dismissed EB-1A Case: International Construction Economics

DATE: DEC 1 8 2012 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (;\AO) 
20 Massachusetts Ave., N.W .• MS 2090 
Washine.ton, DC Z0529-2090 
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. § I I 53(b)(l )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a 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.P.R. § 103.5(a)(I)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
.JJhl~VlcL f Ron Rosenberg 
} Acting Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed with an additional fmding of fraud. 
The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A) in 
"International Construction Economics." The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of her 
sustained national or international acclaim. 
On May 22,2012, in accordance with the regulation at 8 C.F.R. § 103.2(b)(16)(i), the AAO issued 
a notice advising the petitioner that the approval of the petition was precluded pursuant to the 
marriage fraud provisions of section 204( c) of the Act. 
Section 204(c) of the Act, 8 U.S.C. § 1154(c), states: 
Notwithstanding the provisions of subsection (b) no petition shall be approved if 
(I) the alien has previously been accorded, or has sought to be accorded, an 
immediate relative or preference status as the spouse of a citizen of the United 
States or the spouse of an alien lawfully admitted for permanent residence, by 
reason of a marriage determined by the [Secretary of Homeland Security 1 to have 
been entered into for the purpose of evading the immigration laws or (2) the 
Attorney General has determined that the alien has attempted or conspired to enter 
into a marriage for the purpose of evading the immigration laws. 
8 C.F.R. § 204.2(a)(1)(ii) states: 
Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the 
approval of a visa petition filed on behalf of an alien who has attempted or 
conspired to enter into a marriage for the purpose of evading the immigration 
laws. The director will deny a petition for immigrant visa classification filed on 
behalf of any alien for whom there is substantial and probative evidence of such 
an attempt or conspiracy, regardless of whether that alien received a benefit 
through the attempt or conspiracy. Although it is not necessary that the alien have 
been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence 
of the attempt or conspiracy must be contained in the alien's file. 
l""Ill1'UIlIO' married on November 23, 2004, in San Diego, 
filed Form 1-130, Alien Relative, seeking to classify the 
petitioner as spouse of a United States cItizen pursuant to section 201(b) of the Act. 
Although a marriage may be given legal effect in the United States or abroad, the USCIS is not 
required to recognize it for the purpose of conferring immigration benefits where the marriage 
was entered into for the purpose of evading the immigration laws. Matter of M-, 8 I&N Dec. 217 
(BIA 1958); Lutwak v. United States, 344 U.S. 604 (1953); Johl v. United States, 370 F.2d 174 
(1966). The central question in spousal visa petition proceedings is the intent of the parties at the 
Page 3 
time the marriage is entered into. Bark v. INS, 511, F.2d 1200 (9th Cir. 1975); Matter of McKee, 
17 I&N Dec. 332 (BIA 1980). 
As indicated in the AAO's notice, the record of proceeding contained substantial and probative 
evidence reflecting that the petitioner's marriage to was a blatant attempt to 
circumvent the immigration laws. In fact, when was confronted with the 
derogatory information, including the inconsistencies in the sworn testimonies, 
withdrew his petition. A decision regarding section 204(c) of the Act is for USCIS to make in 
prior collateral proceedings. The United States Citizenship and Immigration Service (USCIS) 
should reach its own independent conclusion based the evidence actually before it. Matter of 
Rahmati, 16 I&N Dec. 538 (BIA 1978); Matter of F-, 9 I&N Dec. 684 (BIA 1972). A finding 
that section 204(c) of the Act does apply to an alien must be based on evidence that is substantial 
and probative. Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990); Matter of Agdianoay, 16 I&N 
Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972). Once US CIS has met 
this initial requirement, the burden shifts back to the petitioner, as part of his burden of proof in 
visa petition or revocation proceedings, to rebut the Government's evidence and establish that 
the prior marriage was bona fide and that section 204(c) of the Act should not apply. Matter of 
Kahy, 19 I&N Dec. 803 (BIA 1988). 
Pursuant to the regulations at 8 C.F.R. §§ 103.2(b)(16)(i), the petitioner was afforded 30 days in 
which to respond to the AAO's notice. On June 28, 2012, the AAO received a letter from counsel 
stating: 
As I was not the attorney who represented [the petitioner] and her husband in the 
marriage case, I have filed a request pursuant to FOIA [Freedom of Information 
Act], to be provided with every document in her marriage/adjustment file. I need the 
information contained in her file in order to provide [the petitioner] with proper legal 
representation. 
