dismissed EB-1A Case: Education

(b)(6)
DATE: 
INRE: 
MAR 2 2 2013 
Petitioner: · 
Beneficiary: 
Office: TEXAS SERVICE GENTER 
U.S. Department or 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 
Sei'vices 
PETITION: Inimigrant Petition for Alien Worker as an ~ien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
. ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative ApP,eals Office in your case. All of the documents 
related to this matter have been returned to the office that ori~nally decided your case. Please be advised that 
any further inquiry that you might have concerning your case imust be made to that" office. . 
If ;ou believe the AAO inappropriately applied the law il reaching its decision, or you have additional 
information. that you wish to have considered, you may file ~ motion to reconsider or a motion to reopen in 
accordance with the instructions .on Form I-290B, Notice 9f 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 theAAO. Please be aware that 8 C.F.R. § 10J.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, 
~rtL-
~-~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The . Director, Texas Service Center, denied the employment-based immigrant visa 
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petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks chlssification as an "alien of extraordinary ability" in education, .pursuant to section 
203(b)(1)(A) of the hnmigration and Nationality Act) 8 U.S.C. § 1153(b)(1)(A). The director 
·determined the petitioner had not established the sustained rtational or international acclaim necessary to 
qualify for classification as an alien of exlraordinary abilit~. 
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. I See section 203(b)(1)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim throdgh evidence of a one-time achievement of a 
major, internationally recognized award. Absent the rece;ipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten ~egulatory categories of evidence to establish 
the basic eligibility requirements. 
. . The priority date established by the petition filing date is February 24, 2008. On September 18, 2012, 
. the director served the petitioner with a request for evidbnce (RFE). After receiving the petitioner's 
response to the RFE, the director issued his decision on pctober 24, 2012. On appeal, the petitioner 
submits a statement with additional documentary evidence. For the reasons discussed below, the AAO 
upholds the director 's ultimate determination that the petitioner has not established eligibility for the 
classification sought. 
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 subparagrJphs (A) through (C): · . 
(A) Aliens with extraordinary ability. --An alien il described in this subp~agraph if--
(i) the al~en has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained na~ional 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 I . 
(b)(6)
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(iii) the alien's entry into. the United ·states will substantially benefit prospectively 
the United States. · 
U.S. Citizenship and Immigration Services (USCIS) 
and legacy Immigration and Naturalization Service 
(INS) ·have consistently reco~ed that Congress intenddd to set a: very high standard . for individuals . 
. seeking immigrant visas as aliens of extraordinary abili~y. See H.R. 723 101st Cong., 2d Sess. 59 . . 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 'Fhe 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 iJ the field. Such acclaim must be established 
either through evidence of a one-time achievement (that i~, a major, international recognized award) or 
through the submission of qualifying evidence under at 1least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). . I · . . . 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 Fbd 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the co&! took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criteriob. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that whilel USCIS may have raised legitimate concernS 
about the significance of the evidence subniitted to meet those two criteria, those concerns should have 
I . . 
been raised in a subsequent "final merits determination." /d. at 1121-22. 
· The court stated th;lt the AAO's evliluation rested on J 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 countthe types of evidence providJd (whichthe AAO did)," and ifthe petitioner 
failed to submit sufficient evidence , ''the proper conclusidn is that the applicant has failed to satisfy the 
I . 
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 m~tter, 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 conclusidn is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. · · 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements' beyond those set forth in the regulation~ at 8 C.F.R. § 204.5(h)(3)(iv) and. 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
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II. ANALYSIS 
A E .d . c .I . 2 . vt enttary ntena 
Documentation of the . alien's receipt of lesser natiojally o~ internationally recognized prizes or 
awards for excellence in the field of endeaVor. I 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
satisfy the plain language requirements of the regulation lat 8 C.P.R. § 204.5(h)(3)(i). 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. S,epulveda v. U.S. Atty 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 plaintiff's claims to be abandoned as he failed to raise 
them on appeal to the AAO). Accordingly, the petitioner has not submitted qualifying evidence under 
this criterion. · 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of the~r members, as judged by recognized national 
. or international experts in their ~iplines or fields. I 
The director discussed · the evidence submitted for this criterion and found that the petiJioner failed to 
satisfy the plain language requirements of the regulation !at 8 C.P.R. § 204.5(h)(3)(ii). 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. Sdpulveda 401 F.3d at 1228 n.2; Hristov, 2011 . 
WL 4711885, at *9. Accordingly, the petitioner has nbt .submitted qualifying .evidence under this 
cnteEn~:· .r h 1· ' ·. · · ·. · h . · d·. "d 111· . I · · d .r h k . . r vzuence OJ t e a zen s particzpatzon, ezt er m zvz u? y or on a pane , as a JU ge OJ t e wor OJ 
others in the same or an allied field of specification for which classification is sought. . 
