dismissed EB-1A Case: Medical Physics

U.S. Department of Homeland Security 
Men- $a& deleted to 
prevent deprlg. unwaRmtRd 
invasion d persona1 privm 
PUBLIC COPY 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
2. 
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. $ 1 1 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act); 8 U.S.C. 5 1153(b)(l)(A), as an alien of 
extraordinary ability. The director determined the petitioner-had not established that the beneficiary has 
earned the sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. 
On appeal, counsel states: 
 "[The beneficiary] meets the regulatory criteria required for approval of an 
employment based immigrant petition in the firstpreference as an alien of extraordinary ability." 
Section 203(b) of the Act states, in pertinent pq 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 acclaim 
and whose achievements have been recognized in the field through extensive 
documentation, 
(ii) the alien seeks to emer the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively the 
United States. 
As used in this section, the term "extraordinary a,bilitym means a level of,expertise indicating that the 
individual is one of that small percentage who have risen to the very top of ths field of endeavor. 8 C.F.R. 
3 204.5(h)(2). The specific requirements for supporting dpcuments to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. $204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that 
the petitioner must show that the beneficiary has earned sustained national or international acclaim at the very 
top level. 
This petition, filed on February 9,2004, seeks to classify the beneficiary as an alien with extraordinary ability 
as a Medical Physicist. The beneficiary has been working in that capacity at University Hospitals of 
Cleveland (UHC) since September 2000. Prior to his emplopnt with UHC, the beneficiary worked as a 
postdoctoral fellow and research associate at Case Western Reserve University (CWRU) from April 1997 to 
September 2000. 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustaingd acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence pertaining to the following criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awardsfor excellence in thejeld of endeavbr. 
The petitioner submitted evidence showing that the beneficiary qarned his Master's degree from the University of 
Sao Paulo and was honored as a "distinguished graduate." Uqiversity study is not a field of endeavor, but, 
rather, training for future employment in a field of endeayor. Awards or degrees based on educational 
achievement at a given university are institutional or local in nature and do not constitute nationally or 
internationally recognized "awards for excellence in the field of endeavor." 
The petitioner also submitted evidence showing that the beneficiary received3 scholarship for his postdoctoral 
training at CWRU and two travel awards from the American Society for Photobiology in the amount of $390 and 
$400. We find no evidence indicating that the beneficiary's receipt of travel reimbursement and financial aid 
elevates him to the very top of his field. The director concluded that the beneficiary's postdoctoral training 
scholarship and reimbursement for travel expenses "fall substantially below the standard for a nationally or 
internationally recognized award. They . . . exclude the most eminent and established researchers already 
working in the field fkom consideration." We concur with the director's finding that the petitioner's evidence 
does not establish the beneficiary meets this criterion. On appeal, counsel does not challenge the director's 
finding. 
Documentation of the alien's membership in associations in the field for which class$cation is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must show that 
the association requires outstanding achievement as an esskntial 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. In addition, it is clear from the regulatory language that members must be selected at the 
national or international level, rather than the local or regional level. Finally, the overall prestige of a given 
association is not determinative; the issue here is membership requirements rather than the association's 
overall reputation. 
The director's decision stated: 
The record establishes that the beneficiary is a member of the American Society for Laser Medicine 
and Surgery (ASLMS), the American Association of Physicists in Medicine (AAPM), the American 
Page 4 
Society for Photobiology (ASP), and the Brazilian Society of Physics (BSP). However, the record 
does not illustrate that any of these associations meet this criterion. 
First, the bylaws for ASLMS indicate that the society is open tp "[alny scientist, physician, or other 
health care professional, or any individual who is qualified and duly licensed to engage in clinical 
practice and is qualified and recognized in his or her respective field" and to "[aJny individual who is 
recognized as being significantly involved with the laser industry." From this, it is clear that any 
professional working in the field or who is qualified and licensed in the field is eligible for 
membership. While the petitioner highlighted the fact that applications for membership must be 
reviewed and evaluated by the Board of Directors of the ALSMS, this would be commensurate with 
most associations, as membership in any society must be reviewed before acceptance. There is 
nothing to indicate that this Board selects members on the basis of outstanding achievements or that 
the Board is composed of recognized national or international experts. 
