dismissed EB-1A Case: Education

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rn1. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
SRC 05 085 51357 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
OMfidc- 
f ~dbert P. Wiemann, Chief 
y~dministrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, initially denied the employment-based immigrant 
visa petition for abandonment. Subsequently, the director reopened the matter and issued two new 
requests for additional evidence. The director issued a final notice of denial on January 30,2007. That 
decision 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 education, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined the petitioner had not established that he was coming to the United States to continue 
working in his area of extraordinary ability and would substantially benefit prospectively the United 
States. 
On appeal, the petitioner submits a statement and additional evidence.' For the reasons discussed 
below, we uphold the director's decision insofar as the petitioner's proposed paid employment does not 
appear to be within his originally claimed area of extraordinary ability. Moreover, we must withdraw 
the director's finding that the beneficiary has demonstrated his extraordinary ability as that finding was 
in gross error and is not supported by record. In withdrawing this favorable conclusion, we note that 
the AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. 
U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
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 
1 
 While the petitioner filed the appeal himself and asserts that the denial is based on his attorney's 
misunderstanding of what was being requested by the director, the petitioner does not explicitly state that he 
is no longer represented and does not refer to the attorney as his former attorney. Thus, without evidence that 
the attorney-client relationship has been formally terminated, we consider the petitioner to still be 
represented by the attorney that filed the petition and previous filings relating to that petition. 
 We 
additionally note that the petitioner's general statements regarding the actions of his former attorney are not 
sufficient to establish a claim of ineffective assistance of counsel. See Matter of lozada, 19 I&N Dec. 637 
(BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988). 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
Intention to Continue Working in the Area of Extraordinary Ability 
The regulation at 8 C.F.R. 5 204.5(h)(5) provides: 
No offer of employment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
The petitioner did not complete Part 6 of the Form 1-140 petition relating to the proposed employment. 
The petitioner did, however, list his occupation as "educator" on Part 5 of the petition. Counsel's initial 
brief indicates that the petitioner is seeking classification as an alien of extraordinary ability in 
education. Counsel noted that the petitioner has "nearly twenty (20) years of experience in 
communication and education management for leading industrial groups in Turkey." More 
specifically, counsel stated that the petitioner had "conducted educational programs, and has developed 
corporation communications technologies for large prestigious companies, and has served as an advisor 
to their management and human resources departments." On page 2 of the brief, counsel asserted that 
the petitioner "has nearly 20 years of experience analyzing Turkish and World Media environment as a 
graduate student, researcher and professor." On page 8 of the initial brief, counsel stated: 
Should this petition be approved, [the petitioner] will continue working in his field of 
endeavor and continue to facilitate opportunities for the advancement of the latest in 
communication methods and technology. [The petitioner] has been presented with 
numerous opportunities to continue his important work in the United States, at a number 
of universities, so-called think tanks, businesses and institutions - both in the public and 
private sectors. 
The petitioner submitted evidence that he has taught communications courses, including a course where 
his students produced a radio and television documentary, served as advisor to the Human Resources 
Department of a Turkish company where he "helped the department with developing new programs on 
communication and education management and improving the corporate communication" and served 
as an "academic advisor" to another Turkish company where he studied Television Audience 
Measurement (TAM) systems. 
Finally, the petitioner initially submitted a letter from the School of Journalism and Mass 
Communication at Florida International University inviting the petitioner to perform research at the 
university. The invitation specifies that no financial support will be offered. Rather, the petitioner is 
merely being offered access to the university's library facilities and faculty. 
On October 16, 2006, the director requested that the petitioner submit "at least one of the following" 
documents: copies of any pertinent job offers, copies of any pertinent contracts or a statement detailing 
plans on how the petitioner intends to continue working in the United States. 
In response, the petitioner asserts that his goal is to continue to facilitate opportunities for advancement 
of the latest in communication and information technologies, education planning and management. He 
expressed his confidence that he "will be presented with numerous opportunities to continue [his] work 
in the United States at a number of universities, businesses, institutions and think-tank organizations - 
both in the public and 
an offer from Office 
President 
- 
private sectors." The petitioner further stated that he was seriously considerin 
Orbit. The petitioner submitted a December 18, 2006 letter from dm 
of Office Orbit, offering the petitioner the position of "Education Manager." 
The petitioner's initial tasks are to help education planning, education programming and education 
management on developing the company's education division. The petitioner also submitted Internet 
materials about Office Orbit, which provides innovative and efficient information technology (IT) 
outsourcing solutions. One of the services Office Orbit provides is IT training empowering personnel 
of client companies to quickly become successfbl in using basic computer tools and office software. 
