dismissed EB-1A Case: Global Positioning Technology

identiQing data deleted to 
prevent clearly unwmWd 
invasim of persod privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
LIN 08 228 50674 
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. fj 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
@@ub , Perry hew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is a global positioning technology company. It seeks to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in the sciences. The 
director determined that the petitioner had not established the beneficiary's requisite extraordinary 
ability through extensive documentation and sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the beneficiary demonstrate "sustained national or international acclaim" and present "extensive 
documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
5 1 1 53(b)(l)(A)(i), and 8 C.F.R. fj 204.5(h)(3). The implementing regulation at 8 C.F.R. 
5 204.5(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 criteria that call for the submission of specific objective 
evidence. 8 C.F.R. $5 204.5(h)(3)(i) through (x). Through the submission of required initial evidence, 
at least three of the ten regulatory criteria must be satisfied for an alien to establish the basic eligibility 
requirements. 
On appeal, counsel asserts that the beneficiary meets at least three of the regulatory criteria at 8 C.F.R. 
tj 204.5(h)(3). Counsel's appellate brief also focuses on the appropriate standard of proof. Counsel 
argues that the director "conhsed the standard of proof with the burden of proof' and that the 
appropriate standard of proof in evaluating "whether or not a criterion has been satisfied is a 
preponderance of evidence." However, the petition must be filed with the initial evidence required by 
regulation. 8 C.F.R. § 103.2(b)(l). Determinations regarding the standard of proof arise only after the 
petitioner submits the required initial evidence. For this reason, the AAO will first address the 
regulatory criteria and the submitted evidence and then turn to the standard of proof. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 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 10ISt 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. 5 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten criteria. 
(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 in the field, in 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; 
(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, 2010 WL 7253 17 (9th Cir. March 4, 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. 5 204.5(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 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)." Id. at *6 (citing to 8 C.F.R. 
5 204.5(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 of the[ir] field of endeavor," 
8 C.F.R. 5 204.5(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. 5 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. 5 1 153(b)(l)(A)(i). 
Id. at "3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying 
under three criteria, 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 Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). 
11. Analysis 
1 
Specifically, the court stated that the AAO had unilaterally imposed 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. 6 204.5(h)(3)(vi). 
Page 5 
A. Evidentiary Criteria 
This petition, filed on August 13, 2008, seeks to classify the beneficiary as an alien with 
extraordinary ability as a radio frequency module design engineer. The petitioner has submitted 
evidence pertaining to the following criteria under 8 C.F.R. 5 204.5(h)(3).~ 
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 alliedfield of speczfication for which classzjication is 
sought. 
The petitioner initially submitted electronic correspondence indicating that the beneficiary was 
requested to review a total of seven papers for the International Symposium on Circuits and Systems 
(ISCAS). More specifically, the preceding documentation reflects requests from technical program 
chairs for the beneficiary to review three papers for the 2003 ISCAS ( 
one paper for the 2005 ISCAS -, ,o papers for the 2 
-, and one paper for the 2007 ISCAS An invitation to review is not tantamount to 
evidence of the beneficiary's "participation." There is no evidence from the ISCAS organizers 
confirming that the beneficiary actually completed the preceding reviews. 
In response to the director's request for evidence, the petitioner submitted a January 14, 2009 request 
that the beneficiary review a manuscript for Transactions on Electron Devices. The 
Electron Devices Society, stating that the beneficiary "has been a reviewer tor lEEE [Institute of 
Electrical and Electronics Engineers] Transactions on Electron Devices." letter 
does not specify the dates when the beneficiary reviewed papers for Transactions on Electron Devices. 
The petitioner also submitted an October 29, 2008 request that the beneficiary review two papers 
and for the 2009 ISCAS. The requests for the beneficiary to review papers for 
Transactions on Electron Devices and for the 2009 ISCAS post-date the filing of this petition. 