Second, the membership application for AAPM indicates that full membership is offered to scientists 
or engineers working in the field of medical physics, including medical engineering and 
bioengineering, who meet the training and experience requirements in the by-laws of the 
organization. These requirements are defined as possession of a Ph.D. or D.Sc. combined with one 
year of medical experience, or possession of an M.A. or M.S. combined with two years of medical 
experience. Clearly, this association does not require outstanding achievements of its members. 
Third, the constitution of the ASP indicates that membership in the society is "open to persons who 
share the stated purpose of the Society and who have educational, research, or practical experience in 
photobiology or in an allied scientific field." Again, there is nothing to indicate that the society 
requires outstanding achievements of its members as judged by recognized national or international 
experts in the field. 
Finally, the statutes of the BSP indicate that the society is open to those who have graduated with a 
degree in physics, who are researchers in physics, who are professors of physics in intermediate 
schools or higher, or whose interest in the sciences makes them "desirable" as members. As with the 
above, there is nothing to illustrate that this society requires outstanding achievements of its 
members, or that the beneficiary was judged by recognized national or international experts. 
Therefore, the record does not establish that the beneficiary meets this criterion. 
We concur with the director's finding that the petitioner's evidence does not establish the beneficiary meets this 
criterion. On appeal, counsel does not challenge the director's finding. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classiJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, itmust be primarily about the beneficiary 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. An alien would not 
earn acclaim at the national or international level froh a local publication. Some newspapers, such as the New 
York Times, nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.' 
Pages 4 and 5 of the director's decision include a detailed discussion of the materials submitted by the petitioner 
and the specific reasons those materials were not adequate to satisfy this criterion. We concur with the director's 
finding that the petitioner's evidence does not establish the beneficiary meets this criterion. On appeal, counsel 
does not challenge the director's findings relating to this criterion. 
Evidence of the alien's participation, either individually or on apanel, as a judge of the work of 
others in the same or an alliedfield of specification for which classijkation is sought. 
We concur with the director's finding that the beneficiarymeets this criterion. 
Evidence of the alien's original scientiJc,-scholarly, artistic, athletic, or business-related 
contributions of major signzjicance in the field. 
The petitioner submitted five letters of support limited to. the beneficiary's current and former superiors from 
CWRU and UHC. 
Professor and Chairman of the Department of Radiation Oncology at UHC7s Ireland 
Cancer Center and the Department of Radiation Oncology at CWRU School of Medicine, states: 
[The beneficiary] has several publications and prese~tations in photodynamic therapy which are of 
major significance. His work, "Phthalocyanine 4 (Pc.4) Phtodynamic Therapy of Human OVCAR-3 
Tumor Xenograft" published in The Journal of Photochemistry and Photobiology in 1999. 69(2):236- 
241 is ground breaking because it demonstrates that ovarian cancer in humans may be treated with 
PDT in the clinical environment. The Journal of Photochemistry and Photobiology is the pre-eminent 
scientific journal in the fiefd. 
Published and presented work, however, falls under the next criterion, a criterion that we find the evidence in 
this case adequately satisfies. To satisfy this criterion, the petitioner must show not only that the beneficiary's 
work was published or presented, but that it has "major significance" in the field. Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate criteria 
exist for published work and contributions of major significance, Citizenship and Immigration Services (CIS) 
clearly does not view the two as being interchangeable. If evidence sufficient to meet one criterion mandated 
a finding that an alien met another criterion, the requirement that an alien meet at least three criteria would be 
meaningless. 
I 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, cannot 
serve to spread an individual's reputation outside of that county. 
~rofessor of Radiation Oncology at CWRU and Director of the Physics and Dosimetry 
Section of the Department of Radiation Oncology at UHC, states: 
Based on my experience, I believe [the beneficiary] has made original scientific research 
contributions that are substantially significance [sic] in Photodynamic Therapy (PDT). [The 
beneficiary] was the frst scientist to study the biodistribution of PC 4 i~ animal model. In this first of 
a kind study, [the beneficiary] discovered that the time window of 24-48 hours for PC 4 is optimal for 
shinning the red light with high PDT response. This is of major significance because it allows for the 
destruction of more tumor cells while preserving healthy normal tissue in the same area of the body. 
