dismissed EB-1A Case: Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Admini~trative Appeals Office 
MATTER OF S-D- DATE: DEC. 16,2015 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a foreign language instructor, seeks classification as an individual of "extraordinary 
ability" in education. See § 203(b)(l)(A) of the Immigration and Nationality Act (Act); 8 U.S.C. 
§ 1153(b)(1)(A). The Director, Texas Service Center, denied the petition. The matter is now before 
us on appeal. The appeal will be dismissed. 
The classification the Petitioner seeks makes visas available to foreign nationals who can demonstrate 
extraordinary ability through sustained national or international acclaim and achievements that have 
been recognized in the area of expertise through extensive documentation. The Director determined 
that the Petitioner had not satisfied the initial evidentiary requirements set forth at 8 C.F.R 
§ 204.5(h)(3), which necessitate a one-time achievement or evidence that meets at least three of ten 
regulatory criteria. On appeal, the Petitioner submits a statement. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(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 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. 
Matter of S-D-
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. 8 C.P.R. § 204.5(h)(2). The regulation at 8 C.P.R. 
§ 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained acclaim 
and the recognition of his or her achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). If the Petitioner does not submit this evidence, then he 
must provide sufficient qualifying documentation that meets at least three of the ten categories listed 
at 8 C.P.R. § 204.5(h)(3)(i)- (x). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 201 0) (discussing a two-part review 
where the evidence is first counted and then, if satisfying the required number of criteria, considered 
in the context of a final merits determination). See also Rijal v. USCIS, 772 F.Supp.2d 1339 (W.D. 
Wash. 2011) (affirming our proper application of Kazarian), aff'd, 683 F.3d. 1030 (9th Cir. 2012); 
Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that U.S. Citizenship and 
Immigration Services (USCIS) appropriately applied the two-step review); Matter of Chawathe, 
25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality" and that USCIS examines "each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
The issue at hand is whether the Petitioner has demonstrated extraordinary ability in education. He 
does not rely on a one-time achievement (that is, a major, internationally recognized award), but 
states he has satisfied at least three of the ten criteria listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
According to the Petitioner, he has submitted evidence that meets six ofthese regulatory criteria. On 
appeal, the Petitioner asserts that the Director did not specifically discuss any of his submissions 
other than the reference letters. We will address the entire record below. 
A. Comparable Evidence 
Before addressing the criteria, we note that the Petitioner has made both explicit and implicit 
requests for us to consider certain evidentiary submissions as "comparable evidence." The relevant 
regulation reads: "If the above standards do not readily apply to the beneficiary's occupation, the 
petitioner may submit comparable evidence to establish the beneficiary's eligibility." 8 C.P.R. 
§ 204.5(h)(4) (referring to the ten criteria at 8 C.P.R. § 204.5(h)(3)(i)-(x) as the "above standards"). 
To rely on this provision, the Petitioner must explain why the regulatory criteria are not readily 
applicable to his occupation, as well as how the items provided are "comparable" to the documents 
required at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
On appeal, the Petitioner explicitly requests that we consider a previous Form 1-140 approval as 
comparable evidence. He states as follows: 
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Matter ofS-D-
I believe that, in addition to the submitted evidence, my previously approved 
I-140 (COA: E16 - Alien of extraordinary ability) should serve as additional 
'comparable evidence' as it proves that I had previously established eligibility as an 
alien of extraordinary ability. I have not lost my abilities since. I have continued to 
work successfully in the field of language training. I have not suffered from any 
medical problems that could potentially interfere with my skills or abilities .... 
The Petitioner does not state which criteria do not readily apply to his occupation as a foreign 
language instructor and how the prior approval is comparable to a particular criterion. As a result, 
the Petitioner has not demonstrated that he may rely on 8 C.F.R § 204.5(h)( 4), or that the previous 
Form I-140 approval is comparable to the criteria at 8 C.F.R § 204.5(h)(3)(i)-(x). See USCIS Policy 
Memorandum PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14, 
22, (December 22, 201 0), http://www.uscis.gov/sites/defaultlfiles!USCIS/Laws/Memoranda/i-140-
evidence-pm-6002-005-1.pdf. 
While US CIS previously granted an I -140 visa petition filed by the Petitioner, the prior approval from 
2007 does not preclude us from denying future petitions several years later where eligibility and 
sustained acclaim has not been demonstrated, especially when prior approvals may have been 
erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 
1988). We need not treat errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Furthermore, our authority over the 
service centers, which issued the approval, is comparable to the relationship between a court of appeals 
and a district court. We are not bound to follow an earlier determination made by a service center 
where that initial determination was based on a misapplication of the law. Glara Fashion, Inc. v. 
