dismissed EB-1A Case: Medicine

identifying data deleted to 
prevent clearly unwammted 
invasion of personal privacy 
PUBLlCCOPY 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Inunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Services 
NEBRASKA SERVICE CENTER Date: FEt3 0 7 2011 
PETITION: Immigrant to 
Section 203(b)(I )(A) of the Immigration and Nationality Act; 8 usc, § l153(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 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 requirements 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$630, Please be aware that 8 C.F,R, § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen, 
Thank you, 
M· (L Rhow ~~I/I·"'· ••• a ...... 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petitIOn was denied by the Director, 
Nebraska Service Center, on October 7, 2009, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(l)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(I)(A)(i) of the Act 
and 8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.S(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. 
In the director's decision, he indicated: 
The evidence establishes that the petitioner is board-certified in internal medicine. 
It further indicates that his employer is well-satisfied with his job performance. 
Indeed, the major university which employs him filed a second-preference 
immigrant petition on his behalf early in 2007 which USCIS approved five days 
later. However, because of the per-country limitations on immigrant visas the 
application to adjust status which the petitioner subsequently filed remains 
pending and thus he filed this first-preference petition. The point is that USCIS 
agrees with the many affiants who went on record in support of this petition that 
the petitioner should be allowed to pursue his career in the United States. 
However, it does not agree with the petitioner that the evidence establishes that he 
is one of that small percentage who have risen to the very top of his field and thus 
it cannot conclude that this petition seeking that high classification should be 
approved. 
On appeal, counsel argues: 
[l]t appears the Service improperly considered [the petitioner's] approved 1-140 
petition pursuant to INA 203(b)(2) in its determination as to whether [the 
petitioner] was qualified under the first category. 
* * * 
J 
Page 4 
We note here that according to Form 1-140, Immigrant Petition for Alien Worker, which the 
petitioner signed under penalty of perjury of the laws of the United States on January 29,2009, the 
petitioner listed his occupation in Part 5 as "Assistant ProfessorlPhysician" and listed his job title in 
Part 6 as "Assistant Professor of Clinical Medicine." However, in counsel's cover letter that was 
submitted with Form 1-140, counsel stated that the petitioner "is a talented and extraordinary 
physician and medical scientist," "is an accomplished physician scientist," and "is a physician of 
extraordinary ability." 
A review of the record of proceeding reflects that the petitioner intends to continue to work in the 
United States as an assistant . 
and discussed the petitioner's area 
teaching as an assistant professor. The statute and regulations require that the petitioner's national 
or international acclaim be sustained and that he seeks to continue work in his area of expertise in 
the United States. See sections 203(b)(l)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1153(b)(l)(A)(i) 
and (ii), and 8 C.F.R. §§ 204.5(h)(3) and (5). While the petitioner is also a physician, a professor 
relies on a very different set of basic skills. Thus, a physician/medical scientist and a professor 
are not the same area of expertise. This interpretation has been upheld in federal court. In Lee v. 
I.N.s., 237 F. Supp. 2d 914 (N.D. Il1. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary 
ability" as working in the same profession in which one has extraordinary ability, 
not necessarily in any profession in that field. For exarnple,_extraordinary 
ability as a baseball player does not imply that he also has extraordinary ability in 
all positions or professions in the baseball industry such as a manager, umpire or 
coach. 
[d. at 918. The court noted a consistent history in this area. In the present matter, there is no 
evidence showing that the petitioner has sustained national or international acclaim through 
achievements as a physician or a medical scientist. While we acknowledge the possibility of an 
alien's extraordinary claim in more than one field, such as a practicing physician, a medical 
scientist, and a professor, the petitioner, however, must demonstrate "by clear evidence that the 
alien is coming to the United States to continue work in the area of expertise." See the regulation 
at 8 C.F.R. § 204.5(h)(5). In this case, the record of proceeding reflects that the petitioner 
intends to continue to work in the United States as an assistant professor in clinical medicine, 
and not as a practicing physician or medical scientist. While the petitioner's experience and 
knowledge as a physician or medical scientist are not completely irrelevant, ultimately he must 
satisfy the regulation at 8 C.F.R. § 204.5(h)(3) through his achievements as an assistant professor 
of clinical medicine. 
II. Law 
Page 5 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USerS) 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. Jd. and 8 C.F .R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established 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 
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; 
Page 6 
(iii) Published material about the alien in professional or major trade publications or 
other maj or 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 a judge 
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 III the field, III 
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 
(x) Evidence of commercial successes in the performing arts, as 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 (9th Cir. 20 I 0). 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 determination." Id. 
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 conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Jd. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as 
the corollary to this procedure: 
I Specifically, the court stated that the AAO had unilaterally imposed novel, substantive. or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
Page 7 
If a petitioner has submitted the requisite evidence, USCIS detennines 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 ofthe[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)(l)(A)(i). 
Id. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits detennination. 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), ajJ'd, 345 FJd 683 (9th Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
III. Analysis 
A. Evidentiary Criteria 
This petition, filed on March 13, 2009, seeks to classify the petitIOner as an alien with 
extraordinary ability as an assistant professor in clinical medicine. On appeal, counsel addressed 
the following criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
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. 
The director detennined that the petitioner's documentary evidence failed to establish eligibility 
for this criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires 
"[e]vidence 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." Pursuant to 
Kazarian, 596 F.3d at 1121-22, the petitioner submitted sufficient documentation establishing that 
he meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). Therefore, we withdraw 
the findings of the director for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
Page 8 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original contributions "of major significance in the field." 
At the time of the original filing of the petition, counsel claimed the petitioner's eligibility for 
this criterion based on the fact that the petitioner's "research efforts have resulted in major 
publications in highly-rated scientific peer-reviewed journals and excellent oral presentations at 
international conferences." As it relates to counsel's reference to the petitioner's published articles 
as evidence to meet this criterion, we note that the regulations contain a separate criterion regarding 
the authorship of published articles. 8 C.F.R. § 204.5(h)(3)(vi). We will not presume that evidence 
relating to or even meeting the publication of scholarly articles criterion is presumptive evidence 
that the petitioner also meets this criterion. To hold otherwise would render meaningless the 
regulatory requirement that a petitioner meet at least three separate criteria. Therefore, while the 
petitioner's articles will not be considered under this criterion they will be addressed under the next 
criterion. 
