dismissed EB-1A Case: Geriatrics

(b)(6)
U.S. Department of Homeland Security 
U:S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship · 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
FEB 1 1 2013 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
. INSTRUCfiONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter ha.ve been returned to .the office that originally decided your case. Please be advised t~at 
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, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630 . The 
specific requirements for filing such a n:totion can be found at 8 C.F .R. .§ 103.5 . Do not file any motion 
directly with the MO~ Please be aware that 8 C.F .R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the cjecision that the motion seeks to reconsider or reopen. 
Thank you, 
~Br:-
Ron Rosenberg ~ · 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 the sciences, specifically as a 
physician specializing in geriatrics, pursuant to section 203(b )(1 )(A) of the Immigration and Nationality 
· Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the 
sustained national or international acclaim necessary . to qualify for classification as an alien of 
extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. 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 of a 
major, internationally recognized award. Absent the receipt of such an award~ the regulation outlines · 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the teri regulatory .categories of evidence to establish 
the basiC eligibility requirements. . · 
On appeal, counsel submits an appeal brief alqng with evidence that was largely submitted previously. 
· Counsel asserts that the director's denial of the petition was arbitrary, capricious, and an abuse of 
discretion that was beyond the scope of the federal regulations. 1 Counsel does not raise specific 
challenges to the director's analysis relating to each of the regulatory criteria found in 8 C.F .R. 
§ 204.5(h)(3), but instead focuses on the director's merits determination. Counsel states in the appeal 
brief that the director erred in determining that the petitioner is not in the small percentage of 
individuals who have risen to the top of the field of geriatric medicine. Counsel also maintains that the 
director erred in concluding that the petitioner failed to demonstrate sustain{!d national or international 
acclaim in his field. 
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): 
1 Counsel observes that there mu.st have been ~ mistake. in adjudication since the director's decision refers to 
the petitioner as a "film editor" and "educator" in one portion of the merits analysis instead of as a physician 
specializing in geriatrics. The director's discussion of the criteria discusses the petitioner's evidence and the 
final merits determination refers repeatedly to the petitioner correctly as a geriatric physician, making what is 
clearly an _inadvertent mistake once in a general summarizing paragraph. The director's decision, read in 
context, makes clear that the decision is based on the proper record of proceeding. 
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(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
(i) the alie·n 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. 
U.S. Citizenship and Immigration Se..Vices (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
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The tenn "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements 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 
listedat 8 C.F.R: §.204.5(h)(3)(i)-(x). · · 
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.2 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the co.urt 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 detennination.' ' /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an .improper understanding of the regulations. 
Instead ofparsing 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 sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)) . 
. 2 Specifically, the court stated that the AAO had unilaterally impo~~d novel substantive or evidentiary 
requirements beyond those ·set forth in the regulations . at 8 C.F.R. § 204.5(h)(3)(iv) and . 8 C.F.R. 
§ 204.5(h)(3)(vi) . 
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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 matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. Nevertheless, as the director's sole basis of 
denial was a final merits determination, the AAO will also rev\iew the evidence· in the aggregate~ 
II. ANALYSIS 
A. Evidentiary Criteria3 
Documentation of the alien's receipt of lesser nationally or iriternationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The petitioner submitted evidence along with his F:orn1 I-140 in support of this criteriofl:. The director, 
after reviewing the evidence, concluded that the petitioner failed to satisfy the regulatory requirements 
and the petitioner does not identify any factual or legal ·error in this conclusion on appeal. 
Consequently, the AAO concludes that the petitioner abandoned this claim. See Sepulveda v. U.S. 
Att 'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 
1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV - 27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to 
the AAO) . Given that the awards are either local or are actually only nominations, the AAO affirms 
the director's conclusion. -
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. 8 C.F.R. § 204.5(h)(3)(ii). 
