dismissed EB-1A Case: Marine Biology

(b)(6)
DATE: MAR 1 4 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
(J.,~:Depa~ellt ~f H.~Dieii1Dd 8e~urit)r 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U~S. Cjt~e:nship 
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 Ad, 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 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 iii 
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, 
·CX:< 7J_ -ft!-
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April 25, 2012. The petitioner appealed the decision to the Administrative Appeals 
Office (AAO) on May 17, 2012. The appeal will be dismissed. U.S~ Citizenship and Immigration 
Services (USCIS) will also enter a separate administrative finding of willful material 
misrepresentation. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
I 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, specifically, 
as a "marine biologist," pursuant to section 203(b)(1)(A) of the immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary a,bility. 
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 acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F:R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acelaim 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, the petitioner submitted a statement, along with additional evidence in an attempt to bolster 
his claim of eligibility. On January 22, 2013, this office attempted to advise the petitioner at his address 
of record of its intent to fmd material misrepresentations and afforded the petitioner 15 days to respond. 
As of this date, more than 40 days later, the AAO has received no response, nor has U.S. Citizenship 
and Immigration Services (USCIS) received an updated address. The petitioner is required to provide 
USCIS with any address change pursuant to section 265 of the Act, 8 U.S.C. § 1305. 
II. ISSUES PRESENTED ON APPEAL 
A. Misrepresentation 
\ 
The petitioner has willfully misrepresented multiple accomplishments. The petitioner submitted a 
purported printed webpage discussing him as·the recipient of the Dorothy Hill Award, which directly 
contradicts the information from the webpage that appears at the website address for the Australian 
Academy of Science (AAS), which the petitioner provided as the referencing website. The 
petitioner also submitted a- purported letter from the President of the AAS that states that the 
petitioner is the 2010 recipient of the Dorothy Hill Award and the award is not age restricted, in 
contrast to the information. provided in the official website for the AAS showing the recipient to be a 
female researcher. In addit~on, the petitioner submitted a purported letter from the President of the 
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Marsh Christian Trust (MCT), the sponsoring organization for the Marsh Ecology Award, noting the 
petitioner as the 2010 recipient, and a purported webpage from the MCT website confirming him as 
the recipient, in direct contradiction with the information from the official website for the MCT 
showing another individual as the recipient of the award. Furthermore, the petitioner submitted three 
articles authored by other researchers as his own, as well as multiple citations for articles that other 
researchers and scholars authored. 
B. Eligibility under Section 203(b )(1)(A) of the Act. 
The AAO upholds the director's ultimate determination that the petitioner has not established his 
eligibility for the classification sought. . 
III. MISREPRESENTATION 
A. Legal Authority 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procu.re or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that 
the alien willfully make a material misstatement to a government official for . the purpose of 
obtaining an immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975). The term "willfulli' means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See 
Matter ofTijam, 22 I&N Dec. 408, 425 (BIA 1998); Matter of Healy and Goodchild, 17 I&N Dec. 
22, 28 (BIA 1979). To be considered material, the misrepresentation must be one which "tends to 
shut off a line of inquiry which is relevant to the alien's eligibility, and which might well have 
resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 1) that the petitioner·or beneficiary made a false 
· representation to an authorized official of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See . -
Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961); 
Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
(b)(6)
Page4 
B. Analysis 
Beyond upholding the director's decision to deny the petition, the AAO is making a formal finding 
of willful misrepresentation of a material fact that should· be considered in any future proceeding 
where the petitioner's admissibility is an issue.1 On January 22, 2013, in accordance with the 
regulation at 8 C.F.R. § 103.2(b)(16)(i), this office issued a notice to the petitioner's address of 
record advising the petitioner of derogatory information indicating that the petitioner submitted false 
· documentation of awards he claimed he received, as well as articles and citations of work that were 
not the result of the petitioner's .own authorship or findings, but claimed as hls own. The petitioner 
signed the Form I-140, thereby certifying under penalty of perjury that "this petition and the 
evidence submitted with it are all true and correct." 
