dismissed EB-1A Case: Health Care Business

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DATE: 
APR 0 ~ 2013 
IN RE: Petitioner: 
Beneficiary: 
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-~090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien _Worker as an Alien of Extraordinary Ability Pursuant to 
Section 20.3(b)(i)(A) ofthe Immigration and Nationality Act; 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the aecision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any furt~er 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 motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l){i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
\vww.usds.gov 
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DISCUSSION:' The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The director dismissed a subsequent motion to reconsider. The matter is now 
before the Administrative Appeals Office 
(AAO) on appeal The appeal will be dismissed. 
The p~itioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
.requisite extraordinary ability and failed to submit extensiv~ documentation of 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)(i )(A)(i) of the Act an<J 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 eviderice under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. · 
On Form I-290B, Notice of Appeal or Motion, counsel indicated in Part 2 that he was filing an 
appeal and his ''brief and/or additional, evidence will be submitted to the AAO within 30 days." 
Counsel dated the appeal on November 26, 2012. Asofthis date, over four months later, the AAO 
has received 
nothing further. Accordingly, the record is considered complete as it now stands . 
. Furthermore, in counsel's cover letter, he requested an oral argument before the AAO but provided 
no explanation for the need ofan oral argument. The regulations provide that the requesting party 
must explain in writing why oral argument is necessary. Further, USCIS has the sole authority to 
grant or deny a request for oral argument and will grant oral argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. 
§ 103.3(b). In this instance, counsel identified no unique factors or issues of law to be resolved. 
Moreover, the written record of proceeding fully represents the . facts and issues in this matter. 
Consequently; the request for oral argument is denied. 
Moreover, ih Part 3 of Form I-290B, counsel claims that the director "defined the field of endeavor 
I 
overly narrowly'' and "[s]ince denial incorrectly categorized Beneficiary as a 'researcher,' relevant 
· evidence was discounted as being outside the field." 
At the initial filing of the petition, the petitioner listed the beneficiary's occupation in Part 5 of Form 
I-140, Immigrant Petition for Alien Worker, as an executive director of clinicalresearch. Moreover, 
the petitioner indicated in Part 6 that the beneficiary would be responsible for leading clinical 
research operations from protoeol development to final research results. On October 28, 2011, in 
the director's request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8), 
the director indicated that "[t]he beneficiary intends to work as an executive director in the field of 
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health care business." On ·February 6, 2012, in the director's denial of the petition, the director 
indicated that the petitioner sought to classify the beneficiary as an alien of extraordinary ability as 
an "executive and manager." In fact, the director's decision never referred to the beneficiary as a 
researcher. Furthermore, the director's decision never discounted or dismissed any of the 
petitioner's evidence because it related to the beneficiary as an executive and manager rather than 
solely as a researcher. On motion, counsel raised the same argument that he now makes on appeal. 
In the director's dismissal of the· motion, the director indicated that the documentary evidence 
reflects that the beneficiary is a researcher, and the evidence <fails to show how the beneficiary's 
work as a researcher classifies him as an alien of extraordinary ability as an executive and manager. 
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 st 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. !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 reeognition 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, internationally 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Nirith Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 201 0). 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. I With respect to the criteria 
at 8 C.F.R § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent ''final merits determination." Id. at 1121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding ofthe regulations. 
Instead of parsing the significance of evidence as part ofthe 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)." Jd. at 
1122 (citing to 8 C.F.R § 204.5(h)(3)). . 
I 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. 
§ 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 fiilal merits determination. The director evaluated t~e documentary 
evidence and determined whether the documentary evidence met the plain language ofthe'claimed 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) pursuant to Kazarian. There is no 
evidence to support counsel's assertions that the director discounted or dismissed any 'of the 
petitioner's evidence because he regarded the beneficiary as a researcher rather tlum as an executive 
director of clinical research. Similarly, the director did not narrow the beneficiary's field and 
deterlnine that the beneficiary was unable to meet a criterion because the docunientary evidence 
related to another field. Counsel cited no example in the director's decision to support his 
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). 
Again, the director evaluated the documentary evidence and determined whether the documentary 
evidence met the plain language of the claiined categories of evidence listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). Specifically, the director determined that the petitioner established that the 
beneficiary met the judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
However, the director thoroughly analyzed the documentary evidence and determined 
that the 
petitioner failed to establish that the beneficiary met the membership criterion pursuarit to the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 
8 C.F.R. § 204.5(h)(3)(iii), the original contnbutions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), the scholarly articles criterion pursuant to the regulation at 8 · C.F.R. 
§ 204.5(h)(3)(vi), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), and the high salary criterion pursuant to the regulation at 8 C.F.R 
· § 204.5(h)(3)(ix). The director alSo indicated that the petitioner failed to submit any evidence 
regarding the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) and the 
commercial successes criterion pursuant to the regulation at 8 C.F.R § 204.5(h)(3)(x), and as the 
beneficiary is not a visual· artist, the artistic display criterion pursuant to the regulation at 8 C.F.R 
§ 204.5(h)(3)(vii) did not apply to the beneficiary's occupation. 
In Part 3 of Form I-290B, counsel makes brief references to a few of the petitioner's documents but 
makes no reference or submits any additional arguments regarding the membership criterion, the 
published 
material criterion, the scholarly articles criterion, and the high salary criterion. The AAO, 
therefore, considers these issues to be abandoned. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 
1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed to 
raise them on appeal to the AAO). 
