dismissed EB-1A Case: End Of Life Choices Education

identifYIng data deJeted to 
prev~11t clc:,:_; J:lwarranted 
InVaSIOn ofper~onal . pnv'lC\ 
PUBUCCOPY 
DATEJAN 1 1 2012 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Sccurit~; 
U.S. Cilizenship and immigration Services 
AdministraLive Appeals Office (I\I\U) 
20 Massachusetts Ave .. N.W., MS 2()l}() 
Washington, DC 20."l29-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this mailer have been 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 law was inappropriately applied by us in rcaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must he 
suhmitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fcc of $630. Please be aware that H C.F.R. § I03.5(a)(I)(i) requires that any motion must 
he filed within 30 days of the decision thai Ihe motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals orfice 
www.llscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petItIon was denied by the Director, 
Nebraska Service Center, on April 28, 2010, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(I)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of his sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(1)(A)(i) of the Act 
and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) 
through (x). The petitioner must submit qualifying evidence under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
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, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
Page 3 
(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 recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
s1 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability"' 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her 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 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) 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; 
(iv) Evidence of the alien' s participation. either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific. scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles III the field. III 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while 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 "final merits determination." Id. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that .. the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sut1icient 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». The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top ofthe[ir] field of endeavor." 
8 C.F.R. § 204.S(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § I I 53(b)(1)(A)(i). 
Id.atl119. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 20(1), aftd, 345 F.3d 6133 (9th Cir. 2(03); 
see also Soltane v. DOl, 3131 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary n.~4uircmcnts 
beyond those set forth in the regulations at8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on February 26, 2010, seeks to classify the petltlOner as an alien with 
extraordinary ability as an educator and activist in end of life choices. The petitioner has 
submitted evidence pertaining to the following criteria under I> C.F.R. § 204.5(h)(3). 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards j()r excellence in the field of endeavor. 
Although the petitioner did not claim eligibility for this criterion at the initial filing of the 
petition, in response to the director's request for additional evidence pursuant to the regulation at 
I> C.F.R. § 103.2(b)(I» the petitioner submitted the following documentation: 
1. 
2. 
A document from 
petitioner for being 
2005; 
A document from 
petitioner 
2006; 
congratulating the 
a "finalist" for the Australian of the Year Awards 
congratulating the 
of the Year Awards 
3. A document from congratulating the 
petitioner for his "nomination" for the Australian of the Year Awards 
2008; and 
4. A document from congratulating the 
petitioner for his "nomination" for the Australian of the Year Awards 
2009. 
In the director's decision, she determined that "[ w ]hile nominations are commendable, the record 
contains no evidence that the alien has ever won the award." The AAO agrees with the findings 
of the director for this criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires "[ d]ocumentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor [emphasis added]." Moreover. it is the 
petitioner's burden to establish eligibility for every element of this criterion. Not only must the 
petitioner demonstrate his receipt of prizes and awards, he must also demonstrate that those 
prizes and awards are nationally or internationally recognized for excellence in the field of 
endeavor. In other words, the petitioner must establish that his prizes and awards are recognized 
nationally or internationally for excellence in the field beyond the awarding entities. In the case 
here, the petitioner failed to submit any documentary evidence establishing that being nominated 
or being a finalist resulted in a nationally or internationally recognized prize or award for 
2 The petitioner docs not claim to meet or suhmit evidence relating to the criteria not discussed in this decision. 
Page 6 
excellence in the field. There is no evidence indicating that the petitioner won the Australian of 
the Year Award for 2005, 2006, 2008, or 2009. 