In his initial application packet, the petitioner submitted evidence relating to membership in various 
organizations. The director determined that the petitioner failed to meet this criterion. The petitioner 
fails to raise a challenge regarding this criterion on appeal and the AAO concludes that the petitioner 
abandoned this claim. See Sepulveda, 401 F.3d at 1228 n. 2; Hristov , 2011 WL 4711885 at *9. 
Given that the petitioner did not submit the official membership requi'rements for the associations of 
which he is a member, the AAO affirms··the director's conclusion . 
- ' 
3 The petitioner does not claim to meet or submit evidence relating to the regulatory cate·gories of evidence 
not discussed in this decision. 
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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 specification for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director determined in his decision that the petitioner met this regulatory criterion and the AAO 
affirms the director's conclusions in .this regard. · 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The petitioner also submitted evidence relating to this criterion along with the initial fi'ling and in 
response to the director's Request for Evidence (RFE). The director determined that the petitioner 
failed to meet this criterion. While the petitioner outlines some of the petitioner's achievements and 
contributions in a document titled "Letter Appeal/Biography" as part of the evidence to weigh for the 
merits determination, he fails to raise a specific legal or factual challenge on the Notice of Appeal or in 
the appeal brief regarding this criterion and the AAO concludes that the petitioner abandoned this claim. 
See Sepulveda, 401 F.3d at 1228 n. 2; Hristov, 2011 WL 4711885 at *9. Given that the petitioner 
failed to demonstrate the impact of his work beyond the institutions where he has been employed, 
the AAO affirms the director's conclusion. · 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 8 C.ER. § 204.5(h)(3)(vi). 
The director determined in his decision that the petitioner met this regulatory criterion. The AAO 
withdraws the director's conclusions in this regard. The record contains two published half-page poster 
presentation abstracts. These brief abstracts do not have footnotes, endnotes, or a bibliography, and 
do not include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the 
abstracts. The record contains no evidence regarding the nature of any peer review for acceptance as 
a poster presentation at these conferences. As such, these abstracts are not scholarly articles and 
cannot serve to satisfy this criterion. The petitioner also submitted an unpublished dissertation and 
presentation slides. This evidence also fails to satisfy this criterion as it does not reflect articles 
· appearing in professional or inajor trade publications or other major media. 
In light of the above, the petitioner has not submitted evidence that satisfies the plain language 
requirements of this criterion: 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. -8 C.F.R. § 204.5(h)(3)(viii). 
This criterion anticipates that a leading role should be apparent by its position in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the petitioner's impact on the organization or the establishment's activities. 
The petitioner's, performance in this role should establish whether the role was critical for 
organizations or establishments as a whole. The petitioner must demonstrate that the organizations 
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f 
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Page 6 
or establishments (in the plural) have a distinguished reputation. While neither the regulation nor 
precedent speak to what constitutes a distinguished reputation, Me-rriam-Webster's online dictionary 
defines distinguished as, "marked by eminence, distinction, or excellence." 4 Dictionaries are not of 
themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. at 306. Therefore, it is the petitioner's burden to demonstrate that 
the organizations or establishments claimed under this criterion are marked by eminence, distinction, 
excellence,- or a similar reputation. The petitioner must submit evidence satisfying all of these 
elements to meet the plain language requirements of this criterion. · 
The. directo~ determined that the petitioner satisfied the reauirem.ents of this criterion because he is 
the Medical Director of the Nursing Home Division of and 
serves as the consulting Medical Director of other facilities. The petitioner submitted employer 
letters- confirming his position as a Medical Director at 
While the record 
substantiates the petitioner's claim that he served in a leading or critical role on behalf these 
facilities, he has failed to satisfy all of the elements of the plain language requirements. The record 
includes a copy of a certificate showing that received the 2011 Community Service Award 
from which appears to be a local honor. The record also includes an 
article published. in a local bulletin highlighting the progress of _ _ 
initiative for electronic health records. 5 The contents of the 
article, however, merely highlight _as a profiled institution that ha:s put into place an electronic 
health records system and does not otherwise discuss the organization's reputation. One local award 
and one article for a local bulletin that does not discuss reputation are insufficient to­
establish as an organization with a distinguished reputation. The petitioner has failed to 
submit any evidence attesting to the distingl.Ii~hed reputation for the other organizations. 
