dismissed EB-1A Case: Industrial Engineering

(b)(6)
(I 
DATE: APR 0 2 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TExAS SERVICE CENTER 
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 · 
FILE: 
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: 
l . 
INSTRUCTIONS: 
Enclosed please find the. decision of ~e Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally de_cided your case. Please be advised 
that any further inquirythat 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 
www.uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. · 
The petitioner seeks classification· as an employment-:based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1153(b)(l)(A), as an 
alien of extraordinary· ability as an industrial engineer. The director determined that the petitioner 
had not established the reqUisite extraordin~ ability and failed to submit extensive documentation of 
his sustained national or international acclaim. · 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acciaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 2045(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 ten regulatory categories of evidence to 
establish the basic ·eligibility requirements. 
On appeal, counsel asserts that the petitioner meets the regulatory categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(iv) - (vi). Counsel also requests that "should the Administrative Appeals Office 
agree with the Service's handling of the above criteria, the petitioner would like the Administrative 
Appeals Office to consider [the petitioner's] entire submission" as comparable evidence of his 
extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). For the reasons discussed 
below, the AAO will uphold.the director's decision. 
I. LAW 
Section 203(b) of the Act states; in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if--
(i) the alien ha.S extraordinary ability in the sciences, arts, 
education, business, or athletics which has been \ . 
demonstrated by sustained national or international 
ll;Cclaim and whose achievements have been recognized in 
the field through extensive documentation, 
(ii) the ali.en seeks to enter the United· States to continue 
work in the area of extraordinaiy ability, and 
(b)(6)
Page3' 
(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 immigrruit 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 ~at small percentage who have risen to the very top of the field of 
endeavor. Id.; 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 
I 
acclaim and the recognition of his achievements in the field. Such acclaim must be established either 
through evidence ofa 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 Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed ·under this classification. Kazarian v. USCIS, 580 F .3d 1 030 (9th Cir. 2009) aff d in part 
596 F.3d·1115 (9th Cir. 2010) .. Although the couit 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.1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that 
while US CIS 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 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 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. ·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 e~idence. Id. · 
1 Specifically, the court stated that the AAO had unihiterally 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)(vl). 
(b)(6)
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II. ANALYSIS 
A. Evidentiary Criteria2 
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. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue to 
be abandoned. 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). 
Accordingly, the petitioner has not established that he meets this criterion. · 
Evidence of the alien 's participation, either individually or on a panel; a.S a judge of the 
work of others in the same or an allied field of specification for which classification is 
sought. 
The AAO affirms the director's .finding. that the petitioner's evidence meets this regulatory criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or b~fsiness­
related contributions of major significance in the field. 
In the dir~ctor's decision, he determined that the petitioner failed to establish eligibility for this 
regulatory criterion. The' plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires 
"[ e ]vidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field." [Emphasis added.] Here, the evidence must be 
reviewed to see whether it rises to the level of original scientific or business-related contributions 
"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). 
On appeal, counsel points to various letters of support discussing the petitioner's ·work and his 
expertise in the field. · . · 
The petitioner submitted an August 1, 2012 letter from 
stating: 
I am an attorney and General Counsel to the 
maJor labor organization. 
, Partner, --------
a 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)PageS 
* * * 
I have known [the petitioner] since 2010. As an industrial engineer with a subspecialty in 
the area of. work measurement and time standards; [the petitioner] has already contributed 
significantly to the dialogue between the and in this area. Indeed, well over 
100,000 employees of the are paid on the basis of their individual rural route 
evaluations, which are determined in ·large measure on the basis of work measurement and 
time standards. 
For at least the next three years, [the petitioner] will be assisting the in a 
comprehensive review and study of the more than 40 time standards that comprise the 
evaluated pay system. The _ _ _ _ and have committed to undertake this study, the 
first such study since the establishment of rural delivery more than 100 years ago. 