The director determined that the petitioner's evidence mel the requirements of thls criterion. The AAO 
departs from the director's favorable eligibility determmlation related to this criterion. The petition's 
priority date is February 24, 2008. All of the evidenJ associated with this criterion postdates the 
petition's priority date. A petitioner must establish eligiBility at the time of filing; a petition ·cannot be 
approved at a future date after the petitioner beeomes eli~ble under a new set of facts. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, a: petitioner may not make material 
changesto a petition that has already been filed in an e~ort to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
(b)(6)
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Based on this deficiency, the AAO does not ~' . and · withdraws the director's eligibility 
detemiination relating to this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or busine~-related 
contributions of major significance in the field. · 
The methods vary by which a petitioner can be notified of evidentiary requirements. For example, a 
· petitioner is considered to . be on notice through the I specific requiremen~ outlined within the 
regulations, or throug4 various forms of communication fiiom USCI~ to a petitioner or applicant noting 
an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 764, 766 
· (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) ~otified the petitioner of the specific filing 
requirements to demonstrate eligibility under the extraor~inary ability classification. In addition, the 
instructions to the Form 1-140 petition state that the petiti6ner "must attach evidence with [the] petition 
shoWing that the alien has sustained national or intematiopal acclaim" and then lists the ten r~gulatory 
criteria. Finally, the director issued ,an RFE listing all of the regulatory criteria. Therefore, the 
petitioner must claim every criterion that the petitioner wbuld like to be considered in the proceedings 
before the director . . In instances when the petitioner w~s notified of the types of evidence that are · 
required to· demonstrate eligibility and was afforded the opportunity to provide the evidence prior to the 
issuance of an adverse decision, new eligibility claims will not be considered on appeal. See Matter of 
Sorfa~o, ·19 I~N Dec. at ~66. TJI~ petitioner fa.ile? to !provide a st~teme~t with the ~tial ~tition 
notifymg the duector of which cntena she was clannmg or the manner m which the subrmtted evidence 
applied to the different criteria. · Within the petitioner' sl RFE response, she did not daim eligibility 
under this criterion, nor did she identify evidence that the director should consider under this criterion. 
If the petitioner would like for USCIS to consi~r claimJ to additional eligibitity criteria, this must be 
accomplished through the filing of a new petition. See i& at 766. Cf. Matter of Jimenez, 21 I&N Dec. 
567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first time on 
appeal are not properly before the Board of lmmigratiorl Appeals and that the Board will not issue a 
determination on the matter.) Although the AAO maint~ins de novo review of appellate cases and a 
petitioner may supplement the record in regards to prbvious claims, a petitioner may not raise a 
previously unclaimed eligibility criterion on appeal. See Matter of Soriano, 21 I&N Dec. at 766. . 
Furthermore, the evidence the petitioner provides on aJpeal postdates the p~tition's priority date by 
several years. Petitions are not approvable "unless the beheficiary was qualified for preference status at 
the time the petition was filed." See Matter of PazandJh, 19 I&N Dec. 884, 886 (BIA 1989) (citing 
Matter of Atembe, 19 I&N Dec. 427, 429 (BIA 1986); Matter of Drigo, 18 I&N Dec. 223, 224-225 
I . 
(BIA 1982); Matter of Bardouille, 18 I&N Dec. 114, 116 (BIA 1981)); see also Matter of Katigbak, 
14 I&N Dec.at 49. 
As .this criterion was not previously claimed, the petitioner may not assert eligibility for the first time 
within the appell~te proceedings before the AAO. . . , . . . . 
(b)(6)·Page 6 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or o.ther major media. 
The director detennined that the petitioner met the requirements of this criterion. The AAO does not 
affirm the director's favorable detennination as it relates td this criterion for the reasons below. 
The majority of the evidence submitted in response ~o thl director's RFE postdates the petition filing 
date. A petitioner must establish eligibility at the time bf filing; a petition cannot be approved at. a 
future date after the petitioner becomes eligible under ~new set of facts. See Matter ofKatigbak, 
14 I&N Dec. at 49. Therefore, a petitioner may not make 'material changes to a petition that has already 
been filed in an effort to make an apparently deficient pbtition confonn to USCIS requirements. See 
Matter oflzummi, 22 I&N Dec. at 175. 
The three forms of evidence that predate the·petition's pqority date are two books, and the. petitioner's 
published dissertation, which she also classified as a book. published the 
two actual books. The petitioner failed to provide ahy infonnation relating to l 
or either book published under this company'k banner. The record is deficient of evidence 
of sales of either book, which might address whether the bboks constitute afonn of major media. 
! 
Regarding the petitioner's dissertation, the doci.llnent is labeled 
however, the petitioner failed to provide evidence to substantiate this claim. The document itself bears 
no indicia of publication. Therefore, the record contains
1 
no evidence that the petitioner's dissertation 
appeared in a professional or major trade publicationl or other major media as required by the 
regulation. 
Finally, it appea.rS that the petitioner attended at least oae conference prior to the priority date. The 
record, however, contains no evidence that her presentatibn appeared in published proceedings or other 
professional or major trade publications or other major dtedia. Moreover, this presentation is a single 
presentation that cannot satisfy the regUlatory requirerrlent for articles (plural), consistent with the . I . 
statutory requirement for extensive evidence. Section 203(b )(1 )(A)(i) of the Act. 