In view of the foregoing, it is respectfully requested that the AAO grant us an 
additional thirty (30) days to respond to its letter dated May 22, 2012, that period to 
begin upon our receipt of the response to the FOIA request. 
A review of the record of proceeding reflects that counsel's FOIA request was processed on 
September 21, 2012. However, as of the date of this decision, the petitioner failed to respond to 
the AAO's notice. The regulation at 8 C.F.R. § 103.2(b)(13)(i) states that [iJf the petitioner or 
applicant fails to respond to a request for evidence or to a notice of intent to deny by the required 
date, the application or petition may be summarily denied as abandoned, denied based on the 
record, or denied for both reasons." 
The AAO notes that the petitioner's failure to submit independent and objective evidence to 
overcome the derogatory information seriously compromises the credibility of the petitioner and 
the documentation submitted in support of her employment -based petition. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent, objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
Page 4 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Id. If USCIS fails to believe that a fact stated in the petition is true, 
USCIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. 
I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 
10 (D.D.C.1988); Systronics Corp. v.INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
Regardless, the AAO will address the director's finding that the petitioner has failed to 
demonstrate that she meets at least three of the ten regulatory categories of evidence to establish the 
basic eligibility requirements. 8 C.F.R. § 204.5(h)(3). 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 shaH first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(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 HR. 723 Wist 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; 8 c.F.R. § 204.5(h)(2). 
-Page 5 
The regulation at 8 C.F.R. § 2D4.5(h)(3) requires that the petitioner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 2D4.5(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. USc/S, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.' With respect to the criteria 
at 8 c.F.R. § 2D4.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitim~te 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. § 2D4.5(h)(3». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a fmal merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. Id. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The director determined that the petitioner failed to establish eligibility for this criterion. 
Specifically, the director found that "[nlo evidence was submitted corroborating the alien 
petitioner's individual role/recognition within the context of what appear to be collaborative 
group endeavors for which the awards were granted." In other words, the director determined 
that the evidence recognizing the companies in which the petitioner was employed was not 
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). 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 6 
tantamount to the petitioner's receipt of nationally or internationally recognized prizes or awards 
for excellence in the field. 
On appeal, prior counsel claims:
3 
Company for national and intl~rn:atiolnal 
"COMPANY". [sic] Hence the awards are primarily designed to recognize and 
sanction the company's total record of performance rather than an individual. 
[The petitioner] definitely has a fair claim in awards with her 
group who own both group of companies: 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. A letter addressed to _ from the Ministry of Turkey, Republic of 
Turkey who indicated that the company received the "Roll of Honor" for 
its 69th ranking in the national tax payments ranking classification for 
fiscal year 1997; 
2. A document from who indicated that 
payment ranking classification; 
3. An article from Capital Magazine, dated October 1999, indicating that 
"[b lased on the ranking classification of the largest dam construction 
contracting companies with contract operation between the 
4. 
years 1994 - 1998, ranked 3'd,,; 
8, 1991, addressed 
of State, who congratulated 
meritorious performance as a young and dynamic ml~mber 
from ••• 
"upon [his] 
our society"; 
5. dated December 30, 1994, that was unaddressed from _ 
who indicated that he was 
"impressed with your of service contribution to the 
economic well being of our land and people"; and 
3 Prior counsel 
Page 7 
6. A letter, dated March 15, 2007, addressed to the petitioner from 
_ who thanked~~.!~,r her "outstanding efforts in connection 
with execution of~ national and international contracts." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[ d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence 
in the field of endeavor [emphasis added]." Moreover, it is the petitioner's burden to establish 
eligibility for every element of this criterion. Not only must the petitioner demonstrate her 
receipt of prizes and awards, she must also demonstrate that those prizes and awards are 
nationally or internationally recognized for excellence in the field of endeavor. In other words, 
the petitioner must establish that her prizes and awards are recognized nationally or 
internationally for excellence in the field beyond the awarding entities. 
Regarding items 1 - 5, as the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires "[d]ocumentation of the alien's receipt" of prizes or awards, the submission of 
documents and letters that are addressed to either __ or his group of companies is 
insufficient to demonstrate that the petitioner received any nationally or internationally 
recognized prizes or awards for excellence in the field. Further, the AAO cannot conclude that a 
prize or award that was not specifically presented to the petitioner is tantamount to her receipt of 
a nationally or internationally recognized award. It cannot suffice that the petitioner was one 
member of a large group that earned collective recognition. Regardless, the documentary 
evidence submitted by the petitioner fails to reflect a prize or award, let alone a nationally or 
internationally recognized prize or award for excellence in the field. There is no evidence 
indicating that the receipt of a tax ranking, for example, is equivalent to a prize or an award. 
