dismissed EB-1A Case: Medical Technology

- .-
-. .~r·;;' JL",_ 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
Fll..,E: 
INRE: Petitioner: 
Beneficiary: 
U.S. Dcpartmentof Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Oftice (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washim!ton. DC 20529-2090 
U.S. Citizenship 
and Immigratio~ 
Services 
. Office: TEXAS SERVICE CENTER Date: FEB 0 8 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Abi'iity 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: 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific r~quirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice .of Appeal or 
Motion, with a fee of $63,0. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~ 
7perry Rhew U 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 1 
The petitioner is a medical technology company. It seeks classification of the beneficiary' as an 
employmept-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an ,alien of extraord~nary ability in the 
sciences. The directOr determined that the petitioner had not established the beneficiary's requisite 
extraordinary ability and failed to submit extensive documentation of his sustained national or 
international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international 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 reIDIlation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence for the alien under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel argues that the beneficiary meets at least three of the ten regulatory categories of 
\ 
evidence at 8 c.F.R. § 204.5(h)(3). For the reasons discussed below, we uphold the director's 
decision. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been deinonstrated 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 
prospectivrly the United States. 
f 
Page 3 
U.S. Citizenship and Immigration SerVices (USCrS) 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. 723 101
st 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. [d. and 8 c.F.R. § 204.5(h)(2). 
The regulation at 8 c.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence, of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or' internationally 
recognized prizes or awards for excellence in the field 'of endeavor; 
(ii) 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; , 
(iii) Published 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. Such evidence shall include the title, date, and author of the material,and 
any necessary translation; 
(iv) Evidence of the alien's, participation, either individually or on a panel, as ajudge 
of the work of others in' the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's' authorship of scholarly articles ill the field, ill 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
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(x) Evidence of commercial successes in the performing arts, hs shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 (9
th 
Cir. 2010). Although 
the court upheld the AAO's decision to den-y the petition, the court took issue with the AAO's 
evaluation of evidence submitted tomeet a given eviden~iary criterion.
l 
With respect to the. criteria 
<J.t 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 "fmal merits determination." Id. at 1121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is tocotint the types of evidence provided (which the AAO' did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3». The court also explained the"fmal merits determination" as 
the corollary to this procedure: . 
. I 
!fa petitioner has submitted therequisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who-have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
. ability" visa. 8 'U.S.C. § 1153(b)(1)(A)(i). 
Id. at 1119-1120. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a fmal merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian coUrt:. See Spencer Enterprises, Inc. v .. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001); dff'd, 345 F.3d 683 (9
th 
Cir. 2003); 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I Specifically, the court stated that the AAO had unilateraJly imposed novel substantive or evidentiary requirements. 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and.8 C.F.R. § 204.5(h)(3)(vi). 
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Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on October 27, 2008, seeks to classify the beneficiary as an alien with 
extraordinary ability in "nanotechnology? biomaterials and " At the time of 
the was working as a Senior Scientist in 
The petitioner has submitted documentation 
pertaining to the following, categories of evidence at 8 CF.R. § 204.5(h)(3).2 
Documentation of the alien IS receipt of lesser' nationally or internationally 
; recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted the beneficiary's resume which lists the following information under 
"Honors and A wards:" 
• Scientist Presentation,_ [American Chemical Society] Fall Meeting: 
• Prese~tation, Department of Chemistry, 
The record, however, does not include documentary evidence of the preceding awar~s. 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 (COrnln. 1998) 
'(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972». Rather 
than submitting primary evid~nce of the beneficiary's awards from the ACS and ••••• 
_ the petitioner,instead submitted only the beneficiary's resume and reference, letters 
listing the awards. The self-serving claims in the beneficiary's resume and the attestations of his 
references are not sufficient to meet the burden of proof for this regulatory criterion. A petition 
must be filed with any initial evidence required by the regulation. 8 C.F.R. § 103.2(b)(1). The 
nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. 
8 c.F.R. § l03.2(b)(2)(i). According to the same regulation, only where the petitioner 
demonstrates that primary evidence does not exist or cannot be obtained may the petitioner rely on 
secondary evidence and only where secondary evidence is demonstrated to be unavailable may the 
petitioner rely on affidavits. Where a record does not exist, the petitioner must submit an original 
written statement on letterhead from the relevant authority indicating ,the reason the record does' 
not exist, and whether similar records for the time and place -are available. 8 C.F.R: 
§ 103.2(b)(2)(ii). The petitioner has not established that primary evidence of the preceding 
awards does not exist or cannot be obtained. Further, the beneficiary's resume and the reference ' 
letters do not equate to secondary evidence or affidavits. Moreover, the record does not include 
infomll:ition from the presenting organizations indicating the significance of the beneficiary's 
awards or their evaluation 'criteria. Further, then~ is no documentary evidence demonstrating that 
2 The petitioner does not claim to meet or submit documentation relating to the categories of evidence not discussed 
in this decision. 
I 
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Page 6 
the beneficiary's awards are recognized beyond the presenting organizations and therefore 
commensurate with nationally or internationally recognized prizes or awards for excellence in 
the field. 
On appeal, counsel states: "We direct the reviewer's attention to the response to the RFE 
[Request for Evidence] in which we confirm that no claim was made by Beneficiary to satisfy 
this criterion." 
In light of the above, the petitioner has not established that the beneficiary meets 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. 
. ~ n 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the 'association requires outstanding achievement as an essential condition for 
admission to membership. Membership requirements based on employment or activity in a 
given field, minimu~ education or experience;' standardized test scores, grade 'point average, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. Further, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
Tather than the association's overall reputation. 
The petitioner initially submitted the beneficiary's membership card and paym~nt information 
for the ACS. The record, however, does not Include evidence of the membership requirements 
I ' 
(such as bylaws or rules of admission) for the ACS showing that it requires outstanding 
achievements of its members; as judged by recognized national or international experts in the 
beneficiary's field or an allied one. The petitioner's initial evidence for this criterion also 
included documentation . that the benefiCiary joined the •••••••••••• 
beneficiary's Resident Faculty position with NJCBM equates to a post-doctoral Lv"''''''''''''U\ 
rather than membership in an association in the field. 
The 
ition 
On appeal, counsel states: "Beneficiary did not provide any evidence for this criterion and made 
no claim it had been satisfied." 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in thefieldfor which classification is 
sought. Such' evidence shall include the title, date, and author of the material, and 
any necessary translation. : 
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In general, in order for published material to meet this criterion, it must 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 level from 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.3 
'J 
The petitioner initially submitted copies of seven research articles briefly citing to the beneficiary's 
work.4 Articles which cite to the beneficiary's work are primarily about the author's own work, and 
are riot about the beneficiary or even his work. The regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
that the published material be "about the alien." The sU):)fnitted articles do not discuss the merits of 
the beneficiary's work, his standing in the field, any significant impact that his work has had on 
the field, or any other aspects of his work so as to be considered published material about the 
beneficiary as required by this criterion. With regard to this criterion, a footnoted reference to the 
alien's work without evaluation is of minimal probative value. Finally, we note that the submitted 
articles citing to the beneficiary's work similarly referenced numerous other authors. 
On appeal, counsel states: "The Beneficiary made no claim to satisfy this criterion in either the 
initial submission or. in response to the RFE." -The research articles citing to the beneficiary's 
work' are more relevant to the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(v) and will be 
addressed theJ;'e. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's partiCipation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
submitted a December 6, 2005 e-mail from 
to the beneficiary and a coworker stating: 
~as requested I sent ~ou the attached JBMR [Journal of Bone 'and Mineral 
Research] article on matrix metalloproteinase for review. 
Please provide _your comments regarding: novelty, significance, manuscript 
quality, soundness of methods and conclusions by December 17th. 
3 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, for instance, cannot serve to spread an individual's reputation outside bf that county. 