Holder, 11 CIV. 889 PAE, 2012 WL 352309 *7 (S.D.N.Y. Feb. 3, 2012); Royal Siam v. Chertoff, 484 
F.3d 139, 148 (1st Cir.2007); Tapis Int'l v. INS, 94 F.Supp.2d 172, 177 (D.Mass.2000)) (Dkt.lO); 
Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 F.3d 1139 
(5th Cir. 2001), cert. denied, 534 U.S. 819 (2001). For these reasons, the Petitioner has not 
demonstrated that his previous Form I-140 approval constitutes comparable evidence. We discuss 
his specific reliance on this provision below. 
B. Evidentiary Criteria' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The plain language of this criterion requires evidence showing both 1) that the Petitioner's receipt of 
awards or prizes for excellence in the field of endeavor, and 2) that those prizes or awards are 
1 We have reviewed all of the evidence and will address those criteria the Petitioner asserts that he meets or for which the 
Petitioner has submitted relevant and probative evidence. 
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(b)(6)
Matter ofS-D-
nationally or internationally recognized. The Petitioner does not maintain that he has himself 
received nationally or internationally recognized prizes or awards. Instead, the Petitioner, an 
instructor in the German and English languages, reasons that his accomplishments are apparent from 
the successes of his students. In his request for evidence (RFE) response, he stated: "As a language 
trainer, the quality of my work is not measured in awards I receive but in the accomplishments my 
students make due to the language skills they learn from me." With this explanation, the Petitioner 
suggests that the successes of his students are comparable to his own receipt of lesser nationally or 
internationally recognizes prizes or awards for excellence in the field of endeavor. As noted above, 
however, reliance on 8 C.F.R § 204.5(h)(4) must include an explanation as to why the regulatory 
criteria are not readily applicable, as well how the items provided are "comparable" to the 
documents otherwise required. In this case, the Petitioner does not provide support to demonstrate 
that nationally or internationally recognized awards are not readily applicable in his field. 
In addition, the Petitioner has not established that the documentation provided is comparable to the 
evidence normally required by this criterion. The Petitioner submitted foreign language proficiency 
certifications received by his students from the an organization internationally 
recognized for teaching and evaluating German language ability. Two students, 
and studied with the Petitioner for three and a half months before taking 
and passing the in To satisfy this criterion the awards 
received must be "nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor." The Petitioner asserts that the qualifies as such. Although 
assessments are indeed known worldwide, they are recognized as proof of a given proficiency with 
the German language. As explained by the Petitioner, passing the exams can 
assist non-native speakers in acquiring jobs in Germany or with German companies. It does not 
follow that such certifications represent nationally or internationally recognized awards for 
excellence. 
The Petitioner also indicated that he considers the certifications to be awards for him personally due 
to the accomplishment they represent for him as an instructor. The Petitioner and his references 
assert that the certifications received by the are very prestigious and difficult to 
obtain. However, neither the Petitioner nor his references provide details or other documentation to 
corroborate these statements. Similarly, the Petitioner affirmed that preparing for the normally 
requires· several years of training, but that due to his "accelerated training program, 
merely needed a few months for this achievement." The Petitioner did not provide evidence to 
corroborate the length of time generally required to prepare for certification tests or 
her overall period of German studies. An article in the record reflects that studied 
German for nine years, including a year at preparing for the In addition, 
although the Petitioner compares the three and a half months he worked with Ms. White to the years 
generally required, he does not address the nine years she studied German prior to working with him. 
As a result, the Petitioner has not demonstrated that his students' receipt of the is the equivalent 
of a nationally or internationally recognized award for excellence for him as a teacher. 
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(b)(6)
Matter ofS-D-
In his RFE response, the Petitioner also identified comparable evidence of awards in the form of 
favorable reviews of his instruction from faculty at and the 
Head of the German Section in the Department of Languages at 
discusses the shortage of German teachers with the Petitioner's skills. 
an Instructor of German at the favorably reviewed the 
Petitioner's course as part of an audit of As 
noted above, the Petitioner did not demonstrate that this criterion is not readily applicable to his 
occupation, a necessary prerequisite for relying on comparable evidence. See 8 C.F.R. 
§ 204.5(h)(4). In addition, the Petitioner did not show that these letters are comparable to the 
documentation required by the criterion, which focuses on recognition of excellence in a nationally 
recognized forum. Ultimately, he has not provided sufficient justification for considering the 
opinion of these faculty members as the equivalent of a nationally or internationally recognized 
award for excellence. 
The Petitioner also provided two "Outstanding Achievement Awards" from for his 
foreign language training dated January 4, 2005, and October 21 , 2005. He did not explain, 
however, why the awards were given, nor did he show that they are nationally or internationally 
recognized or otherwise known beyond his employer. As a result, they do not satisfy this criterion. 