Moreover, there is no evidence showing that the beneficiary has reviewed any papers for Transactions 
on Electron Devices as of August 13, 2008. A petitioner, however, must establish the beneficiary's 
eligibility at the time of filing. 8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Regl. Commr. 1971). Accordingly, the AAO will not consider the submitted review requests 
from Transactions on Electron Devices and the 2009 ISCAS in this proceeding. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien S original scientlJic, scholarly, artistic, athletic, or business- 
related contributions of major signiJicance in the field. 
The petitioner submitted several letters of support discussing the beneficiary's work. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
University of Arizona, states: 
I had the opportunity to evaluate [the beneficiary's] abilities and talents in 2006 when he was 
designing an Integrated Passive Device (IPD) Balun for his employer, Freescale 
Semiconductor. His design was completely original and represented the very first balun 
design using the silicon process in question. Before this, the traditional IPD balun design 
used a Gallium Arsenide (GaAs) IPD, which was much more expensive. [The beneficiary's] 
innovation significantly reduced costs. Because of its inexpensive cost without loss of 
performance, the chip was reportedly adapted in innumerable Motorola cell phone designs, 
and has since become one of the major products of Freescale Semiconductor, which is one of 
the top semiconductor sales leaders in the world. A paper was recently presented at the 2008 
IEEE Electronic Components and Technology Conference as proof of the significance and 
originality of [the beneficiary's] achievement. 
While the beneficiary's innovation reduced costs and was beneficial to Freescale Semiconductor as a 
part of its line of products, there is no evidence demonstrating that his work was recognized beyond 
his former employer such that it equates to an original contribution of major significance in the field. 
Moreover, there is no evidence from Motorola to corroborate comment that the 
beneficiary's device "was reportedly adapted in innumerable Motorola cell phone designs." 
I met [the beneficiary] very briefly during technology sharing sessions when he was 
employed at Freescale. . . . In particular, I am very interested in the possibilities enabled by 
his parasitic modeling method using 3-D EM simulation and the verification method. This 
particular method allows for the modeling of integrated circuits and testing of the 
electromagnetic effects. What I find particularly groundbreaking about his method is that it 
forms the basis for a whole new generation of inexpensive simulation and verification tools. 
Currently electromagnetic testing is an expensive and time-consuming process that is not 
given due attention in the IC manufacture process due to its costs in time and money. But 
[the beneficiary] has developed a method to reduce the amount of resources necessary in the 
extraction of the parameters of the model, which in turn provides significant savings in time 
and money. Unfortunately the method has yet to be published in order to protect the 
company's intellectual property, but this significant development will change the way 
simulation of the electromagnetic effects in integrated circuits is done. 
Unfortunately, because [the beneficiary] works in industry, many of his best ideas are held 
close by his employers, but having worked directly with [the beneficiary] I have had the 
opportunity to witness the high level of his talent. 
Page 7 
The plain language of this criterion requires "contributions of major significance in the field." While 
refers to the beneficiary's "groundbreaking methods" and his high level of talent, he speaks 
of the future "possibilities" of the beneficiary's model and how it "will change" the current 
simulation, rather than any tangible present application in the field. While it may be true that the 
beneficiary's ideas "are held close by his employers" and have not been published "in order to 
protect the company's intellectual property," such facts do not demonstrate that the beneficiary's 
work has had any impact beyond his immediate employer to the field as a whole. 
of California Micro Devices Corporation's Arizona Design Center. 
states: 
I am familiar with [the beneficiary's] work through his reputation in the field in addition to 
personal interaction on one project. I first became familiar with [the beneficiary's] research 
in 2006 through his original design for an Integrated Passive Device (IPD) Balun. My 
interest was piqued because of the original nature of his design, which represented the very 
first balun design external to the host company, using a silicon-based process. His design was 
unique not only because it utilized silicon instead of the traditionally used Gallium Arsenide 
(GaAs) for IPDs, which is known to be much more expensive in silicon, but also because, as 
I found out later, it achieved first-pass success on a technology that was being qualified at the 
time (and hence was very new). 
