEC 0 5 2012 Ollice: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U,S. Citi/cn~hip and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massaehusclls Ave .. N.W., MS 2090 
W<J~hillgt()ll, DC 2()"29-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 2OJ(h)(I)(A) of the Immigration and Nationality Act, H U.S.c. * 1153(h)(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 mailer have heen returned to the office that originally decided your casco Please be advised 
that any further inquiry that you might have concerning your case must he made to thai 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 reop~n in 
accordance with the instruclions on Form 1-290B, Nutice of Appeal or MOlion, with a fc(: of $630. The 
specific requirements for filing such a motion can be found at H C.F.R. § 103.5. Do not lile any motion 
directly with the AAO. Please he aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of (he decision that the motioll seeks to reconsider or reopell. 
Thank you, 
AL/'Z ~ "-',P 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.go\' 
Page 2 
DISCUSSION: The Director, Nebraska 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 the sciences as a cardiology 
fellow, pursuant to section 203(b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.s.C 
* IIS3(b)(1)(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 petitioncr demonstrate the alien's "sustained national or international acclaim" and present 
"cxtensive documentation" of the alien's achievements. See section 203(b)(1 )(A)( i) of the Act and 
8 CF.R. ~ 204.5(h)(3). The implementing regulation at 8 CF.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 CF.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 submits a brief. The AAO notes that although counsel references "supporting 
documentation" in both the cover letter and the appeal, the petitioner did not submit any additional 
evidence. For the reasons discussed below, upon review of the entire record, the AAO upholds the 
director's conclusion that the petitioner has not established the eligibility of the beneficiary for the 
exclusive classification sought. 
l. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
Page J 
(iii) the alien's entry into the United States will substantially bendit 
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. 72", 101'1 Cong., 2d Sess. 59 
(I (90); 56 Fed. Reg. 60~97, 60~9~-99 (Nov. 29, 1991). The term "cxtraordinary 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 ~ 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 threc of the ten categories of evidence 
listed at ~ C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals [or the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this c1assificatioll. Kazariall v. USCIS, 596 F.3d IllS (9th Cir. 20j()). Although the 
court upheld the AAO's dccision to deny the petition, the court took issue with the AA(Ys evaluation 
of evidenec 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." ld. at 1121-22. 
The court stated that the AAO' s evaluation rested on an improper understanding of the n:gulations. 
Instead of parsing the signiticance of evidence as part of the initial inquiry, the court statcd that .. the 
proper procedure is to count the types of evidence provided (which the AAO did)," and ifth', petitioner 
tailed to submit sufficient evidence ... the proper conclusion is that the applicant has failed to satisfy the 
regulatory requiremcnt of three types of evidence (as the AAO concluded)." ld. at 1122 (citing to 
8 c:.F.R. § 204.5(h)(3)). 
Thus, Kazariail 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 hd' failed to satisfy the 
antecedent regulatory requirement of three types of evidence. ld. 
I Specifically, the court stated that the AAO had unilaterally imposed novel suhstantive or evidentiary 
requirements beyonu those set forth in the regulations at S C.F.R. * 204.5(h)(3)(iv) and 8 C.F.R. 
~ 204.S(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria" 
The director concluded that the petitioner had participated as a judge of the work of others pursu;ll1t to tl 
C.F.R. § 204.5(h)(3)(iv) and had authored scholarly articles pursuant to tl C.F.R. § 204.5(h)(3)(vi). The 
director discussed the submitted evidence for the other applicable categories and found that the 
petitioner failed to establish that the evidence was qualifying. On appeal, counsel asserts that the 
petitioner submitted qualifying evidence of nationally or internationally recognized prizes or awards 
pursuant to tl c.F.R. § 204.5(h)(3)(i), membership in associations pursuant to tl C.F.R. 
§ 204.5(h)(3)(ii), original contributions pursuant to 8 C.F.R. § 204.5(h)(3)(v) and high salary pursuant 
to tl C.F.R. § 204.5(h)(3)(ix). Regarding the criteria at 8 C.F.R. § 204.5(h)(3)(i), (ii) and (ix), counsel 
generally repeats previous claims and references previously submitted evidence, without explaining 
why the AAO should find those claims any more persuasive than the director did. In fact, the appellate 
brief is almost identical to counsel's response to the director's request for evidence. Counsel did not 
provide any addi tional evidence or offer any additional arguments identifying any errors of law or fact 
in the director's analysis. 
Regarding the awards criterion, counsel asserts that "a fellowship is an ot1icial and prestIgIOus 
recognition for one's extraordinary abilities and/or achievements in their field." However. counsel does 
not state that the petitioner has ever received a fellowship and none of the awards listed in the record 
are for a fellowship. Regarding the membership criterion. counsel tails to address the director's Ending 
that the record does not contain documentation which shows that outstanding achievements is a 
requirement [or membership. Regarding the high salary criterion, counsel fails to address thc director's 
findings, especially that the ':iob ofler hum Akron General Hospital does not mention your name. does 
not mention an offer, and is not signed by anyone ... [and] is of no evidentiary or legal value." 
