dismissed EB-1A Case: Education

U.S. Department of Homeland Sl~ctlrity 
U.S. Citi7l.~nship and Immigration Serviu.:s 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Ollice: TEXAS SERVICE CENTER FILE: 
NOV 0 3 2 v:,; 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(h)( I )(A) of the Immigration and Nationality Act, 8 U.s.c. * 115J(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Ollice in your case. All of the documents 
related to this matter have heen returned to the office that originally decided your case. Please he 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, 0)' you have additional 
information that you wish to have considered, you may file a motion to reconsider or a mOlion to reopen in 
accordance with the instructions on Form 1-29013, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Plcase be aware that 8 C.F.R. § I03.5(a)(1)(i) requires any motion to he filed within 
30 days of the decision thallhe mol ion seeks to reconsider or reopen. 
Thank you, 
~%-Perry Rhew 
Chief, Administrative Appeals Office 
www.llscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed, 
The petitioner seeks classification as an "alien of extraordinary ability" in education as a middle school 
Chinese language teacher, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the 
Act), 8 U.s.C § 1153(b)(1)(A), The director detennined the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability, 
Congress sct 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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 CF.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, counsel, on behalf of the petitioner, asserts that the director failed to carefully review the 
evidence and asserts that he erred in denying the visa petition. Specifically, counsel maintains that the 
petitioner met the requirements of submitting qualifying evidence under at least three of regulatory 
criteria. Considering the evidence in the aggregate, the petitioner has not established eligibility for the 
benefit sought by a preponderance of the evidence. While several reference lettcrs in the record contain 
assertions that there is a shortage of Chinese language teachers, the issue of whether similarly-trained 
workers are available in the United States is an issue under the jurisdiction of the Department of 
Labor. Matter of Nev.· York Slale Dep'l of Tramp., 22 I&N Dec. 215, 221 (Assoc. Comm'r 1998). 
The AAO will discuss the appropriate legal standard for the classification sought below. 
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 whose achievements have been recognized in the 
field through extensive documentation, 
Page 3 
(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 benetit 
prospectively the United States. 
US Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R, 723 IOlsl Cong" 2d Sess. 59 
(1990); 50 Fed. Reg, 00897, 00898-99 (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. Iii.; 
~ 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). 
In 20W, the US Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2(10). Although the court 
upheld the AAC),s decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion, I With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCiS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "tinal merits determination" Id, at 1121-22. 
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 statcd that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sutlicient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. 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 maUer, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
I Specifically, Ihe court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those sci forth in the regulations at 8 C.ER, § 204.5(h)(3)(iv) and S C.F.R. 
§ 204,S(h)(3)(vi). 
Page 4 
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. ld. 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Pllhlished mataial aholll the alien in professional or major trade publicatio/lS or other major media, 
relating to the alien '.1 work in the field fiJI' which classification is sought. Such evidmce shall 
inc/ud" the title, date, and author of th" material, and any necessary translatioll. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
While the petitioncr originally submitted evidence relating to this criterion with her Form 1-140, thc 
director found that she failed to satisfy the requirements of the regulation, and the petitioner does not 
challenge thc finding on appeal. Consequently, the AAO concludes that the petitioner has abandoned 
her claim regarding this criterion. See Sepulveda v. Us. Aft;' Gen., 401 F.3d 1226, 1228 n. 2 (11th 
Cir.2(05) citing United States v. Cunningham, 161 F.3d 1343, 1344 (11 th Cir. 1998); Hris(ov v. 
Roark, No. 09-CV-273I , 2011 WL 4711885 at *9 (E.D. N.Y. Sept. 30, 2(11). 
El'idence "j'the alien 's participation. either individually or on a panel, as a judgr> of the work of 
others in the same or all allied field of specification for which classification is sougilt. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director determined that the petitioncr failed to satisfy the requirements of this criterion. On appeal, 
counsel, on behalf of the petitioner, suggests that the director failed to properly weigh the evidence 
relating to this criterion. Specifically, counsel states that the director, in making his ultimate decision 
about this criterion, improperly inferred that there was a small pool of qualifying teachers from which to 
select consultants and that he improperly drew a distinction between the term referee and consultant. 