For all of the above reasons, the Petitioner has not met the plain language requirements of the 
criterion, nor has he submitted comparable evidence necessary to satisfy this criterion pursuant to 8 
C.F.R. § 204.5(h)(4). 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien 's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The Petitioner maintained he met this criterion by providing an article about his students in 
internal publication , As part of a prior petition, the Petitioner submitted a copy of 
a three sentence article, entitled (TS-F-2) and (TS-11)," 
which includes a picture of the two women and a statement regarding their passing the In 
order to satisfy this criterion, the Petitioner must provide evidence of material published about him 
in a professional or major trade publication or other major media. The Petitioner has not 
demonstrated that internal newsletter qualifies as such. Moreover, the material is not about 
the Petitioner. As a result, the Petitioner has not satisfied the plain language requirements of this 
criterion. 
Evidence of the alien 's participation, either individually or on a pan el, as ajudge of the work of 
others in the same or an allied field of specification for which class(fzcation is sought. 
In his RFE response, the Petitioner maintained he satisfied this criterion by providing the following 
examiner licenses: telc German Bl-B2 , telc German Cl-C2, and telc English Bl-B2. The Petitioner 
asserted that, "[a]s a telc examiner , I judge , evaluate and grade language learners and people who 
want to work as a language teacher for the respective levels." While the Petitioner submitted 
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(b)(6)
Matter ofS-D-
certification that he completed a "telc English B 1-B2" examiner trammg workshop and was 
therefore qualified and licensed to act as an oral examiner, the Petitioner did not document that, once 
licensed, he then judged the work of others. Without confirmation from the entity that used his 
services as an examiner, the Petitioner's blanket statement that he acts as an examiner does not 
constitute evidence of his past participation. Matter ofSojjici , 22 I&N Dec. 158, 165 (Assoc. Comm'r 
1998) (citing Matter ofTreasure Craft ofCal[fornia , 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
Certifications that may allow the Petitioner to judge the work of others in the future do not satisfy 
this requirement. As a result, the Petitioner has not met the plain language of this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the .field. 
In response to the Director's RFE, the Petitioner cited his participation in an event with the German 
President as evidence that satisfies this criterion: 
As one of only 100 Europeans , I was invited to the official 
residence of the German President, m . to talk about the future 
of Europe and to actively contribute to shaping that future. I was in a group of only 6 
people who discussed the importance of language learning for the future of the 
European Union. This was not only a great honor. I was able to speak directly to the 
German President about the relevance and importance of language learning and the 
ideas that were gathered in the course of this special event were then also 
communicated to other politicians in the EU. 
The Petitioner provided a picture of himself with the President and an article from the 
website to corroborate his attendance. The article refers to the Petitioner as an English instructor at 
The record does not confirm that the Petitioner's participation in this event was 
covered beyond his own employer. Regardless, his participation in the event does not, in and of 
itself, indicate a scientific, scholarly, artistic, athletic, or business-related contribution of major 
significance to the field. The plain language of the phrase "contributions of major significance in the 
field" requires evidence of an impact beyond one's employer and clients or customers. See Visinscaia 
v. Beers, 4 F. Supp. 3d 126, 134-35 (D.D.C. 2013) (upholding a finding that a ballroom dancer had not 
met this criterion because she did not demonstrate her impact in the field as a whole). Other than 
emphasizing of the general importance of language learning, the Petitioner has not provided 
specifics regarding his discussions and how his participation in the meeting, or even the meeting 
itself, has already impacted the field as a whole. Discussions themselves cannot be considered a 
contribution of major significance without resulting in an articulable impact. 
The Petitioner also provided numerous letters from former students who speak very highly of his 
talents as a language instructor. Nearly all of those who studied with the Petitioner remark that their 
language abilities improved dramatically as a result of their time with the Petitioner. The letters 
confirm that these students consider the Petitioner a very good teacher. However, this criterion 
requires that the Petitioner has made a contribution of major significance in the field as a whole, 
(b)(6)
Matter ofS-D-
beyond his particular students. !d. Neither the Petitioner nor those who support the petition affirm 
contributions that rise to that level of impact. Furthermore, letters that do not specifically identify 
contributions or provide specific examples of how those contributions influenced the field are 
insufficient. See Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 
1115 (9th Cir. 2010). For these 
reasons, the Petitioner has not provided evidence of a contribution of 
major significant in the field of endeavor, and has not submitted sufficient documentation to satisfy 
this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The Petitioner indicates that he has performed a critical role for several organizations with 
distinguished reputations by performing language instruction for the employees of companies such 
as We agree that these companies are 
organizations with distinguished reputations. However, the Petitioner must also have shown that he 
played a critical role for such an organization
, i.e. one in which he was responsible for the 
company's success or standing. 