Regarding counsel's reference to the petitioner's presentations, the peltiti'Dn,~r 
over 40 presentations. With the exception of one presentation at 
from April 11 - 15, 2003, counsel . III 
to his current employer, _, and to his former 
employer, While the petitioner submitted the claimed 
presentations, the petitioner failed to submit any documentary evidence demonstrating that the 
petitioner actually gave the presentations at any of these venues. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 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 (BrA 1980). We further note that the record of 
proceeding reflects that the petitioner presented two of his abstracts at 
Notwithstanding the above, even if the petitioner submitted sufficient documentary evidence 
demonstrating his presentations, the petitioner failed to submit any documentary evidence 
Page 9 
establishing that his presentations were of major significance in the field. Merely submitting 
evidence of the petitioner's presentations is insufficient to demonstrate eligibility for this 
criterion without documentary evidence establishing that the petitioner's presentations have 
impacted or influenced the field, so as to establish that the petitioner has made original 
contributions of major significance in the field. Furthermore, as indicated above, counsel 
claimed that almost all of the petitioner's presentations were given to his employers. The 
petitioner failed to establish that his presentations at _ and _ have been of major 
significance to the field as a whole and not limited to the establishments at which he has worked. 
I t th d' tor's request for additional evidence, the petitioner submitted a letter from . . - -
University of North Texas, who stated that the "letter is written after 
having carefully reviewed [the petitioner's] credentials." It does not appear that_ was 
aware of the petitioner ~inal contributions prior to being contacted by the petitioner. 
Instead, it appears that_ was asked bX h .. r to review selected documentary 
evidence and provide his professional opinion. conclusions about the petitioner's 
work are not based on his prior recognition of the petitioner and his work but merely on the 
evaluation of the documents given to him by the petitioner. As such, __ determinations 
provide very little weight, if any, to demonstrate that the petitioner has made original 
contributions of major significance in the field. For example, _stated: 
Another interesting observation that [the petitioner] made in subjects with _ 
their intolerance to minimal physical exertion. 
a patient with left heart problems. The subsequent 
study patients have inappropriately decreased left heart 
function compared to normal people while exercising. This study helped 
delineate the group of patients who might actually benefit from treatments to 
improve left heart function [emphasis added]. 
111Ul""'<OU an observation made by the petitioner he failed to establish that the 
major significance to the field. Instead,_ generally asserts that the 
patients "might actually benefit from treatments." Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg!. Commr. 
1971). A petition cannot be approved at a future date after the petitioner becomes eligible under 
a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision 
further provides, citing Matter of Bardouille. 18 I&N Dec. 114 (BIA 1981), that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." ld. at 176. A 
petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. The assertion that the petitioner's work is likely to be influential is not adequate to 
establish that his findings are already recognized as major contributions in the field. The fact 
remains that any measurable impact that results from the petitioner's observations and studies 
will likely occur in the future. 
stated: 
Page 10 
[The petitioner 1 studied the effects of war related trawna on the function of heart 
to stress response in Gulf War Veterans with unexplained fatiguing illness. The 
purpose of this research study was to demonstrate that the gulf war veterans who 
were traumatized either by their own injuries or because they witnessed their 
colleagues get injured or killed, were more likely to develop abnormalities in 
cardiovascular function and fatiguing illness. 
Gulf War Veterans, with_showed lower blood-pressure responses to stress 
than those without. Prior to this study objective evidence of causes of fatiguing 
illnesses in Gulf War Veterans was lacking. Studies showed that a considerable 
number of Gulf War veterans have symptoms of chronic fatigue, which was often 
misdiagnosed as depression. His work showed posttrawnatic stress contributes to 
cardiovascular dysregulation and abnormal stress responses in Gulf War Veterans 
and this may indeed be the physical basis for the condition (also reported in 
HealthSCOUT News). 
Again, whil~ discussed the findings of the petitioner's studies regarding _ in Gulf 
War Veterans, he failed to demonstrate that the petitioner's studies and findings have impacted 
or influenced the field. In fact, __ stated that the petitioner's work showed that 
cardiovascular dysregulation and abnormal stress responses "may indeed be the physical basis 
for the condition." As it appears that the petitioner's studies have not resulted in a definitive 
conclusion and further studies may be required,_ failed to establish that the petitioner's 
work on_in Gulf War Veterans, while original, can be considered to be of major significance 
to the field. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. at 175. 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." Jd. at 176. 
The petitioner also submitted documentary evidence from Google Scholar reflecting that the 
petitioner's work was cited 58 times by others. Specifically, the record of proceeding reflects the 
following: 
1. 
2. 
3. 
Page 11 
as well as his abstracts and poster and conference 
presentations discussed above, has ever been cited by others in their work. While the number of 
total citations is a factor, it is not the only factor to be considered in determining the petitioner's 
eligibility for this criterion. Generally, the number of citations is reflective of the petitioner's 
original findings and that the field has taken some interest to the petitioner's work. However, it 
is not an automatic indicator that the petitioner's work has been of major significance in the field. 
In this case, we are not persuaded that the total number of 58 citations, including 42 citations from 
one article, is reflective that the petitioner's work has been of major significance in the field. 
Furthermore, while the petitioner submitted partial articles that cited the petitioner's work, a review 
of the partial submissions fail to reflect that the petitioner's work has been unusually influential, 
such as articles that discuss in-depth the petitioner's findings or credit the petitioner with 
influencing or impacting the field. In this case, the petitioner's documentary evidence is not 
reflective of having a significant impact on the field. Merely submitting documentation reflecting 
that the petitioner's work has been cited by others in their published material is insufficient to 
establish eligibility for this criterion without documentary evidence reflecting that the petitioner's 
work has been of major significance in the field. We are not persuaded that the moderate citations 
of the petitioner's articles are reflective of the significance of his work in the field. The 
petitioner failed to establish how those findings or citations of his work by others have 
significantly contributed to his field as a whole. 