Furthermore, the record lacks any evidence that the petitioner "has commanded" a high salary. As 
previously stated. counsel submitted a brief which was almost identical to the response to the director's 
request for evidence and did not provide any additional evidence or offer any additional arguments 
identifying any errors of law or fact in the director's analysis regarding these three criteria. Therefore, 
the AAO considers these claims to be abandoned. See Desravilles v. United Stales Attorney Gen., No. 
08-14861. 343 F. App'x 433. 435 (11th Cir. 2(09) (finding that issues not briefed on appeal arc deemed 
abandoned). 
In light of the above. the only remallllng criterion IS tl C.F.R. * 204.5(h)(3)(v). which will be 
discussed below. 
2 The petitioner does not claim to meet or suhmit evidence relating to the regulatory categories of' evidence 
not discusscu in this uecision. 
Page 5 
Evidence oj the olim '.I' original scientific, scholarly, artistic. athletic, or husine,\s-reiated 
ClJl1Irihllliol1s of major significance in the field. 
In his denial, the director referenced fourteen of the authors of reference lellers the petitioner 
submitted. The director found that "[yjou should be able to show ... how the field has changed as a 
resull of your work beyond the incremental improvements in knowledge and understanding expected 
from valid original research" and that the petitioner's original contributions must have already had an 
impact on the field. "not. .. the potential to do so at some time in the future." 
On appeal, as previously mentioned, counsel generally repeats previous claims and references 
previously submitted evidence. Counsel again asserts that .. the fact" the petitioner's "paper titled 
'Cardiovascular Surgical Outcomes in Patients with the Antiphospholipid Syndrome-A Case-Series." 
"has been cited live times by reputable sources" and was "published in raj reputable 
publicationll .. , is evidence that this article itself is an original scholarly work of major signi fieance in 
the field of Cardiology." Counsel also asserts that this paper "has led to [the petitioner] being 
contacted by InTech publishing to produce a new paper for a chapt~r of their book" with a scheduled 
publication date of November 23. 2011. more than one year after the initial date of filing, Eligibility 
must be established at the time of filing. 8 C.F.R, §§ 103.2(b)(1), (12); Matter o/"Katighak, 14 I&N 
Dec. 45. 49 (Rcg'1 Comm'r 1971), The simple fact that the petitioner's findings have been published 
does not create a presumption that the findings, upon dissemination in the field, impacted the field, or 
are otherwise original contributions of major significance. Furthermore, the regulations contain a 
separate criterion regarding the authorship of scholarly articles. 8 C.F,R. § 204.5(h)(3)(vi). If the 
regulations are to be interpreted with any logic, it must be presumed that the regulation views 
contributions as a separate evidentiary requirement from scholarly articles,] 
On appeal, counsel also expands slightly on five of the previously submitted reference letters, In 
general, the letters focus on the skills the petitioner has attained in his education and training 
positions and his potential to benefit the United States in the future. The petitioner's field, like most 
science. is research-driven, and there would be little point in publishing research that did not add to 
the general pool of knowledge in the field. According to the regulation at 8 C.F.R. § 204,5(h)(3)(v), 
un alien's contrihutions must be not only original but of major significance, The AAO must presume 
that the phrase "major significance" is not superlluous and. thus. that it has some meaning. 
Silverman v. Eastrich Mulliple IIll'estor FUlld, LoP., 51 F. 3d 28, 31 (3'" Cir. 1995) '1lfo/ed ill APWU 
I'. POller, 343 F.3d fl 19, fl2fl (2"d Cir. Sep 15, 20(3), 
To be considered a contribution of major signiticance "in the tield" of science (rather than to a 
specific project), it can be expected that the results would have already been reproduced and 
J Puhlication and presentalions are nnl suilicient evidence under H C.F.R. § 204.5(h)(3)(\") absent evidence 
that they were or "lIlajor signiticance." Kazarian v. USCIS, SRO F.3d 1030, 1036 (9'" CiT. ZOO'!) a/rd il1 parI 
590 F.3d 1115 (9th CiT. 20llJ). In 2010, the Kazarian court reaffirmed its holding thai the AAO did not abuse 
its discretion in finding thai Ihe alien had not demonstrated contrihutions of major significance. 590 F.3d al 
1122. 
Page f> 
confirmed by other experts and applied in their work. Otherwise. it is difficult to gauge the impact 
of the petitioner's \\ork. While some of the letters identify the petitioner's research result:; and 
conclude they are applicable to other work in the field or even constitute contributions to the field. 
no expert explains how other independent researchers are already using the petitioner's results. 