The petitioner initially submitted a letter [rom Senior Vice President of the 
University of Massachusetts. The director in the Request for Evidence (RFE) indicated that the letter 
was not qualifying evidence under 8 C.F.R. § 204.5(h)(3)(iv), because acting as a judge of a high school 
students' speech contest was not judging the work of others in the petitioner's field of endeavor -
teaching and researching or developing methodologies for teaching the Chinese language. The 
petitioner, however, failed to respond to the director's disqualitication of this particular piece of 
evidence in her response to the RFE or on appeal. Therefore, the AAO finds that the petitioner 
abandoned this portion of her claim. See Sepulveda" 401 F.3d at 1228 n. 2; Hristov, 2011 WL 
4711885 at *Y . 
.2 The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
~~~ statements in a November 6, 2011 sUF)portinlg letter written by_ 
part of _ 
[The petitioner] was selected as a consultant for based on her 
international vision, unique expertise, outstanding teaching and researching experience, 
and the great impact her research has on the field of teaching Chinese as the second 
language in the US. [The petitioner] was invited to review and provide suggestions for 
SUllSlzinc Chillese, Series Three and Series Four, which are composed by distinguished 
US and Chinese scholars and educators. Her constructive insight on designing 
manuscripts based on integration of the US National Foreign Language Standards, 
(5Cs), State Level Foreign Language Curriculum, and the curriculum of other 
disciplines has been highly valued and well adopted. 
In his letter, _outlines the qualifications that his organization requires for the selection of a 
reviewer or a consultant, which are identical. The AAO determines that peer reviewing manuscripts 
qualifies as judging. The petitioner, however, initially submitted documents related to her judging of a 
high school language competition as the only evidence under this criterion. In the petitioner's RFE 
response, as noted earlier, the petitioner declined to contest the director's findings that serving as a 
judge for that event failed to satisfy the requirements of this criterion. Instead, the petitioner submitted 
new evidence for the first time by including the N~ 2011 letter from _ that postdates 
the April 12,201 I filing date by several months. _does not state that the petitioner performed 
the duties of a reviewer and/or consultant prior to April 12, 2011. A petitioner must establish eligibility 
at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. 8 CF.R. § 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). 
In light of the discussion above. the AAO aftinns the director's lindings and concludes that the 
petitioner failed to meet the requirements for this criterion. 
Evidence oj the alien's original scientific. scholarly, artistic. athletic. or husiness-related 
co/Uriblllions of major significance in the field. 8 CF.R. § 204.S(h)(3)(v). 
The director found that the petitioner failed to satisfy the requirements set forth at !l CF.R. 
§ 204.S(h)(3)(v). The plain language of the regulation requires both that the petitioner's contributions 
be original and of major significance in the field. The AAO must presume that the word "original" 
and the phrase "major significance" are not superfluous and, thus, that they have some meaning. 
Silverman v. Fastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3fd Cif. 19'!5) quoted in APWU 
v. Potter, 343 F.3d 61,!, 626 (2"d Cif. Sep 15, 20(3). Moreover, the contribution must be a 
contribution "in the lield" rather than simply recognized within a single local jurisdiction. To be 
considered a contribution of major significance in the field of education, it can be expected that the 
Page 6 
petltIoner's methodology would have already been adopted or otherwise int1uential in multiple 
jurisdictions nationally. Otherwise, it is difficult to gauge the impact of the petitioner's work. 
On appeal, counsel asserts that the petitioner is a "pioneer and first scholar" in her lield whose research 
and methodology for teaching Chinese has had a great impact in the field. 
In her letter, asserts generally that the petitioner has already had "a deep impact" on 
teaching Chinese but in support of that assertion writes: 
[The petitioner], as an extraordinary educator, has completed her manuscript about the 
above teaching methods. Her book will be published soon by the largest publishing 
house in China, the International Chinese Publishing Division, Center for International 
Chinese Research and Development, Foreign Language Teaching and Research Press. 