Regarding item 6, the petition was filed on October 23, 2006; however the letter is dated on 
March 15, 2007. Eligibility must be established at the time of filing. Therefore, the AAO will 
not consider this item as evidence to establish the petitioner's eligibility. 8 c.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comrn'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of /zummi, 22 I&N Dec. 169, 175 (Comrn'r 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come 
into being only subsequent to the filing of a petition." /d. at 176. Nonetheless, the petitioner 
failed to establish that a letter thanking the petitioner for her contributions is tantamount to a 
prize or award. Moreover, the petitioner failed to demonstrate that the appreciation letter is 
recognized beyond the Eren Group of Companies, so as to reflect a nationally or internationally 
recognized prize or award for excellence in the field. 
As discussed, the plain language of this regulatory criterion specifically requires that the 
petitioner demonstrate her receipt of nationally or internationally recognized prizes or awards for 
excellence in her field. In this case, the petitioner failed to demonstrate that she has received any 
prizes or awards, let alone nationally or internationally recognized prizes or awards for 
excellence in the field. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Page 8 
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. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. Specifically, the director found that "[n]o evidence was submitted corroborating the 
alien petitioner's individual role/recognition within the context of what appear[s] to be 
collaborative group endeavors for which the memberships were granted." In other words, the 
director determined that the memberships of the companies in which the petitioner was 
employed was not tantamount to the petitioner's memberships in associations. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[ d]ocumentation of 
the alien's membership in associations in the field for which is classification is sought, which 
require outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields [emphasis added]." In order to demonstrate that 
membership in an association meets this criterion, a petitioner must show that the association 
requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education 
or experience, standardized test scores, grade point average, recommendations by colleagues or 
current members, or payment of dues do not satisfy this criterion as such requirements do not 
constitute outstanding achievements. Further, the overall prestige of a given association is not 
determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
A review of the record of proceeding reflects that the petitioner claimed eligibility for this 
criterion based on her purported membership with the following associations: 
1. The Turkish Contractors Association (TCA); 
2. The Turkish Employers' Association of Construction Industry (lNTES); 
3. and 
4. The Turkish Industrialists and Businessmen Association (TUSIAD). 
Regarding item 1, the petitioner submitted a letter 
_ .... , who stated that_comprising the main contracting cOimp'anies 
oldest and the most prominent organization of Turkey in the construction sector [emphasis 
added]." Moreover, that "[o]nly companies bearing specific technical, 
legal[,] financial and related criteria can become members of the TCA 
[emphasis added]." Furthermore, stated that "the company" has to fulfill at least 
one condition to meet the work experience criterion. In addition, the petitioner submitted 
screens hots from www.tmb.org.tr reflecting companies who are members of TCA. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(ii) requires "[d]ocumentation of 
the alien's membership in associations [emphasis added]." Similar to the reasons discussed 
under the awards criterion above, the petitioner must demonstrate that she is a member of 
associations rather than demonstrating that her employers are members of associations. As there 
is no indication that membership with TCA is granted to individuals but to companies, the 
petitioner failed to establish that she is a member of TCA. Although on appeal the petitioner 
submitted a letter from Secretary General of TCA, who indicated that the 
petitioner has made significant to the international relations to ~ 
TCA, the fact remains that the petitioner is not a member of TCA. In fact, ___ 
are members ofTCA. It cannot suffice that an employer's membership with 
an association also demonstrates an employee's membership with an association. 
Likewise, regarding item 2, the petitioner submitted documentary evidence reflecting tha~ 
P J The petitioner failed to submit any documentary evidence ... . ~ .-. -
establishing that an individual is eligible for membership with INTES. In fact, the petitioner 
submitted screenshots from INTES' website that exclusively listed companies as members of 
INTES. Without evidence of the petitioner's actual membership with INTES, the petitioner 
cannot meet the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(ii). 
Similarly, regarding item 3, the petitioner submitted a certificate indicating that NTF Company is 
a member of the . While the document listed the petitioner as one 
of the shareholders of the company, the fact remains that NTF Company is a member of the 
•••••• rather than the petitioner. Again, the plain language of the 
regulation at 8 c.F.R. § 204.S(h)(3)(ii) requires the "alien's membership" rather than an 
employer's membership. 
