dismissed EB-1A Case: Crop Science

(b)(6)
DATE: FEB 2 7 2013 
INRE: Petitioner: 
Beneficiar)r: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
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 
Servi<;:es 
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. § ·II53(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 Forni I-290B, Notice of Appeal or Motion, with a fee of $630. The 
speci~c requirements for filing such a motion can be found at 8 C.ER. § 1 03.5. 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, 
. Ron Rosenberg . 
Acting Chief, Administrative Appeals Office 
www ;uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The petitioner filed a motion to reopen and reconsider, which the director dismissed. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § U53(b)(l)(A), as an 
alien of-extraord~!lfY- ability in the sciences. 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 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, counsel asserts'that the petitioner meets the regulatory categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i), (iii), (v), (vi), and (viii). For 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 who_se 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. 
(b)(6)
Page 3 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have oonsistently recognized 
that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10lst 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. /d.; 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). c · 
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, 580 F.3d 1030 (9th Cir. 2009) aff'd in part 
596 F.3d 1115 (9th Ck 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 USC IS may have raise.d legitimate concerns about the significance of the evidence submitted to 
meet those two criteria, those concerns should have been raised in a subsequent "final merits 
determination." /d. at H21-22. 
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 oonclusion 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. 
II. ANALYSIS 
A. Evidentiary Criteria 
This petition, filed on )une 20, 2011, ·seeks to classify the petitioner as an alien with extraordinary 
ability as a crop researcher. The petitioner received.his Ph.D .. in Crop Science from 
in 2009. From May 2009 to February 2011, the petitioner trained as a postdoctoral 
research associate at the Since 
March 2011, the petitioner has been employed as a crop researcher for 
1 Specifically, the court stated that the AAO had wrilaterally 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). 
(b)(6)
Page4 
The petitioner has submitted documentation pertaining ·to the following. categories of evidence 2 . 
under 8 C.P.R.§ 204.5(h)(3). 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted the following: 
.· 
1. 2009 _____________ .. __ froin the College of Agricultural Sciences and 
Natural Resources at 
2. 
3. 
4. 
(2008); 
Department or Plant and Soil Sciences' 
Department of Plant and Soil Sciences' 
:007); 
Department of Plant and Soil Sciences' 
5. Certificate from the Postgraduate College, 
Mexico recognizing the petitioner "for his 
outstanding academic achievements which are fundamental to the development of this 
institution" as a "Research Associate" (2004); . 
. . 
. 6. "Academic Recognition" certificate from the Postgraduate College, 
honoring the petitioner "for his 
acad~mic career, research and outstanding presentation of his [master's] degree 
examination in the Botany Program of the (2003); 
7. "Academic Recognition" certificate from the Postgraduate College, 
congratulating the petitioner for his 
master's thesis (2003); 
8. "Academic Recognition" certificate from the Postgraduate College, 
~ongratulating the petitioner "for grades 
. obtained during his graduate studies in this institution" (2002); 
9. "Distin~ished Researcher" award "for the year 2000" from the Postgraduate College, 
10. "Annual Award for outstanding work in education, research and service during 1992 ... 
3rd Place: Academic Category Research Assistant in the Botany Center" from the 
Postgraduate College, _ _ 
11. A March 13, 2001 letter to the petitioner from the Deputy Director. of 
- . 
stating: "I am pleased to inform you that as a result of its National 
Internet Call for Master Candidates I- January-February 2001, this Council has awarded 
you a scholarship ... for the period beginning January 2001 through December 2002, in 
order for you to pursue 
your Master Degree studies atthe 
Postgraduate College"; 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)
Page5 
12. An April 2005 letter from stating that the petitioner "has been awarded a 
36..:month scholarship to study at ' to "pursue a doCtorate. 