I believe that [the petitioner's] research will contribute to improved teaching and 
\earning of Chinese in the US. [The petitioner'S] unique expertise and her role in the 
field will set a good direction for creating customized Chinese teaching strategies and 
teaching materials for the students in the elementary and secondary students. 
specific comments regarding the petitioner's research discusses the future impact that 
the petitioners work will have in the lield. In addition, because the evidence of the petitioner's research, 
as discussed in the letter, is limited to an as yet unpublished book, the AAO cannot gauge the impact of 
the petitioner's work. A petitioner must establish the elements for the approval of the petition at the 
time of filing. See Maller ofKati!;bak, 14 I&N at 49. 
As for the other letters the petitioner submits to satisfy the requirements of this criterion, the AAO 
agrees with the director that the initial group of letters submitted along with the petitioner's 1-140 
petition, is insufficient contributions of in the field. The 
Nancy 
the petllioner's immediate circle of colleagues in 
the Boston area where she While such letters can be important in providing details about the 
petitioner's role in various projects. they cannot by themselves establish the petitioner's acclaim beyond 
Page 7 
her immediate circle of colleagues. Furthermore, the letters either generally discuss the petitioner's 
educational approach or discuss projects that had an impact in the individual colleague' s work. but do 
not specifically identify contributions that influenced the field. See Kazarian v. USClS, 580 F.3d 1030, 
1036 ('i" Cir. 20(9) a/I'd in pari 596 F.3d IllS (9
th 
Cir. 2010) (finding letters that did not specifically 
identify contributions nor provide specific examples of how those contributions influenced the field 
to be insufficient as major contributions). 
submitted a letter dated March 19,2011 from 
along group 
and subsequently supplemented her documentary providing another letter, dated October 
30,2011, from another reference in response to the director's RFE. The AAO will consider 
and will highlight some of the unique components in each letter. In his March 19,2011 lette 
• writes: 
Due to her pioneering research in teaching methodology, [the petitioner1 was invited by 
the American Council of Teaching the Foreign Languages Annual (ACTFL) Conference 
in \3oston, 2010 to deliver a presentation. ACTFL is the highest level organization for 
foreign language teaching with a great international reputation across more than 30 
countries. Being selected by ACTFL is regarded as the highest recognition for educators. 
At ACTFL, [the petitioner's1 presentation was highly regarded and attracted educators 
and attracted educators and visiting scholars from more than a dozen countries. 
The letter states that she was invited to the 2010 ACTFL conference on the strength of her research. 
The record, however, is devoid of the petitioner's actual research and resulting methodology. The 
record includes the Daily Program from the conference, which shows the petitioner's presentation with 
the title. "Chinese Cultural Instruction Through Multimedia Documentaries." While the program 
annotation and the supplemental slideshow broadly suggest that culture is a part of a language 
curriculum, there is no evidence of the petitioner's original research or that the petitioner presented 
original research as part of the conference. Moreover, selection to present work is indicative of the 
organizers' belief in the potential of the presentation to be of interest in the field. The record contains 
no evidence, however, documenting the application of the petitioner's presentation once disseminated in 
the field at the conference. Thus. the petitioner's mere participation in the 2010 ACTFL conference 
does not qualify as evidence of original contributions of major significance in the field. 
in a letter along with a letter 
Beijing Normal 
University, and the October 30, 2011 letters from discuss that the 
petitioner's teaching methodology uses the "SCs" National Forelgn Language Standard as 
guidelines and integrates state foreign language curriculum with various subjects. 