Regarding item 4, the petitioner submitted a certificate indicating that the petitioner has been a 
member of TUSIAD since October 27, 2000. The petitioner also submitted screenshots from 
TUSIAD's website that reflected the mission and background of TUSIAD. In addition, the 
petitioner submitted screenshots from www.turkishdailvnews.com reflecting articles about 
TUSIAD. 
While the documentary evidence submitted by the petitioner reflects that she is a member, the 
petitioner failed to demonstrate that membership with TUSIAD requires outstanding 
achievements of its members, as judged by recognized national or international experts in their 
disciplines or fields. Although the screenshot provides general background information about 
TUSIAD, the screenshots submitted by the petitioner fail to provide any membership 
requirements, so as to establish that they reflect outstanding achievements of its members, as 
judged by recognized national or international experts in their disciplines or fields. 
Moreover, even if the petitioner were to establish that her membership with TUSIAD meets the 
elements of this criterion, which she has not, section 203(b)(1)(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.S(h)(3)(ii) requires membership in more than one association. 
Page 10 
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 plural, 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 USC IS ' 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 "an bachelor's degree or "an 
foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). In the case here, the petitioner has only demonstrated her 
membership with one association. 
As discussed, the petitioner cannot meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii) by simply submitting documentary evidence reflecting the memberships of her 
employer. It is the petitioner's burden to establish eligibility for every element of this criterion. 
In this case, the petitioner failed to establish that she is a member of any association that requires 
outstanding achievements of its members, as judged by recognized national or international 
experts in their disciplines or fields. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as ajudge 
of the work of others in the same or an allied field of specification for which 
classification is sought. 
The director determined that the petitioner failed to establish eligibility for this criterion. A 
review of the record of proceeding reflects that in response to the director's request for additional 
evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8), prior counsel claimed the 
petitioner's eligibility for this criterion. Specifically, prior counsel claimed: 
Exercising a high level of supervision over a workforce of thousands of engineers, 
technicians, managers, etc., the petitioner has judged the work of others in their 
respective field of endeavor. 
[The petitioner 1 represents her group of companies and her country in the world 
of Construction Industry. She makes all INTERNATIONAL BUSINESS 
ECONOMIC DECISIONS for her company's international contracts. 
counsel's claim, he referred to contracts of •••••••••••• 
IS 
that even though prior counsel claimed he submitted documentation regarding the project, a 
review of the record of proceeding fails to reflect that prior counsel submitted the 
documentation. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of the 
alien's participation, either individually or on a panel, as a judge of the work of others in the 
same or an allied field of specification for which classification is sought." The phrase "a judge" 
implies a formal designation in a judging capacity, either on a panel or individually as specified 
under the regulation at 8 C.F.R. § 204.5(h)(3)(iv). Simply signing a contract on behalf of the 
petitioner's company is insufficient to demonstrate that she participated as a judge of the work of 
others. There is no indication as to what work or individuals the petitioner judged. While the 
petitioner's role in signing contracts has evidentiary value for the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii) and discussed later, it does not meet the 
plain language of this criterion. 
For the reasons discussed above, the petitioner failed to demonstrate that she participated as a 
judge of the work of others in the same or an allied field of specification for which classification 
is sought at the time of the filing of the petition consistent with the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. On the" for this criterion based on 
her creation of and 
publication of a book entitled Management Systems C(J'ntl"oL. 
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." Here, the evidence must be reviewed to see whether it rises to the level 
of original 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 
(2od Cir. Sep 15, 2003). 
Regarding AS, at the initial filing of the petition, prior counsel claimed: 
Page 12 
installation of [AS] has allowed the management to monitor 
devices enabling her to centralize all operations through a cable networking 
system - an extremely successful innovation that placed the ",UUUll<Ol UlllU115 the 
of construction ~~~~ 
EUROPE that has introduced this system. 
Moreover the petitioner submitted a letter of 
who stated that "[b]y bringing broad assets of her scientific finljin:gs SIJecifil:allly 
"[AS]", and demonstrating a capacity for unique executive leadership, [the petitioner] will have a 
significant impact on industrial development of the United States of America [emphasis added]." 
Further, the petitioner submitted a "Brand Registration Certificate" from the Turkish Patent 
Institute reflecting that it was registered for ten years. 