To further document the critical acclaim he has received from the scientific community, [the 
beneficiary's] research work on balun design was published in IEEE Transactions on 
Microwave Theory and Techniques in August of 2008 and in IEEE's Electronic Components 
and Technology Conference Proceedings in May 2008. . . . I can say without hesitation that 
his discovery was not just original, but hugely significant, considering that IEEE included his 
research findings in two different peer-reviewed publications. 
With regard to the beneficiary's published and presented work as discussed by and 
others, we note that the regulations contain a separate criterion regarding the authorship of published 
articles. 8 C.F.R. 5 204.5(h)(3)(vi). We will not presume that evidence relating to or even meeting the 
scholarly articles criterion is presumptive evidence that the beneficiary also meets this criterion. Here it 
should be emphasized that the regulatory criteria are separate and distinct from one another. 
Because separate criteria exist for authorship of scholarly articles and original contributions of major 
significance, USCIS clearly does not view the two as being interchangeable. To hold otherwise 
would render meaningless the statutory requirement for extensive evidence or the regulatory 
requirement that a beneficiary meet at least three separate criteria. We will fully address the 
beneficiary's published and presented work under the next criterion. 
One of [the beneficiary's] achievements that I find particularly impressive is his invention of 
an embedded s-parameter method. Typically when verifying RF (radio-frequency) 
performance, a network analyzer is used at all points to provide data on system performance. 
Page 8 
[The beneficiary] has discovered a method that significantly reduces the cost of these 
network analyzers by replacing them with a small chip that can be placed on an RF probe 
system. By doing this, it becomes a very simple step to verify the performance of RF chips. 
Aside from the major cost savings enabled by [the beneficiary's] work, which is a very 
important consideration in making devices smaller and more networked in 
telecommunications engineering, [the beneficiary] has made a very fundamental contribution 
to his field in changing the way network analysis is performed. He published a paper on this 
at one of the major conferences in the field, IEEE's BCTM (BiCMOS Circuits and 
Technology) conference in 2006, and the discovery was considered of such value that a 
patent was filed for it as well, which evidences the high value placed on such a discovery. 
Along these lines, [the beneficiary] has also developed an embedded loop-back for RF IC 
(Integrated Circuit) tests. This is the first time that anyone in the field has designed a method 
allowing for embedded loop-back testing of RF IC. The significance of this is that chips in 
various units can be automatically tested without an operator on the receiving end. This 
allows testing of RF chips by a single operator, which of course results in significant cost and 
time savings. What was particularly challenging about this discovery was that most loop- 
back tests are done for base band signals because there are significant hurdles in isolating an 
RF signal in loop-back tests. But [the beneficiary] brilliantly overcame these difficulties, 
allowing the RF IC test to be realized. This was the first ever attempt at this solution, and [the 
beneficiary] published a paper in IEEE Transactions on Instrumentation and Measurement in 
2005, and again he filed a U.S. patent application to protect the significant intellectual 
property invested in his design. 
Engineering, Kumoh National Institute of Technology, Korea, states: 
[The beneficiary] . . . made significant findings in the area of radio communication systems 
including trunked radio systems in mobile communication systems. He had developed a 
handset for LG that had been in use for at least four years by this time. He also developed a 
30 GHz broad band local multipoint distribution system which would ultimately affect very 
high frequency millimeter wave designs in Korea. For all his work in the field, he was 
awarded select patents. 
The grant of a patent demonstrates only that an invention is original. This office has previously 
stated that a patent is not necessarily evidence of a track record of success with some degree of 
influence over the field as a whole. See Matter of New York State Dep't. of Transp., 22 I&N Dec. 
215, 221 n. 7, (Commr. 1998). Rather, the significance of the innovation must be determined on a 
case-by-case basis. Id. The beneficiary's patents are assigned to the University of Florida Research 
Foundation, Inc. and LG Information and Communications, Ltd. There is no evidence from the 
beneficiary's superiors at these institutions indicating the extent to which these devices or 
innovations have been successfully marketed in the industry. Thus, the impact of the beneficiary's 
inventions is not documented in the record. 