Similarly, while the petitioner's poster presentation and abstracts demonstrate that the petitioner's 
work was shared with others and may be acknowledged as original contributions based on the 
selection of them to be presented, we are not persuaded that presentations of the petitioner's work at 
several venues are sufficient evidence establishing that the petitioner's work is of major significance 
to the field as a whole and not limited to the engagements in which they were presented. The 
petitioner failed to establish, for example, that the presentations were of major significance so as to 
establish their impact or influence beyond the audience at the venues. 
Finally, a review of the record of proceeding reflects that the petitioner submitted numerous 
recommendation letters. While the recommendation letters praise the petitioner for his work as a 
researcher and physician, they fail to indicate that his contributions are of major significance to 
the field. The letters provide only general statements without offering any specific information 
to establish how the petitioner's work has been of major significance. For example: 
Me:dical Center, stated: 
I must tell you I have seen many physicians who have tried to do research over 
the years and [the petitioner] is among the best. In addition, he has expanded his 
credentials from student and researcher to include teaching. Even as a fellow, he 
Page 12 
had a wonderful way with our research assistants and was always willing to take 
time to teach. I thought he'd become a great teacher and that in fact is what has 
happened. I have to point out again that he is most unusual among physicians in 
being a clinician, educator and researcher. In the past, this was the model of the 
classical academic physician who did so much to advance medial science. Wih 
[sic] the changes in the economics of medicine, very few young physicians have 
the time or interest to pursue this track today. In that regard, [the petitioner] 
stands out among his peers. 
Although discussed the petitioner's "unusual" talents as a clinician, educator, and 
researcher, we are not persuaded that such talents demonstrate original contributions of major 
significance in the field. Assuming that the petitioner's job skills are unique to his occupation, 
the classification sought was not designed merely to alleviate skill shortages in a given field. In 
fact, that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification ojNew York State Dep 't. oj Transp., 22 I&N Dec. 
215,221 (Commr. 1998). failed to indicate any original contributions of major 
significance in the field made by the petitioner. 
[The petitioner] is a rising star in academic internal medicine. To date, he has 
produced a considerable body of scholarly work for a physician of his age. In 
view of the difficulty in securing funded research, I am truly impressed with his 
clinical research achievements. I witnessed the acuity of his analytical skills 
when I served with him on the HRSA grant review panel. Given the competition 
to secure funding for research, I judge him to be among the top of his field based 
on his track record to date. 
Similarly, ~ also failed to provide petitioner's original contributions of 
major significance to the field. Instead, made general statements about the 
petitioner's "clinical research achievements" and failed to identify any original contributions of 
major significance. 
stated: 
[The petitioner] is currently collaborating with me on several research programs 
and this year has co-authored 3 publications on insulin therapy including a review 
on insulin As a __ 
~ 
mvestigatmg emergmg risk of heart disease in 
Hispanic women with diabetes. He is also involved with mentoring resident 
research projects on diabetic cardiac neuropathy and hyperparathyroidism in 
diabetic patients. He is currently developing a research proposal using antisense 
Page 13 
oligonucleotides complexed to engineered HDL particles to alter genetic 
pathways in diabetes. 
While briefly discussed some of the petitioner's previous and current work and 
projects, he failed to indicate how the petitioner has made original contributions, let alone how 
the petitioner's work has been of major significance to the field. 
stated: 
[The petitioner 1 was involved in a National Institutes of Health (NIH) funded 
investigative study of the effects of post traumatic stress on cardiovascular 
function in gulf war veterans with fatiguing illness. Prior to this study objective 
evidence of causes of fatiguing illnesses in Gulf War Veterans was lacking. 
Studies showed that up to 45 percent of Gulf War veterans have symptoms of 
unexplained fatigue which was often misdiagnosed as depression. [The 
petitioner's 1 work showed that posttraumatic stress contributes to cardiovascular 
dysregulation and abnormal stress responses in Gulf War Veterans and this may 
indeed be the physical basis for the condition. Because of its importance, the 
results of this study were published in 
internationally known sc"~ntlltic 
been discussed at the United States Department's [sic 1 of Health and Human 
Services and reported by the media. 
l"Ult:U about the petitioner's research on post traumatic stress disorder 
veterans and credited the petitioner with the correlation of cardiovascular 
dysregulation and abnormal stress responses, he claimed that the demonstration of the 
importance of the petitioner's work was evidenced by the publication of the study in _ 
__ and discussion by the U.S. Department of Health and Human Services and the 
~er, as discussed previously, we are not persuaded by the fact that the petitioner's 
work has be_essaril Y demonstrates that his work has been of major significance 
to the field. failed to indicate, for example, that the petitioner's research has 
been influential in the field, such that the petitioner's research has assisted in the treatment of 
post traumatic stress disorder. 
[The petitioner 1 is American board certified in Internal Medicine and he currently 
is a respected ["';UII. v 
He has been very active in initiating new teaching modalities 
residents and was indeed nominated for an Innovation and teaching award 
from this campus. He has become actively involved in several research interests 
which include not only innovations in medical education but also Diabetes, 
Women's Health, Health Disparities, and Post War illnesses. He was 
Page 14 
instrumental in improving the research environment during his residency and has 
made original contributions in the mentoring of residents on this campus as well. 
letter, he described the petitioner's work only as it related to the 
and not to the field as a whole~tioner may have made 
onginal contributions in assisting and mentoring students, __ failed to indicate how 
the petitioner's involvement with medical students is an original contribution of major 
significance to the field. 
stated: 
[The petitioner] especially shines in the area of research. His research interests 
are broad but include diabetes, vascular disease, lipid metabolism, women's 
health, somatization disorders, and fibromyalgia. His previous work included 
work with veterans suffering from post traumatic stress disorder, and he is 
applying the knowledge gleaned from that effort to several of his current studies. 
He is currently participating in, at least, seven separate research studies - a 
remarkable effort for any full time faculty member let alone one without fonnally 
protected research time. 
[The petitioner's] research strengths are also appreciated beyond his own medical 
school as evidenced by his appointment onto the review board of the 
selection as a reviewer for grants on 
ne'illrI and Human Services, and his appointment _ 
_ for poster presentations at the national AMA research meetings. He 
recently has written two articles accepted for publication which update the 
practice management of diabetes for physicians. He is involved in exciting and 
innovative research examining premature cardiovascular disease in women and 
rural Hispanic populations with chronic vascular and renal disease. The outcomes 
of these studies may have major implications in the future management of these 
conditions. 