Based on prior counsel's own claim, AS has been only applied at the _ There is no 
evidence reflecting the application of the system throughout the petitioner's field, so as to 
demonstrate an original contribution of maj or significance in the field. The impact or influence 
of AS has been limited to the petitioner's own company that is not reflective of having a major 
significance in the field. Furthermore, the AAO 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 Department of Transportation, 22 I&N Dec. 215, 221 n. 7, (Comm'r 1998). 
Rather, the significance of the innovation must be determined on a case-by-case basis. [d. A 
patent recognizes the originality of the idea, but it does not demonstrate that the petitioner made 
£2!!ill!lli!!!2!!. of major significance in the field through his development of this idea. Moreover, 
speculated that the AS "will have a significant impact." A petitioner cannot file a 
petition under this classification based on the expectation of future eligibility. There is no 
indication that any construction company is currently applying AS beyond her own company, so 
as to establish that it has already impacted the field in a significant manner. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (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 /zummi, 22 I&N Dec. at 175. That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. at 114, that USCIS cannot "consider facts that come into 
being only subsequent to the filing of a petition." [d. at 176. The assertion that AS will likely to 
be influential is not adequate to establish that AS is already recognized as a major contribution in 
the field. 
Regarding NTFIS, the petitioner submitted a letter from Firat Eren who stated: 
[The petitioner] has contributed..il.....Wl.J.o our company as an executive and 
developer; who customized the _ an integrated software, designed to 
overcome the difficulties in controlling NTF work sites which are spread over 
different geographical regions. 
did not indicate the impact or influence 
reflect an original contribution of major significance in the field. 
so as to 
Again, whil~ may be 
Page 13 
utilized by tbe petitioner's company, tbe plain language of tbe regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires tbat tbe petitioner's original contribution be of major significance in tbe 
field. Witbout evidence showing tbe significance of tbe petitioner's work in the field as a whole, 
simply submitting evidence of tbe petitioner's work at her company is insufficient to meet this 
criterion. 
Regarding Management Systems Control, a review of tbe book submitted by the petitioner 
credits tbe petitioner as the "coordinator of design and publication." Furthermore, in the preface 
of tbe book, _ indicates tbat tbe petitioner developed and implemented tbe applications 
of tbe management systems at However, tbe petitioner failed to submit any 
documentation to demonstrate tbat tbe book is considered an original contribution of major 
significance in tbe field. Once again, tbere is no evidence to establish tbat tbe Management 
Systems Control has been widely applied or implemented in tbe field, so that is 
has been of major significance in tbe field as a whole ratber tban limited 
Again, tbe plain language of tbe regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
tbe alien's original scientific, scholarly, artistic, atbletic, or business-related contributions of 
major significance in the field [emphasis added]." Without additional, specific evidence 
showing tbat tbe petitioner's work has been unusually influential, widely applied tbroughout her 
field, or has otberwise risen to tbe level of contributions of major significance, the AAO cannot 
conclude tbat she meets tbis criterion. 
Accordingly, tbe petitioner failed to establish tbat she meets tbis criterion. 
Evidence that the alien has peifonned in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director determined tbat tbe petitioner established eligibility for tbis criterion. The plain 
language of tbe regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that tbe alien has 
performed in a leading or critical role for organizations or establishments tbat have a 
distinguished reputation." Based on a review of tbe record of proceeding, tbe petitioner 
submitted sufficient documentary evidence to demonstrate tbat she minimally meets the plain 
language of tbis regulatory criterion. 
Accordingly, tbe petitioner established tbat she meets tbis 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 tbe director's decision, he determined tbat tbe petitioner established eligibility for tbis criterion. 
However, based on a, review of tbe record of proceeding, tbe AAO must witbdraw tbe decision of 
tbe director for tbis criterion. 
The petitioner submitted tbe following documentation: 
Page 14 
1. A letter, dated September 25, 2006, from _ stating that the 
petitioner "commands an annual salary including benefits of $576,000 
outmatching the compensation received by her associates of equal 
distinction"; 
2. 22, 2006, 
end of each quarter; 
who stated that the petitioner "receives an annual salary 
US$ 576,000.00 paid to her in three installments at the 
3. A non-certified and partial translation of a document from 
www.cnnturk.com.tr claiming the salary compensation for a police officer, 
medical doctor, university professor, member of parliament, prime minister, 
and cabinet ministers; 
4. A non-certified and partial translation of a document from Capital Magazine 
claiming that "CEO's of private corporations receive highest rates in 
monthly compensation" and "these rates range between 120 to 200 thousand 
dollars in monthly compensation - a figure represented by a total of 
2,400,000.00 dollars per annum"; 
5. A screenshot from Sabah Newspaper indicating that "[tJhe average executive 
yearly salary in Turkey is 79,000 Euros"; 
6. A screenshot from www.forbes.com listing the top ten highest-paid CEOs in 
2005; and 
7. A screenshot from ~~~~~ 
salaries in 2005 
million in 
named several CEOs and their 
(Citibank) who earned $280 
•••• who earned $164 
earned $133 million. 