Page 9 
of Florida, states: 
I am familiar with [the beneficiary's] research findings in the area of radio frequency design 
because we collaborated on these findings together. I emphasize that the collaboration on 
these research projects involved years of research as well as other well renowned scientists in 
the field, including nd The success of our research findings is 
evidence by the fact that our research was published internationally by IEEE, became the 
foundation of two patents filed by the University of Florida, and has been presented and 
discussed by international research groups. 
[The beneficiary] proposed a way to create an embedded test circuits on a communication 
chip to measure the transmission of signals. This method proved successful. The practical 
implications for this research were significant because it allowed for many mobile 
communication IC manufacturers to create test methods on chips at a much lower cost of 
production than previously allowed. The fact that [the beneficiary's] research as indeed novel 
and allowed for this is further evidence by our patent having been approved by USPTO in 
2008. 
The year following, we pursued an even more rigorous approach in developing s-parameter 
measuring method that allowed on-chip wafer measurement for an integrated bipolar 
complementary metal-oxide semiconductor (BiCMOS) circuitry. The S-parameters are a set 
of critical parameters for showing the performance of an RF IC. For a chip to function 
properly, the signals need to be tested regularly before production occurs. However, existing 
methods for testing the s-parameter require external network analyzers, which are costly 
machines that can range in the hundreds of thousands (U.S. dollars) for one machine. We 
endeavored to reduce the cost of testing by developing a new method of testing the S- 
parameters. Part of our research involved developing on chip power detectors, phase 
detectors and passive signal sampling circuits. 
The University of Florida has developed a marketing set of literature based on these patents 
and invention disclosures. Several test related companies such as Cascade Microtech, Inc. 
and Modelithics have signed Non-disclosure Agreements to learn about the inventions. 
Proposal for joint work are under development but the current economics have delayed this 
effort. 
A petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Rather than 
providin s ecific examples of how the beneficiary's work has already had a significant impact in 
the field, 4 instead states that current economics have delayed efforts to develop his and 
the beneficiary's inventions. In this instance, there is no evidence showing that the beneficiary's 
"Embedded IC test circuits and methods" patent has been licensed, successfblly marketed, or otherwise 
had a significant national or international impact in the industry such that it equates to an original 
contribution of major significance in his field. 
While the beneficiary's research at the University of Florida was no doubt of value, it can be argued 
that any research must be shown to be original and present some benefit if it is to receive funding 
and attention from the scientific community. Any Ph.D. thesis or postdoctoral research, in order to 
be accepted for graduation, publication or funding, must offer new and useful information to the 
pool of knowledge. It does not follow that every researcher who performs original research that 
adds to the general pool of knowledge has inherently made a contribution of major significance to 
the field as a whole. 
With regard to the beneficiary's published and presented research findings, the petitioner submitted 
copies of approximately twenty articles citing to the beneficiary's body of work. While the citation 
evidence submitted by the petitioner demonstrates some outside interest in the beneficiary's research 
findings, he has not shown that an aggregate of less than two dozen independent citations during his 
career is an indication that his work equates to original contributions of major significance in the 
field. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. While the evidence indicates that the beneficiary 
performed admirably on the projects to which he was assigned, the submitted documentation does 
not establish that he has made original scientific contributions of "major significance" in his field. 
For example, the record does not indicate the extent to which his work has impacted others in his 
field nationally or internationally, nor does it show that the field has significantly changed as a result 
of his work. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
regulatory criterion. We note that the submitted letters are all from individuals with whom the 
beneficiary has interacted. While such letters are important in providing details about the 
beneficiary's role in various projects, they cannot by themselves establish his acclaim beyond his 
immediate circle of professional contacts. USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Commr. 1988). However, USCIS is ultimately responsible for making the final determination - 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795-796. Thus, the content 
of the writers' statements and how they became aware of the beneficiary's reputation are important 
considerations. Even 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 that one would expect of a design engineer who has sustained 
national or international acclaim. Without evidence showing that the beneficiary's work has been 
unusually influential, highly acclaimed throughout his field, or has otherwise risen to the level of 
contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner submitted evidence of the beneficiary's co-authorship of articles in publications such 
as IEEE Transactions on Microwave Theory and Techniques and IEEE Transactions on 
Instrumentation and Measurement. The petitioner also submitted evidence showing that the 
beneficiary coauthored papers for presentation at IEEE conferences such as the 2008 Electronic 
Components and Technology Conference and the 2004 ISCAS. Accordingly, the petitioner has 
established that the beneficiary meets this criterion. 