degree in Plant and Soil Science"· ~nd 
13. A July 2008 letter from ' stating that the Council "has extended the term of 
the original scholarship by 8 months· ... so that [the petitioner] may continue his 
doctorate studies in Plant and Soil Science at " 
\ 
Items 1- 10 reflect institutional recognition from the petitioner's alma maters rather than nationally 
or internationally recognized prizes or awards for excellence in the field of endeavor. Regarding 
items 1 - 13, the AAO notes that academic study is not a field of endeavor, but training for a future 
field of endeavor. As such, academic scholarships and student awards cannot be considered prizes 
or awards in the petitioner's field of endeavor. Significantly, this offi~ has held, in a precedent 
decision involving a 
-lesser classification than the one sought in this matter, that academic 
performance, measured by such .criteria as grade point average, is not a specific prior achievement 
that establishes the alien's ability to benefit the natiml.al interest. Matter of New York State Dep 't. of 
Transp., 22 I&N Dec. 215,219, n.6 (Comm'r 1998). Thus, academic performance is certainly-not 
comparable to the awards criterion set forth at 8 C.F.R. § 204.5(h)(3)(i), designed· to demonstrate an 
alien's eligibility for this more exclusive classification. Moreover, competition for university 
scholarships is limited to other students. Experienced researchers in the crop science field do not 
seek such student scholarshins. The netitioner's scholarships represent financial support for his 
graduate studies at ' 
and at the Postgraduate Cqllege in rather 
than nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor. There is no documentary evidence demonstrating that the specific awards received by the 
petitioner were recognized beyond the presenting organizations or his alma maters and are therefore 
commensurate with nationally or internationally recognized prizes or awards for excellence in the 
field. 
With regard to items 11 - 13, the petitioner submitted information from 
regarding its scholarship program stating: 
WHAT IS IT? 
* * * 
HOW TO GET A SCHOLARSHIP FOR GRADUATE STUDIES ABROAD? 
website 
(b)(6)
Page 6 
* * * 
BASIC REQUIREMENTS 
);> Letter of acceptance from the institution where you want to do graduate studies . 
. );> Application duly filled, additional forms and information required in the call 
concerned. 
);> Proof of academic degree or immediately preceding. 
);> Official transcript showing a minimum GP A of 8.0 or equivalent. . 
);> Official document attesting to Mexican citizenship, photo ID and signature 
(Passport, Voter Registration Card) and CURP. 
);> Copies of certificates oflanguage .... 
);> Candidates who are already doing graduate studies, further evidence must be 
submitted for registration for the period courses, if any, qualifications obtained at the· 
time of submitting the. application and a summary of his thesis project supported by 
the assessor. 
);> If you had a previous grant shall deliver a copy of the 
"acknowledgement letter" issued by the under the provisions of 
fellowship, to formalize the grant. 
);> Information on the selected graduate program (date tentative start and end of the 
program, language that is taught, curriculum structure, required and optional 
materials that the applicant has chosen to pursue and information on research). 
);> In the case of doctoral studies, research proposal signed by the applicant, endorsed 
(signed) by a professor at the host institution, with the understanding that this 
professor will serve as the applicant's thesis advisor .... 
);> Three letters of recommendation, made exclusively by t~achers or authorities linked 
to academic performance and/or aspiring professional .... 
);> The rest required by under the terms and terms ·described in the call 
concerned. 
As noted by the director, none of the "BASIC REQUIREMENTS" listed above indicate that 
"excellence in the field of endeavor" is a requirement for receiving a scholarship from the 
1rogram. Further, the self-serving nature of the information submitted from the 
own website fails to demonstrate that the Council's scholarships are nationally or 
internationally recognized awards for excellence in the field of endeavor. USCIS 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 (9th 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 major media). Moreover, a 
scholarShip funding program may be available to student applicants from throughout a particular 
country, but this factor alone is not adequate to establish that the petitioner's scholarships are 
"nationally or internationally recognized prizes or awards for excellence in the field of endeavor.". 