On appeal, the petitioner submitted documentary evidence reflecting that he received: 
A. from the Australian 
Humanists (AH); 
B. from the New Zealand Association 
of Rationalists & Humanists (NZARH); and 
C. from the Rainier Foundation (RF). 
Regarding items A and B, although on appeal counsel referred to AH's website 
(http://vic.humanist.org.au) and NZARH's website (http://www.nzarh.org.nz). counsel failed to 
submit the actual screenshots. Regardless, the petitioner failed to submit any independent, 
objective evidence demonstrating that the awards are nationally or internationally recognized 
prize or award for excellence in the field of endeavor. See Braga v. Poulos, No. CY 06 5105 
S10 (C. D. CA July 6, 20(7) afN 2009 WL 604888 (9th Cir. 2(09) (concluding that the AAO 
did not have to rely on self-serving assertions on the cover of a magazine as 10 the magazine's 
status as major media). There is no indication that the awards are nationally or internationally 
recognized for excellence beyond the awarding entities. 
e the screenshot provides some 
background information regarding the RF, including that it is a "home-grown" charitable 
foundation, there is no evidence indicating that its awards, along with the $500 prizes, are 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 
On appeal, the petitioner also submitted a documcnt from the National Australia Day Council 
congratulating the petitioner for his "nomination" for the Australian of the Year Awards 2010. 
As the petition was filed on Fcbruary 26, 2010, the petitioner failed to demonstrate that he 
received the nomination prior to the filing of the petition. Eligibility must be established at the 
time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katighak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter ofJzllmmi, 22 I&N Dec. 169, 175 (Comm'r 1998). That 
decision further provides, citing Matter ofBardollille, 18 I&N Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Jd. at 
176. Nevertheless, as previously discussed, the petitioner failed to submit any documentary 
evidence establishing that his "nomination" resulted in a nationally or internationally recognized 
prize or award for excellence in the field of endeavor. 
Moreover, on appeal, counsel claimed that the petitioner won "The Territory Day Award" and 
claimed that it "recognize[ s 1 industry, innovation and personal achievement." Counsel submitted 
Page 7 
a photograph of a plaque that is illegible and provides no evidentiary weight to rellect that the 
petitioner actually received the award, Nonetheless, counsel failed to submit any documentary 
evidence to support her assertions on appeal regarding The Territory Day Award, The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v, Phinpathya, 464 U,S, 183, 188-89 n,6 (llJ84), 
Regardless, counsel's assertions do not provide any evidence that The Territory Day Award is 
nationally or internationally recognized for excellence in the field, 
The AAO notes that the petitioner submitted screenshots from BE Brands and Belong reflecting 
that he was ranked tweltlh as ' ••••••••••••••••••••••••• 
_ The AAO is not persuaded that a ranking equates to a prize or award, let alone a 
nationally or internationally recognized prize or award for excellence, Notwithstanding, the 
petitioner failed to submit evidence the screenshots to demonstrate that 
rankings for are nationally 
or internationally recognized prizes or awards for excellence in the field of endeavor. See Braga 
v, POll los, No, CV 06 5105 SJO (concluding that the AAO did not have to rely on self-serving 
assertions on the cover of a magazine as to the magazine's status as major media), 
Again, the plain language of the regulation at 8 C.F.R, § 204,5(h)(3)(i) requires 
"[d]oeumentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the lield of endeavor." The burden is on the petitioner to establish 
every element of this criterion, Simply submitting documentary evidence that the petitioner 
received prizes or awards is insufficient to meet the plain language of this regulatory criterion 
without documentary evidence demonstrating that the prizes or awards are nationall y or 
internationally recognized for excellence in the field of endeavor. 
Accordingly, the petitioner failed to establish that he meets this criterion, 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien '.I 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 director determined that the petitioner failed to establish eligibility for this criterion, The 
plain language of the regulation at 8 C.F,R, § 204,5(h)(3)(iii) requires "[pJublished 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 c1assilication is sought" A review of the record of 
proceeding reflects that the petitioner submitted sufficient documentary evidence establishing 
that he meets the plain language of this regulatory criterion, As such, the AAO withdraws the 
findings of the director for this criterion, 
Accordingly, the petitioner cstablished that he meets the plain language of the regulation for this 
criterion, 
Page 8 
Evidence of the alien's orixinal scientific, scholarly, artlsUc, athletic, or husiness­
related contrihutions of major significance in the field. 