Evidence that the alien has perJbrmed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At issue for this criterion are the position the beneficiary was selected to fill and the reputation of the 
entity that selected him. 
The petitioner submitted letters of support indicating that the beneficiary worked as a Research 
Assistant at the University of Florida, as a "FSL Design Engineer IV" with Freescale Semiconductor, 
and as a Radio Frequency Module Design Engineer with SiRF Technology, Inc. While the 
beneficiary has performed admirably on the projects to which he was assigned, there is no evidence 
showing that his role as a "Research Assistant" or design engineer was leading or critical to the 
preceding employers. For instance, there is no organizational chart or other evidence documenting 
how the beneficiary's position fit within the general hierarchy of the preceding companies and 
university. We note that the beneficiary's Research Assistant position at the University of Florida 
was intended to provide specialized research experience and training in his field of endeavor. The 
petitioner's evidence does not demonstrate how the beneficiary's subordinate research position at the 
University of Florida or his design engineer positions with Freescale Semiconductor and SiRF 
Technology, Inc. differentiated him from the other researchers and design engineers employed at those 
organizations, let alone their tenured faculty or senior managerial staff. The documentation submitted 
by the petitioner does not establish that the beneficiary was responsible for the success or standing of 
the preceding organizations' to a degree consistent with the meaning of "leading or critical role." 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
In response to the director's request for evidence, the petitioner submitted the beneficiary's SiRF 
Technology, Inc. pay statement for August 1 - 15'" 2008 reflecting that he was receiving an annual 
salary of $1 12,000 at the time of filing. The petitioner also submitted wage results from the Foreign 
Labor Certification Data Center's "Online Wage Library" showing the median wages of Electronics 
Engineers in the Phoenix-Mesa-Scottsdale, Arizona region. For example, the Level 4 Wage (fully 
competent) for Electronics Engineers in this region was $84,074 per year. The petitioner, however, 
must submit evidence showing that the beneficiary's salary places him among that small percentage 
at the very top of the field rather than simply in the top half on a regional basis. See 8 C.F.R. 
5 204.5(h)(2). Thus, median regional wage statistics are not an appropriate basis for comparison in 
determining "significantly high" earnings in relation to others in the field. On appeal, the petitioner 
submits wage information from 0-Net Online reflecting that the "median" national wage for Electronics 
Engineers in 2008 was $86,370 annually. The petitioner also submits data from the Bureau of Labor 
Statistics indicating that the "mean" annual wage of Electronics Engineers in 2008 was $88,670. As 
discussed previously, the petitioner must submit evidence showing that the beneficiary's salary 
places him among that small percentage at the very top of the field rather than simply above average 
in his field or in the top half of his field. For this reason, mean and median wage statistics are not an 
appropriate basis for comparison in determining "significantly high" earnings in relation to others in 
the field.3 
The petitioner's response to the director's request for evidence included a pay statement dated August 
29, 2008 reflecting that the beneficiary's earnings increased to $1 17,600 per year. A petitioner, 
however, must establish the beneficiary's eligibility at the time of filing. 8 C.F.R. 55 103.2(b)(l), 
(12); Mutter of Kutigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider pay increases 
received by the beneficiary after August 13,2008 in this proceeding. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate the 
beneficiary's receipt of a major, internationally recognized award, or that he meets at least three of 
the criteria that must be satisfied to establish the minimum eligibility requirements necessary to 
qualify as an alien of extraordinary ability. 8 C.F.R. 5 204.5(h)(3). 