Like some of the previously discussed recommendation praises the 
petitioner's skills as a researcher and mentions the petitioner's as a reviewer that 
was already discussed und~ criterion pursuant to the regulation at 8 C.F.R. § 
204.5(h)(3)(iv). Moreover, __ indicated that "[t]he outcomes of these studies may 
have major implications in the future management of these conditions." Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter ofKatigbak, 14 I&N Dec. 
at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. at 114, that we cannot that come into being 
only subsequent to the filing of a petition." Id. at 176. A failed to provide any 
evidence of the petitioner's current or past findings, let alone the significance of the work on the 
Page 15 
field, the speculation of any possible or prospective impact will not suffice to establish eligibility 
for this criterion. 
stated: 
[The petitioner] has initiated several research projects in the area of diabetes, 
cardiovascular disease, and cholesterol abnormalities. He has received some seed 
grant funding for three projects. He has applied for a "pathfinder" grant with NIH 
NIDDK. This project is designed to use a unique rodent model to study the 
elOpmlem of diabetes and abnormalities. He is collaborating 
in our department to study the effects of 
metabolism and cardiovascular 
disease. This project could make a significant contribution to the area of 
women's health. 
Like letter, letter briefly mentioned that the petitIOner has 
"initiated several research projects" and claimed that a "project could make a significant 
contribution." Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of lzummi, 22 I&N Dec. at 175. 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot 
"consider facts that corne into being only subsequent to the filing of a petition." ld at 176. Dr. 
Hampton failed to specify any original contributions made by the petitioner of major significance 
to the field. 
stated: 
[The petitioner] has developed multiple research projects examining hypotheses 
to improve outcomes in rural Hispanic populations with diabetes and heart 
disease. Positive findings from these studies will provide information on 
pathways to limit cardiovascular disease in high risk populations. 
Isp(:culah:s that the petitioner's studies "will provide information on pathways to limit 
disease in high risk populations." Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)(I), (12); Maller of Katigbak, 14 I&N Dec. at 49. A petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter 
of lzummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 
I&N Dec. at 114, that we cannot "consider facts that corne into being only subsequent to the 
filing of a petition." ld at 176. _ failed to describe any of the petitioner's 
contributions that have been of major significance to the field. 
stated: 
Page 16 
[The petitioner's] work is of great importance to our area and may have a 
significant impact on health care policy-making in this State. His contributions to 
health care instruction, medical practice and medical research make him a 
valuable member of this community and asset to this country. 
While_ speculated that the petitioner's work "may have a significant impact," he also 
failed t~ly identify any original contributions of major significance to the field. 
Instead,_ generally claimed that the petitioner made contributions to health care and 
medical practice and research without identifying those contributions, let alone the impact or 
influence to health care or medical practice and research. 
I have collaborated with [the petitioner] on multiple scientific activities. One of 
the interesting research proposals looked at job stress as a significant contributor 
to physician dissatisfaction, burnout and attrition. We researched the predictors 
of job stress in physician trainees and presented preliminary data from this study 
at the prestigious annual research meeting of the Medical Society of State of New 
York. 
mentioned a "research proposal" on which he collaborated with the 
petitioner, he failed to indicate the findings of this resear~ly indicated that the 
"preliminary data" was presented to a research meeting. ~ failed to discuss the 
impact or influence of the research so as to establish that it was an original contribution of major 
significance to the field and not limited to the research meeting. 
stated: 
I have collaborated with [the petitioner] on an interesting project examining the 
"Predictors of prescription errors in the elderly". It is estimated that there are 
more than a million preventable medication errors that occur in the United States 
annually. A third of these happen in the vulnerable geriatric population. 
Annually at least 7000 deaths are attributed to these errors. These medication 
errors are undoubtedly costly - to patients, their families, their employers, and to 
hospitals, health-care providers, and insurance companies. It is also estimated 
that the financial burden for treating these medication errors is a whopping $3.5 
billion. 
Previous research has identified the lack of physician continuity, increased 
intensity of medical care and drug therapies are associated with an increase in 
prescription errors in the elderly. Our research highlighted the presence of 
additional predictors of prescription errors and the need for further research in 
increasing physician awareness to better patient outcomes. This work was 
recognized and accepted for presentation at the annual meeting of the American 
Society. 
Similar to the recommendation letter from letter 
briefly described the findings of the petitioner's research and indicated that it was presented at an 
annual meeting of the American Geriatric Society (AGS) and published in its journal. However, 
_ failed to indicate that the research had a significant impact or influence in the field 
~d that it was not limited to the audience at AGS' meeting. 
While those familiar with the petitioner's work and skills generally describe them as "unusual," 
"influential," and "significant," the letters contain general statements that lack specific details to 
demonstrate that the petitioner's work is of major significance. This regulatory criterion not only 
requires the petitioner to make original contributions, but also requires those contributions to be 
significant. We are not persuaded by vague, solicited letters that simply repeat the regulatory 
language but do not explain how the petitioner's contributions have already influenced the field. 
Merely repeating the language of the statute or regulations does not satisfY the petitioner's 
burden of proof. 2 The lack of supporting documentary evidence gives the AAO no basis to 
gauge the significance ofthe petitioner's present contributions. 
uscrs may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
See Matter of Caron International, 19 r&N Dec. 791, 795 (Commr. 1988). However, uscrs is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission ofletters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; uscrs may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. Thus, the content of the writers' 
statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the petitioner's work has 
been original and unusually influential, or has otherwise risen to the level of contributions of 
major significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media. 