4 Two of the citing articles, entitled with 
Oppositely Charged Polyelecirolytes" and "Investigation of local chain dynClmicsin poly(di-n-alkylitaconate)s," 
were submittec;l in duplicate. 
Page 8 
The limited infonnation provided in the preceding e-mail does no~ identify the title of the article 
reviewed by the beneficiary. Further, there is no documentary evidence of the beneficiary's 
response to_ . 
pelHloner also submitted a December 20, 2005 e-mail from 
beneficiary and two coworkers stating: 
I am sending you a draft manuscript which I received for review. Because of the interest 
you may have in the topic of this paper, I am sharing it with you. . .. Please look at the 
manuscript and provide me with your comments and critique which I will collect as part of 
my response to the editor. 
The December 20, 2005 e-mail does not identify the title of the manuscript or the journal to which it 
was submitted. Further, there is no documentary evidence of the beneficiary's response. 
The petitioner's initial submission also induaed an October 23,2006 e-mail from_ to the. 
beneficiary and two coworkers stating: "I have received the attached proposals' for evaluation .... 
I , 
At this point, I, and you are the only 4 people in the group who have seen this most relevant 
proposal. . . . Please read the propos"al and in a few days, I will convene a meeting for us to discuss 
your thouglits about this proposal." The title and subject of the proposal are not specifically 
identified and there is no documentary evidence of the beneficiary's contribll,tion to the evaluation . 
. With regard to the preceding review requests received by the beneficiary while on the research 
. faculty at the NJCBM, there is no documentary evidence demonstrating that the beneficiary 
actually completed the preceding proposal and manuscript reviews. The plain language of this 
criterion, however, requires "[e]vidence of the alien's part~cipation ... as a judge of the work of 
others .. " Being asked to review a manuscript or proposal is not tantamount to evidence of one's 
actual "participation" as a reviewer. Moreover, the regulation at 8 C.F.R. § 204.5(h)(3)(iv) 
requires evidence that the beneficiary has served as "a judge of the work of others." The phrase 
"a judge" implies a formal designation in a judging capacity, either on a panel or individually as 
specified at 8 C.F.R. § 204.5(h)(3)(iv). The regulation cannot be read to include every informal 
instance of a supervisor requesting input from his subordinates. Regarding the two e-mails from 
December 2005, the submitted documentation indicates that the journals requested that _ 
review the manuscripts. _then assigned the duty to the beneficiary and his coworkers. The 
record contains no evidence that the· beneficiary served as part of a fonnal judging process (such 
as being specifically designated as a peer reviewer for a journal or evaluating a research proposal 
as an independent reviewer at the request of the funding organization). Nevertheless, there is no . 
evidence establishing that the beneficiary actually completed the preceding manuscript and 
propo;;al reviews. Accordingly, the petitioner has. not submitted qualifying evidence that meets 
the plain language requirements of the regulatiop. set forth at 8 C.F.R. § 204.5(h)(3)(iv)., 
Additional deficiencies pertaining to the petitioner's evidence will be addressed below in our final 
merits detyrmination regarding whether. the submitted evidence is commensurate with sustained 
national or international acclaim, or being among that small" percentage at the very top of the field 
of endeavor. 
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Page 9 
On appeal, counsel states: "In response to the RFE, ... no claim was made to satisfy this 
criterion. " 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted several letters of support discussing the beneficiary's work. 
_ Director of Human Resources, II, states: 
is a publiCly traded medical technology company 
engaged principally in the and sale of a broad range of medical supplies, 
devices, laboratory equipment and diagnostic products used by healthcare institutions, 
life science researchers, clin,icallaboratories, industry and the general public. 
* * * 
As a heavily research-oriented· company, _holds over 300,000 patents .and trademarks 
and, in 2005, invested over $360 million in research and development. 
& Company employs over 28,000 individuals and for 2007 recorded a gross 
over $6.36 billion:. 
Preanalytical Systems, the division [the beneficiary] works within, generated over one (1) 
million USD in revenues· in 2007, and is the industry pioneer and leader in the area of 
modem evacuated blood collection systems, ihcluding evacuated tubes and needles. Its 
principal product lines include and families of 
products in venous, capillary and urine collection, transfer and. transport. Specific 
products within the line that [the beneficiary] is resporisible for are as follows: 
• 
• 
• 
• 
• • 
• 
• 
• 
• 
• 
* * * 
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Specifically at II, [the beneficiary] is responsible for applying his extraordinary level of 
expertise to extending the already elevated level of Pre-Analytical System (PAS) 
knowledge and innovation at the interface between specimen containment products, . r . .... 
anallytes and other compounds, and specimens and their interactions with diagnostic 
chemistries. At present, he is actively engaged in high-level activity focused on 
improving the technology and design of the and 
has a provisional patent application pending fer a 
safe method for blood collection i They p g and 
specimen, spillage, thereby reducing the potential for exposure to blood borne pathogens. 
This product line is in use in countries throughout the world and generates sales in the 
multimillions per year. 
* * * 
Given his specialized education and Ph.D. degree in Physical Polymer Chemistry, as well 
as hIs spectacular research experience at DSM~ Research in the Netherlands, and at the 
New Jersey Center for Biomaterials, [the beneficiary] has the extraordinary ability 
required, and he is uniquely qualified to lead_ithin the company's 
Diagnostics Division, in the area of biomaterials research and the design of safety 
coatings for important medical devices. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires that the contributions 
:be "of major significance in the field" rather than limited to a single research institution or 
.employer such as the petitioner. With regard to the beneficiary's occupation, the Department of 
Labor's Qccupational Outlook Handbook (OOH), 2010-11 Edition (accessed at www.bls.gov/oco 
on January 20, 2011 and incorporated into the ,record of proceedings), states: 
Many chemists and materials scientists work in research and development (R&D). In 
basic research, they investigate the properties, cofnposition, and structure of matter and 
the laws that govern the combination of elements and reactions of substances to each 
other. In applied R&D, these sCientists create new products and processes or improve 
existing ones, often using knowledge gained from basic research. 
(Emphasis added.) See http://www.bls.gov/oco/pdf/ocos049.pdf. If the regulation at 8 C.F.R. 
§ 204.S(h)(3)(v) is to have any meaning, it must be presumed that merely performing r~utine 
duties inherent to one's occupation is not necessarily indicative of scientific contributions of 
major significance in the field. While the beneficiary has helped to improve. product lines, 
there is no evidence showing that his level of contribution to the company's existing products 
equates to original scientific contributions of "major significance" in the field. . 
\ 
In response to the director's request for evidence, the petitioner submitted an August 31, 2009 letter 
Since joining. [the beneficiary's] work continues to have a significant impact, 
specifically on the PreAnalytical Medical Device Industry and Healthcare,.because,:' 
l 
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Page 11 
o He is directing a research team on Zenith P800, a blood collection diagnostic 
device, capable of stabilizing bioactive peptides (metabolites) related to metabolic 
diseases like Type II Diabetes, the fastest growing disease worldwide (estimated 
130 MM additional people will be affected by metabolic disease in the next 
twenty (20) years); /' 
o As the Core Team Leader on this product launch, he is collaborating with key 
Pharmaceutical and,Clinical Research Organizations, because the Pre-Analytical 
" device is capable of stabilizing m.etabolites offering extremely valuable insight 
into metabolic diseases like Type II Diabetes, a research area that consumes an 
estimated $80 Billion dollars annually; 
o [The beneficiary] advanced the improvement of serum speCimen purity by 
dev,elopi!lg an unprecedented Enzyme Linked Immunoassay (ELISA) method 
, capable of translating serum quality from clinically subjective observations to a 
quantitative accura:tede~ermination which enabled him; 
0' He determined the root cause for specimen contamination in diagnostic devices 
(that use blood separation gel material), contamination that is a potential cause of 
erroneous diagnostics results that can lead to inaccurate diagnosis posing a serious 
threatto patient health; 
o [The beneficiary] successfully led a project team to eliminate issues brought 
forward through seven (7) Non-Compliant Material Requests (NCMRs) relating 
to critical product component failur~s of a blood separation gel materials 
exclusively manufactured at ' 
o [The ,beneficiary] drastically around time for diagnostic test results 
by 'developing a novel formulation that rapidly coagulates blood upon collection 
In in less than 2 minutes compared to 
typically 30 minutes by conventional serum products on the market. [The 
beneficiary] holds an Invention Disclosure Report (IRD) for this work and the 
technology is scheduled to enter Product Development in 2010; 
, I 
o Leading research on products manufactured and distributed bi BD to hospitals 
, (worldwide) which has improved existing products and prevented the erosion of a 
product line at _that generates $150 MM annmillywhich is a huge business 
contribution: \ 
1. Push Button Blood Collection Set, Blood 
Collection Tubes, Blood Collection Set, Passive Shielding 
Blood Collection Needle Eclipse™ Blood Collection Needle, Holders 
2. Quikheel™ Lancet, Contact-Activated Lancet, 
T. ;. 
o ollection Tubes 
3 . 