B. Comparable Evidence Under 8 C.F. R. 8 204.5(h) (4) 
Throughout these proceedings, counsel has argued that presentation of the beneficiary's work at 
various conferences should be considered as comparable evidence of his extraordinary ability. We 
note that the beneficiary's conference presentations relate to the regulatory criterion at 8 C.F.R. 
5 204.5(h)(3)(vi), a criterion the beneficiary has satisfied. Moreover, the regulation at 8 C.F.R. 
5 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten criteria "do not 
readily apply to the beneficiary's occupation." The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no evidence that eligibility for visa preference in the 
beneficiary's occupation cannot be established by the ten criteria specified by the regulation at 
8 C.F.R. 5 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory criteria, the 
plain language of the regulation at 8 C.F.R. 5 204.5(h)(4) does not allow for the submission of 
According to 2008 wage information from the U.S. Department of Labor's Bureau of Labor Statistics, the top decile of 
Electronics Engineers earned an annual wage of at least $129,920. See http:iiwww.bls.qovoes!currentloes172072,1it1~i, 
accessed on February 12, 20 10, copy incorporated into the record of proceeding. The beneficiary's $1 12,000 annual 
wage at the time of filing falls substantially below that of the top earners in his field. 
comparable evidence. Nevertheless, there is no evidence showing that the beneficiary's participation 
in engineering conferences equates to comparable evidence of achievements and recognition 
commensurate with sustained national or international acclaim at the very top of his field. In the 
fields of science and engineering, acclaim is generally not established by the mere act of presenting 
one's work at a conference or symposium along with numerous other participants. Nothing in the 
record indicates that the presentation of one's work is unusual in the beneficiary's field or that 
invitation to present at venues where the beneficiary's work appeared was a privilege extended to 
only a few top engineering researchers. Many professional fields regularly hold conferences and 
symposia to present new work, discuss new findings, and to network with other professionals. These 
conferences are promoted and sponsored by professional associations, businesses, educational 
institutions, and government agencies. Participation in such events, however, does not elevate the 
beneficiary above almost all others in his field at the national or international level. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, we must 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. 5 204.5(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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. § 1 153(b)(l)(A)(i), and 8 C.F.R. 
5 204.5(h)(3). See also Kazarian, 20 10 WL 7253 17 at *3. 
In this case, many of the deficiencies in the documentation submitted by the petitioner have already 
been addressed in our preceding discussion of the regulatory criteria at 8 C.F.R. $5 204.5(h)(3) and 
(4). 
With regard to the documentation submitted for 8 C.F.R. § 204.5(h)(iv), even if the petitioner were to 
have submitted evidence establishing that the beneficiary actually completed the seven paper 
reviews for the ISCAS or reviewed papers for Transactions on Electron Devices as of the filing date, 
we cannot conclude that his participation as a reviewer demonstrates 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. 5 204.5(h)(2). The petitioner submitted a document entitled "ISCAS 2004 Authors' Paper 
Submission Kit." Under the heading "Review Process," this document states: 
A committee of reviewers selected by the conference committee will review the documents and 
rate them according to quality, relevance, and correctness. The conference technical committee 
will use these reviews to determine which papers will be accepted for presentation at the 
conference. The result of the technical committee S decision will be communicated to the 
submitting authors . . . . 
[Emphasis added.] We cannot ignore that the ISCAS technical committee (rather than individual 
reviewers such as the beneficiary) ultimately determine which papers will be accepted for presentation 
Page 14 
at the ISCAS conference. Moreover, in discussing the peer review process for Transactions on 
Electron Devices, the letter fiom states: 
Peer-review is an integral part of the publication process. 
Consistent with IEEE's policies and procedures, all scientific papers and cornrnunications 
published in regular IEEE periodicals shall be reviewed by at least two referees who are 
competent and have experience in the area of the subject matter of the paper. Referees are 
formal reviewers whose comments and opinions will form the basis upon which the Editor will 
decide whether or not to publish the paper, and with what changes. . . . The Editor's decision is 
always based on all the reviews received, but mixed reviews present the need for the exercise of 
editorial judgment. Thus, theJinal decision for acceptance or rejection lies with the Editor. 