I spent months contacting respected industrial engineers in academia and in the private 
sector and few possessed the analytical and practical experience of [the petitioner]. The 
number of industrial engineers'qualified to assist on the project described above is extremely 
.limited. Work measurement and time standards experts are in short supply. Few graduate 
programs focus on this area of industrial engineering. Therefore, the skills [the petitioner] 
possesses are extremely important . 
discusses the petitioner's invo.lvement in dialogue between the and the but 
fruls to provide specific examples of how the petitioner's original work was of major 
significance in the field of industrial engineering. In addition, states that over "the next 
three years, [the petitioner] will be assisting the in a comprehensive review and study of 
the more than 40 time standards" of the pay system. The AAO notes that any impact 
resulting from the review and study of the time standards post-dates the April 2, 2012 filing 
date of the petition. Eligibility must berestablished at the time of filing the petition. 8 C.P.R. 
§§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts.: 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decisionfurther provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that USC IS cannot "consider facts that come 
into being only subsequent to the filing of a petition." !d. at 176. 
also asserts that few possess "the analytical and practical experience'' of the petitioner, that 
"[ w ]ork measurement and time standards experts are in short supply," that "[ f]ew graduate 
programs focus on this area: of industrial engineering,". and that "the skills [the petitioner] possesses 
are extremely important." Assuming the petitioner's skills and experience are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
eniployment certification process. See Matter of New York State Department ofTransportation, 22 
I&N Dec. 215, 221 (Comm'r 1998). Significantly, unique training and experience do not even 
qualify an alien for a waiver of the alien emploYment certification process in the national interest under 
a lesser classification set forth at section 203(b)(2) of the Act. !d. at 221. As such, unique training· and 
experience cannot be considered an original contribution of "major significance" in the field. At issue 
for this regulatorycriterion is how the petitioner's original work has demonstrably impacted the field as 
a result ofhis trairllng and experience. · . 
(b)(6)Page 6 
attorney at the law firm of states: 
I first began to work with [the petitioner] approximately six years ago in conjunction with a 
wage and hour collective action in the poultry processing business. That lawsuit was __ _ 
-
. Our law .finn needed an industrial engineer to conduct a time and. motion study 
with respect to claims that plaintiffs were making in the case. · More particularly, the 
plaintiffs (over 1,000 of them) were alleging that they were engaging in certain "donning 
and doffing" activities that were depriving them of pay for more than 30 minutes each day. 
My colleagues and I had a difficult time finding an industrial engineer who was capable of 
conducting such a time and motion study. 
* * * 
[The petitioner.'s] work in the case yielded conclusions that directly contradicted the 
claims of the plaintiffs in the case by showing that the duration of the activities was only a 
fraction of the time that the plaintiffs claimed. 
* * * 
Since that time I have worked closely with [the petitioner] on five other wage and hour class 
actions. 
* * * 
In each of these cases [the petitioner] took measurements and compiled complex reports 
setting forth detailed calculations of various donning and doffing activities. Those · 
measurements and reports had a very substantial impact on each case. [The petitioner's] 
calculations put our client into a position to resolve those cases for much less money than 
the plaintiffs claimed. 
* * * 
' 
I am confident that [the petitioner's] work at least in the area of time and motion studies will 
continue to be important to U.S. employers. Wage and hour class actions in the United 
States have increased exponentially during the last 20 years. The number of wage and hours 
lawsuits (including class actions and non-class actions) have increased from 1 ,457 cases in 
1993 to 7,064 cases in 2012. (See Seyfarth Shaw LLP Case Study for 2012). A record 
number of wage and hour cases was [sic] filed in 2012. [The petitioner] stands in a unique 
position to help employers and workers not only evaluate and quantify the claims in such 
actions, but to develop systeins and procedures for eliminating or reducing claims for 
alleged unpaid activities. The value of [the petitioner's] work in such· regards easily 
surpasses tens of millions of dollars that directly affect the U.S. workforce and economy. 