The AAO again notes that competition for the petitioner's scholarships was limited to 
other students. Experienced research scientists who have long smce completed their graduate 
studies do not seek or compete for such scholarships. Despite the director's request for evidence. 
the petitioner failed to submit any supporting documentary evidence showing that hi~ 
scholarship grants are nationally or internationally recognized awards for excellence in the field· of 
endeavor. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that 
(b)(6)
Page7 
the petitioner's awards be nationally or internationally recognized in the fi<?ld of endeavor and it is his 
burden to establish every element of this criterion. In this instance, there is no documentary evidence 
demonstrating that the petitioner's specific scholarship grants were recognized beyond 
the Council or his universities and therefore commensurate with nationally or internationally 
recognized prizes or awards for excellence in the field. 
In light of the abdve, the petitioner has not established that h~ meets this regulatory criterion. 
Documentation of the alien's membership ·in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed 
to establish his eligibility. 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. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, 
the petitioner has not established that he meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien~ work in the field for which classification is sought. 
Such . evidence shall include the title, date, and author of the material, and any 
necessary translation. . 
In general, in order for published material to meet this criterion, it must be about the petitioner and, as 
stated. in the regulations, be printed iii profe~sional or major trade publications or other major media. 
Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify. 
as major media because of significant national distribution, unlike small local community papers. 
The petitioner submitted copies of numerous articles (including journal articles, ·book chapters, and 
dissertations) that cite to his work. Articles which cite to the petitioner's work are primarily about the 
authors' own work or recent trends in the field, and are not about the petitioner or even his work. The 
plain language of the regulation at 8 .C.F.~. § 204.5(h)(3)(iii) requires that the published material be 
"about the alien ... relating to the alien's work in the field." Thus, an article that briefly mentions the 
petitioner but is "about" someone or something else cannot qualify under the plain language of this 
regulation. See Noroozi v. Napolitano, 11 CV 8333 .PAE, 2012 WL 5510934 at *1, *9 (S.D.N.Y. 
Nov. 14, 2012); also see generally Negro~Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles about a show or a character within a show are not 
about the performer). It. cannot be credibly asserted that the submitted articles are "about" the 
petitioner. The submitted artiCles do not discuss the petitioner's standing in the field or any other 
informatio·n so as to be considered published material about him as required by this regulatory 
criterion. Moreover, the AAO notes that the submitted articles similarly referenced numerous other 
~uthors. The materiat citing to the petitioner's work is more relevant to the category of evidence at 
8 C.F.R. § 204.5(h)(3)(v) and will be addressed there. 
(b)(6)
Page 8 
In light of the above, the petitioner has not established tha,t he meets this regulatory criterion. 
Evidence of the alien 's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of specification for which classification is 
sought. 
The netitioner submitted evidence showing that he served as a member of the editorial board· for 
The petitioner also submitted evidence showing that he 'set:Ved as a 
peer reviewer for and as a technical editor for 
, and. _ 
Accordingly, the AAO affirms the director's finding that the petitioner's evidence meets 
this regulatory criterion. 
Evidence. of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions ofmajor significance in the field. 
In the director's decision, he determined that the petitioner failed to establish 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 scientific or scholarly-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 (3rd Cir. 
1995) quoted inAPwUv. Potter, 343 F.3d 619,626 (2"d Cir: Sep 15, 2<!03). 
The petitioner submitted various letters of support discussing his work. Dr. 
Cropping Systems Specialist and Assistant Professor, states: 
[The petitioner] worked in my group from May 2009 to February 2011 as a Postdoctoral 
Research Scientist at the after he completed his doctoral degree from 
the 
During his tenure in my laboratory, [the petitioner] made significant breakthroughs in his 
research projects. . . . The ultimate benefit of his work was the development of new 
techniques that helped U.S. farmers reduce fertilizer and inputs and protect the environment. 
Dr. comments that the petitioner "made significant breakthroughs in his research projects" 
and developed "new techniques that helped U.S. farmers reduce fertilizer and inputs and protect the 
environment," but Dr. fails to provide specific examples of how the petitioner's original 
techniques have been utilized throughout the farming industry or otherwise constitute original 
scientific contributions of major significance in the field. USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 
(D.C. Dist. 1990). 
Dr. continues: :. 