In the director's decision, she determined that the petitioner failed to establish eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204,5(h)(3)(v) requires "[e]vidence 
of the alien's original scientifIc. scholarly, artistic, athletic, or business-related contributions of 
major significance in the tleld," Here, the evidence must be reviewed to see whether it rises to 
the level of original scientific or scholarly-related contributions "of major signitlcancc in the 
field." The phrase "major significance" is not supertluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple InveSlor Fund, L.1'., 51 F. 3d 28, 31 (3,d CiT. 1995) quoted ill 
APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2(03). 
On appeal, counsel claims that the np,c;t;,~n"r 
of his euthanasia machine, 
The petitioner's fIeld is not artistic in nature; rather the petitioner's documentary evidence will 
be evaluated for scientific and scholarly-related contributions, Regarding the display of 
petitioner's the petitioner submitted 
screenshots from www.scienccm.1!.~1!.<;).1.LQrg.!!k reflecting that the museum displayed the machine 
and provided background information regarding the history and controversy involved with it. 
However, the petitioner failed to submit any other documentary evidence retlecting that the 
display of the machine at the Science Museum in London resulted in an original contribution of 
major significance in the field. In other words, the pctitioner failed to demonstrate that the 
display of the machine intluenced or impacted the field, he yond it simply being displayed at the 
museum, Similarly, regarding the display of the machine at MONA, the petitioner submitted an 
email, dated June 12, 2010, to the petitioner from who indicated that MONA 
intended to display the machine in January 2011. However, eligibility must be established at the 
time of filing, 8 C.F,R. §§ 103.2(b)(I), (12); Matter of Katixhak, 14 I&N Dec, at 49 (Reg' I 
Comm'r 1971), A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of IZlImmi, 22 I&N Dec, at 75 (Comm'r 1998), That 
decision further provides, citing Maller of Bardollille, 18 I&N Dec. at 114, that USCIS cannot 
"consider facts that come into being only subsequent to the tiling of a petition," Id. at 176. 
Regardless, the record contains no evidence that it was ever displayed at MONA, let alone that it 
is an original contribution of major significance in the field. 
Page 9 
Regarding the petitioner's two documentaries, the petitioner submitted documentary evidence 
reflecting that he was interviewed for the documentary, Mademoiselle and the Doctor, and is 
listed as a cast member for the documentary, Where Angels Fear to Tread. However, the 
petitioner failed to submit any documentary evidence reflecting that the petitioner's contributions 
to the documentaries, while original, have been of major significance in the field rather than 
limited to the films in which he appeared. Although the petitioner submitted a letter from. 
indicating that she was so impressed with his work on the film, Mademoiselle and 
the Doctor, that she requested the petitioner to write an article for her book, the significance of 
the contributions of the petitioner arc limited to the work of_ rather than to the field as 
whole. 
As it relates to counsel's reference to the petitioner's published article as evidence to meet this 
criterion, the regulations contain a separate criterion regarding the authorship of scholarly 
articles. 8 C.F.R. § 204.5(h)(3)(vi). The AAO will not presume that evidence relating to or even 
meeting the scholarly articles criterion is presumptive evidence that the petitioner also meets this 
criterion. To hold otherwise would render meaningless the regulatory requirement that a 
petitioner meet at least three separate criteria. Therefore, while the petitioner's scholarly article 
will not be considered under this criterion, it will be addressed under the next criterion. The 
scholarly article, as well as the books authored by the petitioner, is relevant to this criterion with 
regard to the impact they have had on the field which is demonstrated by citations. 
submitted an article reflecting that the author cited each book. While the 
citations is a factor, it is not the only factor to be considered in determining the petitioner's 
eligibility for this criterion. Generally. the number of citations is relleetive of thc petitioner's 
original findings and that the field has taken some intcrest to the petitioner's work. Ilowever, it 
is not an automatic indicator that the petitioner's work has been of major siRnificallce ill tlze fieLd. 