[The beneficiary's] work has in this regard brought significant advancement in the use of PDT 
therapy in cancer research. 
In another study of major significance, [the beneficiary] compared PC 4 injected with a standard 
vehicle (cremophore) with a PC 4 attached in liposomes. Liposomes are the smallest artificial vesicles 
of spherical shape that can be produced from natural untoxic phospholipids and cholesterol, 
Liposomes can be used as drug carriers and loaded with a great variety of molecules, such as small 
drug molecules, proteins, nucleotides and even plasmids. Thisstudy showed that liposomes tend to 
attach to the malignant cell in more concentration than the standard vehicle improving the efficacy of 
the technique. This method substantially increases the effectiveness cancer treatment by PDT. 
Moreover, the PDT liposome method is expected to significantly reduce the cost of cancer treatment 
therapy because smaller amounts of PDT operate with the same efficiency of standard cancer therapy 
by PDT. 
now Professor and Vice-Chairman, Radiation Oncology, The Brody School of Medicine, 
East Carolina University, states: 
In the period of 1998 until the beginning of 2002, I had a faculty appointment at Case Western 
Reserve University . . . . 
I am very familiar with the work of [the beneficiary] as I was his supervisor during the four years that 
I spent as a Physics Director in the Department of Radiation Oncology in Cleveland. I was also his 
supervisor in his medical physicist training-program, whkh he completed in June 2000. 
The Hyperbaric Oxygen Therapy (HBO - a technique that the individwl breathes 100% oxygen) has 
a long tradition in clinical medicine in anaerobic infections, ischemia complications, and several 
others. [The beneficiary] discovered in his Ph.D. thesis that increasing the oxygen supply into the 
tumor (living system) using HBO technique could enhance ihe PDT damage when compared with a 
control group (one atmosphere). . . . In addition, [the beneficiary's] thesis showed that PDT at those 
conditions stimulated a great percentage of a special kind of cellular death - apoptosis. 
The importance of [the beneficiary's] interdisciplinary research highlights the synergism of both 
techniques (PDT and HBO) aiming to further PDT clinical applications in the area of treatment and 
diagnosis. [The beneficiary] is one of only a few medical physicists who have the ability to apply this 
expertise in multiple scientific disciplines in the furtherance of cutting edge cancer research. For 
example, [the beneficiary], was the first scientist to photograph the selective fluorescence coming 
from the specific tumor Walker-256, which is similar in struct~ire to leukemia, with the first 
generation of photosensitizer (Hematoporphyrin Derivative - HpD) using a simple black night lamp 
and a commercial camera. . . . The results of his ground breaking work were presented at scientific 
and medical meetings . . . . 
now Helfaer Professor of Cancer Research, Vice Chair of Dermatology, University of 
Wisconsin, states: 
I was Professor and Research Director in the Department of Dermatology at Case Western Reserve 
(CWRU) in Cleveland, Ohio, USA when I first met [the beneficiary]. 
I worked with [the beneficiary] in his postdoctoral fellowship as a principal investigator. 
Photodynamic Therapy (PDT) is a relatively new multi-di~ciplinary~cancer treatment modality based 
on the property that certain chemical compounds (called photosensitizer) absorb visible light and 
transfer the energy absorbed to the molecular oxygen present in the cell. After absorbing the energy, 
the molecular oxygen becomes reactive producing a cascade of events that kill the cell. 
[The beneficiary's] ground breaking work in this area has demonstrated that the increasing of the 
molecular oxygen supply in the tumor tissue would improve the efficiency of the PDT technique. 
This could be done using a high-pressure oxygen chamber or hyperbaric chamber. Hyperbaric 
Oxygen therapy (HBO) is a mode of therapy in which the individual breathes 100% oxygen at 
pressures greater than normal atmospheric (sea level) pressure inside of a chamber. Microscopic 
analysis of [the beneficiary's] results showed a reduction of 25% of viable malignant cells, and a 
deeper treatment penetration of 36% after HBO-PDT, comparing with animals treated under one 
atmosphere (standard PDT). This was significant because the hyperbaric chamber increases the 
destruction of malignant cancer cells thereby increasing the probability of success cancer treatment 
and recovery. 