(b)(6)
Page9 
[The petitioner] led and conducted research projects in my program in primary crops of 
Arizona. He employed remote sensing approaches for the crop yield evaluation in· cotton, 
durum wheat, and vegetables under diverse nitrogen levels and growth conditions. [The 
petitioner] has high kno.wledge in the use of specialized equipment for the measurement of 
spectral indices for evaluating crop growth and yield. As an example, he proposed the use of 
spectral indices to improve grain protein in durum wheat grain, which is one of the most 
inajor crops in Arizqna. The protein content in grain is an important issue because farmers 
can receive higher premiums at harvesting. If farmers can increase protein content in grains 
with optimized nitrogen rates, then they can obtain high premiums with low nitrogen input. 
Additionally, [the petitioner] employed the use of spectral indices for evaluating cotton 
under diverse nitrogen levels for improving N fertilizer management. Another important 
contribution by [the petitioner] was the use of overhead images (visible and infrared) to 
evaluate crop growth in diverse vegetables (i.e., lettuce, broccoli, and carrot) qy varying 
planting dates and combine this information with agronomic management and predict the · 
crop harvest time by employing crop modeling. 'The information from his research will 
·improve farmer's profitability significantly. 
[The petitioner] has published more than 20 journal papers in national and international 
recognized journals. ·. 
* * * 
[The petitioner] has also been invited to present his research at international meetings in 
agronomy and agricultural sciences. His presentations brought attention and generated 
plenty of interests from other scientists. His discussion and information exchange has helped 
his peers in the remote sensing research area. 
Dr. asserts that the petitioner "employed remote sensing approaches for the crop yield 
evaluation in cotton, durum wheat, and vegetables under diverse nitrogen levels and growth 
conditions" and that the petitioner "has high knowledge in the use of specialized equipment for the 
measurement of spectral indices for evaluating crop growth and yield:"· Assuming the petitioner's 
research skills are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. The issue ofwhether similarly-trained workers are available in the U.S. 
is an issue 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). Further, while Dr.. indicates that the petitioner "proposed the use 
of spectral indices to improve grain protein in durum wheat grain" and used "overhead images 
(visible and infrared) to evaluate crop growth in diverse vegetables," Dr. ' fails to provide any 
additional infomiation or examples to show how the petitioner's specific research findings have 
actually been applied by others throughout his field, so as to demonstrate that his original 
contributions have been of"major significance." 
Dr. also comme~ts on the petitioner's iesearchpresentations at international meetings. The 
AAO notes that practitioners in many professional fields regularly hold meetings and symposia to 
present new work,. discuss new findings, and to network with other professionals. These 
conferences are promoted and sponsored by professional ·associations, businesses, educational 
(b)(6)
Page 10 
institutions, and government agencies. Participation in such events does not equate to original 
· contributions of major significance in the field. There is no documentary evidence showing that 
.any of the petitioner's specific conference presentations are frequently cited by other research 
scientists, have significantly impacted the field, or otherwise rise to the level of contributions of 
major significance in the field. While presentation of the petitioner's work demonstrates that his 
I 
findings were shared with others and may be acknowledged as original contributions based on their 
selection for presentation, the AAO is not persuaded that presentations of the petitioner's work at 
various scientific meetings are sufficient evidence establishing that ·his work is of "major 
significance" to the f.ield as a whole and not limited to· the engagements in which his work was 
presented. The petitioner has failed to establish, for example, the impact or influence of his 
presentations beyond those in attendance so as to establish that his work was of major significance 
to the field. · 
Dr. I Professor -
states: 
Department of Plant and Soil Sciences, 
My career includes more than 18 years with 
and 23 years with 
* * * 
' . 
The first time I met [the petitioner] was in 2005 when he initiated his doctoral studies under 
my supervision. Before he started studying at [the petitioner] 
played a pivotal role in evaluating wheat lines with higher grain yield for hot-irrigated and 
water stressed environments in a collaborative research project between a 
by using physiological approaches .... 