As the derogatory findings relate to the regulatory criteria at 8 c:F.R. §§ 204.5(h)(3)(i) and (vi), they 
are material to this proceeding. The derogatory fmdings specifically related to the criterion under 
8 C.F.R. § 204.5(h)(3)(i) are discussed in the AAO's January 22 notice as follows: 
. . 
The initial evidence [the petitioner] submitted in support of the petition includes a 
purported article in an online publication discussing [the petitioner] as the 2010 
recipient of the Dorothy Hill Award. At the bottom of the page is the web address of 
the article.2 The web address does not lead to the article [the petitioner] submitted. 
Furthermore, [the petitioner] submitted a copy of a webpage from the Australian 
Academy of Science that describes the Dorothy Hill Award and the necessary 
qualifications. The web ;address found at the bottom of the page leads to a webpage 
that provides different contents than the version [the petitioner] submitted.3 The copy 
of the webpage [the petitioner] included states: ".The award supports research in the 
Earth sciences including reef science, ocean drilling, marine science and taxonomy in 
marine systems, by -researchers under 40 years at the closing date, except in the case 
of significant interruptions to a research career." The webpage accessed via the web 
· address . states: "The award supports research in . the Earth sciences, by female 
researchers no more than 40 years in the nomination year, except in the case of 
significant interruptions to a research career." (Emphasis ·added.) The current 
1 
It is important to note that while it may present the opportunity to enter an administrative finding of willful 
material misrepresentation, the immigrant visa petition is not the appropriate forum for finding an alien 
inadmissible. See Matter of 0, 8 I&N Dec . .295 (BIA 1959). Instead, the alien may be\ found inadmissible at 
a later date when he or she subsequently applies for admission into the United States or applies for adjustment 
of status to that of a permanent resident. See sections 212(a) and 245(a) of the Act, 8 U.S.C. §§ 1182(a) and 
1~5(~. . . . . 
2 See http://www .northernstar.com.au/story/201 0/08/17 /marine-biology-researcher-honoured-with-award/, 
~ccessed on January 8, 2013. 
(b)(6)
PageS 
website provides that the award recognizes female researchers, and as a male, [the 
petitioner] would be ineligible for the award. Furthermore, the website also provides 
a list of previous winners and for 2010, the year [the petitioner] claim[s] [he] won the 
award, the website shows that "N. Webster" was .the winner. Finally, a December 
2010 online article in the Northern Star titled Marine Biology Lecturer Honoured, 
independently confirms that the Dorothy Hill Award only recognizes female 
researchers.4 On appeal, [the petitioner] submit[s] a letter purportedly from Suzanne 
Cory, President of the Australian Academy of Science, which states · in contradiction 
to the published information on the webpage, that [the petitioner] received the award 
and that it is not limited by age. The letter, however, does not resolve the obvious 
discrepancy of a male recipient of an award that recognizes female researchers or the 
independent information reveaiing that N. Webster won the award in 2010. · 
[The petitioner] also submitted a purported copy of a . webpage for the Marsh 
Christian Trust. The page shows a photo of [him] shaking the hand of the 2008 
winner of the Marsh Ecology Award. and the written content on the page proclaims 
[him] as the 2009 winner of the Marsh Ecology Award. A Google search for the 
Marsh Christian Trust website, which leads to a webpage for the Marsh Ecology 
Award shows the 2009 winner of the Marsh Ecology award as Professor Mike Begon, 
and includes a photo of two individuals who are different from the individuals 
photographed in the document [the petitioner] submitted.5 On appeal, [the petitioner] 
submit[s] a letter 
purportedly from Georgina Mace, President of the British 
Ecological Society, stating that [the petitioner] received the 2009 Marsh Ecology 
Award, which contradicts the information from the webpage. The purported letter 
also makes mention of the Dorothy Hill Award, an award for which the British 
Ecological Society is not the sponsoring organization, and comments that the Dorothy 
Hill Award is not limited by age. 