[Emphasis added.] We cannot ignore that the journal's editor (rather than individual reviewers such as 
the beneficiary) ultimately determines which papers will be accepted for publication in Transactions on 
Electron Devices. Moreover, we note that peer review is a routine element of the process by which 
articles are selected for publication in scientific journals or for presentation at scientific conferences. 
Occasional participation in the peer review process does not automatically demonstrate that an 
individual has sustained national or international acclaim at the very top of his field. For example, 
according to letter, the IEEE seeks referees "who are competent and have 
experience in the area of the subject matter of the paper." Competency and experience are not 
necessarily commensurate with sustained national or international acclaim at the very top of the field. 
Reviewing manuscripts is recognized as a professional obligation of researchers who publish 
themselves in scientific journals or who present their work at professional conferences. Normally a 
journal's editorial staff or a conference technical committee will enlist the assistance of numerous 
professionals in the field who agree to review submitted papers. It is common for a publication or 
technical committee to ask multiple reviewers to review a manuscript and to offer comments. The 
publication's editorial staff or the technical committee may accept or reject any reviewer's 
comments in determining whether to publish, present, or reject submitted papers. Without evidence 
pre-dating the filing of the petition that sets the beneficiary apart from others in his field, such as 
evidence that he has received and completed independent requests for review from a substantial 
number of journals or conferences (as opposed to a single yearly ISCAS conference), served in an 
editorial position for a distinguished journal, or chaired a technical committee for a reputable 
conference, we cannot conclude that the beneficiary is among that small percentage who has risen to 
the very top of the field of endeavor. See 8 C.F.R. 5 204.5(h)(2). 
With regard to the documentation submitted for 8 C.F.R. 5 204.5(h)(v), many of the letters refer to the 
proprietary nature of the beneficiary's work or do not discuss any impact beyond the beneficiary's 
immediate employer. The statute and regulations require "extensive documentation" of "sustained 
national or international acclaim" for recognized achievements in the field. See section 203(b)(l)(A)(i) 
of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The letters regarding the 
beneficiary's contribution to his field do not explain how the beneficiary was purportedly able to 
achieve sustained national or international acclaim for his original contributions if the documentation 
regarding his achievements consisted of closely held proprietary material. The statutory and regulatory 
requirement for "extensive documentation" of "sustained national or international acclaim" necessitates 
evidence of recognition beyond direct acquaintances of the beneficiary. If knowledge of the 
beneficiary's work is deliberately restricted, then by definition national or international acclaim is 
virtually impossible. 
Further, with regard to the evidence submitted for 8 C.F.R. 5 204.5(h)(vi), although the petitioner has 
met the plain language of the regulation through his coauthorship of scholarly articles, he has not 
established that the publication of such articles in publications such as IEEE Transactions on 
Microwave Theory and Techniques and IEEE Transactions on Instrumentation and Measurement 
demonstrates a level of expertise indicating that the beneficiary is among that small percentage who 
have risen to the very top of the field of endeavor. See 8 C.F.R. 5 204.5(h)(2). As authoring 
scholarly articles is inherent to science and engineering research, we will evaluate a citation history 
or other evidence of the impact of the beneficiary's articles to determine the impact and recognition 
the beneficiary's work has had on the field and whether such influence has been sustained.' For 
example, numerous independent citations for an article authored by the beneficiary would provide 
solid evidence that the beneficiary's work has been recognized and that other researchers have been 
influenced by his work. On the other hand, few or no citations of an article authored by the 
beneficiary may indicate that his work has gone largely unnoticed by his field. As previously 
discussed, the petitioner submitted evidence showing that the beneficiary's body of work has been 
independently cited less than two dozen times. While these citations demonstrate some interest in his 
published and presented 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. 