In this case, the AAO is not persuaded that the petitioner's single article that is cited only six 
times, as well as a single article that cites two of the petitioner's books, are reflective that the 
petitioner's work has been of major significance in the field. Furthennore, the petitioner failed 
to submit any documentary evidence demonstrating that his article or books have been unusually 
influential. In this case, the petitioner's documentary evidence is not ret1ective of having a 
significant impact on the field. Merely submitting documentation ret1ecting that the petitioner's 
work has been cited by others in their published material is insufficient to establish eligibility for 
this criterion without documentary evidence reflecting that the petitioner's work has bcen of a 
major significance in the field. The AAO is not persuaded that the minimal citations of the 
petitioner's work are reflective of the significancc of his work in the field. The petitioner failed 
to establish how those findings or citations of his work by others have significantly contributed 
to his field as a whole. 
Page 10 
A review of the record of proceeding also reflects that the petttlOner submitted several 
recommendation letters. While the authors of the letters indicate the petitioner's dedication to 
his work, they fail to demonstrate that the petitioner has made original contributions of major 
significance in the field. For example, stated that the petitioner "pioneered a new 
approach" and is "one of a select few internationally who has promoted a public-education 
agenda in contrast to the usual law-reform approach." However, _failed to explain 
how the petitioner's approach has aflected the field in a significant manner. While the 
petitioner'S approach might be unique, an original contribution does not necessarily equate to a 
contribution of major significance in the field. Moreover, stated that the petitioner 
However, _railed to 
provide specific details evidencing that the petitioner has made original contributions of major 
significance in the field, Without specific information, the submission of letters that provide 
only general statements is insufficient to reflect that the has made original 
contributions of major significance, In addition, briefl y described the 
petitioner's creation of a _ and the controversy it garnered in New Zealand, as well as 
the controversy garnered hom the petitioner's launch of a "Drug Test Kif' in the United 
Kingdom, Although 
the AAO is not persuaded that such media attention is 
been of major significance in the field. For instance, 
dcvice was seized by custom officials in New 
Zealand but was later returned to the petitioner. to indicate the significance 
of the ._ beyond the media attention is garnered from its seizure. 
While those familiar with his work generally describe it as "unique" and "extraordinary." there is 
insulticient documentary evidence demonstrating that the petitioner's work is of major 
significance. This regulatory criterion not only requires the petitioner to make original 
contributions, the regulatory criterion also requires those contributions to be of major 
significance. The AAO is not persuaded by vague, solicited letters that simply repeat the 
regulatory language but do not explain how the petitioner's contributions have already 
influenced the field. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. CiT. 1(90); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). The lack of supporting evidence gives the AAO no basis to gauge the 
significance of the petitioner's present contributions. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron Intenu/liollal, 19 I&N Dec. 791, 795 (Comm' r 191\1\). 
However, USCIS is ultimately responsible [or making the final determination regarding an 
alien's eligibility for the benetit sought. Id. The submission of letters of support from the 
petitioner's personal contacts is not presumptive evidence of eligibility; lJSCIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795; see also 
Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2(08). Thus, the content of the writers' statements 
and how they became aware of the petitioner's reputation are important considerations. Even 
Page 11 
when written by independent experts, letters solicited by an alien in support of an immigration 
petition are of less weight than preexisting, independent evidence of original contributions of 
major significance. 
Again, the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance ill the field [emphasis added]." Without additional, specific evidence 
showing that the petitioner's work has heen unusually influential, widely applied throughout his 
field, or has otherwise risen to the level of contributions of major significance, the AAO cannot 
conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's aUlhorship o/scholarly articles in the field. in professional 
or major trade publications or other major media. 