2 Fedin Bros. Co .• Ltd. v. Sava, 724 F. Supp. 1103, 1 \08 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner. 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 18 
In the director's decision, he found that the petitioner's authored published articles and the 
number of times his work was cited by others was not "consistent with one who is amongst those 
at the top of his field." The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) 
requires "[ e ]vidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media." Pursuant to Kazarian, 596 FJd at 1122, the 
petitioner submitted sufficient documentation establishing that he meets the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). Therefore, we withdraw the findings of the director for this 
criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for 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 found that the petitioner failed to establish eligibility for this criterion. Specifically, 
the director found: 
The petitioner made no contention that his role is more leading or more critical 
than the roles performed by other professors, associate professors, and assistant 
professors at his university. Rather, he wrote that "it is very doubtful the role of 
professor is not vital or essential to the function of a university." The petitioner 
reports that the provision of health care to patients "is a critical role for a medical 
center." The petitioner thus indicates a belief that most university assistant 
professors and most primary health care providers perform in critical roles, and at 
a certain level that is correct. However, for purposes of identifying those who 
have risen to the very top of a field, a more restrictive level is necessary. 
Therefore, uscrs advised the petitioner that this criterion must be met at the 
organizational level. 
The petitioner's response indicates that he performs some specific duties not 
common to his co-workers, but it does not establish that the role which he 
performs for his university is more critical than the roles performed by its many 
other professors of various ranks. Since for purposes of the high classification 
requested uscrs does not agree that every professor at a major institution meets 
the eighth criterion, it cannot be found that the evidence establishes that the 
petitioner meets that criterion because the evidence does not greatly distinguish 
him from other professors. 
On appeal, counsel argues: 
[The petitioner] proved that he held a critical role at a distinguished reputation 
university. The Service recognized that __ has a distinguished reputation 
Page 19 
but found that [the petitioner's] position was not "more leading or more critical 
than the roles performed by other professors, associate professors, and assistant 
professors at his university." The legal basis for the Service's requirement to 
distinguish [the petitioner's] role from other professors at the university is 
unclear. Since the regulations do not define "leading" or "critical," we must 
accept that the plain meaning of these words apply to this criterion. According to 
Merriam-Webster dictionary, the pertinent of "critical" is essential or vital. It is 
very doubtful the role of professor is not vital or essential to the function of a 
university. Therefore, we do not understand the Service's statement that implies 
that an assistant professor of medicine does not hold a critical role in a medical 
school. Moreover, [the petitioner] provides health care to patients of his employer 
as well. Certainly, this is a critical role for a medical center. 
While [the petitioner's] roles at Texas Tech described in great detail [in] our 
petition are both leading and critical, we do not believe the regulations require us 
to distinguish his critical role from the roles [of] all other professors. To do so 
would require us to prove that the role is both leading and critical - a requirement 
not contained in the regulations. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." As such, the director's reference that "[t]he petitioner made no 
contention that his role is more leading or more critical than the roles performed by other 
professors, associate professors, and assistant professors at his university" is consistent with the 
plain language of the regulation. In order to establish eligibility for this criterion, the petitioner 
must demonstrate that his roles are leading or critical. We cannot assume that the petitioner's 
job title automatically demonstrates a leading or critical role. Instead, the petitioner must submit 
documentary evidence that is reflective of leading or critical roles. In general, a leading role is 
evidenced from the role itself, and a critical role is one in which the alien was responsible for the 
success or standing of the organization or establishment. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentary evidence: 
1. A memorandum dated February 4, 2002 to the petitioner from 
2. 
Page 20 
3. A letter dated November 21, 2005 to the petitioner from 
4. 
5. A letter dated March 6, 2006 to the petitioner 
6. Certificates from the Medical Society of the State of New York (MSSNY) 
7. A letter dated September 27, 2006 to the petitioner from 
8. A letter dated November 14, 2008 to the petltloner 
9. 
10. 
II. 
12. 
informing the petitioner that he completed the two-year provisional period 
and has been approved for advancement for full Active staff status within 
the Department of Medicine; 
A screenshot 
physician; 
listing the petitioner as a 
A letter dated October 2, 2007 to the petitioner from __ 
informing the petitioner of his non-provisional Associate Sta~ 
reflecting that for the third quarter of 
Page 21 
2006, the petitioner had a 0.00% mortality rate for the care of his 51 
patients; 
13. A memorandum dated June 27,2008 from _ reflecting that for 
the fourth quarter of 2007, the petitioner had a 0.00% mortality rate for the 
care of his 60 patients; 
14. 
IS. A document from _indicating that the petitioner is a medical staff 
member; 
16. 
17. 
18. A "Resident Agreement" between the petitioner and. for July 1, 
2003 to June 30, 2004; 
19. An email dated October 3, 2008 from 
petitioner that his abstract was "accepted" 
2008 
20. An email dated November 14, 2008 to the petitioner from 
requesting the petitioner to serve as a member on the DIJlllUg 
Advisory Committee; 
21. 
22. An employment agreement from 
..IIiIli ••• from 2008 -
for the petitioner as an 
Page 22 
23. 
24. A letter dated January 8, 2007 to the 
25. A screenshot from www.ttuhsc.edu reflecting the announcement that the 
UUUllO'l "was elevated to the of full 
Regarding items 1 and 2, the documentary evidence merely reflects that the petitioner was 
selected to serve as an alternate on 
The petitioner failed to submit any other do(;urtlerltm'y 
alternate on the committee was leading or critical Regardless, we are not 
persuaded that serving as an alternate on a committee rises to the level of leading or critical 
a whole. 
Regarding item 3, the document simply reflects that the petitioner served on the Credentialing 
Committee at the AMA-RFS Interim Meeting. Similar to items 1 and 2, the petitioner failed to 
submit any other documentation establishing that his one-time role as a committee member 
within AMA reflects a leading or critical role in the AMA as a whole. Regarding item 4, the 
document reflects that the petitioner presented his poster at the AMA symposium. Again, we are 
not persuaded that merely presenting a single poster at a symposium sponsored by the AMA is 
demonstrative of a leading or critical role in the AMA. 
Regarding item 5, while the letter thanks the petitioner for being a preceptor at a course at 
NYMC, the petitioner failed to submit any other documentation establishing that his role as a 
preceptor for a single course is leading or critical to NYMC. 
Regarding item 6, similar to item 4, the petitioner failed to establish that his two poster 
presentations at a symposium reflects his leading or critical role to MSSNY. Simply making 
presentations at a limited engagement does not reflect a leading or critical role to MSSNY as a 
whole and only reflects that he contributed to a single poster symposium. 