While indicates that the petitiqner' s work for 
was important to the law. finn and its clients, there. is no evidence demonstrating that the 
(b)(6)Page 7 
petitioner's work on wage arid hour Class action litigation equates to original contributions of major 
significance in the field. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires 
that the contributions be "of major significance in the field" rather than limited to the affected 
parties in a class action lawsuit. _ also comments that the petitioner's work in the area of 
time and motion studies ·is important to U.S. employers and valuable to the U.S. workforce and 
economy. Eligibility for this regulatory criterion, however, requires original contributions of major 
significance in the field of industrial engineering rathe~ than simply unique expertise in time and 
motion studies. The supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states: 
The Service disagrees that all athletes performing at the major league level should 
·automatically. meet the "extraordinary ability'; standard .... Ablanket rule for all major leagtie 
athletes would contravene Congress' intent to reserve this category to "that small percentage of 
individuals who have risen to the very top of their field of endeavor." 
Similarly, a blanket rule for all industrial engineers capable of conducting time and motion studies 
would be equally problematic. Merely having unique experience in the area of time and motion 
studies is not an original contribution of major significance iri and of itself .. Rather, the record must 
be supported by·· evidence that the petitioner has al~eady used his skills to impact the field at a 
significant level in an original way. As previously discussed, assuming the petitioner's skills and 
experience are unique, the classification sought was not desigried merely to alleviate skill shortages 
in a given field. The issue of whether similarly-trained workers are available in the U.S. is ari issue 
under the"jurisdiction of the Department of Labor. See Matter of New York State Department of 
Transportation, 22 I&N Dec. at 221. . 
partner in the law firm of , states: 
A significant part of my practice irivolves advising .and defending employers in complex · 
wage and hour lawsuits under federal and state law. The issues typically involve hundreds or · 
thousands of employees and potential liability in the millions of dollars from United States 
employers. 
My defense and advisory work depends heavily on complex issues of work measurement 
and time standards. I have worked with and relied on [the petitioner] to provide detailed 
analysis of work measurement and time standards for my clients in his role as an industrial 
engineer. I have depended heavily on [the 
petitioner] for multiple cases· and clients since 
2009. 
Since we .began working together, [the 
petitioner] and 1 have worked closely together on 
nine lawsuits .... 
* * * 
In each of the cases, [the petitioner] took the lead role in leading an on-site multi-day data 
gathering project at the clients' facilities to capture the relevant parts of the work activities 
ofstatistically valid samples of the hundreds or thousands of employees. I observed that [the 
petitioner] exhibited a high degree of skill and expertise in executing complex data­
gathering projects, including adapting to field conditions and unexpected circumstances as 
(b)(6)
Page 8 
appropriate. During these on-site data-gathering projects he regularly brought to bear his 
experience and expertise as an industrial engineer to gather the data necessary as the 
foundation for reliable analysis. 
* * * 
The issues surrounding appropriate wage and hour practices of large U.S. employers, such 
as those involved in the cases I defend, have taken on increasing importance in recent years. 
The stakes for U.S. employers in these cases can be very high, involving millions ot tens of 
. millions of dollars in claims. Wage and hour cases have become one of the predominant 
types of mass claim lawsuits iii the United States. Employers will continue to need to rely 
heavily on the type of expertise shown by [the petitioner], as the courts continue to issue 
confusing and contradictory interpretations of the applicable legal standards, and as 
aggressive plaintiffs' law firms ~ontinue to target employers and to assert ever-expanding 
theories of liability. The kinds of analysis that [the petitioner] has provided and can provide 
are also of great importance to large U.S. employers; such as my clients, as they evaluate 
and adapt their work processes and pay policies in 'light of changing conditions. 