In my laboratory, [the beneficiary] worked with a radio-labeled technique regarding the mechanism 
of transport and localization of I4c-pc 4 in normal and tumor tissue using Cremophor:Ethanol 
formulation (D12) and Liposome delivery (LIP). Dr. Colusi's experiment showed that cancer cells 
could be destroyed with medicine that acted quickly and efficiently. Moreover, [the beneficiary's] 
experiment presents a significant breakthrough because until this experiment very little was known 
about PC 4 biodistribution. This study showed that PC 4, in liposome delivery, is more selective, 
effective, and can be injected in small amount compared with the standard delivery. 
[The beneficiary] has continued his cutting edge work, and made novel discoveries regarding the 
cellular target of action and mechanisms of ~hotod~namic- therapy in human ovarian carcinoma 
(OVCAR-3) tumor xenograft heterotransplanted subcutaneously in ethylic nude mice. Through this 
method, cancer researchers may observe the growth and development of a human tumor in laboratory 
mice. [The beneficiary] was the first one to show early apoptosis in this xenograft model, as revealed 
by Par cleavage, DNA fragmentation, and p2 1 over expression (all hallmarks of apoptosis). His work 
demonstrated that this particular drug was extremely effective in the successful treatment of human 
ovarian cancer. 
While the petitioner's research is no doubt of value, it can be argued thatany research must be shown to be 
original and present some benefit if it is to receive funding and attention from the scientific community. Any 
Ph.D. thesis or published research, in order to be accepted for graduation, publication or funding, must offer 
new and useful information to the pool of knowledge. It does not follow that every researcher who performs 
original research that adds to the general pool of knowledge or is one of several practitioners who collects 
data for a study designed by others has inherently made a contribution of major significance to the field as a 
whole. 
Professor of Radiation Oncology, Biochemistry, Oncology and Environmental Health 
Sciences, CWRU, states: 
Here at Case Western Reserve University, I lead a group *of scientists and physicians that are 
developing photodynamic therapy (PDT) for the treatment of cancer. PDT is a relatively new cancer 
treatment employing a photosensitive dye that preferentially accumulates in tumors and visible light 
that activates the dye to destroy the tumor. Our group has been studying a class of dyes called 
phthalocyanines (PC's) that have properties superior to other dyes used in PDT. One of our dyes, 
known as PC 4, started Phase I clinical trial for metastatic cancer at University Hospitals of 
Cleveland, Ohio. 
[The beneficiary] made critical contributions to the pre-clinical studies that were instrumental in 
obtaining approval for testing this thelrapy in patients. We were studying how rapidly PC 4 would 
accumulate in a tumor when it was injected into an animal. [The beneficiary] studied the 
biodistribution of radioactively labeled PC 4 in normal and tumor tissue, showing that 24-48 hours 
after PC 4 is injected is the optimal time period to illuminate the tumor region to produce the best 
tumor response (highest probability of cure) while preserving the surrounding normal tissue. In 
addition, [the beneficiary's] work estalblished that almost all of the injected PC 4 is cleared from the 
body one week after its injection. The~e results are extremely important for the PC 4 clinical trial. 
: 
Page 9 
[The beneficiary] made another of his critical contributions while studying what happens when 
human tumor cells grown in immune-deficient mice are treated with PC 4-PDT. [The beneficiary] 
showed that PC 4-PDT is effective against the human ovarian carcinoma (OVCAR-3) grown as 
xenografts in athymic nude mice. Within 15 minutes following PDT and during the course of tumor 
shrinkage, several hallmarks of apoptosis were evident. Until-recently, no one had shown a response 
of ovarian carcinoma to PC 4-PDT. Based upon this revolutionary discovery, [the beneficiary's] paper 
was published in Photochemistry and Photobiology . . . . His pioneering paper has been cited in the 
literature as a reference paper for several other research programs. 