Regarding items 7 - 9, the documentation relates to the petitioner's position at _as a 
physician and not as a professor or educator. Nonetheless, without additional supporting 
documentary evidence we are not persuaded that the petitioner's position as a physician or two­
year provisional appointment demonstrates that his role with _ was leading or critical 
pursuant to the plain language of the regulation. 
Regarding items 10 -15, the documentary evidence pertains to the petitioner's position as part of 
the medical staff as a practicing physician and not in his field of medical education. We note 
Page 23 
that the letter cited in item 10 reflects that "[the petitioner's] performance and patient care shall 
be monitored and observed by the chairman of [the petitioner's] department." It appears that the 
petitioner is in a subordinate role to the chairman of the department, which is not reflective of a 
leading or critical role. The petitioner failed to establish that he performed in a leading or critical 
role with MCH in his field of expertise. 
Regarding item 16, the document merely reflects that the petitioner was "recommended to serve" 
on . Notwithstanding that the petitioner failed 
to he actually served on the committee, the 
petitioner failed to establish that his service is representative of a leading or critical role to 
Regency Hospital as a whole and not limited to service on a committee . 
Regarding item 17, similar to item 16, the email simply reflects that the petltlOner was 
"accepted" into the 2008 AAIM Executive Leadership Program, and not that he participated in 
the program. Even if the petitioner established that he participated in the program, the petitioner 
failed to submit any documentary evidence reflecting his roles and responsibilities to establish 
that he performed in a leading or critical role. 
Regarding item 18, the document relates to the petitioner'S position as a resident at MVH and not 
in the petitioner's field of expertise. Regardless, the petitioner failed to submit any other 
documentary evidence establish that his position as a resident was leading or critical to MVH. 
Regarding item 19, the email merely reflects that the petitioner's abstract was "accepted" for the 
poster presentation and not that the petitioner actually presented the poster. Nonetheless, as 
indicated above, we are not persuaded that merely presenting a single poster at the TAIM's 
Annual Meeting demonstrates that the petitioner performed in a leading or critical role for 
TAIM. 
Regarding item 20, the email only requests the petitioner to serve on the Billing Compliance 
Advisory Committee. The petitioner failed to establish that he actually served on this committee. 
In addition, the petitioner failed to establish to which organization or establishment that this 
committee pertains. Regardless, the petitioner failed to submit any other documentary evidence 
demonstrating that he performed in a leading or critical role. 
Regarding items 21 -25, the documentary evidence reflects that the petitioner is employed as an 
pnlteSS()r and associate program director for the internal medicine residency program 
The petitioner also submitted recommendation letters from the following 
Since [the petitioner] joined the faculty in July 2006, I have served on several 
committees with [the petitioner]; most notable are 
Page 24 
In these capacities, he has proven to be 
an effective leader in support of the educational mission of the school, especially 
in the preparation for the introduction of third and fourth year undergraduate 
medical students to the campus in July 2009. 
In May of 2007, [the petitioner] was appointed as 
•••••••••••••••••• liiiiiii. This is the largest 
program on campus consisting of approximately 34 graduate medical doctor 
residents. His appointment was directly related to his ability to counsel and lead 
the residents as they progressed through their three year training experience. The 
program was experiencing significant problems relating to work hours, 
disorganization, and the potential loss of residents from the program. Through his 
direct efforts, he managed to ameliorate problems relating to morale, educational 
experience and mentorship. His intervention subsequently culminated in 
reCelVIllQ a full five accreditation of the nrc)(Jr"m 
was III to plan and resource 
infrastructure for the introduction of third and fourth year undergraduate medical 
students to our campus. This entailed the appointment of faculty clerkship 
directors and their training and development along with curriculum development, 
simulation laboratory and clinical continuity experiences for the students. His 
efforts have contributed to meeting all of the campus planning objectives in 
support of this initiative. Additionally, he has been appointed to the Admissions 
Committee for medical students and residents for the entire TTUHSC system. 
This appointment is indicative of the TTUHSC senior leadership's confidence and 
respect for [the petitioner's] professional judgment in the selection of future 
physicians. 
Since joining the faculty, [the petitioner] has served on the Regional 
Committee of the Faculty Practice Plan and currently serves as its 
This committee establishes governance, structure, policy and procedures relating 
to the of health services to the community and the catchment area of the 
This is a senior position on the campus of which 
members are selected based on their professional and administrative capabilities. 
[The petitioner] was instrumental in reorganizing the structure of the Faculty 
Practice Plan from a departmental model to a clinical operations group model. 
This restructuring improved patient access, standardized procedures between six 
different clinical departments and improved the utilization of support staff. This 
initiative has increased the number of outpatient visits with the same level of 
staffing which directly enhances the improving experiences while at the same 
time enhanced revenues. 
Page 25 
listed the petitioner's "critical role and some of his extraordinary 
contributions to the school" as follows: 
[The petitioner] is one of the youngest associate program directors and probably 
one of the most accomplished in this country. This responsibility is entrusted to 
an individual with the highest capabilities, one who works to administer and 
maintain an environment conducive to residents in all of the 
is responsible 
for accreditation of post-MD medical training programs within the United States) 
competency areas. He a) reviews applications, interviews, selects prospective 
trainees, b) supervises, teaches, and evaluates medical students and postgraduate 
trainees during their in-patient and out-patient rotations. c) delivers educational 
modules which he has developed. 
* * * 
The educational task force was created to 1. 
""p","H.'" a core curriculum for all the primary training 
programs on campus and 2. Coordinate the campus efforts on the delivery of 
educational experiences for 3'd and 4th year medical students. Now we have an 
"ACGME core competency curriculum" which is being successfully implemented 
for the past 2 years enhancing the training experience for doctors in training. This 
is a unique curriculum which in addition to common clinical diseases also talks 
about ethics, business and law in medicine. In addition to conceive this 
topics like 
We also now have our first 
group of year medical students successfully completing their clinical rotations 
across the campus. 
Member Graduate Medical Education Committee - The GME committee IS a 
super committee that overseas, reviews, and remedies the performance of 
individual training programs, their compliance with the rules of the accrediting 
agencies, training content, trainee satisfaction among others. Only faculty heavily 
involved in residency training are appointed to this committee and [the petitioner] 
is one of them. As a member of this committee he recently reviewed the 
performance of the subspecialty training program in Geriatrics. 