Based on the above, it has been determined that the awards that the petitioner claimed to have 
received were awarded to other individuals. More specifically, with respect to the Dorothy Hill 
Award, it has been ~etermined that the Dorothy Hill Award is age restricted and is only conferred on 
female researchers. 
The derogatory findings specifically related to the criterion under 8 C.P.R. § 204.5(h)(3)(vi) are also 
included in the AAO's January 22 notice (as follows): 
[The · petitioner] submitted a 2009 article titled "Oil Spill Impact Modeling: 
.Development and Validation" that purportedly appeared in Volume 28 No. 10·, a 
4 See http://www.northernstar .eom.au/news/marlne-biology-lecturer-honoured-with-award/724074/, accessed 
on January 8, 2Ch3. · · . · . 
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Page6 
"special . issue honoring Dan Mackay" of Environmental Toxicology and Chemistry. 
The article starts on page 2441. The version [the petitioner] sub~itted to USCIS lists 
[him] as the first and only author. The journal's website reveals that Volume 28, No. 
10 contained pages 2019 to 2240 and, thus, did not include page 2441.6 The table of 
contents also does not list an article by [the petitioner].7 A Google Scholar search for 
this title reveals the same article [the petitioner] provided. The search also revealed 
that the sole author of. the article, published in 2004, is Deborah ·P. French-McCay. In· 
addition, the article appeared on page 2441 of Volume
1
23 No. 10, also listed as a 
"special issue honoring Dan Mackay."8 [The petitioner] also submitted two 
additional articles titled "Field Measurements of Fluorescein Dye Dispersion to 
Inform Dispersed-Oil . Plume Sampling and Provide Input for Oil-Transport 
Modeling," and "Spread of Composite Pollutants in Shallow Waters of the Niger 
Delta."9 In the references sections for both artkles [the petitioner] highlighted 
Citations with [his] name as the author of "Oil Spill Impact Modeling: Development 
and Validation." The version of"Field Measurements of Fluorescein Dye Dispersion 
to Inform Dispersed-Oil Plume Sampling 'and Provide Input for Oil-Transport · 
Modeling" [the petitioner] submitted purports to cite [his] 2009 article entitled "Oil 
Spill Impact Modeling: Development and Validation" and a 2004 article by Deborah 
P. French McCay with the same title. The version that USCIS found as the result of 
an online search reveals only the 2004 article by Dr. French McCay. The first 
citation listed, rather than an article by [the petitioner], is a 2002 article by Dr. French 
McCay. This information is consistent 
with the previous Google Scholar discovery. 
The version of "Spread of Composite Pollutants· in Shallow Waters of the Niger 
Delta" that USCIS found as a result from an online search does not include a 
reference at all to the original article that [the petitioner] allegedly authored. Rather, 
the fifth citation is an article by J. Dias, J.F. Lopes and I. Dekeyser. 
[The petitioner] submitted a second article where [he] claim[sJ authorship as the first 
author, which is titled "Sea Otter Population Dynamics and the Exxon Valdez Oil 
Spill: Disentangling the Confounding Effects." . An online search indicates that [he is] 
not an author of the article.10 An online search indicates that [he is] also not the 
,. author of the third article in which you claim authorship, which is titled "Cytochrome 
P4501A Biomarker Indication of Oil Exposure in Harlequi.D Ducks Up to 20 Years 
6 See http://onlinelibrary.wiley.com(journal/10.1002/(ISSN)1552-8618/issues, accessed on January 18, 2013. 
7 See http://onlinelibrary.wiley.com/doi/10.1002/etc.v28:10/issuetoc, accessed on January 18, 2013. 
8 See http://onlinelibrary .wiley.com/doi/10.1897/03-382/full, accessed on January 8, 2013. 
9 See http://www.iosc.org/papers posters/2008%20088.pdf, and . 
http://www.ajol.info/index.phpfjasem/article/view/54974/43453, accessed on January 8, 2013. 
10 See http://onlinelibrary .wiley.com/doi/10.1046fj .1365-2664 .2001.00563.x/full, accessed on January 8, 
2013. 