Even if the petitioner established that enjoys a distinguished reputation, he failed to document 
the reputation of the other entities. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) requires evidence of a leading or critical role for organizations or establishments 
in the plural. This requirement is consistent with the statutory requirement for extensive evidence. 
Section 203(b )(1 )(A)(i) of the Act. Thus, without establishing that the petitioner served in a leading 
or critical role for more than one organization or establishment with a distinguished reputation, ·he 
cannot satisfy this criterion. 
Accordingly, the AAO withdraws the director's finding with regard to this criterion and co~cludes that 
the petitioner failed to satisfy the regulatory requirements. · 
I 
4 See hitp://www.merriam-webstcr.com/diclionary/distinguishcd, accessed on February 4, 2013. 
5See http://www.nyc.gov/html/doh/downloads/pdf/pcip!march-2010-pcip-ncwslctter.pdf. accessed on 
February 4, 2013. 
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B.. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence.· Nevertheless, given that the director's basis for denial was the 
final merits determination, the AAO will similarly review all of the evidence in the aggregate. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, the AAO in11st next conduct a final merits determination that 
considers all of the evidence 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[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 her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. · 
Counsel asserts on appeal that the petitioner, as the Medical Director nursing division, serves 
in a "a leadership role only a few exceptionally qualified physicians who are. at the small percentage of 
the very top of their field could fulfill" and could not have "accomplished all that he has and acquired 
this outstanding level of expertise without being recogri.ized on a national and international level for his 
work." The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel references a 
letter from the petitioner's current supervisor, Dr. _ in making the earlier statement about 
the petitioner being at the top of the field. However, counsel's statement is a mischaracterization of Dr. 
_ letter, which observes that while the role of Medical Director is one that "only a few 
exceptionally qualified physicians could fulfill," an~ the petitioner "has extraordinary skill" as a 
physician, the letter never states that the role of Medical Director is one that only a physician within the 
small percentage of the very top of their field could fulfill. USCIS cannot presume national or 
international acclaim or presume the petitioner to be within the small percentage of his field based on 
his current job description. Specifically, the AAO will not infer acclaim by association .. Instead, 
USCIS must assess all evidence and place it in context to determine whether he met the plain language 
of 8 C.F.R. §§ 204.5(h)(2) and (h)(3), as noted above. 
'· 
The petitioner submitted evidence of his achievements and original contributions of major significance 
in his field of endeavor. However, much of the evidence that he submits, including organization-wide 
initiatives, structuring of a "house call" program, and the design of a curriculum on patient safety and 
error, are directly related to his employment or are a part of the petitioner's duties for his current or 
former employment. The record fails to show the impact of these initiatives on the field beyon~ his 
employers. Similarly, most of the support letters the petitioner submitted to attest to his achievements 
and contributions are from former or current supervisors or other professionals who worked with him at 
\ . 
his current or previous places of employment. The letters, therefore, come from his immediate circle of 
colleagues. See Kazarian v. USCIS, 580 F.3d 1030, 1036 (9
1
h Cir. 2009) aff'd in part 596 F.3d at 
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1115.6 (giving limited weight to vague, solicited letters from local colleagues that do not specifically 
identify contributions or provide specific examples of how those contributions influenced the field). On 
appeal, the petitioner submits two new letters from individuals who were previously not ac uainted 
with him, Dr. the Medical· Director of Senior Services/Eidercare at 
affiliated with the (also affiliated with the 
at which the petitioner worked as an attending physician), and Dr. Medical 
Director at However, these letters also have limited probative 
value since they appear to have been specifically solicited to review the petitioner's curriculum vitae 
and work and provide an opinion based solely on this review. Letters from independent references who 
were previously aware of the petitioner through his reputation and evidence in existenCe prior to the 
preparation of the petition carries gre.ater weight and are far more persuasive than new materials from 
local colleagues prepared especially for submission with the petition. Ultimately, these letters fail to 
document that the petitioner has any recognition beyond the greater metropolitan area. 