While states that he "relied on [the petitioner] to provide detailed analysis of work 
measurement and time standards" for clients that his firm represented, he does not explain how the 
petitioner's work was either original or of major significance in the field. For instance, 
does not provide specific examples of how the petitioner's original methodologies have 
substantially advanced the field of industrial engineering or .otherwise equate to original 
contributions of major significance in the field: As previously discussed, the plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(v) requires that the contributions be "of major significance in 
the field" rather than limited to clients in wage and hour lawsuits. also 
comments that the petitioner "exhibited a high degree of skill and expertise in executing complex 
data;..gathering projects" and that the petitioner demonstrated "experience and expertise as an 
industrial engineer." Again, assuming the petitioner's skills and expertise are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. Matter of 
New York State Department ofTransportatiori, 22 I&N Dec. at 221. 
a partner with states: 
I first began to work with [the _petitioner] in 2007 in connection with a wage & hour class 
action that my firm was defending for a leading poultry producer. At the heart of the 
plaintiffs' claims in that case were allegations that the defendant had not paid line workers 
- -
for time spent "donning and doffing," that is, putting on and taking off work-related apparel. 
. . . [The petitioner] and his colleagues at _ a leading industrial engineering 
firm with respect to such cases, served as our time study experts in that matter. . - . 
In that case, [the petitioner] took a leading role in planning and executing time studies for 
the defense, and monitoring the time studies conducted by the plaintiffs. Hi~ work involved 
complex random sampling analyses, detailed measurements applying industrial engineering 
principles, exhaustive statistical analyses, assistance with the preparation of written reports 
to be submitted to the court, and consultation with counsel regarding the presentation of time 
study evidence and critiques of the plaintiff's time study methodology. He demonstrated 
(b)(6)
Page9 
creativity and strong problem-solving abilities in the complex field of industrial engineering. 
He worked under significant time pressures, and assisted with the production of high-quality 
expert reports· and analyses. I have since worked with [the petitioner] on two additional 
"donning and doffing"· cases in which he has undertaken the same work, although with 
increasing responsibility in each case. 
comments on the petitioner's time study work for "donning and doffing" litigation, but 
does not provide specific examples of how the petitioner's original work has significantly 
impacted the field of industrial engineering or otherwise constitutes original ·contributions of major 
significance in the field. It is not enough to be knowledgeable and skillful and to have others attest 
to .those talents. An alien must have demonstrably impacted his field in order to meet this 
regulatory criterion. Vague, solicited letters from colleagues that do not specifically identify 
original contributions or provide sp~cific examples of.how those contributions influenced the field 
are insufficient. Kazarian, 580 F.3d at 1036. lri 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." Kazarian, 596 F.3d at 1122. The 
record lacks documentary evidence showing that the petitioner has made original contributions that 
have been of major significance in the industrial engineering field. 
Jurisdiction Safety Specialist, 
states: 
[The petitioner] and his team at 
... for 
October 2010 to September 2011. 
The study termed ' 
worked as exJ)erts in the field of 
from 
aimed to identify employee exposures to ergonomics risk factors and recommend methods 
to eliminate, reduce, or otherwise control or protect against these ergonomics exposures. 
[The petitioner] and his colleagues reviewed and analyzed thirty-five tasks performed by the 
skilled serving in the six functional 
work groups and observed them during each of the four climactic seasons f!om October 1, 
2010 to September 30, 201 L 
During the entire duration of the study, [the petitioner] and his colleagues with their 
extensive Industrial Engineering expertise compared the documented Standard Operating 
Procedures at the with current work practices, analyzed common and unique 
requirements for tasks, unique seasonal conditions and exposures, and general work 
environment and exposures; and to notify any· serious safety discrepancies and/or IDHL 
conditions to the and the juri.sdiction superintendent's office on an immediate basis .. 
. . I observed that [the petitioner] exhibited tremendous skill and expertise in not only 
implementing ergonomic principles but also excellent application while dealing with the 
employees while collecting survey and study data. He collected and analyzed data and 
compared the task parameters to· applicable ergonomic guidelines, industry standards, and 
management best practices. The data collection stages of the study brought forth his 
experience and expertise as an industrial engineer to gather the data to improve work 
conditions and increase productivity. '. · 
(b)(6)Page 10 
U.S. Bureau of Labor Statistics reports 650,000 work-related musculosketetal disorders 
(WRMSDs), resulting in costs to employers of over 20 billion dollars. These costs include 
Workers Compensation and medical expenses, the latter of which are increasing 2.5 times 
faster than benefit costs .. Indirect costs are 3 to 5 times higher, reaching approximately $150 
billion per year. These include absenteeism, staff replacement and retraining, productivity, 
and/or quality. Hence; individuals who possess the skill and industrial engineering expertise 
to improve working conditions at workplace [sic] with a reactive and proactive approach are 
in a great need in the U.S. As an industrial engineer, [the petitioner] provides the necessary 
expertise to .employers to address these cost and productivity issues. . 