In this case, the Petitioner provided several reference letters written by former students who were 
employees of the above mentioned companies. These former students attest to the role the Petitioner 
played in their language learning. The Petitioner stated: "As a language trainer, I was not a direct 
employee but my work did indirectly contribute to the success of these reputable companies . . .. " 
We do not doubt that the Petitioner assisted the students in his classes, which indirectly had a 
positive effect on the organizations for which they worked. However; to have played a critical role 
in the organization as a whole, the Petitioner must demonstrate a much stronger link between his 
actions and an establishment's successes. The companies the Petitioner cited are large multinational 
corporations with decades of history. The role of the Petitioner was as a temporary instructor to a 
small group of the companies' employees. The evidence provided does not establish that the 
Petitioner's role with these companies was critical such that his impact was significant. As a result, 
he has not satisfied this 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 Petitioner must demonstrate that he has commanded a high salary in relation to others in the 
field. The "others in the field" must have performed similar work during the same time period. See 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's 
earnings versus other PGA Tour golfers); see also Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 
1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 
440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen) . 
(b)(6)
Matter ofS-D-
The Petitioner provided his income tax report showing that he was paid 24,506.65 Euros by 
in 2014. The Petitioner also submitted "Invoice Details" from 
his freelance business, for that year. In his RFE response, the Petitioner implies 
all invoices for represent his salary. However, the invoice list provided 
contains no explanations regarding what goods or services the invoices reference. The record does 
not confirm that has no other employees or business expenses such that all of 
the company's gross income represents the Petitioner's salary. In addition, the record does not 
contain an income tax report reflecting income the Petitioner received from 
As a result, we will consider as salary only the income the Petitioner received from 
Moreover, the Petitioner has not established that comparing his 
consulting fees with the annual salaries of language teachers is a meaningful comparison. A print­
out from shows the salaries for language teachers in (the 
German city in which the Petitioner worked) in. 2014/2015. Language teachers earned annual 
salaries of a minimum of 9,480 Euros, an average of 16,452 Euros, and a maximum of 39,216 
Euros.2 The Petitioner's salary of 24,506.65 Euros for the year falls approximately halfway between 
the average and maximum salaries for teachers. An above-average salary is not sufficient to meet 
the plain language requirement of a high salary in relation to others in the field. 
Lastly, the Petitioner provided a "Letter of Intent" from the German company dated 
February 2015 offering him an annual salary of $72,000 to employ him in the company's American 
subsidiary. First, the plain language of the regulation requires that the Petitioner have already 
commanded the high salary or significantly high other remuneration. A future commitment is 
insufficient. The job offer listed the Petitioner's duties as the following: 
-language training of local employees 
-translation of all correspondence and direct project management 
-sales management and direct communication with our customers 
-consulting services for local new hires 
-procurement of parts and services from local suppliers 
-reporting to the management team in Germany 
-acquisition of new potential customers 
-interpretation of services during official business functions 
Although the letter specifically affirmed that the Petitioner will be paid "a significantly higher salary 
than what we would normally pay somebody in a similar position," the record contains no details or 
corroboration of this assertion. The letter did not indicate what would normally pay 
someone in a similar position, nor does the Petitioner provide other objective evidence to show what 
someone in a similar position would normally be paid in the field. We need not accept primarily 
conclusory assertions. 1756, Inc. v. US Att'y Gen., 745 F.Supp. 9, 15 (D.C. Cir. 1990). Without 
data to demonstrate that he has already commanded a salary that is high, the Petitioner has not met 
2 The print-out shows salaries in terms ofmonthly amounts of a minimum 790 Euros, an average of 1,371 Euros, and a 
maximum of 3,268 Euros. These values were multiplied by 12 to determine the annual salaries. 
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Matter ofS-D-
this criterion. For the reasons stated above, the Petitioner has not met the plain language 
requirements of this criterion. 
C. Summary 
The documentation provided does not satisfy at least three criteria, either through their plain 
language meaning or the comparable evidence provision at 8 C.F.R. § 204.5(h)( 4). As a result, the 
Petitioner has not submitted the required initial evidence of either a one-time achievement or at least 
three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must show that the 
individual has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of his or her field of endeavor. Had the Petitioner satisfied at least three 
evidentiary categories, the next step would be a final merits determination that considers all of the 
submissions 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 field of endeavor," and (2) "that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2), (3); see also Kazarian v. USCIS, 596 F.3d 1115, 1119-20 (9th Cir. 2010) (discussing 
a two-part review where the evidence is first counted and then, if satisfying the required number of 
criteria, considered in the context of a final merits determination). Although we need not provide the 
type of final merits determination referenced in Kazarian, a review of the record in the aggregate 
supports a finding that the Petitioner has not established the level of expertise required for the 
classification sought. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. § 291 of the Act, 8 U.S.C. § 1361. Here, the 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-D-, ID# 14856 (AAO Dec. 16, 2015) 
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