. scusses the beneficiary'S activities at _but there is no evidence showing that the 
s original work for the company equates to scientific' or business-related 
contributions of major significance in the field. The submitted documentation does not establish 
that the beneficiary's wor](.,for_has significantly impacted the field beyond his projects for his 
. .. 
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Page 12 
immediate employer. Once again, a contribution to the beneficiary's employer is not necessarily 
an original contribution of major significance to the field at large. 
I 
The petitioner's response also included $I August 31, 2009 letter from Senior 
Vice President and Chief Technology Officer" stating: 
After joining '[the beneficiary] has been working at an 
extraordinary pace to provide solutions on critical' issues in several 
Manufacturing, Technology and Product Development initiatives. [The beneficiary's] 
exceptional work has identified the root case for specimen contamination. At the same 
time, ,he was able to effect an elimination of customer complaints by' directing a 
manufact~ring process change at the plant which resulted in a significant improvement in 
product performance. [The beneficiary's] unparalleled talent in the field of bio-relevant 
characterization of biomaterial surfaces and protein adsorption, as evidenced by his 
extensive bibliography of peer reviewed publications and a patent, has uniquely qualified 
him to address the difficult issue of quantifying specimen quality in 
products at the molecular level. ' 
_discusses how the beneficiary's work at II has been beneficial to his company, but 
he does not provide specific examples of how the beneficiary's projects have impacted the field 
,at large. _ also comments on the beneficiary's "extensive bibliography of peer 
,reviewed publications." The regulations contain a separate criterion regarding the beneficiary'S 
,authorship of scholarly artiCles. 8 C.F.R. § 204.5(h)(3)(vi). We will not presume that evidence 
Telating to or even meeting the scholarly articles criterion is presumptive evidence that the 
'beneficiary also meets this criterion. Here it should be emphasized that the regulatory criteria are 
separate and distinct from one another. ~ecause separate criteria exist for authorship of 
scholarly articles and original contributions of major significance, USCIS clearly does not view 
the two as being interchangeable. To hold otherwise would render meaningless the statutory 
requirement for extensive evidence or the regulatory requirement that a beneficiary meet at least 
three separ~te criteria! We will fully address the beneficiary's scholarly articles under the next 
criterion. Regardless, there is no documentary evidence demonstrating that the beneficiary's peer 
reviewed publications and patent application are frequently cited by independent researchers or 
otherwise rise to the level of original contributions of major significance in the field. 
I 
sociate Research Professor at the, 
Department of Chemistry and Biological Chemistry at ••••• states: 
I have known [the beneficiary] since he joined the New Jersey Center for Biomaterials .... 
Throughout his research and teaching work, [the beneficiary] has demonstrated~ 
outstanding knowledge of polyn\er chemistry and biomaterial surface characterization 
methods. Most notably, [the beneficiary] has developed important predictive tools that 
allow researchers to determine the compatibility of biomateriais surfa~es with living 
cells, providing a new understanding of blood cell and serum protein interactions with 
surfaces, such that materials can be designed and manufactured that s~lectively favor 
mammalian cell attachment over infeCtious bacterial cell biofilm formation. 
' .. 
Page 13 
[The beneficiary] has performed groundbreaking work in improved bio-relevant high­
throughput screening methods, which has resulted in essential new techniques for 
identifying novel polymeric biomaterial compositions. This state-of-tlie-art research, 
_. I . 
arising from a collaboration of Q-Sense AB, the world's leading industrial supplier of 
acoustic resonator instruments, with our Center, did much to establish [the beneficiary's] 
reputation intem"tionally as -one of the leading scientists in the design and integration of 
quartz crystal:microbalance with dissipation -(QCM-D) and imunofluorescence assay 
measurements for determining surface hemocompatibility (blood compatibility). This 
work has been published ••••••••• IIiI •••••• ~ •••••• 
• "The Application of QCM-D .Within a Biomaterials Discovery Process," Q-Sense 
- but the true tribute to its real-
IS beneficiary's] writings have 
lately been implemented by two Fortune 500 biotechnology companies. 
not identify the "two Fortune 500 biotechnology companies" that have 
implemented the beneficiary's screening methods for determining surface hemocompatibility or 
indicate the extent of their implementation. Simply 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. at 165. Further, there is no evidence showing that 
the beneficiary's conference paper is frequently_ cited by other .researchers or that his findings 
otherwise equate to original scientific contributions of major significance in the field. 
states: 
I served as [the beneficiary's] Advisor while he completed a Post Doctoral Research 
assignment at my facility, the New Jersey Center for Biomaterials .... 
*. * * 
[The beneficiary's] appointment to the New Jersey Center for Biomaterials enabled him 
to -achieve unparalleled advances in the field of biomatetials science and t;he rapid 
screening of bio-relevant properties aimed at accelerating the discovery: of new 
biomaterials. 
_does not provide specific examples of how the benefiCiary's screening methods have 
influenced the field at large or have been successfully utilized by independent research teams. 
Associate Professor in the Department of Biomedical Engineering, and the 
Department of Chemical and Biochemical Engineering at states:' 
researchers at the Department of Biomedical Engineering at 
engaged in an intensive collaboration with [the beneficiary] at 
the New Jersey Center for Biomaterials and it is through his extraordinary work on the 
project that I got to know him well. . .. The project objectives were to devise state of the 
Page 14 
art combmatorial workflows for the discovery of new biomaterials and to identify the 
pitfalls and probl~ms associated with this, which was, at that time, a rather new area of 
research. [The beneficiary]' directed the work so well that a very useful resource was 
established, unique in that it makes It possible'to evaluate the bio-response of a large 
number of potential biomaterials. This knowledge has already and wili continue in the 
future to enable thr New Jersey Center for, Biomaterials to provide the best material 
candidates for medical devices' while contributing strongly to the understanding of cell­
materials interactions in scientific literature. 
COIlllTlents that the beneficiary established a "ver~ useful" biomaterials resource for 
the NJCBM, but there is no documentary evidence showing that the beneficiary's original work 
for this project has significantly impacted others in the field. Once again, a contribution to the 
beneficiary's research institution is not necessarily a contribution of major significance in the 
field at large. 
I am ... a Core Faculty member of the "Integrated 
Technologies Resource for Polymeric Blomaterials" (RESBIO) within the New Jersey 
Center for Biomaterials, where I am responsible 'leading research efforts in high­
throughput screening experimentation of cell-material interactions. 
* * *, 
At the New Jersey Center for Biomaterials, Rutgers University, [the beneficiary] has 
made significant and lasting contributions to the RESBIO initiative, which is focused on 
developing new techniques to accelerate biomaterials discovery methods. [The 
beneficiary's] research contributions have proven invaluable to the ongoing and future 
collaborative research efforts between NIST and the New Jersey Center for Biomaterials . 