(b)(6)
Page 7 
after the Exxon Valdez Oil Spill."11 [The petitioner] also submitted to USCIS an 
article titled "Wildlife Still Exposed to Exxon Valdez Oil 20-...Years after Disaster." 
The version [he] submitted included -a citation that listed [him] as the second author 
for "Cytochrome P4501A Biomarker Indication of Oil Exposure in Harlequin Ducks 
Up to 20 Years after the Exxon Valdez Oil Spill." An online search reveals that [his] 
name doeS not appear in the citation for the referencing article.12 . . 
Based on the above, it has been determined that the petitioner falsely represented the articles titled 
"Oil Spill Impact Modeling: Development and Validation," "Sea Otter Population Dynamics and the 
Exxon Valdez Oil Spill: Disentangling the Confounding Effects," "Cytochrome P4501A Biomarker 
Indication of Oil Exposure in Harlequin Ducks Up to 20 Years after the Exxon Valdez Oil Spill," 
and ~'Wildlife Still Exposed to Exxon Valdez Oil 20 Years after Disaster" as his own work . . It has 
further been determined that the petitioner submitted falsified citations. 
By submitting multiple documents containing false information about awards and by falsely 
representing scholarfy work of others as his own, the petitioner appears to have sought to obtain a 
visa by willful misrepresentation of a material fact. With regard to this derogatory infoimation, 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 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. /d. at 591. Because the petitioner submitted false documents 
misrepresenting his achievements, the AAO cannot accord any of the petitioner's other claims any 
weight. 
Pursuant to the regulations at 8 C.F.R. § 103.2(b)(16)(i), USCIS issued a notice to the petitioner's 
most recent address of record affording him 15 days (plus 3 days for mailing) to submit evidence to 
overcome ·the derogatory information. The petitioner . failed to provide a response to the notice 
advising the petitioner of the derogatory information outlined above. Accordingly, the petitioner 
offers no evidence to overcome the determination that he submitted documents relating to awards 
that contained false information and that the petitioner falsely represented the above referenced 
articles and citations as the products of his own authorship or research. 
In this instance, the ~ecord shows that the petitioner submitted mul_tiple false documents, a finding 
that the petitioner failed to overcome, although USCIS provided him an opportunity for rebuttal with 
the issuance of a notice of derogatory information. An immigration officer will deny -a visa petition 
if the petitioner submits evidence that contains false information. See Section 204(b) of the Act. In 
11 See http://onlinelibrary.wiley.com/doi/10.1002/etc.l29/full, accessed on January 8, 2013. 
12 See htt]:l/www.sciencedaily.com/reJeases/2010/04/100414111018.htm. accessed on January 8, 2013. 
(b)(6)
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Page 8 
general, a few errors or minor discrep~ncies are not reason to question the credibility of an alien or 
an employer seeking immigration benefits. See Spencer Enterprises Inc.· v. U.S., 345 F.3d 683, 694 
(9th Cir. · 2003)(upholding the · AAO's finding that evidence in that matter was not 
credible). However, if a petition includes serious errors and discrepancies, and the petitioner fails to 
resolve those errors and discrepancies after an officer provides an opportunity to rebut or explain, 
then the inconsistencies will lead USCIS to conclude. that the facts stated in the petition are not 
true. See Matter of Ho, 19 I&N Dec. at 591. 
First, the petitioner submitted letters and background material relating to awards that contained false 
information, in addition to multiple scholarly articles a,nd citations he falsely represented as his 
_ own. A misrepresentation can be made to a government official in an oral interview, on the face of a 
written application or petition, or by submitting evidence containing false information. INS Genco 
Op. No. 91-39, 1991 WL 1185150· (April 30, 1991).- Here, the petitioner's submission of the 
preceding documents in support of the· Form 1-140 petition constitutes a false representation to a 
government official. 