. . [The petitioner] 
and his colleagues at have provided industrial engineering expertise not only to 
U.S. employers in 
the manufacturing and service sector but also to government agencies like 
the . 
etc. This indicates that the skills and expertise [the petitioner] 
possesses are of great importance to the U.S. employers. 
While states that the petitioner worked on a study entitled "Ergonomic Evaluation of 
Tasks at the " there is no documentary evidence showing that the 
study is frequently cited by others in the field or otherwise constitutes an original contribution of 
major significance in industrial engineering. _ r also comments that the petitioner 
"exhibited tremendous skill and expertise" in conducting the study, but_ fails to provide 
· specific examples of how the petitioner's findings are being utilized by others in the field, so as to 
demonstrate that-the petitioner's contribution has been of major significance. In addition, 
asserts that "individuals who possess the skill and. industrial engineering expertise to improve 
working conditions at workplace [sic] with a reactive and proactive approach are in a great need in· 
the U.S." It cannot suffice, however, to state that the petitioner possesses useful skills, or a unique 
background. Special or unusual knowledge alone does not equate to original contributions· of major 
significance in the field. Once again, the issue of whether similarly-trained workers are available in· 
the U.S. is an issue under the jurisdiction of the Department of Labor. Matter of New York State 
Department of Transportation, 22 I&N Dec. at 221. Eligibility for this regulatory criterion· is 
demonstrated by maki:p.g original contributions of major significance in the field rather than by 
simply having expertise in a particular field. The AAO is not persuaded that a given skillset is so 
important that any individual qualified to perform work requiring that skillset automatically meets 
this criterion. At issue for this criterion is whether the petitioner's original contributions are of 
major significance in the field of industrial engineering. 
Senior Attorney for states: 
I have known [the.petitioner] since 2008. As'· an industrial engineer with a subspecialty in 
the area of work measurement and time standards, [the petitioner] has performed several 
Time and ·Motion studies on behalf of The data compiled by [the petitioner] · 
was generated for litigation purposes, and was instrumental to properly evaluate potential 
defenses related to that litigation. 
' . 
In my experience as an attorney, I have worked with a variety of respected industrial 
engineers in academia and i~ the private sector and few possessed the analytical and 
practical experience of [the petitioner]. Time and Motion experts are in. short supply. The 
(b)(6)Page 11 
number of industrial engineers qualified to conduct such studies are extremely limited. Few 
graduate programs focus on this area of industrial engineering. 
states that the petitioner performed time and motion studies for and that few 
industrial engineers possess ''the analytical and practical experience of [the petitioner]," but 
does not provide specific examples demonstrating the impact of the petitioner's original work 
at a level indicative of contributions. of major significance in the field. also asserts that 
industrial engineers qualified to perform time and motion studies are in "short supply'' and "extremely 
limited in number." Once more, the issue of whether similarly trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor through the alien 
employment certifi~ation process. See Matter of New York State Department of Transportation, 22 
I&N Dec. at 221. There is no documentary evidence showing that the petitioner's original 
contributions have been of major significance in the field of industrial engineering. 
The opinions of the petitioner's references are not without weight and have been considered above. 
The AAO notes that all of the preceding letters are from individuals who have directly utilized the 
petitioner's services. While such .letters are important in providing details about the petitioner's role 
in various legal actions and time and motion studies, they fail to demonstrate that his work rises to 
the level of original contriJ:mtions of "major significance" in the field of industrial engineering. 