On appeal, counsel claims that the director disregarded a letter from _ and claims that 
"[t]his expert letter was not even addressed in the Denial notice." On the contrary, in the director's 
discussion under the original contnbutions criterion on page 8, the director specifically referred to 
letter. In fact, the director quoted from letter: 
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What makes [the beneficiary's l accomplishment so unique has been his ability to not 
only expand his mode~ but also to proVide 
an organizational structure that others might use in Maryland and across the country. 
His model makes perfect sense for many states and local communities to use 
as a map to show how to create such a model. [The beneficiary?s] contributions to 
the model is one in which others could follow his lead in building an 
where ever }t might be needed . 
. (Emphasis added). 
The director summarized . _ letter, along. with the other letters, and determined that 
they did not explain how .the beneficiary's role as an executive 'director has impacted the field as a 
whole but rather the beneficiary's employer and southern Maryland. Moreover, the letters did not 
state how the beneficiary's concepts were being implemented by other throughout the nation 
or internationally, so as to demonstrate an original contribution' of major significance in the field 
consistent with the plain language of the regulation at 8 C.F.R § 204.5(h)(3)(v). 
The plain language ofthe regulation at 8 C.F.R § 204.5(h)(3)(v) requires "[e]vidence ofthe alien's 
original scientific, scholarly, artistic, athletic, or business-related contnbutions of major significan-ce 
in the field." Here, the evidence must be reviewed to see whether it rises to the level of original 
scientific or scholarly-related contnbutions "of major significance in the field." The phrase "major 
significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2nd Cir. Sep 15, 2003). 
The AAO ·concurs with the director's assessment of the petitioner's letters, including 
letter, submitted on behalfofthe beneficiary. Moreover, £ indicated that the 
beneficiary's model might or could be used in the field. Furthermore, stated 
that the beneficiary;s ''work in Maryland may help lead the way for others to· replicate his work 
throughout the United States [emphasis added]." A petitioner cannot file a petition under this 
classification based on the expectation of future eligibility. Given the descriptions in termS·offuture 
applicability and determinations ·that may or may not occur at a later date, it appears that the 
significance of the beneficiary's mode~ while origina~ has yet to be determined.· 
appears to speculate on the impact ·of the beneficiary's model in the field at some 
unknown point. in the future. · Eligibility must be established at the time of filing the petition. 8 
C.F.R §§ 1 03.2(b)(l); (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved 
at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izu,mmi; 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, 
that we cannot "consider facts that come into .being only subsequent to the filing of a petition." /d. 
·at 176. The assertion that the beneficiary's work will likely be influential is not adequate to 
establish that his work has already be~ recognized as a major contnbution in the field. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
. Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). USCIS is, however, 
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Ultimately responsible for making the final determirtation regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters of support from the beneficiary's personal contacts 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; see also Matter of V-K-, 24 I&N Dec.· 
500, n.2 (BIA 2008).. 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. 
For the reasons discussed in the director's decision for the original contnbutions criterion, as well as 
the discussion above, the petitioner failed to establish that the beneficiary meets the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
On appeal, counsel further claims that .the director discounted the beneficiary's leading and/or 
critical role as However, the 
director thoroughly and effectively analyzed the petitioner's claims and documentary evidence and 
determined that the. petitioner did not submit independent information about . and failed to 
demonstrate that has a diStinguished reputation. Moreover, the petitioner failed to submit 
official documentation from the appropriate authority establishing that the beneficiary performed in 
a leading or critical role. Counsel offers no argument on appeal that demonstrates error on the part 
of the director based upon the record that was before him While the director determined that the 
beneficiary's position with did not meet the plain language at 8 C.F.R. § 204.5(h)(3)(viii), 
counsel provided no argument explaining why the 
director's finding was in error; instead counsel 
simply restated. a finding of the director. 
Even if. the· . petitioner were to submit supporting documentary evidence showing that the 
beneficiary's role with meets the elements of this criterion,. which it has not, section 
203(b)(l)(A)(i) of the Act requires the submission of extensive evidence. Consistent with that 
statutory requirement, 'the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires a 
leading or critical role in more than one organization or establishment with a distinguished 
reputation. Significantly, not all of the criteria at 8 C.F.R § 204.5(h)(3) are worded in the plural. 
Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single 
. judging panel or a single high salary. When a regulatory criterion wishes· to include the singular 
within the plura4 it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence 
of experience must be in the form of "letter(s)." Thus, ·the AAO can infer that the plural in the 
remaining regulatory . criteria has meaning. In a different context, federal courts have upheld 
USCIS' ability to interpret significance from whether the singular or plural is Used in a regulation. 
See Maramjaya v. USC/S, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); 
Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equi"alent 
degree at 8 
C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic 
credentials). 
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For. the reasons discussed in the director's decision for the le~ing or critical role criterion, as well 
as the discussion above, the petitioner failed to establish that the beneficiary meets the plain 
language of the regulation at 8 C.F.R § 204.5(h)(3)(viii). 
The petitioner failed to satisfy the antecedent regulatory requirement of three types of evidence. 
Even if the petitioner had submitted the requisite evidence under at ·least three evidentiary 
categories, in accord~ce with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (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" and (2) ''that the alien has sustained 
national or -international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
-not explain that conclusion in a final merits determination. 2 Rather, the proper conclusion is that the 
petitioner has failed_ to satisfy the antecedent regulatory requirement of three types of evidence. /d. 
at 1122. 
The petitioner has not established the beneficiary's 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 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
2 The AAO maintains de novo reView of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. 
In any future proceeding, the AAO maintains the jurisdiction to conduct-a final merits determination as the 
office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(1) of the 
Act; section 204(h) ofthe Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding 
that legacy INS, now USC IS, is the sole authority with the jurisdiction to decide visa petitions).