. His efforts have dictated the research focus for a team of eight (8) postdoctoral fellows 
and faculty members at the New Jersey Center for Biomaterial,s., working to exploit and 
leverage the development of new automated combinatorial workflows, rapid screening of 
bio-response characterization assays and computational methods for the prediction of 
biomatc:rials properties. Evidence for the inherent merit and value of [the beneficiary's] 
work include the fact that the system and results developed by [the beneficiary's] 
research team were featured in a presentation to the Fall 2006 
I 
There is no evidence showing that the beneficiary's ACS conference paper is frequently cited by 
independent researchers or that his work otherwise equates to an original scientific contribution 
of major significance in the field. 
\ 
• •• 
( 
Page 15 
1 
Assistant Professor of Chemical Engineering and Molecular and Cellular 
states: 
I worked as a Postdoctoral Fellow at the National Institutes of Health in the Department 
-of Biomedical Engineering at where I conducted research on tissue 
engineering and. had the pleasure of first meeting and collaborating with [the beneficiary]. 
* * * 
I am very familiar with the ... research work that [the beneficiary] has carried out while 
working at the - developing effic~ent combinatobal 
synthetic methods methods. for improvin,g and 
accelerating the discovery of new biomaterials for application in medical devices and 
regenerative medicine, [The beneficiary's] excellent work, -namely the development of 
predictive methods for determining surface herriocompatibility . and combinatorial 
approaches for the .development of polymer suifaces exhibiting cell-specific adhesion, is 
extremely important to a number of key advances within the medical device industry. 
Without these -technologies and the creative -and elegant solutions developed by [the 
beneficiary], the quality of many regenerative therapies and medical devices would be 
substantially inferior~to their current state. 
* * * 
As a Research Faculty Member, [the beneficiary]'s group at the 
has.performed a good deal of . work with my 
Department of Biomedical Engineering at 
the objective of which was to investiga~e better methods for characterizing cell response 
on materials for development in medical devices and regenerative tissue scaffolds. Our 
highly successful project generated more efficient procedures for imaging cell response 
on polymer surfaces by developing high-throughput screening methods and 
implementing them in material array formats. Notably, [the beneficiary] was the driving 
force behind· many of the most significant and useful innovations derived during our 
work. A testimony of [the beneficiary's] impact in this field is our seminal presentation 
at the 2006 Material Research Society Fail Meeting in~d an article currently 
under peer review for publication in the journal Biomaterials. - . 
The beneficiary's field, like most science, is research-driven, and there would be little point in­
publishing or presentlng research that did not add to the general pool of knowledge in the field.­
According to the regulation at R C.F.R. -§ 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 or medicine, 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 difficult to gauge the impact of the beneficiary's work. does not provide specific 
examples of how the ben~ficiary' s predictive methods for _ determining surface 
.. . .. 
Page 16 
hemocompatibility and combinatorial approaches for the development of polymer surfaces 
exhibiting cell-specific adhesion are being successfully applied in the medical device industry. 
Further, there is no evidence showing that the beneficiary's methods for characterizing cell 
response on materials for development in medical devices and regenerative tissue scaffolds are . 
. frequently cited, widely utilized, or otherwise constitute original scientific contributions of major 
significance in the field. 
./ 
Principal Scientist, Performance Materials, DSM Research, _ states: 
At his position in ~erformance Materials at DSM Research, where I had the pleasure of 
working with him, [the beneficiary] demonstrated his extraordinary skills in polymer 
chemistry by developing a mechanically robust nonfouling coating. He was the first ) . 
scientist to graft hydrophilic polymer chains to reactive nanoparticles and incorporate 
them in a crosslinked polymer matrix to yield a superior mechanical and b'ioinert coating 
for potential use in medical devices. [The beneficiary] was responsible for spearheading 
the research collaborations at which allowed 
him to characterize the bio-response of his nonfouling coatings, applying state-of-the-art 
measurements and bringing knowledge of immense importance to DSM Research. The 
coating technology [the beneficiary] developed is without question far superior to all 
others in this emerging field. This invention resulted in a DSM owned'iinternational 
patent application .... 
(Emphasis added.)_comments about the "potential use" of the beneficiary's coating for 
medical devices. The petitioner, however, must demonstrate the beneficiary's eligibility as of 
the filing date. 8 C.F.R. §§ 103.2(b){l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'I. 
Comm'r. 1971). The burden is on the petitioner to establish that the beneficiary's work has already 
significantly impacted the field as of the petition's filing date. To satisfy the criterion r~lating to 
original contributions of major significance, the petitioner must demonstrate not only that the 
beneficiary's work is. novel and useful, but also that it had a widespread impact on his field. 
Research and Development Manager, DSM Research, discusses the 
research position in Performance Materials at DSM Research" 
[The beneficiary] showcased his exceptional skills in polymer chemistry in developing 
mechanically robust, non-fouling coatings. This coating technology he developed is, 
without question, superior to technology in this emerging field. The DSM coating 
technology [the beneficiary] developed is mechanically robust (il.e., resistant to wear and 
abrasive damage). By contrast, current non-fouling technologies published in peer 
reviewed literature and colIlIhercially available on the market are intrinsically frail and 
weak due to the nature of the soft materials used to generate their non-fouling surface 
properties. Upon damage, these coatings lose their non-fouling properties, leading to the 
adhesion of biological entities, such as bacterial cells. that may result in an implant 
infection where medical devices are concerned. 
• . ,I. 
Page 17 
[The beneficiary's] work resulted m a DSM-owned 
scholarly publications, 
The beneficiary's article was published subsequent 
to the petition's October 27, 2008 filing date. As pre~iously discussed, the petitioner must 
demonstrate the beneficiary's eligibility as of the filing date. 8 C.F.R. §§ 103;2(b)(1), (12); 
Matter of Katigbak, 14I&N Dec. at '49. Nevertheless, there is no evidence showing that the' 
beneficiary's fmdingsin ' 
are frequently cited or ,otherwise equate to original contributions of 
major significance in the field. Regarding the comment from _that the beneficiary's 
work at DSM Research resulted in an international patent application, the petitioner submitted, 
documentation indicating that the beneficiary,_ and another scientist at DSMResearch 
filed a for their invention entitled "Coating composition, coating 
and object co "!-ted with the coating composition" in 2004. Even if the petitioner were to establish 
that the application resulte~ in a European patent, which it has not, the grant of a patent 
demonstrates only that an invention is original. , 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 Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Commr. 1998). Rather, the 
significance of the innovation must be determined on a case-by-c'ase basis. [d.' In this instance, 
there is no documentary evidence indicating that the invention has b~en successfully marketed in 
the medical device industry or other comparable evidence of its significant influence in the field. 
Thus, the impact of the beneficiary's invention is not documen~ed in the record. FWther, with 
to that the beneficiary is improving "the technology and design of 
has a provisional patent application pending," 
.",vJ'.vv , the beneficiary's innovation for. Accordingly, 
... ol"~ .. "' ... £>r has not established that the beneficiary'S patent applications assigned to .and 
uate to original contributions of major significance in the field. Moreover, we 
cornment that II alone "holds over 300,000 p'atents and trademarks." 
and Professor of ' 
I had the unique pleasure of ] as a part of the collaboration 
he initiated with my, group at during his position at DSM 
Research. The objective of ourstudy was to determine ability of his novel coatings to 
resist bacterial adh~sion, employing a state-of~the-art parallel flow plate m~thod. This 
highly successful project demonstrated the excellent non-foulmg properties of [the 
beneficiary's] coatings which he had generated through his novel and efficient procedure 
for creating and gesigning bioinert surfaces for application in medical and non-medical 
devices that contact biological systems. ' 
With the full support of DSM Research, [the beneficiary] built up a fully marketable 
technology with which, the potential of DSM Research Performance Materials was 
greatly enhanced~ This initiative allowed us to continue efforts to bring hi [sic] new 
L 
... t t 
Page 18 
technology to commercial market, the b~st possible testament to the value of his work. 