The director determined that the petitioner failed to establish eligibility for this criterion. A 
review of the record of proceeding reflects that the "~'.""U"'CI claims eligibility for this criterion 
based on his of three books, 
The plain language of the regulation at 8 C.P.R. § 204.S(h)(3)(vi) requires "[ e ]vidence of the 
alien's authorship of scholarly articles in the field, in professional or major trade publications or 
other major media [emphasis added]." As this regulatory criterion requires authorship of 
scholarly articles, the submission of the petitioner's books do not equate to articles. An article is 
"a nonfictional prose composition usually f(lrming an independent part of a publication (as a 
magazine).'" On the other hand, a book is "a long written or printed literary composition.,,4 
Furthermore, the regulation requires that the articles be "in professional or major trade 
publications or other major media." As books may be published independently or self-puhlished, 
mere publication docs not establish that a book is a professional or major trade publication or 
other major media. Moreover, scholarly articles arc generally written by and for experts in a 
particular field of study, are peer-reviewed, and contain references to sources used in the articles. 
While the petitioner submitted the covers and prefaces of the books, the petitioner failed to 
establish that his books are ··scholarly." As there is no evidence demonstrating that the 
petitioner'S books were peer-reviewed, contain any references to sources, or were otherwise 
considered "scholarly," the petitioner's authorship of three books is insufficient to meet this 
criterion . 
. 1 See http://\vwW.lnGHi~m}.::}~J~.h'iL~r.,cornLlii~li!:l!].DIS:l~lrtick, accessed on December 13, 2011, and incorporaled into 
the record of proceeding. 
4 See http)/w\'.,'w.mcrri_(IJ1J~_Wcb\L~f~()m/ih(,:t.i_(_)_n_(JIj·~1!Q.ll~~;5JW_\:,,:,_:::q~:J:::: 13117~5()44, accessed on December 13, 2011, 
and incorporated into the record of proceeding. 
Page 12 
Even if the petitioner's books equate to scholarly articles, which they do not, the petitioner failed 
to demonstrate that they are professional or major trade publications or other major media. On 
appeal counsel claims: 
The sales of these books underwrite his non-profifs t1agship activity, the_ 
ic meeting and workshop program. 
His principal book U"'U""'~U in online format) -
currently generates average monthly sales of US$lO,OOO. 
Revenue from this separate source is secondary. 
out (and hence out of print). 
Counsel failed to submit any documentary evidence to support her assertions. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). Notwithstanding, 
the AAO is not persuaded that average monthly sales of $10,000 is ret1ective of a professional or 
major trade publication or other major media. Furthermore, even if the petitioner's book was 
sold out, without sales figures and the number of books originally printed, counsel failed to 
demonstrate that a "sold out'· book establishes a major trade publication or other major media. 
Moreover, counsel claims: 
Book proceeds constitute source of revenue for the currentl y eXlstmg 
U.S. nonprofit corporation. The company's 2008 
federal tax return reflects gross receipts of $84,674. Notably, these sales were 
generated in 2008, prior [emphasis in original] to any promotion or advocacy in 
the US by [the petitioner]. 
While counsel submitted the company's 2008 Form 1120, U.S. Income Tax Return. 
as well as an Employment Agreement between the petitioner and the 
titi"n.>, failed to demonstrate that $84,674 in yearly sales, as well as the only source of revenue 
from equate to a professional or major trade publication or other major media. 
As the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires major trade publications or other major 
media, merely submitting evidence that the petitioner's books have been sold docs not 
necessarily constitute a major trade publication or other major media. 
Page 13 
The AAO notes that at the initial filing of the petition, counsel further claimed the petitioner's 
eligibility for this criterion based on two documentaries entitled, Mademoiselle and the Doctor 
2004 and Where Angels Fear to Tread, that have already been addressed under the original 
contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). However, as the 
plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(vi) requires "authorship of scholarly 
articles" "in professional or major trade publications or other major media," documentaries and 
films clearly do not meet the plain language of this regulatory criterion. 
However, the plain 
language of the regulation at 8 C.F.R. § 204.S(h)(3)(vi) requires authorship of more than one 
scholarly article. Here, the petitioner only established his authorship of one scholarly article; 
therefore he fails to meet the plain language of this regulatory criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence ollhe display of Ihe alien's work in the field al artistic exhihitions or 
showcases. 