Finally, the petitioner submitted an undated letter from Florida International University inviting the 
petitioner for another unpaid research opportunity in 2007. 
The director noted that the Florida International University position was unpaid and that the letter from 
Office Orbit postdated the filing of the petition. The director ultimately concluded, however, that the 
petitioner had not established that he was coming to the United States to continue work "in the area of 
expertise." 
On appeal, the petitioner asserts that the new employment offers were submitted pursuant to counsel's 
advice, who concluded that the director was seeking assurances of future employment. The petitioner 
asserts that he was working in his field when the petition was filed and notes that Florida International 
University expressed their hope that he would give a presentation in "one or two" of their classes while 
there performing unfunded research. The petitioner submits a 2004 electronic-mail message from the 
Chair of Florida International University's Department of Advertising and Public Relations Department 
advising that if the petitioner is authorized to work in the United States "there is a possibility we could 
ask you to teach one or two courses for us next year." A February 23, 2005 letter from the university 
indicates that the petitioner "participated" in many of the university's regular classroom activities but 
does not suggest that he actually taught a class. Finally, the petitioner submitted a new letter from Mr. 
Iho stated that Office Orbit had already verbally offered the petitioner a position "at the 
end of September 2004." 
We affirm the director's finding that the petitioner has not demonstrated that his affiliation with Florida 
International University is a paid position as an educator with the university. While the petitioner 
appears to have overcome the director's concern that the Office Orbit offer postdates the filing of the 
petition, we cannot conclude that Office Orbit is offering the beneficiary a position in his claimed field 
of extraordinary ability. 
The petitioner's alleged area of extraordinary ability is mass communication education. The evidence 
submitted all relates to his knowledge of radio and television technology. Office Orbit is an IT 
outsourcing provider. The only training it provides is for basic computer tools and office sofiware. 
The record lacks any evidence that it is involved in TAM or other mass communications technology. 
Thus, this position would not be within the petitioner's claimed area of extraordinary ability. 
Extraordinary Ability 
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 
8 C.F.R. § 204.5(h)(2). The specific requirements for supporting documents to establish that an alien 
has sustained national or international acclaim and recognition in his or her field of expertise are set 
forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. It 
should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
The regulation at 8 C.F.R. tj 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualifjr 
as an alien of extraordinary ability. The petitioner has submitted evidence that, he claims, meets the 
following   rite ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards-for excellence in the field of endeavor. 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
The petitioner submitted a certificate affirming his attendance at the 12'~ Film Seminars organized by 
the Turkish Film and Audiovisual Culture Foundation (TURSAK). The petitioner acknowledges that 
this is not an award. Rather, the petitioner relies on an award winning radio documenta 
 he roduced 
with his students at Kocaeli University. The petitioner submitted a letter from Dean of 
the university, who asserts that the university was destroyed in a 1999 earthquake and that the p 
directed his students in an award-winning radio documentary about the earthquake. Dr. 
explains that the documentary received an Aydin Dogan Foundation Award. The petitioner submitted 
Internet materials about the Aydin Dogan Foundation revealing that the foundation issues several 
awards, including a Young Communicators Award. 
The record does not contain the actual award issued by the Aydin Dogan Foundation. The regulation at 
8 C.F.R. tj 103.2(b)(2) provides that the non-existence or other unavailability of required evidence 
creates a presumption of ineligibility. Only where the petitioner documents that both primary and 
secondary evidence are unavailable can he rely on affidavits. The record contains no evidence that the 
Aydin Dogan Foundation Award is either non-existent or otherwise unavailable. Thus, the petitioner 
cannot rely on the letter from the Kocaeli University. 
Without the award itself, we cannot determine if the petitioner is the named recipient of the award. 
Moreover, we cannot determine which award the documentary received. We do note, however, that an 
award limited to students cannot serve to meet this criterion as the most experienced and renowned 
members of the field are excluded from consideration. 
Finally, the award was apparently issued in 2000, five years before the petition was filed. As such, 
without evidence of acclaim more proximate to the date of filing, the award could not serve as evidence 
of sustained acclaim when the petition was filed. 
In light of the above, the petitioner has not submitted the required initial evidence to meet this criterion. 