[The beneficiary's] impressive technique and clear expertise in the areas of 
nanotechnology, biomaterials and materials chemistry distinguished him as a driving 
force in this research project which contributed to our developing numerous new, very 
useful materials. ! 
_ does not provide specific examples of how the beneficiary's coating technology is 
~zed in the industry beyond DSM Research's collaborative project with 
_. There is no evidence showing I that the beneficiary'S procedure for creating and 
designing bioinert surfaces is frequently dted by independent researchers or that his work 
otherwise equates to an original scientific corltribution of major significance in the field. 
, t /' 
Professor and Department Head ~t the Department of Biomedical 
Engineering at the University Medical Centet states: 
I met with [the beneficiary] the Univer~ity Medical Center where, in 
2003-, h'e approached' my department with a collaborative proposal concerned with his 
postdoctoral research at DSM Research. The project, devoted to the phenomenally 
important area of creating nonfouling surfaces, involved the surface characteriza~ion of 
protein adsorption and bacterial adhesi~n on coating materials he had designed and 
invented. Due to his impressive internatibnalreputation in physical polymer chemistry, it 
was my pleasure to collaborate with [the beneficiary] and allow him to. perform his 
measurements in our laboratories. The objective was to create coatings resistant to the . 
fouling of biological materials including proteins that can lead to the failure of 5mplanted 
medical devices. I '-
In the highly competitive and technologfcally important market of materials for medical 
devices such as that we experience todh, worldwide, the effective implementation of 
coatings for medical devices, inert to biofouling and that resists bacterial infection, is one 
of the crucial elements for creating a sucbessful, safe product. [The beneficiary's] expert 
research project ultimately generated a patent and was published in several compelling 
articles, greatly advancing the work being done in production of nonfouling coatings. 
commerits that the beneficiary has published "several compelling articles," but the . 
"UJ."U'''~ of submitted citations to the beneficiary's articles does establish that his work. is 
indicative of contributions of "major significance" in the field. 
states: 
I came to know [the beneficiary] througp his exceptional whilst [sic] at DSM Research 
where he was recruited into a Postdoctoral position within the Functional Coatings 
I 
Division. Applying his unusually broad and deep background in polymer science, he 
~ent on to develop a significantly major contribution to the field, namely, rion-fouling 
coatings .... [The beneficiary's] work :is expertly written and described in his recent, 
peer-reviewed article "Surface-modifi~d nanoparticles as a new, versatile, and 
No " .. t 
Page 19 
inechanically robust non-adhesive 
bacterial adhesion" that appeared in the 
As previously discussed, the beneficiary's article in 
I 
was published subsequent to the petition's 0ctober 27, 2008 filing date. The petitioner must 
demonstrate the beneficiary's eligibility as :of the filing date. 8 C.F.R. §§ 103.2(b)(I), (12); 
I 
Matter of Katigbak, 14I&N Dec. at 49. Nevertheless, there is no evidence showing that the 
beneficiary's work· is frequently cited or otherwise 
equates to contribution Of major significance in the 
Lecturer in Polymer Che'mistry at Heriot-Watt University, United Kingdom, 
states: 
[The beneficiary] completed his undergniduate dissertation project under my supervision 
and, considering his impressive knowledge anq skills, it was my pleasure to accept his 
application to undertake his Ph.D. dissertation' studies in my laboratory as well. [The 
beneficiary's] Ph.D. research was devote~ to the complicated problem of correlating the 
chemical structure of polymers with their physical properties .... The objective of these 
measurements was to reveal structural ordering and dynamic information concerning the 
- I 
behavior in a class of nanostructured polymers which [the beneficiary] had synthesized in , I 
the laboratory. [The beneficiary] expertly managed his Ph.D. research project, to the end 
that he achieved a number of scientific ¥scoveiies that were previously unrep~rted and 
led to publication of his compelling results, including six (6) articles in competitive peer-
I 
reviewed journals which provided a :detailed and thorough understanding of the 
nanostructured and physic;:al properties in:nanophase sepamted polymers. This was a clear 
breakthrough in the area and the project':s success was clearly due to [the beneficiary's] 
expert leadership. - ' 
While the beneficiary's research is no doubt lof value, it can be argued that any 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; postdoctoral research, in order tp be accepted for 
graduation, publication, presentation, or funaing, must offer new and useful information to the 
pool of knowledge. It does not follow that e:veryresearcher who performs original research that 
adds to the general pool of knowledge has ir:ilierently made a contriblltion of major significance 
to the field as a whole. 
I _ 
Culminating- from -[the beneficiary's] 'distinguished body of work are numerous 
publications, presentations and a paten~. [The beneficiary] has earned a tremendous 
reputation among- the international com:tnunity of scientists, who have cited his work, 
both within the U.S. and abroad. I 
As previously discussed, the petitioner subn).itted copies of seven research articles citing to the 
beneficiary's work. The petitioner also s~bmitted a citation list of 24 articles citing to the 
- ., 
Page 20 
" beneficiary's body of published work. Two the listed citations were self-citations by the 
beneficiary's coauthor and Ph.D. While a normal and expected process, the 
self-citations cannot demonstrate the benefici¥y's influence beyond laboratory. The 
source of the citation list compiled by the peti~ioner is not identified and copies of only seven citing 
articles were submitted. Rather than subinitti~g evidence of citations records originating from an 
official source (such as an online scientific d<;ltabase) for the remaining articles or copies of those 
articles, the petitioner instead submitted a ~elf-serving list of citing articles compiled by the 
petitioner. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. ,Matter of Soffici, 22I&N Dec. at 165. 
Counsel provides no for the: did not submit a printout from an official. 
source s~ch Even if we accepted the petitioner's self-
serving . list of citations, no has garnered more than twelve 
independent citations. For instance, the list of thirteen articles citing to the beneficiary's 2000 
article in. includes a self-citation by the beneficiary's 
Ultimately, the limited number of submitted ci,tations to the beneficiary's articles is .not indicative of 
contributions of major significance in the field! 
Associate Profess'or of Medicine, 
and independent 
I am particularly impressed by' [the be*ficiary's] work related to the development of 
combinatorial workflows and bio-relev'ant high-throughput screening assays for the 
discovery of new biomaterials. His gr0undbreaking work, in this area has introduced 
useful tools for predicting the hemoc6mpatibility of; biomaterial surfaces, allowing 
researchers to assess the degree to whichl such materials resist adhesion of clotting blood 
and bacterial cells to the medical device! thereby reducing risks of bacterial infection or 
'vascular occlusion. [The beneficiary] I has developed screening assays that have 
successfully identified materials whichl can be applied in regenerative medicine by 
selectively favoring mammalian cell attachment and growth over that of bacteria; and this 
, I 
process is accomplished much more quic~ly than was ever previously P?ssible. 
does not provid~ specific e~amples. of how the beneficiary's combinatorial 
and bio-relevanthigli-throughput screening assays are being implemented by others 
in the field beyond the NJCBM or otherwise;constitute contributions of major significance in the 
field at large. ' 
, Departm¥t of Polymer Science and Engineering, 
states: 
, 
[The beneficiary's] research is most ce~ainly extraordinary, not merely on a theoretical 
lev~l, but also in regard to its viability! in real-world applications in medical deVIces. 
Such examples that demonstrate extraordinary achievements are, for instance: 
• creation of a non-fouling coating technology at DSM Research in 
that resists th~ adhesion of proteins and biological cells to 
... '", 
\ 
Page 21 
surfaces which received the American Chemical Society's Young Scientist Award ' 
at the,2005'Fall Meeting in Washihgton DC; 
• The development of innovative techniques, such as the' state-of-the art Quartz 
Crystal Microbalance with Dissipation, for the rapid and safe determination of 
surface blood Gompatibility that Mias so innovative that it was selected to be 
,presented at the Q-Sense World conference in Boston, 2006; and 
• The development of combinatorial approaches for developing polymer surfaces 
exhibiting cell specific ,adhesion that was likewise; so noteworthy that it was 
identified for presentation at the Materials Research Society Fall meeting in 
Boston, 2006. 