The Five National Foreign Language Teaching Standards (communication, comparison, connection, 
culture, and community) and the state foreign language curriculum are pre-existing standards, and, as 
the director noted in the denial. while they are a part of the petitioner's teaching strategy, the petitioner 
Page .s 
has not demonstrated that she developed it. Merely using these pre-existing standards do not qualify as 
an original contribution. While a new process of integrating the various standards may constitute an 
original contribution, the petitioner has failed to include evidence that demonstrate how she integrates 
the existing standards into various subject matters in an original way and the influence of that 
integration in the field as a whole. Simply going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. See Maller of'Treasllre 
Crafi ofCalijiJrnia, 14 I&N Dec. 190 (Reg'l Comm'r 1972), broadened in Matter oj'Sojfici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) and Matter of Ho, 22 I&N Dec. 206, 211 (Comm'r 1998). 
at the Foreign Language and 
eac:hirlg Press, states company process the [petitioner's) book" and 
believes that "Ithe petitioner's) research and her book will be the detinitive guide to Chinese teaching, 
and will help the US students achieve higher academic success in language learning." Until actual 
publication and dissemination in the field, the AAO cannot gauge the book's influence. Thus, the AAO 
reiterates that the petitioner's pending book cannot qualify as evidence of an original contribution of 
major significance at the time of filing. See Matter of Katigbak, 14 I&N Dec. at 49. 
The letters considered above primarily contain bare assertions of acclaim and vague claims of 
contributions without specifically identifying contributions and providing specific examples of how 
those contributions rise to a level consistent with major signiticance in the field. Merely repeating the 
language of the statute or regulations does not satisfY the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. V. Sal'''. 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a/I'd, 905 F. 2d 41 (2d. Cif. 1990); Avyr 
Associates, file. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, 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). The petitioner also failed to submit sufficient corroborating evidence in 
existence prior to the preparation of the petitioner, which could have bolstered the weight of the 
reference letters. 
Consequently, the AAO must detennine that the petitioner failed to satisfY the requirements of this 
criterion and aftinn the director's fIndings. 
r,'vidence oj the alien '.\' alllhorship ojscho/arly articles in the field. in projessional or major trade 
puhlicatio/lS or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The director determined that the petitioner's evidence failed to 
t; C.F.R. § 204.5(h)(3)(vi). On appeal, counsel asserts that 
journal. The record reflects that there are several IC",UII 
E:!!J~:!! the 
attests in a her papers on 
an academic Journal of teaching Chinese as a second language. She 
has been using her penname as ... from September 2009 to June 2010. 
Page <) 
As an initial matter, the petitioner has failed to establish 
same publication. And while the editor of states that it is an academic journal, USCIS 
need not rely on the self-promotional material of the publisher. See Braga v. POlllos, No. CY 06 5105 
SJO C.O. CA July 6, 20(7) aII'd 200'1 WL 604888 ('lth Cir. 200'1). Furthermore, the materials in_ 
,1T1Tle<1I to be individual language lessons instead of scholarly articles. In the appeal brief, 
cOlum;cl, on behalf of the petitioner, asserts solely that is an academic journal or a 
professional publication, but does not maintain that the petitioner's work constitutes scholarly articles. 
For all of the reasons discussed, the AAO must conclude that the petitioner failed to meet the 
requirements of the regulation relating to this criterion and affirm the director. 
B. Summary 
The petitioner has failed to submit relevant, probative and credible evidence that qualifies under any of 
the regulatory subparagraphs. 
Ill. 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 Sill all percentage 
who has 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 would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
'"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[irl field of endeavor" and (2) "that the alien has sustained national or international 
aeelaim and that his or her achievements have been recognized in the tield of expertise." 8 C.F.R. 
§§ 204.S(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 aL the very LOp of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination.' Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. [d. at 1122 . 
.l The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2(04). In any fULure proceeding, the AAO maintains the jurisdiction to conducL a final meriLs 
deLerminaLion as the office LhaL made the lasL decision in Lhis maller. 8 C.F.R. § 103.5(a)(I)(ii). See "lso secLion 
103(a)(I) of the AcL: secLion 204(h) of the ACL: DHS Delegation Number 0150.1 (effecLive March 1,20(3); 
8 C.F.R. § 2.1 (2003): H C.F.R. § 103.I(f)(3)(iii) (2003); Matter of Aurelio, 19 I~&-N, Dec. 458, 460 (BIA 
1987) (holding LhaL legacy INS, now USClS, is the sole authority wiLh the jurisdicLion LO decide visa 
peLiLions). 
Page 10 
The petitioner has not established eligibility pursuant to section 203(b)(l)(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. § 13fll. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.