. I 
Therefore, the AAO withdraws the director's determination that the petitioner's evidence satisfied the 
· plain language requirements of this criterion. · 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases . 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
· satisfy the requirements of this criterion. On appeal, fue petitioner does not contest the director's 
I 
findings for this criterion or offer additional arguments. fbe AAO, therefore, considers this issue to be 
abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under tbik criterion. · . I 
(b)(6)
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Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the ·evidence submitted for this criterion and found that the petitioner failed to 
satisfy the requirements of this criterion. On appeal, tbe petitioner does not contest the director's 
I 
fmdings for.this criterion or offer additional arguments. 1fbe AAO, therefore,.considers this issue to be 
abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under thi~ criterion. 
Evidence that the alien ha~ commanded a high sala,J . dr other significantly high remuneration for 
services, in relation to others in the field. · 
' The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of a "high salary or other significantly high remhneration for services, in relation to others in 
· the [p~titioner ' s] field." Average salary information for tl~ose performing work in a related but distinct 
occupation with different responsibilities is not a propet basis for comparison. The petitioner must 
submit documentary evidenCe of the earnings of those in her occupation performing similar work at the 
top level of the field.3 ·The petitioner must present evidenbe of objective earnings data showing that she 
has earned a "high salary" or "significantly high remune~ation" in comparison with those performing 
I . 
similar work during the same time period. See Matter of !(rice, 20 I&N D~c. 953, 954 (Assoc. Comm'r 
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) (consideruig NHL enforcer's salary versus other NHL 
. I 
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). 
Accompanyin2 the initial petition, the petitioner provided a "general staff contract" re{)orting an agreed 
to salary o as a counselor for the _ This 
is the sole evidence under. this criterion that predates the jpetition filing date. The remaining evidence 
did not exist at the time the petitioner filed the petition and cannot therefore be considered within these 
proceedings. See Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 175. 
On appeal the petitioner provided information from Wild)edia; however, there are no assur~ces about 
the reliability of the content from this open, user-edited i6temet site.4 See Lamilem Badasa v. Michael 
3 While the AAO acknowledges that a district court's decisj is not binding precedent, the AAO notes that in 
Racine_ v. INS, 1995 WL 153319 at *4 (N.D. lll. Feb. 16,-1~95), 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 aHility as a professional hockey player within the 
NHL. This interpretation is consistent with . 
. . the definiiion 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." 
4 Online content from Wikipedia is subject to the following general disclaimer, "WIKIPEDIA MAKES NO 
GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative . encyclopedia, that is, a 
voluntary association of individuals and groups working to dbvelop a common resource of human knowledge. 
The structure of the project allows anyone with an Internet corinection to aJter its content. Please be advised that , 
(b)(6)
PageS 
Mukasey, 540 F.3d 909 (81b Cir. 2008). Furthermore, thi~ evidence relates. to the petitioner's earnings 
after the petition's priority date. A petitioner must establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner be
1
comes eligible under a new set of facts. See 
Matter ofKatigbak, 14 I&N Dec. at 49. 
Therefore, the petitioner has not submitted evidence that meets the plain language· requirements of this 
~~~~ . . 
. · . B. Summary . 
The petitioner has failed to satisfy the antecedent r~gulato~ requirement of three types of evidence~ I . 
III. CONCLUSION 
The documentation submitted in support of a claim of etraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or internatiobal acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor: 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, · in 
accordance with the Kazarian opinion, the next step rould be a final merits . determination that 
considers all of the evidence in the context of whether qr 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 end:a~or" and (2) "that the I alie~ h~ sustained national_ ~r international 
acclaun and that his or her achievements have been recpgmzed m 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 consisterlt with the small percentage at the very top of 
the field or sustained national or international acclaim, ilie AAO need not explain that conclusion in a 
final merits determination. 5 Rather, the proper conclusi9n is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. !d. at 1122. · 
nothing found here has necessarily been reviewed by peoplej with the expertise required to provide you with 
complete, accurate or reliable information. . . . Wikipedia cannot guarantee the validity of the information found 
here. The content of any given article may recently have been phanged, vandalized or altered by someone whose 
opinion does not correspond with the state of knowledge . in the relevant fields. See 
http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, a~ssed on February 26, 2013, a copy of which is 
incorporated into the ·record of proceeding. · I · . · · 
5 The AAO maintains de novo review of all questions of fact and law. See ~oltane v. DOl, 381 F.3d 143, 145 {3d 
Cir. 2004). In any future proceeding, the AAO maintains the j~risdiction to conduct a final merits determination 
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as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of 
the Act; section 204(b) of the Act; DHS Delegation Number 'o150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 119 I&N Dec. 4~8, 460 (BIA 1987) {holding that 
legacy INS, now USCIS, is the sole authority ~ith the jurisdiction to decide visa petitions). · 
(b)(6)
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The petitioner has not established her eligibility pursuant to ·section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Soriano, 19 I&N Deb. 764, 766 (BIA 1988) (citing Matter of 
Brantigan, 11 I&N Dec. 493 (BIA 1966)). Here, thb petitioner has not Sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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