Second, the AAO finds that the petitioner willfully made the misrepresentation. The petitioner 
signed the Form 1-140 petition, certifying under penalty of perjury that the petition and the 
· submitted evidence are all true and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see 
also 8 C.F.R. § 103.2(a)(2). More specifically, the signature portiop of the Form 1-140, at part 8, 
requires the petitioner to make the following affirmation: "I certify, under penalty of perjury under 
the laws of the United States of America, that this petition and the evidence submitted with it are all 
true and correct." On the basis of the petitioner's signed 1-140 affirmation, made under penalty of 
perjury, the AAO finds that the petitioner willfully and knowingly made the misrepresentation. 
Third, the evidence is material to the petitioner's eligibility. To be considered material, a false 
statement must be shown to have been predictably capable of affecting the decision of the decision­
making body. Kungys v. U.S., 485 U.S. '759 (1988). In the context of a visa petition, a 
misrepresented fact is material if the misrepresentation cuts off a line of inquiry which is relevant to 
the eligibility criteria and that inquiry might well have resulted in the denial of the visa petition. See 
Matter ofNg, 17 I&N Dec. at 537. 
As the letters and the background material relating to awards affect the petitioner's eligibility for the 
regulatory criterion at . 8 C.F.R. § 204.5(h)(3)(i), it is material to this proceeding. Moreover, the 
articles and citations falsely represented to be the products 6f the petitioner's work relates to the 
petitioner's eligibility for the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(vi). Accordingly, the 
AAO concludes that the misrepresentations were_ material to the petitioner's eligibility. 
By filing the instant petition, submitting letters and background materials including false 
information, and falsely representing multiple,articles and citations 
as the products of his own work, 
the petitioner has sought to procure a benefit provided under the Act through .-· wiilful 
misrepresentation of a material fact. Because the petitioner has failed to provide competent 
independent and objective evidence to overcome, fully and persuasively, the AAO's finding that he 
(b)(6)
Page9 
submitted falsified documentation, the AAO affirms the previous finding that the petitioner has 
willfully ·misrepresented a material fact. . This finding of willful material misrepresentation shall be 
considered in any future proceeding where admissibility is an issue. 
Regarding the instant petition, the petitioner's failure to submit independent and objective evidence 
to overcome the derogatory information discussed above seriously compromises the credibility of 
the petitioner and the remaining documentation. As previously discussed, doubt cast on any aspect 
of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. at 591. 
Nevertheless, the AAO will address the petitioner's failure to demonstrate his receipt of a major, 
internationally recogniz~d award, or that he meets at least three of the ten categories of evidence that 
must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien 
of extraordinary ability. 8 C.P.R.§ 204.5(h)(3). · 
IV. ELIGIBILITY UNDER SECTION 203(B)(1)(A) OF THE ACT 
A. Legal Authority 
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 ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international a~lai:m 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 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). 
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Page 10 
The regulation at 8 C.F.R. § 204.5(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 
eith_er 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. § 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, 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 criterionP With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /d. 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 evioence 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)." /d. 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. 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. /d . 
. B. Evidentiary Criteria14 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
This criterion contains three evidentiary requirements the petitioner must address. First, the plain 
regulatory language requires that the alien be the recipient of the prizes or the awards (in the plural) . 
The . next requirement is that the evidence establishes that the prizes or the awards are nationally or 
internationally recognized: The final requirement relates to the criteria required to receive the 
13 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 CF.R. § 204.5(h)(3)(iv) and 8 C.F.~. 
§ 204.5(h)(3)(vi). 
14 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this. decision. 
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award, which w9uld indicate if the issuing entity bases their award selection on excellence in the 
petitioner's field of endeavor. The petitioner must submit evidence satisfying all of these elements 
to meet the plain language requirements of this criterion. 