Documentation of the alien's membership in associations in the field for which classzjication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
Counsel initially asserted that the petitioner is a member of the Turkish Association of Marketing and 
Opinion Researchers, the Informatics Association of Turkey and the Society of Communication 
Researchers. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner submitted no evidence that he 
is a member of either the Informatics Association of Turkey or the Society of Communication 
Researchers. Moreover, according to the materials in the record, the Informatics Association of Turkey 
is open to IT staff and workers, those engaged in research, teaching, writing or publishing in the IT 
arena and those who are responsible for extensive and effective use of IT in their organizations. None 
of these requirements are outstanding. 
The petitioner did, however, submit evidence that he is a member of the Turkish Association of 
Marketing and Opinion Researchers. The petitioner initially submitted Internet materials about the 
association, none of which address the membership requirements. In response to the dirt 
2006 request for additional ev pnrp the vetitioner submitted a letter fiorr 
Coordinator for the association. 
In order to be a member of the association, new members are offered to the "Board of 
Directors" by at least two of the board members (in corporate membership by at least 
three members of the board). Then, the candidate should be approved by all the 
members of the Board to be a member of the Association. 
While this information confirms the process of becoming a member, it does not explain the 
membership requirements themselves. The fact that board members must approve new members does 
not create a presumption that the board only admits those with outstanding achievements. 
In light of the above, the petitioner has not demonstrated that he meets this 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 alliedjield ofspeczjication for which classzjication is sought. 
Initially, counsel asserted that the petitioner has served on various discussion and organization panels. 
As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, I9 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Rarnirez- 
Sanchez, 17 I&N Dec. at 506. 
The regulation at 8 C.F.R. tj 204.5(h)(3)(iv) requires that the alien participate individually or on a panel 
as the judge ofthe work of others in the same or an alliedpeld. Merely serving on a discussion or 
organizational panel that does not involve the judging of the work of other members of the petitioner's 
field is insufficient. 
In light of the above, the petitioner has not submitted any evidence relating to this criterion and even 
counsel's assertions about the petitioner's panel participation do not sufficiently relate to this criterion. 
Evidence of the alien's authorship of scholarly articles in the &Id, in professional or major trade 
publications or other major media. 
The record contains evidence that the petitioner has authored a book, book chapters and articles. While 
the petitioner did not provide certified translations of the titles of these works, counsel asserts that the 
subject matter includes new communication technologies, TAM systems and the development of radio 
and television broadcasting and the Internet in Turkey. 
While the petitioner has submitted evidence relating to this criterion, the evidence submitted must be 
indicative or consistent with national or international acclaim if that statutory standard is to have any 
meaning. The regulation at 8 C.F.R. 5 204.5(h)(3)(vi) requires evidence that the articles were 
published in professional or major trade publications or other major media. The record contains no 
evidence regarding the circulation of the publications that carried the petitioner's articles such that we 
can conclude that they are major media. Moreover, given the emphasis on major media, it can 
reasonably be inferred that books authored by or including chapters by the petitioner must be shown to 
be significant texts. The petitioner did not submit, for instance, the sales data for the books or other 
evidence demonstrating their recognition as authoritative texts in the field such that they can be 
considered a professional publication or major media. 
In light of the above, the petitioner has not demonstrated that he meets this criterion. 
Evidence ofthe display of the alien's work in thejeld at artistic exhibitions or showcases. 
The petitioner relies on his production of an award-winning radio documentary, which was also 
allegedly broadcast on CNN Turk. However, as previously noted, the petitioner has submitted no 
evidence of the actual award. Regardless, the petitioner claims extraordinary ability in the field of 
education. This criterion relates to the visual arts. Thus, this criterion is not applicable to the 
petitioner's field. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
The petitioner submitted a 1998 letter assigning the petitioner to the position of Vice Dean of the 
Department of Radio, Television and Film of the School of Communication at Kocaeli University. The 
petitioner's curriculum vitae reveals that he left this university in 2000, five years before the petition 
was filed. Thus, this position cannot be considered evidence of the petitioner's sustained acclaim at the 
time of filing. 
The petitioner also submitted evidence that he advised private companies in Turkey. 
 Without 
additional information as to how the petitioner's position fits into the companies' hierarchy, such as 
organizational charts, we cannot determine that these roles were either leading or critical. 
In light of the above, the petitioner has not established that he meets this criterion. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as an 
educator to such an extent that he may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the 
petitioner is an experienced educator in the field of mass communications, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field. Therefore, the 
petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
For the above stated reasons, considered both in sum and as separate grounds for denial, 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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.