The record also contains evidence of awards. The petitioner appears to have received an award 
presented by the in 2011 for Excellence in Medicine and appears to be 
in recognition for the petitioner's work in the immediate community. In contrast, the award criterion in 
the implementing regulations for "an alien of extraordinary ability" requires nationally or internationally 
recognized prizes or awards for. excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). Counsel 
suggests that the two nominations for awards sponsored by organizations in India demonstrate the 
petitioner's international acclaim. However, nothing in the statute or regulations indicates that mere 
nominations are sufficient. Furthermore, the record does not contain documentation showing that the 
two referenced awards are nationally or internationally recognized. . . 
As noted previously, while the record supports the conclusion that the petitioner serves in a leading role 
for Essence and other organizations, there is insufficient documentation to support a finding that the two 
organizations have a distinguished reputation. Moreover, given that all of the other evidence fails to 
show that the petitioner enjoys any recognition beyond the greater _ metropolitan area 
and a single institution in his roles for various institutions in those areas cannot 
demonstrate his national or international acclaim. 
While the director found that the petitioner met the regulatory requirements for the criterion relating to 
scholiuly articles, the record does not indicate that his abstracts have generated particular interest or 
have garnered much acclaim. The impact of his abstracts is a valid consideration in a final merits 
determination. Kazarian, 596 F.3d at 1122. 
Similarly, while the director determined that the petitioner s·ubmitted sufficient evidence showing that 
he has judged the works of others pursuant to 8 C.F.R. § 204.5(h)(3)(iv), the nature of the judging 
experience is a relevant consideration . in the final merits determination as to whether the evidence is 
indicative of national or international acclaim. See Kazarian, 596 F.3d at 1122. In this instance, the 
6 In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. 
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petitioner's judging was directly related to his position as a Medical Director and consistent with his 
supervisory role of the medical staff. Such an internal level of judging , consistent with any supervisory 
or management position that requires evaluation of lower level employees, does not demonstrate 
national or international acclaim. 
While the record contains several attestations as to a shortage in the petitioner 's field, that issue does not 
fall within the jurisdiction of USCIS. New York State Dep 't ofTransp. , 22 I&N Dec. 215, 221 (Assoc. 
Comm'r 1998). The petitioner has also failed to explain how that issue is a relevant consideration 
for the classification sought. ., 
In evaluating the entirety of the record, the evidence in the aggregate does not distinguish the petitioner 
as one of the small percentage who has risen to the very top of the field Of endeavor or that he enjoys 
national or international acclaim. Specifically, while the AAO acknowledges that the praise of the · 
petitioner's local peers, the petitioner 's participation as an internal judge of others' work in his 
organization, contributions that benefit current and previous employers, and the receipt of a local award 
for his work in the community are indicative of a geriatrician who enjoys an excellent reputation among 
his current and previous co-workers and community, such evidence is insufficient to distinguish him 
among other geriatricians to place hini among the small percentage at the top of the field and is not 
commensurate with sustained national or international acclaim. Consequently, the AAO concludes that 
there is no indication that the director abused his discretion or failed to apply the proper evidentiary 
standard and , affirms his conclusion that the petitioner did not establish that he . is an alien of 
extraordinary ability. 
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 ac;claim and is one of the small percentage 
who ha~ riseJ:} to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
geriatric physician to ·such an extent that he may be said to have achieved 
sustained national or 
international acdaim or to be within the small percentage at the very top of his field. The evidence · 
indicates that the petitioner is a talented geriatric physician , but is not persuasive that the petitioner's 
achievements set him significantly 
above almost all others in his field. ·Therefore, the petitioner-has not 
established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The petitioner ·has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may not be approved. · '· · ' 
The burden .of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden . Accordingly, the ~ppeal will 
be dismissed. · 
ORDER: The appeal is dismissed . .