Vague. solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the tJeld are insufficient. Kuzarian 
v. USClS, 580 F.3d 1030, 1036 (9''' Cir. 2009) alj"d in parI 596 F.3d 1115 (9th Cir. 2()]O)4 
Cardiovascular Magnetic Resonance Imaging (MRI) Physicist at Allegheny General 
Hospital, states that the petitioncr "will achieve level 2 training by the end of his tenure here" and 
that "of the physicians that we train at our lab ... about 10% reaehIJ Level 2." _ also states 
that the petitioner is pursuing "a specific Imaging Fellowship," which would allow him to "achieve[] 
Level 3" training in the MRI laboratory. _ also states that a recent study by the petitioner 
"will contributc to the strengthening of the need for flow sensitive MRI." 
Director of the Cardiac MRI Program at Allegheny General Hospital, 
states that the petitioner "proposes to specialize in cardiac imaging." has the "potential to serve an 
important role in this field" and ··recommendls] that a young interested physician ... should be 
encouraged to pursue a career in the field." 
at the University of Leeds, states that "based on an abstrac'·' the 
petitioner submitted to the Society of Cardiovascular Magnetic Resonance, the petitioner was chosen 
to speak at the plenary session at the meeting in France. He further states that the petitioner '·has 
worked on this study for the past two years and is currently working to get it published." 
Cardiology at the Akron General Medical Center, states that the 
on areas such as viability of cardiac muscle" and that "patients with rare 
conditions such as Antiphopholipid Syndrome may benefit from his body of work." 
The letters fail to demonstrate that the petitioner has already had an impact on the field, rather than 
the potential for a future impact. Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b)(I), (12); Matter of Katigbllk, 14 I&N Dec. at 49. The assertions that the petitioner's 
research results are likely to be influential is not adequate to establish that his findings are already 
recognized as major contributions in the field. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
See Matter of Caroll Illternatiollal. 19 I&N Dec. 791. 795 (Comm'r ) (88). However, t'SCIS is 
ultimately responsible for making the tinal dctemlination regarding an alien's eligibility for the benefit 
sought. Id. The submission of Ictters of support from the petitioner's personal contacts is not 
" In 2010. the Kazariall court reiterateJ that the AAO's conclusion that "letters limn physics professors attesting 
to [the alien's] contributions in the field" were insuftleient was "consistent with the relevant regulatory 
language." 596 F.3d at 1122. 
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; see also Matter 0/ V-K-, 24 I&N Dec. SOO, n.2 (BfA 200S). 
Thus, the content orthe writers' statements and how they 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 of original 
contributions of major significance, 
On appeal. as in his response to the director's request for evidence, counsel also 
director's mention of limited citations. [n response, counsel references the leiter !i'om 
who states ,,[ wJhile this kind of work may not be widely cited yet, it is a work in progress and is indeed 
highly appreciated in the imaging community." It is clear from the director's decision that the 
petitioner did not meet this criterion based on the evidence submitted, not simply because of "a very 
small number of citations by other researchers." 
The ten regulatory criteria at S CF.R. § 204.5(h)(3) reflect the statutory demand for "extensive 
documentation" in section 203(h)( I )(A)(i) of the Act. Even when written by independent experts, 
\etters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence of original contributions of major significance. 
[n light of the above, the AAO at1irms the director's decision that the petitioner has 'lot satisfied the 
plain language requirements of the regulation at 8 C.ER. § 204.5(h)(3)(v). 
C Summary 
As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is 
that the petitioner has failed to dcmonstrate that he satisfies the antccedent regulatory requirement of 
three types of cvidence. 
IlL CONCLUSION 
Had the petitioner submitted the requisite evidence under at least thrc,~ evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers al\ of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
"Ievel of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] tield of endeavor" and (2) "that the alien has sustained national or intemational 
acclaim and that his or her achievements have been recognized in the field of expertise." I) c.F.R. 
** 204.5(h)(2) and (3); see also Kazarian, 590 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 determinationS Rather, the proper conclusion is that the petitioner failed to demonstrate 
that he has satisfied the antecedent regulatory requirement of three types of evidence. fd. at 1122. 
5 The AAO maintains de novo review of all questions of fact and law. See SO/lane v. DOl, 3~1 F.3d 143, 145 
Page i) 
The petitioner has not established eligibility pursuant to section 203(b)( I)(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. ti U.s.c. ~ Dnl. Here. the petitioner has not sustained that burden. Accordingly. the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
(3d Cir. 2(04). In any futufe proceeding, the AAO maintains the jurisdiction to CIlnduct a final merits 
determination as the ollice that made the last decision in this malter. H c.r.R. § 103.S(a)(I)(ii). See "lso seetioo 
103(a)(I) of the Act; section 204(h) 01 the Act; DHS Delegation Numher 0150.1 (effective March 1,20(3); K 
c.r.R. § 2.1 (2003); H c.r.R. § 103.1(1)(3)(iii) (20ll3); Malter ofAllrelio, 1<) I&N Dec. 45K 460 (B1A 1987) 
(holding that kgacy INS, now USClS, is the sole authority with the jurisdiction to decide visa petitions).