dismissed EB-1A Case: Medicine

(b)(6)
DATE: FEB ., 9 2013 
_I 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Depa-rtment of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
·20 Massachusetts Ave., N.W., MS 2090 
Washington,.DC 20.529-2090 
U.S. Citizenship 
and I~migration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(1 )(A) 
ON BEHALF OF.PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the. Administrative Appeals Office in your case .. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
. . 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
. accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630.· The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be aware that 8 C.F:R. § 103.5(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. · 
Thank you, 
cYJ:_ B~ v . 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks· classification as an "alien of extraordinary ability" in the sciences, pursuant to 
·section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extrao.rdinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
. "extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states· that an alien can 
establish sustained national or international 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 under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
The petitioner's priority date established by the petition filing date is March 15, 2011. On March 27, 
2012, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on August 22, 2012. On appeal, the 
petitioner submits a brief with no addition·al documentary evidence. For the reasons discussed below, 
the AAO upholds the director's ultimate determination that the petitioner has not established her 
eligibility for the classification sought. 
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 bee~n demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in · the field through 
extensive documentation, · 
(ii) the alien seeks to enter the United States· to continue work in the area of 
· extraordinary ability, and 
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Page 3 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
U.S. Citizenship and Iinmigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability . . See H.R. 723 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The tenn "extraordinary ability;' refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien' .s sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be establis~ed 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) . . 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazwian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision .to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns · should have 
been raised in a subsequent "final merits detennination." /d. at 1121~22 . 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
· Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper con2lusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). ' . 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits detennlnation. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. · As the petitioner did not submit qualifying 
evi~ence under at least three criteria, the proper conclusion · is that the petitioner has failed to satisfy the 
regtilatory requirement of three types of evidence. /d. 
1 Specifically, the court stated that the AAO had .unilateraily 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). 
(b)(6)
Page4 
II. ANALYSIS 
A.· Evidentiary Criteria2 
pocumentation of the alien 's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director discussed the evidence_ submitted for this criterion and found that the petitioner failed to 
establish ·her eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. U.S. Atty Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, 
No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiff's claims tobe abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
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. · 
The director discussed the evidenCe submitted for this criterion and found'that the petitioner failed to 
establish her. eligibility. .On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, "therefore, considers this issue to be 
abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 ·WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under 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. 
This criterion requires not only that the petitioner was selected to serve as a judge, but also that the 
petitioner is able to produce evidence that she actually participated as a judge. 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). Additionally, these duties must have been directly judging the work of 
others in. the same or an allied field in which the petitioner seeks an immigrant classification within the 
present petition. The petitioner must submit evidence satisfying all of these elements to meet the plain 
language requirements of this criterion. · · 
The petitioner claimed her "performance reviews of other physicians and anesthesiologists" satisfied the 
plain language requirements of this criterion. The director determmed that the petitioner failed to meet 
the requirements of this criterion. While the director articulated concerns under this criterion more· 
appropriate to a final merits determination, the AAO affirms the director's conclusion that the evidence 
2 
The petitioner does not claim to meet or submit evidence relating to the. regulatory categories of evidence not 
discussed in' this decision. \ 
(b)(6)
Page5 
the petitioner submitted to meet this ·criterion does not satisfy the· plain language requirements of the 
criterion. 
Counsel's assertion that conducting. performance reviews is sufficient to meet this criterion's 
requirements appears to erroneously rely upon the verb form of the definition of'judge," which focuses 
on the evaluation of some action or some object when the regulation uses the noun form of the terln. 
The proper definition of a judge in this contextis: "one who judges: as (a) a public official authorized to 
decide questions brought before a court; (b) often capitalized: a tribal hero exercising leadership among 
the. Hebrews after the death of Joshua; (c) one appointed to decide in a contest or competition: umpire; 
(d) one who gives an authoritative opinion." 3 It is clear that the proper form of the term judge connotes 
serving in a formal judging capacity rather than having ~orne evaluative duties. Serving as a revie'wer 
where part of one's job duties includes evaluating others does not equate to participation as a judge of 
.the work of others in the field. The phrase "a judge" implies a formal designation in a judging c~pacity, 
either on a panel or individually as specified pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv). The regulation cannot be read to include. every informal instance of evaluating 
medical students, residents, and faculty members. There is no evidence on record demonstrating that 
the petitioner actually served "as a judge of the work of others." 
Therefore, the petitioner has not submitted evidence that meets the plain language requirements. of this 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) in her field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that her contributions are original. The evidence must establish that 
the contributions are scientific, scholarly, artistic, athletic, or business-related in nature. The final 
requirement is that the contributions rise to the level of major significance in the field as a whole, rather 
than to a project or to an organization. The phrase "major significance" i's not superfluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) 
quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). Contributions of major 
significance connotes that the petitioner's work has s~gnificantly impacted ·the field. ·The petitioner 
must submit evidence satisfying all of these elements to meet the plain language requirements of this 
criterion. 