As evidence for this criterion, the petitioner submits a purported online article discussing him as the 
winner of the Dorothy Hill Award, as well as purported webpages from the AAS and a letter from 
the President of the organization confirming him as the winner of the award. The petitioner also 
submits a purported webpage from the MCT and a letter from the President of the British Ecological 
Society indicating that the petitioner was the winner of the Marsh Ecology Award. · 
The director determihed that the petitioner failed to satisfy this criterion. The director determined that 
the Marsh Ecology Award ~as limited to graduate students and that the Dorothy Hill Award was age 
restricted. The director further concluded thatthe petitioner failed to include evidence establishing that 
the awards are nationally or internationally recognized . . The AAO agrees with the director that the 
record does not include evidence showing that the awards the petitioner claims he won are nationally or 
internationally recognized.- Therefore, the petitioner failed to meet a plain language requirement under 
the regulation. 
Furthermore, as discussed in the prior section, the AAO has determined that all of the documents that 
the petitioner submitted in support of tQ.is criterion include falsified information. Consequently, the 
documents that he has submitted under this criterion cannot serve as probative, credible evidence for 
meeting this criterion. 
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 . . 8 C.F.R. § 204.5(h)(3)(ii). 
The director determined the petitioner failed to satisfy this criterion. The petitioner, in the response to 
the director's Request for Evidence (RFE), submitted a certificate of membership from the Society for 
Underwater Technology (SUT). The certificate is not sufficient to establish the selection criteria for the 
members of the organization; the certificate also does not include information on whether the selection 
criteria are judged by recognized national or international experts .in the petitioner's field. Thus, the 
petitioner's evidence of membership for the SUT fails to meet the regulatory requirements for this 
criterion. 
On appeal, the petitioner submits a purported letter from the President of the British Ecological Society. 
The letter not only confirms the petitioner as the· winner of the Marsh Ecology Award, the letter also 
states that the petitioner is a member of the British Ecological Society and that membership is granted 
''only to those scientists who have risen to the top of their field and made sustained major ecological 
contributions to the protection of the environment." However, as noted earlier, the AAO has 
determined that the letter from the President of the British Ecological Society includes falsified 
information relating to the Marsh Ecology Award and the Dorothy Hill Award. Therefore, the letter 
cannot serve as probative, credible evidence. 
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Accordingly, the petitioner has failed to meet this criterion. · 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 8 C.F.R. · § 204.5(h)(3)(vi). 
The petitioner submits multiple articles realting to this criterion, as well as citations to articles, which he 
claimed as . his own work. · Based on the • petitioner's ·submissions, the director concluded that the 
petitioner met this criterion. However, as previously discussed, the AAO determined 
that the petitioner 
falsely represented the articles, citations·and associated articles as the produ~ of his oWn. work. As the 
petitioner has failed to establish that the articles and ·citations are the results of his own research and 
authorship, they cannot serve to meet this criterion. · · 
Accordingly, the AAO withdraws the director's determination relating to this criterion and concludes 
that the petitioner failed to satisfy the regulatory requirements under 8 C.F.R. § 204.5(h)(3)(v). 
J-- C. SUlllll1ary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence~ 
VI. 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. 
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 fmru merits determination that 
con~iders all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"l~vel 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.3dat 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. 15 Rather, the proper ronclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. at 1122. 
15 The AAO maintains de novo review of all questions of fact and law. See Soltane v; DOJ, 381 F.3d at 145. In 
any future proceeding, . the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii) . See also section 103(a)(1) of the Act; section 
(b)(6)
. . 
Page 13 
r' 
By filing the instant petition and submitting demonstrably false evidence, the petitioner has sought to 
proeure a benefit provided under the Act through the willful misrepresentation of a material· fact. This 
finding of material misrepresentation shall be considered in. any future . proceeding where admissibility 
is an issue. 
The petition will 'be denied for the above stated reasons; with each considered as an independent and 
alternative basis for denial. 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 and the AAO enters a separate finding of willful misrepresentation 
of a material fact. 
FURTHER ORDER: The AAO finds that the petitioner knowingly submitted false documents in an 
. . effort to mislead USCIS on elements material to his eligibility for a benefit 
sc;mght under the immigration laws of the United States. 
l. 
204(b) of the Ad; 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 1,....&-N: Dec. 458,460 (BIA 1987) (holding that-legacy INS·, 
now USCIS, is the sole authority wi~h. the jurisdiction . to decide visa petitions). )