Member of SOM - Admissions Committee for Medical Students - [The 
petitioner] is an active member of this committee which reviews close to 2000 
prospective medical school applicants, interviews and then selects 140 students 
for admission. This committee has the critical responsibility of extensively 
Page 26 
reviewing applicants for assessing preparedness of students in assuming the rigors 
of training and identifies future doctors. 
operations of the campus. It also formulates policy, develops strategic plans for 
the campus and the chairman of RPC recommends policy issues and changes to 
the Dean. 
* * * 
- [The 
petitioner] chairs this committee which sets institutional standards for quality of 
care provided by the university's physician, nursing and allied health staff in all 
the ambulatory practices and at the county hospital system. . .. [The petitioner] 
designed a brief educational activity to increase the awareness of physicians. The 
result, on a subsequent quarterly review was whopping overall 99% compliance 
and this was due to Texas Tech physicians achieving 100% compliance. 
[The petitioner's] role at the school is unique in that he is actively contributing to 
all these challenging roles while fulfilling very well his primary responsibility of 
providing quality healthcare in this underserved area. It is no surnrj"e 
that [the petitioner] is appointed as the 
to supervise operations when the regional chairman IS 
stated: 
[The petitioner] has been an exemplary faculty member, involved in all aspects of 
the Department, including direct patient care, medical teaching, research, and 
administration. He is well-respected as a clinician and well-regarded by his 
patients of Odessa, Texas and the surrounding region, which is a medically­
underserved area. Within medical education, he is the 
He teaches medical residents in training in both the inpatient hospital and 
outpatient clinic settings. As a researcher, he is a rising young investigator with 
publications and research projects that are well-outlined on his CV, which I will 
not repeat here, but to which I can attest. 
credited the petitioner with successfully 
several committees within _ such as 
Page 27 
the record falls far short of establishing that the petitioner has perfonned in a leading or critical 
role for _ as a whole. We are not persuaded that the petitioner's role as 
is leading or critical when In 
appears to reflect that the petitioner is subordinate 
and_who is 
ll1g.jj~l position than the petitioner. Moreover, as 
the petitioner failed to submit any documentary evidence that distinguishes 
the Furthennore, the petitioner failed to submit, for 
example, an organizational chart showing the petitioner's position for the internal medicine 
residency program relating to the position of others at 
[The petitioner 1 demonstrated leadership has led to him being appointed as the 
_ Both the centers focus on development of community educational 
programs, patient education, moderating patient support groups, continuing 
medical education for nurses and physicians to eventually improve patient 
outcomes in 
Besides the letter the petitioner failed to submit any other documentary 
evidence regarding establish that it has a distinguished reputation. Again, 
merely referring to the pe~ion title is not sufficient to establish that he perfonned in 
a leading or critical role. __ failed to explain or . examples of how the 
petitioner has perfonned in a leading or critical role with may, in its discretion, 
use as advisory opinion statements submitted as expert Matter of Caron 
International, 19 I&N Dec. at 795. However, USCIS is ultimately responsible for making the 
final detennination regarding an alien's eligibility for the benefit sought. Id The submission of 
letters of support from the petitioner's personal contacts 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. The lack of supporting documentary evidence gives the AAO no basis 
to gauge the leading or critical role of the petitioner. 
We note here that at the time of the original filing of the petition, counsel also claimed the 
petitioner's eligibility for this criterion based on the petitioner's presentations at various 
conferences and meetings addressed under the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v). As discussed, we are not persuaded that presenting 
abstracts at conferences is reflective of a leading or critical role for an organization or 
establishment. The petitioner failed to demonstrate his responsibilities and accomplishments 
during the conferences so as to establish that he perfonned in a leading or critical role. 
Page 28 
While the petitioner performed his assigned duties, the record falls far short in establishing that 
the roles were leading or critical consistent with the meaning of the plain language of the 
regulation at 8 C.F.R. § 204.S(h)(3)(viii). Even if the petitioner established that his role with 
TTUHSC is leading or critical, the petitioner failed to meet the plain language of the regulation 
which requires leading or critical roles in more than one organization or establishment. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration/or services, in relation to others in the field. 
The director found that the petitioner failed to establish eligibility for this criterion. Specifically, 
the director found in his decision: 
[T]he petitioner initially submitted evidence regarding wages earned by general 
internists, medical scientists, doctors of internal medicine, and physicians 
employed by colleges and universities. The salary commanded by the petitioner 
is significantly higher than that earned by most medical scientists, but it is only 
somewhat higher than the median earned by other groups of physicians and is 
actually lower than the median salary earned by physicians with a considerable 
amount of experience (over twenty years). Moreover, considering the petitioner's 
current position, USCIS requested evidence which established that his salary is 
high compared to that earned by other professors of clinical medicine. USCIS 
suggested (but did not require) a comparison to the salaries earned by such 
professors at the other schools in the conference of which the petitioner's 
university is a member. The petitioner's response included evidence of salaries 
earned by postsecondary health specialties teacher. uscrs does not agree that 
this is the appropriate comparison group for the petitioner's occupation. Since he 
has reported that he is a professor of clinical medicine, the appropriate 
comparison group would be other professors of clinical medicine. Since the 
evidence does not establish that the petitioner commands significantly high 
remuneration in relation to others in that field, nor significantly high remuneration 
in relation to all other physicians in the United States, regardless of age or 
experience, it cannot be found that he meets [this criterion]. 
On appeal, counsel argues: 
[T]he Service refused to recognize that [the petitioner's] salary exceeded that of 
other practicing physicians. It rejected the U.S. government's own salary survey 
and claimed [the petitioner] did not command a high salary. We disagree. As an 
internist and as a medical scientist, [the petitioner's] current salary of $160,000 
far exceeds the average reported salaries [of] other professionals both on a local 
and national level. We do not have data schools that the Service 
requested. As we understand it, the term to college athletic 
conference of twelve schools mostly in the ""IJlj'll region of the state. As this 
Page 29 
petition is for physician, not an athletic coach, we do not understand the relevance 
of salaries for assistant professors at "Big 12" schools. 