As previously discussed, there is no documentary evidence of specific examples where the non­
fouling coating technology developed by the beneficiary at DSM Research has been licensed, 
commercialized, -or successfully utilized in the medical device industry. Moreover,_ 
~oes not explain how receiving an ACS award restricted to "young" scientists in the , 
early stages of their career equates to an original scientific contribution of major significance in 
the field. The petitioner's evidence includes dQcumentation that thy beneficiary has presented 
his findings at various sCientific conferences along with ,numerous other participants. Many 
, professional fields regularly hold conferences and symposia to present new work~ discuss new j 
findings, and to network with other professionals. These conferences are promoted and 
sponsored by 'professional associations, businesses, educational institutions, and government 
agencies. Participation in such events, however, does not equate to an 'original contribution of 
major'significance inthe field. There is no evidence showing that the beneficiary's conference 
,presentations have been freque~~ndependent researchers or have otherwise 
significantly impacted the field. _oes not state that he has cited tci any of the 
,beneficiary's conference presentations or journal articles in his own work and provides no 
specific examples of any independent researchers who have applied the beneficiary's findings in 
their work. ' 
On appeal, counsel argues that the director disregarded the information contained in the letters of 
support. The opinions of experts In the field are not without weight and have been considered 
above. users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for thebenefit sought. Id. The submission of letters from experts supporting 
the petition is not presumptive evidence of elIgibility; USCIS may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of v­
K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to 
be evidence as to "fact"). Thus, the content of the experts' statements and how they became aware 
of the beneficiary's reputation are important considerations. Even when written oy independent 
experts, letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent ,evidence that one would expect of a research scientist who has made 
original contributions of major ,significance. Without supporting evidence showing that the 
'beneficiary's work equates to original contributions of major significance 'in his field, we cannot 
conclude th'at he meets this criterion. 
.. '., . ~ 
Page 22 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner has documented the beneficiary's authorship of scholarly articles in professional 
journals and,thus, has submitted qualifying evidence pursuant to;8 C.F.R. § 204.5(h)(3)(vi) .. 
Accordingly, we agree with cpunsel that the evidence submitted bY.the petitioner meets this 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations, 
or establishments that have a distinguished reputation. 
The aforementioned letters of sup~eneficiary performed research as a 
Senior Scientist at BD, a student at _ and as a postdoctoral researcher for 
both DSM Research and the NJCBM. The director's decision erroneously concluded that "since 
all these' assignments were integral to the beneficiary's employment, they cannot be considered 
. for this criterion." We withdraw the director's finding in that regard. On appeal, counsel argues 
that the letters of support confirm that the beneficiary has performed in a leading or critical role 
for the preceding institutions. Regarding the beneficiary's role at the NJCBM; the January 26, 
2007 letter fro~tates: 
[The beneficiary] manages and guides a team of fifteen (15) faculty members, 
postdoctoral fellows and graduate students working on the development of combinatorial 
synthetic workflows. and biorelevant screening characterization for the discovery of new 
biomaterials. This program is a vital, core component o(our NIH-funded, multi-million 
dollar National Center for Research Resource, "RESBIO," here' at Rutgers. [The 
beneficiary] is the technical project leader for this core team and his unique combination 
of technical and organizational skills have ensured the success of this project and helped 
establish the as a major national resource for 
biomedical 
We acknowledge the beneficiary's service as a technical project leader for the NJCBM team 
working on the development of combinatorial synthetic workflows and biorelevant screening 
characterization for the discovery of new biomaterials, a component of RESBIO. However, 
leading this co'mponent of the RESBIO project does not necessarily translate to a leading or 
critical role for the NJCBM as a whole. The petitioner's initial evidence included informational 
material about the Biomedical Engineering program at but the. submitted 
documentation does not establish that the NJCBM has a reputatiofl. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter oj Sofjici, 22 I&N Dec. at 165. Further, while the 
beneficiary has performed admirably on the projects to which he was assigned at 
_ DSM Research, and the NJCBM, there is no evidence showing that his roles as a' 
student and postdoctoral researcher were leading or critical for the preceding institutions. For 
instance, the record does not include an organizational chart or other evidence documenting where 
the beneficiary's positions fell within the general hierarchy of DSM Research and the NJCBM. 
Page 23 
We note th?t the beneficiary's postdoctoral research appointments at these institutions were 
designed to provide specialized research experience and training in his field of endeavor. 5 The 
petitioner's evidence does not. demonstrate how the beneficiary's temporary postdoctoral 
appointments' differentiated him from the other research scientists employed by the pn~celamg 
let alone the institutions' senior. management and tenured faculty such 
The September 8, 2008 letter from_states that the beneficiary has worked for .as a 
Senior Scientist in the PAS Division since March 2007. In response to the director's request for 
evidence, the petitioner submitted an August 31, 2009 letter from_stating: 
Recently the BD PAS Leadership Team (comprised of senior executives) selected [the 
beneficiary] to become a Core Team Leader for a new product launch program. This 
appointment was made· in recognition of his outstanding business acumen, execution 
excellence, solid, cross-functional knowledge and the breadth of his technical, 
organizational and leadership capability. In this capacity, [the b~neficiary] is accountable 
to successfully lead and direct cross-functional team activities and deliver critical project 
outcomes. He is accountable for the successful launch and commercialization of the 
product on the worldwide market., 
_ states that the BD PAS Division Leadership Team "recently" selected the beneficiary 
to become a "Core Team Leader," but he does not . specify the ~xact date of the beneficiary's 
appointment. There is no evidence shing that the beneficiary had already performed as a 
Core Team Leader for of the petition's October 27, 2008 filing date. As 
previously discussed, a petitioner must establish the beneficiary' seligibility at the time of filing. 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. The petitioner'S response 
to the director's request for evidence also included all August 31; 2009 letter from 
stating that the beneficiary is "one (1) of only one hundred fifty (150)" Core Team Leaders 
employed at. Without an organizati~nal chart or other evidence' documenting how the 
beneficiary's position as Senior Scientist or Core Team Leader fits withm the general hierarchy of 
or other evidence demonstrating what the alien does in his role that is 
critical to the petitioner, we cannot conclude tha~ his role is leading or critical to the company as a 
whole. The petitioner's evidence does not demonstrate how the beneficiary's roles differentiated 
him from thenurnerous other Core Team Leaders and Senior Scientists employed by" let alone 
the company's senior managers and executives (such as 
In, this case, the documentation submitted by the petitioner does not establish that the beneficiary 
was responsible for the preceding institutions' success or standing to a degree consistent with the 
meaning of "leading or critical role." Accordingly, the petitioner has not established that the' 
beneficiary meets this criterion. 
5 "Biological scientists with a Ph.D. often take temporary postdoctoral research positions that provide specialized, 
research experience." See http://www.bls.gov/oco/pdf/ocos047.pdf, accessed on January 20, 2011, copy incorporated 
into the record of proceeding. 
l~ .,) II· 
Page 24 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration jor services, in relation to others in the field. 
The petitioner submitted copies of three of the beneficiary's pay statements from May and June' 
2008 reflecting that he earns $3,193.85 biweekly or $83,040.10 annually. The plain language of 
this regulatory criterion, however, requires the petitioher to submit evidence showing that the 
beneficiary has commanded a high salary "in relation to others in the field." The petitioner offers 
no basis for comparison showing that the beneficiary's e,arnmgs are significantly high in relation to 
others in the field. On appeal, counsel states: "The Beneficiary made no claim to satisfy this 
criterion in either the initial submission or response supplied to the RFE." Accordingly, the 
petitioner has not established that the beneficiary meets this criterion. 