* * * 
[The petitioner's] dissertation was based on the use of water spectral indices for selecting 
I 
high yielding wheat lines for well-irrigated, water stress, and hot environments. . . . [The 
petitioner's] research demonstrated the use of water indices to identify and select high 
yielding wheat lines under optimal growth conditions (well irrigated) and under adverse 
conditions (drought and high temperature). He clearly demonstrated that the water indices 
could be used to select high yielding wheat lines under· a wide array of en':'ironmental 
conditions. These results potentially will have a high impact in wheat breeding programs 
around the world because thousand [sic] of l~nes can be evaluated quickly and accurately by 
using the water indices as an indirect selection tool by the breeders. 
Dr. asserts that the petitioner's "results potentially will have a high impact in wheat breeding 
programs around the world" (emphasis added), but Dr. does not provide specific examples of 
how the petitioner's research findings have already had a major influence on the field as of the date 
of filing. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Matter oflzummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, ·18 I&N Dec. 
(b)(6)
Page 11 · 
114 (BIA 1981 ), that USC IS cannot "consider facts that come into being only subsequent to the 
filing of a petition." !d. at 176. The documentation submitted by the petitioner does not show that 
his results have already been effectively applied in wheat breeding programs throughout the field, 
that his dissertation results were heavily cited by independent researchers,. or that his findings 
otherwise equated to original scientific contributions of major significance in the field at the time of 
fiiing. While the petitioner's Ph.D. research is no doubt of value, it can be argued that any research 
must be shown to be original and present some benefit if it is to receive funding and attention from 
the scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication,. presentation, or funding, must offer new and useful information. to the 
existing pool of knowledge. It does not follow that every scientist who performs original research 
that adds to the general pool of knowledge has inherently made a contribution of "major 
significance" to the field as a whole. 
Dr. further states: 
Subsequent to his graduation, [the petitioner] has published his results on the use of spectral 
indices to select for increased yield in wheat in. various publications, including a paper in 
(2010). In this paper, [the petitioner] demonstrated the high 
* * * 
A second paper was published in the 
. . regarding the association of 
r [The petitioner] has published more than 20 scientific papers in numerous internationally 
recognized journals . . . . I would also like to point out that his published works have been: 
extensively cited in professional journals by many research scientists from around the world. 
With regard to Dr. and Dr. comments regarding the petitioner's published and 
presented work, the regulations contain a separate criterion regarding the authorship of scholarly · 
articles. 8 C.F.R. § 204.5(h)(3)(vi). The AAO will not presume that evidence relating to or even 
meeting the scholarly article.s criterion is presumptive evidence that the petitioner also meets this 
criterion. The regulatory criteria are separate and distinct from one another. Because separate 
criteria exist for authorship of scholarly articles and original contributions ofmajor significance, 
USCIS clearly does not view the two as being interchangeable. To hold otherwise would render · 
meaningless the statutory requirement for extensive evidence or the regulatory requirement that a 
petitioner meet at least three separate criteria. Publications ahd presentations are not sufficient 
evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence that they were of "major significance." 
Kazarian v. USC/S, 580 F.3d at 1036. In 2010, the Kazarian court reaffirmed its holding that the 
AAO did. not abuse its discretion in finding that the alien had not demonstrated contributions of major 
significance. 596 F.3d at 1122. Thus, there is no presumption that every published article or 
conference presentation is a contribution of major significance; rather, the petitioner must document 
the actual impact of his article or presentation. 
(b)(6)
Page 12 
In response to the director's request for evidence, the petitioner submitted citation evidence reflecting 
an aggregate of 97 cites to twelve of his published articles. Twenty three of the submitted citations 
are self-cites by the petitioner or his coauthors. Self-citation is a normal, expected practice. Self-
. citation cannot, however, demonstrate the response of independent researchers. The AAO notes that 
the number of independent citations per article is minimal to moderate. For instance,. the submitted 
documentation reflects that none ()fthe petitioner's articles was independently cited to more than 33 
times. Specifically: 
1. 
2. 