The record, however, includes less than ten cites to this article, the majority of which are self-citations by the 
beneficiary's coauthors from CWRU (including. We do not find that publication of original 
research findings is presumptive evidence of an original scientific contribution of major significance in the 
field. We must also consider the greater scientific community's reaction to those published findings. When 
judging the influence and impact that the petitioner's work has had, the very act of publication is not as 
reliable a gauge as is the citation history of the published work. Publication may serve as evidence of 
originality, but it is difficult to conclude that published findings are of major significance to the field if there 
is little or no evidence that researchers beyond the beneficiary's affiliated institutions have relied upon his 
findings. If a given article in a prestigious journal (such as the Proceedings of the National Academy of 
Sciences of the US.A.) attracts the attention of other researchers, those researchers will cite the source article 
in their own published work, in much the same way that the beneficiary himself has cited multiple sources in 
his own articles. Numerous independent citations would provide solid evidence that other researchers have 
been influenced by the petitioner's work and are familiar with it. If, on the other hand, there are few or no 
citations of an alien's work, suggesting that that work has gone largely unnoticed by the greater field, then it 
is reasonable to conclude that the alien's work is not nationally or internationally acclaimed. In this case, the 
record lacks evidence that the beneficiary's published research has been frequently and widely cited by 
independent scientists, as would be expected of research that constitutes a contribution of major significance 
within the field. 
In addressing the aforementioned letters of support, the director acknowledged that the beneficiary has made 
original scientific contributions as a medical physics researcher, but that it had not been established that those 
contributions were "recognized as having major significance to the field." The petitioner's field, like most 
science, is research-driven, and there would be little point in publishing or presenting research that did not 
add to the general pool of knowledge in the field. According to the regulation at 8 C.F.R. (i 204.5(h)(3)(v), an 
alien's contributions must be not only original but of major significance. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. To be considered a contribution 
of major significance in the field of science, it can be expected that the results would have already been 
reproduced and confirmed by other experts and applied in their work. Otherwise, it is diff~cult to gauge the 
impact of the petitioner's work. The petitioner must demonstrate not only that the beneficiary has performed 
original research, but also that it has impacted the field such that it can be considered indicative of his 
sustained national or international acclaim. 
The director decision further stated: 
The record lacks any objective evidence that the beneficiary's contributions have had any impact on 
the field at large. All five of the witness letters submitted were fiom current or former colleagues of 
the beneficiary. While the beneficiary is clearly held in high esteem by these colleagues, there is 
nothing to suggest that those outside of the beneficiary's circle consider his work to be significant. 
On appeal, counsel argues that the director erred by concluding that the testimony of the witnesses was 
"insufficient due to their professional proximity to [the beneficiary] and his work." With regard to the 
personal recommendation of individuals from institutions where the beneficiary has trained or worked, the 
source of the recommendations is a highly relevant consideration. These letters are not first-hand evidence 
that the beneficiary has earned sustained acclaim outside of his affiliated institutions. If the petitioner's 
reputation is limited to those institutions, then he has not achieved national or international acclaim regardless 
of the expertise of his witnesses. 
Counsel cites the case of a shipping company executive, Matter of [name notprovided], EAC-99-001-50557, 
(AAO Oct. 1, 2002), whose appeal was sustained by the AAO. In that case, the AAO concluded that the 
testimony of various prominent witnesses was adequate to satisfy the criterion at 8 C.F.R. $ 204.5(h)(3)(v). 
Unpublished appellate decisions have no force as precedent and thus are not binding with regard to unrelated 
proceedings. See 8 C.F.R. $ 103.3(c), which indicates that only designated precedent decisions are binding on 
Citizenship and Immigration Services' officers. Therefore, counsel's attempt to apply findings from a non- 
precedential decision to the current case is flawed. In the matter cited, that petitioner submitted letters of 
support from individuals beyond his immediate employers attesting to his national impact on the Russian 
shipping industry, whereas in the present case the petitioner's witnesses are limited to individuals who worked 
with the beneficiary at CWRU and UHC. 