In the director's decision, she determined that the petitioner failed to establish eligibility for this 
A review of the record of proceedi reflects that the claimed eligibility for 
of his 
On appeal, counsel 
further claims the petitioner's eligibility for this criterion based on the previously discussed 
documentaries. 
As indicated in this decision, the AAO considered and addressed the display of the petitioner's 
~nd the documentaries under the original contributions criterion pursuant to 
~.F.R. § 204.S(h)(3)(v). In addition, the plain language of the regulation at 8 
C.F.R. § 204.S(h)(3)(vii) requires "[eJvidenee of the display of the alien's work in the lield at 
artistic exhibitions or showcases [emphasis added]." The beneficiary's field, however, is in 
educating and social activism rather than the arts. The plain language of this regulatory criterion 
clearly indicates that it applies to artists. The ten criteria in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. The interpretation that S 
C.F.R. § 204.S(h)(3)(vii) is limited to the visual arts is longstanding and has been upheld by a 
federal district court. Negro-Plu/Ilp" v. Okill, 2:07-CY-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 
2(08) (upholding an interpretation that performances by a performing artist do not fall under S 
C.F.R. § 204.5(h)(3)(vii». As the petitioner is not a visual artist, the petitioner is not eligible to 
meet the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Comparable Evidence 
Page 14 
At the initial filing of the petition, in response to the director's request for additional evidence 
pursuant to the regulation at 8 CF.R. § 103.2(b)(8), and on appeal, counsel requested that the 
documentary evidence that has already been discussed above be also considered as comparable 
evidence pursuant to the regulation at 8 CF.R. § 204.5(h)(4). The regulation at 8 CF.R. 
§ 204.5(h)(3) provides that evidence of sustained national or international acclaim "shall" include 
evidence of a one-time achievement or evidence of at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. The ten categories in the regulations are 
designed to cover different areas; not every criterion will apply to every occupation. For example, 
the criterion at 8 CF.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 
CF.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The AAO further acknowledges 
that the regulation at 8 CF.R. § 204.5(h)(4) provides "[i]fthe above standards do not readily apply 
to the [petitioner's] occupation. the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility." It is clear from the use of the word "shall" in 8 CF.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the 
objective evidence required at 8 CF.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that eligibility for visa preterence in the petitioner'S occupation cannot be established 
by the ten criteria specified by the regulation at 8 CF.R. § 204.5(h)(3). In fact, as indicated in this 
decision, the petitioner met the published material criterion pursuant to the regulation at 8 CF.R. 
§ 204.5(h)(3)(iii), and counsel mentions evidence at the initial filing of the petition, in response to 
the director's request for additional evidence pursuant to the regulation at 8 CF.R. § 103.2(b )(8), 
and on appeal that specifically relates to three other criteria pursuant to the regulation at 8 CF.R. 
§ 204.5(h)(3). An inability to meet a criterion, however, is not necessarily evidence that the 
criterion does not apply to the petitioner's occupation. Moreover, although counsel failed to claim 
these additional criteria, the AAO finds that an educator and social activist could participate as a 
judge of the work of others pursuant to the regulation at 8 CF.R. § 204.5(h)(3)(iv), could perform in 
a leading or critical role pursuant to the regulation at 8 CF.R. § 204.5(h)(3)(viii), and could 
command a high salary pursuant to the regulation at 8 CF.R. § 204.5(h)(3)(ix). Counsel provided 
no documentation as to why these provisions of the regulation would not be appropriate to the 
profession of an educator and social activist. Where an alien is simply unable to meet or submit 
documentary evidence of three of these criteria, the plain language of the regulation at 8 CF.R. 