3. 
4 .. 
5. 
6. 
7. 
was independently cited to twice (plus · 
one self-citation by the petitioner); 
- - .. .... 
independently cited to twice (plus tWo self-citations by the petitioner); 
------,----- _ was independently cited to 
once; 
independently cited to twice; 
- - ~ ... -
independently cited to once (plus one self-citation by the petitioner); 
was independently cited to once (plus one self-citation by the 
petitioner); 
wa~ independently cited to twelve times (plus four self-citation~ 
by the petitioner and his coauthors); 
8. ' 
9. 
was independently cited to twice (plus one self-citation by the 
petitioner's coauthor); 
was self-cited by the petitioner's coauthor twice; 
(b)(6)
Page 13 
1( 
was independently .cited to 33 times (plus nine. 
-self-citations by the petitioner and his coauthors); 
11. 
12. 
was independently cited to 13 times (plus 
twp self-citations by the petitioner and his coauthor); and 
was independently cited to five times. 
-Merely submitting documentation reflecting that the petitioner's work has been cited by others in 
their published work is insufficient to establish eligibility for this criterion without documentary 
evidence reflecting that the petitioner's work ,has been of "major significance in the field." 
Generally, the number of citations is reflective of the petitioner's original findings and that the field 
has taken some int(;(rest to the petitioner's work. However, it is not an automatic indicator that the 
petitioner's work has been of major significance in the field. The petitioner has not established that 
the minimal to moderate nu~ber of independent cites per article for his published work is indicative 
of original scientific contributions of major significance in the field. 
Dr. 1 Principal Scientist and Head of ' Mexico, 
supervised the netitioner's work at the and coauthored multiple research 
articles with the 
petitioner. Dr. states: 
[The· petitioner] has been a leader in crop physiology, having publishing 23 scientific 
articles in various international peer-reviewed journals, including 9 artiCles related to remote 
sensing during the last ten years. The experience and knowledge accumulated during his 
years working in 
remote sensing (Master Studies and previous research projects) permitted 
[the petitioner] to propose a new to detect drought resistance at the 
genetic level among wheat lines under adverse growth .conditions. . . . [The petitioner] 
conducted research over three years (2006, 2007, .and 2008) to demonstrate that the 
is associated with five physiological mechanisms related to plant water status - which 
are traditionally measured using expensive and time consuming methods - to evaluate th~ 
genetic link between drought resistance and yield. [The petitioner] ·demonstrated that by 
using the it is possible to make direct inferences about these five plant 
mechanisms. The index gives breeders and crop physiologists the option to dispense with 
using the more complex protocols to evaluate water relations in plants. [The petitioner] also 
demonstrated that in a relatively short time (2-3 ·hours) hundreds of wheat genotypes can be 
evaluated for the making it applicable on a large scale under field conditions or 
in high throughp_ut phenotyping facilities. These results are of significant value to crop 
scientists worldWide because thousands of lines are evaluated each year by breeders in 
research centers such as ·Characterizing potential wheat lines with better yield 
potential for adverse environments is challenging while the is a way to increase the 
efficiency in selection and therefore speed up the development of new cultivars. 
Additionally~ [the petitioner's] results have important implications for making rapid 
irrigation decisions in season, therefore avoiding yield losses of crops. The can 
(b)(6)
Page 14 
also be applied to other cereals (i.e., barley and com) and comrrion crops (i.e., soybean and 
cotton). rThe netitiorierl nublished these excentional results in a nrestillious neer review 
Immediately, after its publication, distinguished scientists from other countries . . 
have cited [the petitioner's] findings during 2011 ... 
According to the citation evidence ·submitted by the petitioner. the article in 
that the petitioner coauthored with Dr. and Dr. has been 
independently cited to only twice since its publication in 2010. Moreover, one of the two 
independent citations submitted by the petitioner is from an article published on September 2, 2011. 
As previously discussed, eligibility must be established at the time of filing. 8 C.P.R. 