C. Standard of Proof 
In the appellate brief, counsel argues that the director "erred in applying fundamental standards and 
burdens of proof." Counsel asserts that the correct standard is "preponderance of the evidence," 
which requires only that eligibility be "more likely than not" to be true and cites to INS. v. Cardoza- 
4 For instance, we note that the majority of the beneficiary's scholarly articles were authored while he was working as a 
Research Assistant at the University of Florida from 2002 through 2006. With regard to research in a university setting, 
the Department of Labor's Occupational Outlook Handbook, 2010-1 1 Edition (accessed at htt~:/!w~w.bls.poviocol), 
provides information about the nature of employment as a postsecondary teacher (professor) and the requirements for such a 
position. See http:!/data.bls.govicgi-1~i1ii~rii~t~n1~'i~~~~iocsO66.ltir, accessed on February 15, 20 10, copy incorporated into 
the record of proceeding. The handbook expressly states that faculty members are pressured to perform research and publish 
their work and that the professor's research record is a consideration for tenure. Moreover, the doctoral programs training 
students for faculty positions require a dissertation, or written report on original research. Id. This information reinforces 
USCIS' position that publication of scholarly articles is not automatically evidence of sustained national or international 
acclaim; we must consider the field's reaction to those articles. 
Fonseca, 480 U.S. 421 (1987). In that case, the court held that an alien's withholding of deportation 
required "a showing that 'it is more likely than not that the alien would be subject to persecution' in 
the country to which he would be returned." Although the instant case involves the adjudication of 
an employment-based immigrant visa petition, not withholding of deportation, we do agree with 
counsel that the correct standard of proof is a preponderance of the evidence. Except where a 
different standard is specified by law, a petitioner or applicant in administrative immigration 
proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit 
sought. See, e.g., Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner 
must prove eligibility by a preponderance of evidence in visa petition proceedings). 
The "preponderance of the evidence" standard, however, does not relieve the petitioner from 
satisfying the basic evidentiary requirements required by the statute and regulations. Therefore, if 
the statute and regulations require specific evidence, the applicant is required to submit that 
evidence. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 9 1153(b)(l)(A)(i), and 8 C.F.R. 
§§ 204.5(h)(2), (3), and (4). In this case, the documentation submitted by the petitioner failed to 
demonstrate by a preponderance of the evidence that the beneficiary has achieved sustained national or 
international acclaim and that he is one of the small percentage who has risen to the very top of the field 
of endeavor. The specific deficiencies in the petitioner's evidence were addressed in our discussion of 
the regulatory criteria at 8 C.F.R. § 204.5(h)(3) and (4). 
Section 291 of the Act provides: 
Whenever any person makes application for a visa or any other document required for entry, or 
makes application for admission, or otherwise attempts to enter the United States, the burden of 
proof shall be upon such person to establish that he is eligible to receive such visa or such 
document, or is not inadmissible under any provision of this Act, and, if an alien, that he is 
entitled to the nonimrnigrant; immigrant, special immigrant, immediate relative, or refugee 
status claimed, as the case may be. 
The law goes on to assert that the evidence must establish eligibility "to the satisfaction" of the 
adjudicating officer. This burden is confirmed in Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965) 
and Matter of Brantigan, 1 1 I&N Dec. 493 (BIA 1966). 
Moreover, in contrast to INS. v. Cardoza-Fonseca, 480 U.S. 421 (1987), the benefit sought in the 
present matter is not the type for which documentation is typically unavailable and the statute 
specifically requires "extensive documentation" to establish eligibility. See section 203(b)(l)(A)(i) 
of the Act. The regulations provide that eligibility may be established through a one-time 
achievement or through documentation meeting at least three of ten criteria. 8 C.F.R. 5 204.5(h)(3). 
The commentary for the proposed regulations implementing this statute provide that the "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, 1991). 
111. Conclusion 
Review of the record does not establish that the beneficiary 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 
beneficiary's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established the beneficiary's eligibility pursuant 
to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g.. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
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. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.