The petitioner provided expert letters and citations of and media references to the petitioner's research. 
The director determined that the petitioner failed to meet the requirements of this criterion._ 
' 3 See http://www.merriam-webster.com/dictionary/judge, accessed on February 12, 2013, a copy of which is 
incorporated into the record of proceeding. 
(b)(6)
Page 6 
Within counsel's appeal brief, she asserts the director incorrectly concluded that the petitioner failed 
to demonstrate eligibility for the contributions of major significance at 8 C.F.R. § 204.5(h)(3)(v). 
Counsel asserts the director did not address the "impact on her field through 114 cit(ltions of [the 
petitioner's] first-authored work," and the director did not take into account "the popular news 
sources that referenced [the petitioner's] research." A review of the record reveals that the figure of 
114 citations to the petitioner's work derived from a Google Scholar search executed on June 5, 
2012. As the petitioner filed the present petition on March 15, 2011, she may not rely on evidence 
of her impact that postdates the petition filing date. A petitioner mu!:it establish eligibility at the time 
of filing; a petition cannot be approved at a future date after the petitioner becomes eligible' under a 
new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). That said, the 
petitioner's article in was already -well cited as of the date of filing. According to the 
citations themselves, the petitioner's article reported a meta-study of previously published studies on 
hypothermia and blood transfusions during surgery. The citing article in refers to a "series of 
studies" datim! back to 1996 that have raised concerns about perioperative hypothermia. Moreover, the 
story the petitioner submitted credits as the "lead study author." 
Significantly, a review of the director's decision reveals that the director did address the petitioner's 
citation results that counsel asserts were ignored. The unsupported assertions of counsel do. not 
constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The 
unsupported assertions of counsel in a brief are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). 
Rather than only considering the expert letters as the "sole evidence" under this criterion as alleged by 
counsel, the director considered the petitioner's citation record and noted that it was "limited almost 
entirely to that one particular article." Re!!ardim! the oooular news sources referencinl! the oetitioner's 
work, counsel identified 
as the sources that the director ignored. Regarding the published material from 
_ while both articles referenCe a study in the January issue of 
the articles did not make reference to t.he petitioner. The 
article in does mention the petitioner; however, the record lacks circulation or 
distribution statistics for this publication. which might demonstrate the publication's reach or impact in 
the field; In reference to the article in , this is a commentary that cites the petitioner's work. 
as one of a series of studies going back to 1996 demonstrating various dimgers of allowing core 
temperature drops during surgery. 
The errors identified by counsel do not bear out and the petitioner has not overcome the director's 
reasons for determining that the petitioner failed to satisfy this criterion's requirements. \Ultimately, 
even if the AAO considered the petitioner's meta-study to be a contribution of major significance in the 
field, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires evidence of fsuch 
contributions in the plural. The AAO affirms the director~s conclusion that the evidence of record does 
not satisfy the plain language requirements of this criterion. 
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Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director found that the petitioner's evidence meets the plain language of this criterion. The record, 
however, contains a single article published in , a brief response to a letter to the editor 
regarding that article, and several presentations with no evidence that the conferences compiled these 
presentations within a professional or major trade journal or other major media documenting the 
proceedings. The brief response to the letter to the editor is not its own scholarly article. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requiresevidence of scholarly articles in the 
plural. Thus, the petitioner has not satisfied the plain language requirements of this criterion. 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 
The director discussed the evidence submitted for this criterion and found the criterion inapplicable. On 
appeal,. the petitioner does not contest the director's findings for this criterion or offer additional 
arguments. The AAO, therefore, considers this issue to be abandoned. Sepulveda 401 F.3d at 1228 n.2; 
Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has not submitted qualifying. evidence 
under this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
·establish her eiigibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration' for 
services, in relation to others in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish her eligibility. On appeal, the petitioner does not contest the director's findings for. this 
criterion or offer additional arguments. The. AAO, therefore, considers this issue to be 
abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
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III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or internation~l acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor. 
Had the petitioner submitted· the requisite evidence 
under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next ·step would be a final merits determination that 
considers all of the evidence in. the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
. very top of the[ir] field of endeavor" and (2) "that the alien . has sustained national or inteniational 
acclaim and that -his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination. 4 ·Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. /d. at 1122. 
'. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(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; Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (citing Matter of 
Brantigan, 11 I&N Dec. 493 (BIA 1966)). Here, the petitioner has· not sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination 
as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(l) of 
the Act; ~ection 204(b) of the f\ct; DHS Delegation Number.0150.1 (eff~ctive March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now.USCIS, is the sole authority with the jurisdiction to decide visa petitions).