§§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a·new set of facts. Matter of Izummi, 22 I&N 
Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that 
USC IS cannot "consider facts that coine into being only subsequent to the filing ·of a petition." !d. 
at 176. Regardless, the minimal number of independent cites to the petitioner's article in 
fails to demonstrate that his work was of major significance to his field. 
Moreover, Dr. _ does not provide specific examples of how -the 
proposed by himself and the petitioner has significantly impacted the field at large or otherwise 
equates to an original contribution of major significance in the field. The petitioner's field, like 
most science, is research-driven, and there would be little point in publishing or presenti-ng research 
that did not add to the general pool of knowledge in the field. According to the regulation at 
8 C.P.R. § 204.5(h)(3)(v), an alien's contributions must be not only original but of "major 
significance" in the field. To be considered a contribution of major significance in the field of 
science, it can be expected that the petitioner's results would have. already been reproduced and 
confirmed by independent experts and applied in their work. Otherwise, it is difficult to gauge the 
impact of the petitioner's work. 
Dr. continues: 
The findings made by [the petitioner] motivated. me to write a proposal in 2010 to employ 
the · for the evaluation of genetic resources at Each year, 
selects wheat lines which are distributed to national wheat programs worldwide. The 
primary goal is the distribution of over 1,000 new advanced breeding lines annually to 
developing countries to increase grain yield under a range of conditions including drought. I 
am in charge of evaluating thousands qf genetic resources using the described 
by [the petitioner] for the season Every promising line delivered 
by ha.S the potential to increase grain yield in different regions worldwide. 
Furthermore, I am in close interaction with Dr. from the 
:wheat breeder) who is working to develop a portable sensor specifically for the 
described by [the petitioner]. . -
Dr. comments that the developed by himself and the oetitioner is being 
utilized for the evaluation of genetic resources at the but Dr. does not provide 
specific examples of how their has been successfully utilized by breeders and crop -
physiologists outside of the or how the petitioner's otherwise equates to an 
original contribution of major· significance in the field. While the petitioner has contributed to 
(b)(6)
Page 15 · 
various research projects, there is no documentary evidence demonstrating that his 
specific findings are recognized beyond those who have worked for the such that his 
original work constitutes a scientific contribution of major significance in the field. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires that the contributions be "of major 
significance in the fi~ld" rather than primarily limited to a single research institution and its 
collaborative partners. 
Dr. , Research Management Officer. Peru, states 
that he 
previously worked at the Dr. further states: 
I met [the petitioner] in Mexico when he was conductinll ex"eriments for his doctoral 
studies from 2006 to 2008 under Dr. supervision in the 
- -
by its Spanish meaning). 
* * * 
[The petitioner] was an exceptional doctoral student working· with enthusiasm and 
dedication in collecting and analyzing data, reporting results. and oublishinll scientific 
papers. After completing his doctoral studies at the [the 
petitioner] has demonstrated to be a leader in remote sensing and crop physiology by 
publishing more than 20 scientific articles in various prestigious international peer-reviewed 
ioumals such as 
Additionally, [the petitioner] has thrived in his career by working as a researcher in public 
. centers (i.e., Postgraduate College in \) and 
most recently in the private sector ( 
In particular, the article published by [the petitioner] in the. 
1as had Important tmphcatlons m plant 
breeding and crop physiology where a spectral was employed to detect genetic 
differences for drought resistance among whe.at lines. These results are of significant value 
to crop scientists worldwide because thousands of l~nes can be characterized with this index 
for high yield. Plant breeders are looking for new strategies to increase the selection of 
lines/genotypes with high yield, especially for adverse growth conditions such as drought. 
This has the potential. to be applied on a large scale under field conditions or in 
high throughput phenotyping facilities. 