The petitioner failed to submit primary evidence of her salary such as payroll records, pays tubs, or 
income tax documentation. The regulation at 8 C.F.R. § 103.2(b )(2)(i) provides that the non­
existence or unavailability of required evidence creates a presumption of ineligibility. According to 
the same regulation, only where the petitioner demonstrates that primary evidence does not exist or 
cannot be obtained may the petitioner rely on secondary evidence and only where secondary 
evidence is demonstrated to be unavailable may the petitioner rely on affidavits. In this case, while 
the petitioner submitted two job letters from her own company and father, the petitioner failed to 
submit any documentary evidence demonstrating that primary evidence and secondary evidence do 
not exist or cannot be obtained. Regardless, the letters from _ and are 
not affidavits as they were not sworn to or affmned by the declarant before an officer authorized to 
administer oaths or affirmations who has, having confmned the declarant's identity, administered 
the requisite oath or affmnation. See Black's Law Dictionary 58 (9th Ed., West 2(09). Nor, in lieu 
of having been signed before an officer authorized to administer oaths or affmnations, do they 
Page 15 
contain the requisite statement, permitted by Federal law, that the signer, in signing the statement, 
certify the truth of the statement, under penalty of perjury. 28 U.S.C. § 1746. As the petitioner 
failed to comply with the regulation at 8 C.F.R. 103.2(b)(2)(i), she failed to demonstrate her 
commanded salary at the Eren Group of Companies. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires that the 
petitioner commands a high salary "in relation to others in the field." According to _ the 
petitioner has served as a general manager, CEO, president, and treasurer of the family construction 
business. However, regarding items 3 - 7, the petitioner failed to submit any documentary evidence 
comparing her salary to other general managers, CEO's, presidents, andlor treasurers in her field. It 
is noted that regarding items 3 and 4, the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires 
that any foreign language document that is submitted to USCIS must be accompanied by a full and 
certified English language translation. Because the petitioner failed to submit full and certified 
English language translations as required pursuant to the regulation at 8 C.F.R. §103.2(b)(3), the 
AAO cannot determine whether the evidence supports the petitioner's claims. Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. Nevertheless, the 
petitioner's reliance on the salaries of various occupations such as police officers is insufficient to 
compare her salary "in relation to others in the field," as well as comparing the salaries of CEOs 
over a broad range of fields. Similarly, the submission of documentary evidence reflecting the 
average salary for a general executive salary in Turkey is too narrow to demonstrate the petitioner's 
high salary compared to others in the petitioner's specific field. Even if the AAO was to compare 
the petitioner's salary to the salary of the CEO at Citibank, the petitioner's purported yearly salary 
of $576,000 is significantly smaller than Richard Fairbank's salary of $280 million in 2005. 
The evidence submitted by the petitioner does not establish that she has commanded a high salary in 
relation to experienced professionals in her occupation. See Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994) (considering a professional golfer's earnings versus other PGA Tour 
golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. TIL 1996) (considering NHL 
enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 
1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). The AAO 
notes that in Matter of Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is 
not a comparison of_ ability with that of all the hockey players at all levels 
of play; but rather,_ ability as a professional hockey player within the NHL. 
This interpretation is consistent with at least one other court in this district, Grimson 
v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 C.ER. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 
60898-99. 
For the reasons discussed above, the petitioner failed to submit sufficient documentary evidence 
evidencing her commanded salary and demonstrating that her salary was high when compared to 
others in her field. As such, the AAO withdraws the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
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 the 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 Kazan'an opinion, the next step would be a fmal 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[irJ 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 fmal merits determination.4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
ld. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(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. 
FURTHER ORDER: The AAO fmds that the petitioner entered into a fraudulent marriage 
and pursuant to section 204(c) the approval of the petitioner's visa 
petition is prohibited. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 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)(I)(ii). See also section 103(a)(I) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March I, 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).