Counsel further argues that "ignoring the testimonial letters of these extraordinary individuals because they 
currently collaborate or have previously collaborated with [the beneficiary] is wholly unsupported by the 
statute and regulations." The director, however, did not ignore the letters of support. In fact, the director's 
decision specifically acknowledged that the beneficiary has made contributions to his field. The director 
found that the record "lacked objective evidence" establishing that those contributions were of "major 
significance to the field." Letters from those close to the beneficiary certainly have value, for it is those 
individuals who have the most direct knowledge of the beneficiary's specific contributions to a given research 
project. It remains, however, that very often, the beneficiary's projects are also the projects of the witnesses, 
and no researcher is likely to view his or her own work as unimportant. These individuals became aware of 
the petitioner's research work because of their close contact with the petitioner; their statements do not show, 
first-hand, that the petitioner's work is attracting attention on its own merits, as we might expect with research 
findings that are of major significance to the field. 
In the present matter, the statutory requirement that an alien have "sustained national or international acclaim'' 
necessitates evidence of recognition beyond the alien's immediate circle of colleagues. While such evidence need 
not be in the form of letters from independent experts, the opinions of close colleagues alone cannot form the 
cornerstone of a successful claim of national or international acclaim. Without extensive documentation 
showing that the beneficiary's work has been unusually influential or highly acclaimed throughout the greater 
field, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the$eld, in professional or major trade 
publications or other major media. 
We agree with counsel that the petitioner's evidence is adequate to satisfy this second criterion. 
The regulation at 8 C.F.R. 9 204.5(h)(3), however, requires that at least three criteria must be fulfilled to 
establish the sustained national or international acclaim necessary to quaIify as an alien of extraordinary ability. 
On appeal, counsel states: "The director has already concluded that [the beneficiary] is a medical physicist of 
extraordinary ability by granting multiple petitions for 0-1 nonimmigrant classification on his behalf." 
Counsel cites material prepared by the California Service Center entitled "Critical Analysis of the Elements that 
make up El 1 Statute" which states: "[C]lassification as an 0-1 noniminigrant in the category of extraordinary 
ability in the field of science, education, business or athletics is highly indicative that the alien is also classifiable 
as an El 1 immigrant." However, this material goes on to state: "Sinceeach petition must stand on its own, the 
petitioner andlor attorney cannot rely solely on the argument that the alien was previously approved for the 
comparable nonimrnigrant classification." Counsel argues that "the Director clearly erred when she did not 
recognize that the Director's previous classification of [the beneficiary]-as an alien of extraordinary ability in the 
sciences was highly indicative that he is classifiable as an El 1 immigrant." The analysis prepared by the 
California Service Center, however, is not binding on the AAO. Jnformational material prepared for 
adjudicators at one service center does not constitute official CIS policy and will not be considered as such in 
the adjudication of petitions or applications. Although this material may be useful as an aid in interpreting the 
law, such material is not binding on any CIS officer as it merely indicates the writer's analysis of a particular 
issue. 
Counsel also cites a memorandum issued by 
 Associate Director, Operations, CIS, "The 
Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Contest of a Subsequent 
Determination Regarding Eligibility for Extension of Petition Validity" HQQPRD 72/11.3 (April 23, 2004). 
This memorandum, however, applies to nonimmigrant visa extensions of status rather than the immigrant visa 
classification sought by the petitioner. 
While Citizenship and Immigration Services has approved two priqr 0-1 nonimmigrant visa petitions filed on 
behalf of the beneficiary, those prior approvals do not preclude CIS,fiom denying*- immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are 
denied after CIS approves prior nonimmigrant petitions. See e.g. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends less time reviewing I- 
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude 
CIS from denying an extension of the original visa based on a reassessment of beneficiary's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Comm. 1988). 
 It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 
1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf 
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Phiiharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.)! afd, 248 F.3d 1 139 (5th Cir. 200 I), 
cert. denied, 122 S.Ct. 5 1 (2001). 
Review of the record does not establish that the beneficiary has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small percentage at 
the very top of his field. The evidence is not persuasive that the beneficiary's achievements set him significantly 
above almost all others in his field at the national or international level. Therefore, the petitioner has not 
established eligibility pursuant to section 203(b)(l)(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.