Dr; mentions the petitioner's articles in 
but the citation evidence submitted by the petitioner fails to 
demonstrate that his published findings in these journals have been heavily cited or were otherW-ise 
of major significance to the field. In addition, Dr. asserts that the petitioner's "results 
are of significant value to crop scientists worldwide" and that the petitioner's' has the 
potential to be applied on a large scale under field conditions or in high throughput phenotyping 
facilities" (emphasis added), but Dr. does not provide specific examples of independent 
crop scientists who have utilized the petitioner's results or of "large scale" application of the 
(b)(6)
. Page 16 
petitioner's by plant breeders as of the date of filing the petition .. As previously 
discussed, eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter 
of Katigbak, 14 I&N Dec. at 49. A petitioner cannot fiie a petition under this classification based 
solely on the expectation of future eligibility. !d. 
The AAO notes that the above letters are all from the petitioner's former colleagues and 
supervisors. While such letters are important ·in· providing details about the petitioner's role in 
various research projects, they cannot by themselves establish the impact of his work beyond his 
immediate circle of colleagues. Vague, solicited letters from local. colleagues that do not specifically 
identify contributions or provide specific examples of how those contributions influenced the field 
are insufficient. Kazarian, 580 F.3d at 1036. In 2010, the Kazarian court reiterated that the AAO's 
conclusion that "letters from physics professors attesting to [the alien's] contributions in the field" were 
insufficient was ''consistent with the relevant regulatory-language." 596 F.3d at 1122. 
Furthermore~ 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). USCIS is, 
however, 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; USC IS 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 that expert opinion testimony does not purport to be evidence as to "fact"). 
Thus, the content of the references' statements and how they became aware of the 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 crop researcher who has made original contributions of major 
significance in the field. Without additional, specific evidence showing that the petitioner's 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. · · J · ' 
Evidence ofthe alien's authorship of scholarly articles in the field, in profossional or 
major trade publications or other major media. 
j 
The petitioner has documented his authorship ofscholarly articles and, thus, has submitted qualifying 
evidence pursuant to 8 C.F.R. § 204.5(h)(3)(vi). AccOrdingly, the AAO affirms the director's finding 
that the petitioner's evidence meets this regulatory criterion. · 
. Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitionet submitted documentation from _ ~ . indicating that he started 
receiving a yearly salary of $75,000 in the first quarter of 2011. The· petitioner also submitted 
"prevailing wage" search results from the Foreign Labor Certification Data Center Online Wage 
Library for "Soil and Plant Scientists" in the Florida metropolitan statistical 
(b)(6)Page 17 
ar~a. 3 According to the submitted search results, the Level 4 (fully competent) prevailing wage for 
Soil and Plant Scientists in the preceding Florida locality is $63,066 per year. The petitioner, 
however, must submit evidence showing that he has earned a high salary or other significantly high 
remuneration relative to others in the field, riot simply a salary that is above the amount paid to the 
majority or'fully competent workers in Florida. 4 The petitioner's reliance on 
the wage amount paid to the majority of fully competent Soil and Plant Scientists in a single Florida 
county is not an appropriate basis for comparison in demonstrating that his earnings constitute a 
"high salary or other significantly high remuneration for services, in relation to others in the field." 
[Emphasis added.] See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering 
professional golfer's earnings versus other PGA Tour golfers); see also Skokos v. U.S. Dept. of 
, Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding average salary information for 
those performing lesser duties is not a comparison to others in the field); Grimson v. INS, 934 F. 
Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); 
Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary ofNHL 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.P.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 has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. I d. at 1122. . 
3 A "prevailing wage" is defined as "trade. and public work wages paid to the majority of workers in a specific area." 
See http://www.businessdictionarv.com/definition/prevailing-wage.html, accessed on January 30, 2013, copy 
incorporated into the record of proceeding. 
4 The . Florida Metropolitan Statistical Area is coextensive witl:). Florida. 
5 The AAO maintains de novo review of all questions of fact and law. See So/tane v. DOJ, 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)(l)(ii). See also section 103(a)(l) of the Act; section 204(b) of 
(b)(6)
·· .---------, 
Page 18 
The petitioner has not established eligibility purSuant to section 203(b)(1)(A) of the Ac~ and the 
petition may not be approved. 
·The burden of proof in visa petition proceedmgs 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. 
the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.l(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).