Summary 
In this case, we concur with the director's determInation that the petitioner has failed to 
demonstrate the beneficiary's receipr of at major, int~rnationally recognized award; or that he 
meets at least three of the ten categories of evidenc'e that must be satisfied to establish the 
minimum eligibility, requirements necessary to qualify as an alien of extraordinary ability. 
8 C.F.R. § 204.5(h)(3). 
B. Final Merits Determination 
,In accordance with the _ opinion, we will next conduct a [mal merits determination that 
,[considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the[ir] field of endeavor," 8 C.F.R.§ 204.5(h)(2); 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." Section 203(b)(I)(A) of the Act; 8 C:F.R. §'204.5(h)(3). See also Kazarian, 
596 F.3d at 1119-1120. In the present matter, several of the deficiencies in the documentation 
submitted by the petitioner have already been addressed in our preceding discussion of the 
regulatory criteria at 8 c.F.R. §§ 204.5(h)(3)(i), (ii), (iii), (iv), (v), and (viii). 
Even if the petitioner were to submit primary evidence: of the beneficiary's ACS Yoimg Scientist 
Award, which it has not, we cannot conclude that an : award won by the beneficiary in an age­
restricted competition or a competition limited to scientists in the early stage of their career 
indicates that he "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. § 204.5(h)(2). USCIS has long held that even athletes performing at the 
major league level do' not automatically meet the "extraordinary abili~" standard. Matter oj Price, 
20 I&N Dec. 953,954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899. ' Likewise, it does not follow 
6 While we acknowledge that a dis!Tict court's decision is not binding precedent, we note that in Matter of Racine, 
1995 WL 153319 at *4 (N.D. Ill. Feb. 16; 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all le~els of play; but rather, Racine's ability as a 
( , 
Page 25 
that a researcher who has had success in a competitro'n restricted to young scientists should 
necessarily qualify for an extraordinary ability employment-based immigrant visa. To fmd 
otherwise would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa 
category be reserVed for "that small percentage of indiviquals that have risen to the very top of their 
field of endeavor." 
With regard to the ,documentation submitted for 8 C.F.R. § 204.5(h)(iv), the nature of the 
benefi~iary' s judging experience is a relevant consideration as to whether the evidence is 
indicative of his' recognition beyond his own circle of collaborators. /See Kazarian, 596 F. 3d at 
1122. Even if the petitioner were to' submit evidence showing that the beneficiary actually 
completed the proposal and manuscript reviews, which it has not, we cannot conclude that the 
beneficiary's subordinate level of review demonstrates his sustained national or int~rnationar 
acclaim or a level of expertise indicating that he is among that small percentage who have risen 
to the very top of the field of endeavor. See section 203(b)(I)(A)(i) of the Act, 8 U.S.C. 
§ 1153(b)(1)(A)(i), and 8 C.F.R. §§ 204.5(h)(2) and (3). The record reflects that the journal 
manuscripts and proposal were first submitted to _or review who then assigned the duty to 
multiple subordinates at the.NJCBM including th~ary. Being requested to review an artIcle 
or proposal by one's supervisor is not evidence of natibnal or international acclaim. Further, we 
note that peer'revi,ew is a routine element of the process by which articles are selected for 
publication in scientific journals. Normally a journal's: editorial staff will enlist the assist,ance of 
m~y professionals' in the field who agree to review submitted. papers. It is common for a 
publication to ask multiple reviewers to review a manuscript and to offer comments. The 
iPublication's editorial staff may accept or reject any reviewer's comments in determining 
whether to publish or reject submitted papers. With'out evidence pre-dating'the filing of the . 
petition that sets the beneficiary apart from others in his field, such as evidence that he served in 
an editorial position for a distinguished journal or completed numerous manuscript reviews at the 
direct request of a substantial number of journals, vJe cannot conclude that his level of peer 
review is commensurate with sustained national or international acclaim at the very top of the 
field of endeavor. 
Regarding the beneficiary's original research, as stated above, it does not appear to rise to the level 
of contributions of "major significance" in the field. Deinonstrating that the beneficiary's work was 
"original" in that it did not merely duplicate' prior rese~ch is not useful in setting the beneficiary 
apart through a "career·.of acclaimed work." H.R. Rep. No. 101-723,59 (Sept. 19; 1990). That 
page (59) also says that "an alien must (1) demonstrate sustained national or international acclaim in 
the sciences, arts, education, business or athletics (as shown through extensive documentation) ... " 
Research work that is unoriginal would be unlikely to secure the beneficiary a master's degree, let 
alone classification as a, scientist of extraordinary ability. To argue that all original research is, by 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in , 
this district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 C.F.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although'the present case arose within, the ji.Jrisdiction of another federal judicial district and circuit, the court's 
reasoning indic'ates that USCIS' interpretation' of the regulation at: 8 c.F.R. § 204.5(h)(2) is reasonable. 
Page 26 
defmition, "extraordinary" is to weaken that adjective beyond any useful meaning, and to presume 
that most research is "unoriginal." Notably, the Department of Labor's OOH, 2010-11 Edition 
(accessed at www.bls.gov/oco on January 20, 2011 and incorporated into the record of 
proceedings), contains the following infonnation on chemists and materials scientists: 
Many chemists and materials scientists work in research and development (R&D). In 
basic research, they mvestigate the properties, composition, and structure of matter and 
the laws that govern' the combination of elements and reactions of substances to each 
other. In applied R&D, these scientists create new products and processes or improve 
existing ones, often using knowledge gained from basic research. For example, the 
development of synthetic rubber and plastics resulted 'from research on small molecules 
uniting tofonn large ones, a process called polymerization. R&D chemists and'materials 
scientists use computers and a wide variety of sophistica~ed laboratory instrument,ation 
for modeling, simulation, and experimental analysis. ' 
,;* * * 
Materials scientists study the structures and chemical properties of various materials to 
develop new products or enhance, existing ones. They also detennine ways to strengthen 
or c091bine materials or develop new materials for use in a variety of products. Materials 
science encompasses the natural and synthetic materials used in a wide range of products 
and structures, from airplanes, cars, and bridges to clothing and household goods. 
-Materials scientists often specialize in a specific type of material, such as ceramics or 
metals. 
See hup://www.bls.gov/oco/pdf/ocos049:pdf.As·researching chemicai properties, developing new 
products or processes, and improving existing ones are inherent to chemists and materials scientists, 
the mere originality of the beneficiary's work does not set the beneficiary among "that small 
percentage of individuals that have risen to the very top of their field of endeavor."· 8 C.F.R. 
§ 204.5(h)(2). For the reasons, discussed above, the record does not contain sufficient evidence 
that the beneficiary's original innovation~ had major significance in the field, leLalone an impact 
consistent with being nationally or internationally acclaimed as extraordinary: 
at 
OOH (accessed at www.bls.gov/oco on 
anuary mto proceedings) provides infoimation about the 
nature of employment as a postsecondary teacher and the requirements for such a position. See. 
http://www.bls.gov/oco/pdf/ocos066.pdf. The handbook expressly states that faculty members are 
pressUred to perfonn re~earch and publish their work and that the professor's research record is a . 
consideration for tenure. Moreover, the doctoral programs traiiling students for faculty positions 
require a dissertation, or written report on original research. . /d. This infonnation reveals that 
original published research, whether arising from research at a university or private employer, does 
not set the researcher apart from faculty in that researcher's field. 
Page 27 
Moreover, the beneficiary's citation history is a relevant consideration as to whether the evidence 
is indicative 'of the beneficiary's recognition beyond his own circle of collaborators. See 
Kazarian, 596 F. 3d at 1122. As previously discussed, the documentation submitted by the 
petitioner indicates that the beneficiary's body of published work has been independently cited to 
less than two dozen times. Moreover, there is no indication that any of the beneficiary's 
individual journal articles have been independently cited to more than a dozen times. While the 
submitted citations demonstrate some interest in his published work, they are not sufficient to 
demonstrate that the beneficiary's articles have attracted a level of interest in his field 
commensurate with sustained national or international acclaim at the very top of his field. 