§ 204.5(h)(4) does not allow for the suhmission of comparable evidence. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, the AAO must next conduct 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[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 
and (2) "that the alien has sustained national or international acclaim and that his or hcr 
Page 15 
achievements have been recognized in the lield of expertise." See section 203(b)(I)(A)(i) of the 
Act, 8 U.S,C. § 1153(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 590 F.3d at 
1115. The petitioner met the plain language of one of the criteria, in which at least three arc 
required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in 
the documentation submitted by the petitioner have already been addressed in the AAO's 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to determine the petitioner'S eligibility pursuant to section 203(b)(I)(A) of the Act. In 
this case, the petitioner has garnered published material about him relating to his work, has 
authored a scholarly article, and has been appeared in two documentaries. However, the 
personal accomplishments of the petitioner fall far short of establishing that he "is one of that 
small percentage who have risen to the very lop of the tield of endeavor" and that he "has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." SCI' 8 C.F.R. § 204.5(h)(2), section 203(b)(I)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)( I )(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the al ien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, retlects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "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 AAO cannot ignore that the statute requires the pehtlOner to submit "extensive 
documentation" of the petitioner's sustained national or international acclaim, See section 
203(b)(I)(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(1 )(A)(i) of the Act provide that thc "intent of Congress that a very high standard be set 
for aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to 
present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 
30703, 30704 (July 5, Il)l) I). Although the petitioner has submitted documentary evidence 
reflecting that he was lJominated for the Australian of the Year Awards, he failed to demonstrate 
that he has won any nationally or internationally recognized prizes or awards for excellence that 
is reflective that "his or her achievements have been recognized in the tield of expertise." See 
section 203(b)(J)(A)(i) of the Act, 8 U.s.c. ~ 1153(b)(1)(A)(i), and 8 C.F,R. § 204,5(h)(3). 
While the petitioner has authored one scholarly article, such minimal authorship is not 
demonstrative of "a level of expertise indicating that he is among that small percentage who have 
risen to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). Furthermore. the 
AAO will evaluate a citation history or other evidence of the impact of the petitioner's work to 
determine the impact and recognition his work has had on the field and whether such influence 
Page 16 
has been sustained. For example, numerous independent citations for an article authored hy the 
petitioner would provide solid evidence that his work has been recognized and that other 
researchers have been influenced hy his work. Such an analysis at the final merits determination 
stage is appropriate pursuant to Kazariall, 59fl F. 3d at 1122. On the other hand, few or no 
citations of an article authored hy the petitioner may indicate that his work has gone largely 
unnoticed by his field. As previously discussed, the petitioner submitted documentary evidence 
reflecting that his work has heen cited 8 times. While these citations demonstrate some interest 
in his published work, they are not sufficient to demonstrate that his articles have attracted a 
level of interest in his field commensurate with sustained national or international acclaim at the 
very top of his field. 
The evidence of record falls short of demonstrating the petitioner's sustained national or 
international acclaim as an educator and The regulation at 8 
C.F.R. § 204.5(h)(3) requires "[a] petition for an alien of extraordinary ability must be 
accompanied by evidence that the alien has sustained national or international acclaim and this 
his or her achievements have been recognized in the field of expertise." While the petitioner 
submitted documentation demonstrating that he has published material about him relating to his 
work, the documentary evidence is not consistent with or indicative of sustained national or 
international acclaim. 
USCIS has long held that even athletes performing at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinary ability." 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994); 56 Fed. Reg. at 60899. In 
Matter of Racine, 1995 WL 153319 at" I, *4 (N.D. Ill. Feb. 16,1995), 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 ability as a professional hockey player within 
the NHL. This interpretation is consistent with at least one other court in this 
district, Crimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the 
definition of the tcrm 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
The court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. Likewise, it does not follow that the petitioner who has not offered 
any evidence that distinguishes him from others in his field, should necessarily qualify for 
approval of an extraordinary ability employment -based visa petition. To find otherwise would 
contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be 
reserved for "that small percentage of individuals that have risen to the very top of their ficld of 
endeavor. " 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of that small 
Page 17 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 
petitioner seeks a highly restrictive visa classification, intended for individuals at the top of their 
respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. In this case, the petitioner has not established that his achievements at the time of 
filing the petition were commensurate with sustained national or international acclaim, or that he 
was among that small percentage at the very top of the field of endeavor. 
III. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b )(l)(A) of the Act, and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Sollane v. DO!, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition· will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 136l. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.