USCIS may, in its discretion, use as advisory opinions statements submitted a~ expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
· ultimately responsible· for making the final determination regarding an alien's eligibility for the 
benefit sought. ld. The submission of reference letters 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; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 
2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the 
content of the references' statements and how they became aware of the petitioner'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 that 
one would expect of an industrial engineer who has made original contributions of major 
significance in the field. Without additional, specific evidence showing that the petitioner's original 
work has been unusually influential, has substantially impacted his .field, or has otherwise risen to 
the level of contributions of major significance, the AAO cannot conclude that he meets this 
regulatory criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The AAO affirms the director's finding that the petitioner's evidence meets this regulatory criterion . 
. Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for- this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue 
(b)(6)Page 12 
to be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. 
Accordingly; the petitioner has not established that he meets this regulatory criterion. 
B. Swnmary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Comparable Evidence Under 8 C.F.R. §. 204.5(h)(4) 
On appeal, counsel requests that the petitioner's entire submission be considered as comparable 
evidence of his extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(11)(4). The 
regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of"comparable evidence" only if the 
ten categories of evidence-"do q.ot readily apply to the beneficiary's occupation." Thus, it is the 
petitioner's burden to demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not readily 
. applicable to the alien's occupation and how the evidence submitted is "comparable" to the specific 
objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i)- (x). Th~ regulatory language·precludes the 
consideration of comparable evidence in this case, &S there is rio indication that eligibility for visa 
preference in the petitioner's occupation cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(11)(3). In fact, as indicated in this decision, the petitioner submitted 
evidence that specifically addressed five of the categories of evidence set forth in the regulation at 
8 C.F.R. § 204.5(11)(3). where an alien is simply unable to satisfy the plain language requirements 
of at least three categories of evidence at· 8 C.F.R. § 204~5(h)(3), the regulation at 8 C.F.R. 
§ 204.5(h)(4) does not allow forthe submission of comparable evidence. Counsel's appellate brief 
does not explain why the regulatory criteria are not readily applicable to the petitioner's occupation. 
For instance, the petitioner has not established that the high salary criterion at 8 C.F.R. 
§ 204.5(h)(3)(ix) is not applicable to mdustrial engineers. Moreover, counsel fails to specifically 
identify the petitioner's documentary evidence that is "comparable" to any specific objective evidence 
required at 8 C.F.R. §§ 204.5(h)(3)(i)- (x). 
The petitioner's appellate submission includes a March 2010 article in Industria/Engineer entitled 
"Don't Abandon Your Work Measurement Cap," but the article does not mention the petitioner or 
his specific achievements in .the field. Instead, the article discusses the importance of .work 
measurement training and the. lack of industrial engineering graduates with that particular skillset. 
Counsel states that the article is "evidence 
that [the petitioner] has skills in short supply and clearly 
required in the United States." Assuming that industrial engineers with work measurement skills 
are in short supply in the United States, the classification sought was not designed merely to 
alleviate skill shortages in a given field. As previously discussed, that issue properly falls under the 
jurisdiction of the Department of Labor through the alien employment certification process. See 
Matter of New York State Department of Transportation, 22 I&N Dec. at 221. Furthermore, with 
regard· to the issue of the petitioner's skills being required in the United States, the statute and 
regulations require that the petitioner seeks to continue work in his area of expertise in the United 
States. See section 203(b)(1)(A)(ii) <;>fthe Act, 8 U.S.C. § 1153(b)(1)(A)(ii); 8 C.F~R. § 204.5(h)(5). 
As the petitioner submitted an August 15, 2012 letter from the president of 
demonstrating that the petitioner will continue to work in ·his area of expertise in the United States 
(b)(6)
•• I' • • 
Page 13 
as required by the regulation at 8 C.F.R. § 204.5(h)(5), the petitioner has already resolved the issue 
of his work measurement skills being required in the United States. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to tJle very top of the field of endeavor. 
_ Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next -step would be a final . merits determination that 
considers all of the evidence in the. context of whether or not the petitioner has demonstrated: (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.3 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. /d. at 1122. 
--
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.29l 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. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. . . . . 
2004). 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)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of 
the 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 USCIS, is the sole 
authority with the jurisdiction to decide visa petitions).