Ultimately, the evidence in the aggregate does not distinguish the beneficiary as one of the small 
percentage who has risen to the very top of the field of endeavor. The petitioner relies primarily 
upon the beneficiary's research work (including two patent applications); less tilan ten journal 
articles published with his research supervisors (such as of the petition's 
filing date; copies of only seven research articles by to the beneficiary's 
published work; his positions as a ••••••••• ~ •••••••••••• 
as a postdoctoral researcher for both DSM Research and the NJCBM; and the praise of members 
of his field. 
We note that many of the beneficiary's references' credentials are impressive. For example, _ 
~tates: 
I am the Board of Governors Professor of Chemistry and Chemical Biology at 
_ 'and an Adjunct Associate Professor af Ortho edics at the 
Medical School. I have served as Director of the Center for Biomaterials 
since its establishment in 1997. I am a Fellow of tlie mencan Institute for Medical and 
Biological Engineering (AIMBE) and of. the International Union of Societies for 
Biomaterials Science and Engineering (IUSBSE). I am the Principal Investigator of 
several leading federally-funded R&D programs: NIH-funded postdoctoral training 
program in Tissue Engineering, NSF-funded Partnership for Innovation designed to 
explore new plant-synthetic hybrid biomaterials, NIH funded National Resource for 
Polymeric Biomaterials (RESBIO), and the DoD-funded Center for Military Biomaterials 
, Research (CeMBR). 
* * * 
I pioneered the use of combinatorial and computational methods for the optimization of 
biomaterials for specific medical applications. . .. I have published over two hundred 
(200) scientific manuscripts and reviews and hold thirtyfive (35) patents. ./ ' 
* * * 
I' am the scientific founder of two spin-off companies, and served on the Life Science 
Advisory Board of the _and as chair of the Scientific, Advisory Board of 
. As Director of the Biomaterials, I initiated the 
~,~ . '") . .. 
Page 28 
Center's industrial .membership program that has currently 20 member companies. I 
currently serve on the Scientific Advisory Boards of three companies. 
states: 
I hold the position of Professor in the Department qf Polymer Science and Engineering at 
I am the director of the UMASS Institute for 
Interface Science. I have held the positions- of Head of the Department of Polymer 
Science and Engineering. and . co-principal investigator for the. Center for UMASS-
Indus Research on Pol .'.. T have served on the Editorial Advisory Boards of 
'In 
addition, I serve 'on the Interi:lational Advisory Board of the ACS Polymer S 
Interfaces Series. I have published over 125 peer reviewed publications and hold 6 
patents. 
states: 
I am an Associate Director at the an Associate 
Research Professor at the Department of Chemistry and Biological Chemistry at _ 
_ where I .hold the position of Chief Operating Officer for the Center for' 
Military Biomaterials Research, leading programs to develop biomaterials for combat 
casualty care and soldier .... My work is published in leading peer-reviewed 
journals including My industrial experience 
comprises over 36 patents and includes development and commercialization of a wide 
array of specialty chemical products- including polymers and surfactants for such 
applications as tissue engineering, coatings paper making, water and wastewater 
treatment, and lubricants. -I have served 
I hold the position of Lecturer in Polymer Chemistry at 
_ wherell have worked since my appointment in 1996. lam preeminent in the 
research fields of the miscibility and physical ageing ~n blends; nanophase separation in 
polymers, polymer dynamics, ,liquid crystalline polymers, composites ane!. systems 
containing nanoparticles. Much of this work has involved use' of neutron scattering 
techniques and I have written various reviews and book chapters in this area, and served 
on selection panels to allocate beam time at I regularly 
review neutron proposals for the neutron scattering centre at NIST 
My research is represented by in [sic] over 80 published papers, ~H"'lUU.Ul~ 
and articles for encyclopedias, and I have obtained funding from 
am also a Fellow 
OUbllicatlOrls in, the 
states: 
I am an Associate Professor in the Department of Biomedical L.JUj::.UlvvlUlj::., 
Department of Chemical and Biochemical Engineering I have, 
published over 45 peer-reviewed publications and presented over 100 lectures at 
international conferences in this field. . .. I have served as 
and; now, as 
Research Center on Polymeric Bionlatf~fl 
, was elected as a Fellow of the American Institute of Medical and Biological Engineering 
in 2004 and the American Academy of Nanomedicine (2006), and am the recipient of the 
I also 
I am Professor and Department Head at the at the 
University'Medical Center a Ul~UUl:!.Ul,~ln;;u 
the field of interaction forces between mIcroorganisms c ' 
surfaGes. My department has about seventy academic researchers ": .. My research has 
resulted in over 425 peer-reviewed articles, two book[s] and several book contributions. 
Over the past fourteen (14) years, now as Research and Development Program Manager 
DSM Biomedical at DSM Research in the division of Performance Materials, I have 
initiated and conducted fundamental research on various aspects of medical coatings. I. 
am one of the principal founders of bSM Biomedical, established in 2005, now a 60 
million dollar business that has ,been 'achieved b9th by organic growth and via an , 
acquisition strategy. . .. I have authored/co-authored more than 20 technic~l papers 
published in several scholarly journals and hold over 30 pending international patents. 
Finally 
I j . in September, 2007, as Senior Vice President and Chief Tech11ology Officer. 
This role is a new position at. designed to provide technology, strategy and 
development leadership to the company as it focuses oninnovat~(m 'and impact in medical 
devices, diagnostics and biesciences. I am responsible for the corporate strategic planning 
1· 
Page 30 
function, corporate business development, and managing a corporate-
wide program to improve the product process across. 1 oversee an _ 
~than $400 million across 12 business units, consisting of more than 1,700 
_ in mUltiple countries. In addition to my responsibilities 1 serve oh 
the Advisory Councils of the 
1 have a faculty appointment inth~ Medical School at Case as 
patents on tissue engineering systems, and the biomedical 
application of peptide assemblies in medical devices, and have published extensively ih 
scientific journals, boo~s and the proceedings of national and international conferences. 
The significance of my re.search has been recognized by my receipt of multiple awards 
from the Orthopaedic Research Society, the American Academy of Orthopaedic 
Surgeons, and :the Society for Bone and Joint Surgery. 
While the petitioner need not demonstrate that there is no one more accomplished than the 
beneficiary to qualify for the classification sought, it appears that the very top of the beneficiary's 
field of endeavor is above the level he has attained. In this case, the petitioner has not established 
that the beneficiary's achievements at the time of ,fIling were commensurate with sustained national 
or international acclaim in nanotechnology, biomaterials, and polymer chemistry, or being among 
that small percentage at the very top of the field of endeavor. 
C. Prior 0-1 Nonimmigrant Visa Status 
While USCIS has approved a prior 0-1 nonimmigrant visa petition fIled on behalf of the 
beneficiary, this prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased standard. Each case must decided on a case-by-case basis 
upon review of the evidence of record. It must be noted that many 1-140 immigrant petitions are 
denied after USCIS approve~ prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKE A US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because 
USCIS spends less time reviewing 1-129 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 USCIS from denying an 
extension of the original visa based on a reassessment of the alien'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 b~en erroneous. See, e.g., Matter of 
Church Scientology International, 191&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS 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 has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. Conclusion 
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 and t6 be 
within the small percentage at the very top of hi.s field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established the beneficiary's eligibility' 
pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the -law may be 
denied by the AAO even if the Service Center does not identify all of the groundS for denial in 
the initial decision. .see Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
, The petition will be denied for the above stated reasons, with each considered as an 'independent 
I 
arid alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burderi has not been met. 
ORDER: The appeal is dismissed. 
r