dismissed EB-1A Case: Inventor

(b)(6)
DATE: DEC 2 9 2014 
IN RE: 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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
�fftberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" as an inventor, pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), 
which makes visas available to aliens can demonstrate their extraordinary ability through sustained 
national or international acclaim and whose achievements have been recognized in their field 
through extensive documentation. The director determined that the petitioner had not satisfied the 
initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a 
one-time achievement or evidence that meets at least three of the ten regulatory criteria. 
For the reasons discussed below, we agree that the petitioner has not established his eligibility for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.F.R. § 204. 5(h)(3), or evidence that satisfies at least three 
of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204. 5(h)(3)(i)-(x). As such, the 
petitioner has not demonstrated that he is one of the small percentage who is at the very top in the 
field of endeavor, and that he has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
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 has extraordinary abilit y 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 
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individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10151 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.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If 
the petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying 
evidence that meets at least three of the ten categories of evidence listed at 8 C.P.R. § 204. 5(h)(3)(i)­
(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. 
USCIS, 772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), 
aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) 
(finding that USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence 
alone but by its quality" and that USCIS examines "each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
At the time of the original filing of the petition, the petitioner submitted a patent filing receipt from 
the United States Patent and Trademark Office (USPTO), an affidavit describing his patent, and 
copies of his passport pages and immigration documents. The petitioner did not identify which 
criteria, if any, under the regulation at 8 C.F.R. § 204.5(h)(3) that he purportedly met. It was not 
apparent from the review of the evidence to which criteria the evidence pertained. The burden is on 
the petitioner to establish his eligibility. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 
26 I&N Dec. 127, 128 (BIA 2013). 
The director issued a request for additional evidence (RFE) pursuant to the regulation at 8 C.F.R. 
§ 103.2(b)(8) describing each of the ten criteria under the regulation at 8 C.F.R. § 204.5(h)(3). In 
response to the director's RFE, the petitioner provided background information regarding his 
invention and patent filing history, including screenshots from www ·-- and 
www . The petitioner, however, did not identify any intended criteria or how his 
documents pertained to any specific criterion. 
The director considered the petitioner's documentation under each of the categories of evidence at 8 
C.P.R. § 204.5(h)(3)(i) - (x) and determined that the petitioner did not meet any of the regulatory 
categories of evidence. On appeal, the petitioner claims eligibility for the published material 
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criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iii), the original contributions criterion 
pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(v), and the scholarly articles criterion pursuant to 
the regulation at 8 C.P.R. § 204.5(h)(3)(vi). In addition, the petitioner requests that his evidence be 
considered under the comparable evidence provision pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(4). As the petitioner does not contest the findings of the director for any of the other 
regulatory categories of evidence pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(i) - (ii), (iv), 
and (vii)- (x), the petitioner has abandoned these issues. 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). 
A. Evidentiary Criteria 
Published material about the alien in prof essional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The plain language of the regulation at 8 C.P.R. § 204. 5(h)(3)(iii) requires "[p]ublished material 
about the alien in professional or major trade publications or other major media, relating to the 
alien's work in the field for which classification is sought." In general, in order for published 
material to meet this criterion, it must be about the petitioner and, as stated in the regulations, be 
printed in professional or major trade publications or other major media. To qualify as major media, 
the publication should have significant national or international distribution. Some newspapers, such 
as the nominally serve a particular locality but would qualify as major media 
because of significant national distribution, unlike small local community papers. Furthermore, the 
plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires that "[s]uch evidence shall 
include the title, date, and author of the material, and any necessary translation." 
On appeal, the petitioner refers to the screenshots from www _ and 
www. According to its website, Patents covers the entire collection of 
granted patents and ublished patent applications from the USPTO, the 
, and the 
· 
Moreover, according to 
_ it posts the latest United States patent applications each week before the USPTO 
decides to grant or deny them.2 The petitioner's documentation includes his patent application for 
his ' that he submitted to the USPTO. Th e patent 
documentation does not discuss the petitioner, is not about the petitioner, and does not otherwise 
reflect published material about the petitioner relating to his work. The petitioner's submission of 
his patent application does not reflect evidence of published material about him relating to his work 
consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
1 See https://! __ 
record of proceeding. 
2 See� 
Accessed on October 30, 2014, and incorporated into the 
Accessed on October 30, 2014, and incorporated into the record of proceeding. 
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Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
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 rise to the level of original 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 
inAPWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
On appeal, the petitioner refers to USPTO Form 892, Notices of References Cited, as evidence of his 
eligibility for this criterion. A review of the petitioner's Form 892 reflects eight references. 
According to USPTO: 
All references which have been cited by the examiner during the prosecution, 
including those appearing in Board of Patent Appeals and Interferences decisions or 
listed in the reissue oath, must be listed on either a form PT0-892 or on an 
Information Disclosure Statement (PTO/SB/08) and initialed. All such reference 
citations will be printed in the patent. References listed by a patent examiner on a 
"Notice of References Cited," form PT0-892, will be indicated with an asterisk in the 
"References Cited" section of the front page of a patent document. 3 
In general, the citation of the petitioner's work by others in their own work demonstrates that the 
field has taken some interest to his work. Moreover, the number of citations may demonstrate the 
significance of the petitioner's work in the field. In this case, however, the petitioner's USPTO 
Form 892 reflects references that were cited by the USPTO examiner during the prosecution of the 
petitioner's patent application. They are not, however, evidence that the petitioner's work has been 
cited by others. The petitioner did not submit any documentary evidence establishing that his 
invention has been cited by others in their own work. 
Furthermore, the petitioner has only submitted evidence that he submitted a patent application with 
the USPTO and that the patent application is currently being adjudicated. Even if the USPTO 
granted a patent for the petitioner's invention, 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, (Assoc. Comm'r 1998). Rather, the 
significance of the innovation must be determined on a case-by-case basis. !d. A patent recognize s 
the originality of the idea, but it does not demonstrate that the petitioner made a contribution of 
major significance in the field through his development of this idea. The petitioner did not submit 
any documentary evidence, for example, to show that anyone is licensing or using the patented 
3 See h!!n.;L · Accessed on October 30, 2014, and incorporalcd inlo Lhe 
---------------------
record of proceeding. 
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technology, let alone that the invention is considered a contribution of major significance in the 
field. 
In addition, as indicated by the use of the plural in the plain language of the regulation at 8 C.F.R. 
§ 204. 5(h)(3)(v), the petitioner must show that he has made more than one original contri bution of 
major significance in the field. The use of the plural is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the criteria at 
8 C.P.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 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. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 
(D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *1, *10 (D. Or. 
Nov. 30, 2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's 
degree or "a" foreign equivalent degree at 8 C.P.R. § 204.5 (1)(2) requires a single degree ra ther than 
a combination of academic credentials). Therefore, even if the petitioner were to establish that his 
invention reflects an original contribution of major significance in the field, which he has not, the 
submitted evidence does not show that the petitioner has made more than one original contribution 
of major significance in the field as required by the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v). 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(vi) requires"[ e]vidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other major 
media." On appeal, the petitioner claims that " and several other websites 
published this; copy of which is unavailable as mentioned in annexure-33 of the RFE sent." ln the 
petitioner's RFE response, the petitioner claimed that also published my work in 2007 
but copies of which are traceless now." Furthermore, according to the petiti oner' s "List of 
Attachments" for his RFE response, he indicated that annexure 33 was " 
and it was "Missing." 
The record of proceeding contains no evidence that the petitioner has authored scholarly articles in 
' energsky and several other websites." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of' Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Accordingly, the petitioner did not establish that he meets this criterion. 
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B. Comparable Evidence 
On appeal, the petitioner claims: 
As I am an independent inventor trying to be an entrepreneur in the business of my 
invented machine in US, and because my achievement is latest and yet to come in 
public so the award or the recommendations are not gained yet as necessarily so, the 
best comparable evidence could be my running machine only. 
The petitioner then attempts to explain the features of his invention and compares the old version of 
his patent to his current amendments and submits three photos of his invention. The regulation at 8 
C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international acclaim "shall'" 
include evidence of a one-time achievement or evidence of at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. The ten categories in the 
regulations are designed to cover different areas; not every criterion will apply to every occupation. 
For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the 
criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. Moreover, the 
regulation at 8 C.F.R. § 204. 5(h)(4) provides "[i]f the above standards do not readily apply to the 
[petitioner's] occupation, the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.P.R. § 204. 5(11)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that eligibility for visa preference in the petitioner's occupation as an inventor cannot 
be established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, as 
indicated in this decision, the petitioner mentions evidence in his brief on appeal that specifically 
addresses three of the ten criteria at the regulation at 8 C.P.R. § 204.5(h)(3). An inability to meet a 
criterion, however, is not necessarily evidence that the criterion does not apply to the petitioner's 
occupation. Further, the petitioner provided no documentation as to why the other regulatory 
categories of evidence would not be appropriate to the profession of an inventor. Moreover, the 
petitioner did not indicate how the photos of his invention should be comparatively analyzed and 
how they are comparable to the regulatory categories of evidence at 8 C.P.R. § 204. 5(h)(3)(i)- (x). 
Where an alien is simply unable to meet or submit documentary evidence of three of these criteria, 
the plain language of the regulation at 8 C.P.R. § 204.5(h)(4) does not allow for the submission of 
comparable evidence. 
B. Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
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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 his or her field of endeavor. 
Had the petitioner 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 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought.4 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. at 128. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
4 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't ojJustice, 
381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain 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 INA §§ 103(a)(1), 204(b); 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).