A review of the record of proceeding reflects the following submitted documentation by the 
petitioner: 
1. A "Faculty Memorandum of Appointment Non-Tenure Acquiring Rank," 
2. 
3. 
dated July 28, 2008, reflecting the petitioner's salary at 
$160,000 as 
A screenshot 
gross salary of $13 
A screenshot 
petitioner's gross 
31,2008; 
'efl,ecting the petitioner's 
per'iod ~IlumgNovember 30, 2008; 
a paystub reflecting the 
pay period ending on December 
4. A screenshot 
5. Screenshots from 
of Labor 
for the U.S. Department of Labor, Bureau 
ref1ectinlg the mean annual wage for ••••• 
$156,790; 
6. A screenshot from for the F'oreign 
7. 
8. 
9. 
Certification Data Center reflecting the median wage for 
nonmetropolitan area IS 
$153,629; 
A screenshot from for the Foreign Labor 
I~~:=:'~:~~:~===ii.:;~m:ed~i~an: wage for $63,648; 
A screenshot from 
salary for 
$139,284; 
salary for 
university is 
for PayScale reflecting the median 
in the United States is 
for PayScale reflecting the median 
at a college or 
documentary evidence reflects that the petitioner's salary as an 
$160,000 per year. However, regarding item 4, the screenshot 
. .. 
Page 30 
reflects the median wages of area. 
The petitioner failed to submit any documentary evidence establishing that postsecondary health 
specialist teachers equate to the petitioner's occupation as an assistant professor in clinical 
medicine. Moreover, as the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires 
"[ e ]vidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field," the median level four wages (fully competent) do not 
meet this requirement. Accordingly, the petitioner has not established that his salary is 
significantly high in relation to other assistant professors in clinical medicine as a whole and not 
limited to the Odessa, Texas area. 
Regarding items 5 - 9, the documentary evidence relates to the occupations of physicians and 
medical scientists. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires 
"[ e ]vidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field [emphasis added]." As discussed previously, the petitioner 
intends to continue to work in the United States as an assistant professor in clinical medicine and 
not as a physician or medical scientist. Therefore, the salaries and wages of physicians and medical 
scientists do not relate to the petitioner's field of expertise. Even if the documentary evidence 
related to the petitioner's occupation, which it does not, the documentary evidence reflects median 
wages and not evidence that the petitioner's salary is high when compared to others in the field. In 
fact, the median wages reflected in the above documentary evidence for level four physicians is 
only slightly lower than the petitioner's salary at_. Comparing the petitioner's salary to the 
median wages of physicians and medical scientists clearly does not reflect that the petitioner has 
commanded a high salary in relation to others in his field. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) 
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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.c. 
§ 1 1 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner established eligibility for only two of the criteria, of which at least three are required 
under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many 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). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner'S eligibility pursuant to section 203(b)(l)(A) of the Act. In this case, the 
petitioner has authored some scholarly articles, served as a reviewer for student poster 
presentations and grants, and has performed routine duties in his field of endeavor. However, the 
Page 31 
accomplishments of the petitioner fall far short of establishing that he "is one of that small 
percentage who have risen to the very top of the field of endeavor" and that he "has sustained 
national or international acclaim and that his or her achievements have been recognized in the 
field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
§ I I 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[aJ petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criterion at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
While we determined that the petitioner met the judging criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(iv), an evaluation of the significance of the petitioner's judging experience 
is sanctioned under Kazarian, 596 F. 3d at 1121-11. The . established eligibility based 
on his participation with the as part of the 
petitioner's continuing education actIvIties and as a reviewer on the Residency Training III 
Primary Care . We note that the petitioner submitted an email dated 
21, 2006 who thanked the for his future at 
any 
participated at the post Moreover, the petItIOner submitted an email dated 
September 27, 2007 fro who sent the petitioner, along with other individuals, 
instructions and information for a review of a Seed Research Grant Review. While the petitioner 
submitted three evaluation forms of the Seed Research Grant, the documentary evidence fails to 
reflect that the petitioner actually . Furthermore, the petitioner submitted an 
email dated February 8, 2008 from who requested the petitioner to participate 
with the Predoctoral Training in Primary Care Objective Review Committee from March 5 - 7, 
2008, but failed to submit any documentary evidence establishing that he served on this 
committee. 
Nonetheless, the documentary evidence reflects that the petitioner's claimed achievements as the 
judge of the work of others to be mainly with residents and students. The petitioner failed to 
submit evidence demonstrating that he judged acclaimed medical professors, scientists, or 
physicians rather than residents and students. C/, Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Commr. 1994); 56 Fed. Reg. at 60899 (USCIS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" 
standard). We carmot conclude that the petitioner's participation as a reviewer of articles as part 
of a continuing education course and a student poster symposium demonstrates 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 8 C.F.R. § 204.S(h)(2). We note that peer review is a routine element of 
the process by which articles are selected for publication in scientific journals or for presentation 
at scientific conferences. Occasional participation in the peer review process does not 
automatically demonstrate that an individual has sustained national or international acclaim at 
the very top of his field. Reviewing manuscripts is recognized as a professional obligation of 
professors or scientists who publish themselves in scientific journals or who present their work at 
professional conferences. Normally a journal's editorial staff or a conference technical 
committee will enlist the assistance of nurnerous professionals in the field who agree to review 
submitted papers. It is common for a publication or technical committee to ask multiple 
reviewers to review a manuscript and to offer comments. The publication's editorial staff or the 
technical committee may accept or reject any reviewer's comments in determining whether to 
publish, present, or reject submitted papers. Without evidence pre-dating the filing of the 
petition that sets the petitioner apart from others in his field, such as evidence that he has 
received and completed independent requests for review from a substantial number of journals or 
conferences, served in an editorial position for a distinguished journal, or chaired a technical 
committee for a reputable conference, we cannot conclude that the petitioner is among that small 
percentage who has risen to the very top of the field of endeavor. See 8 C.F.R. § 204.S(h)(2). 
Furthermore, a review of the credentials of the individuals who submitted reference letters on the 
petitioner's behalf demonstrates that there is stark contrast between their experiences and the 
claimed experience of the petitioner. Specifically, the references have the following experiences 
as judges: 
I. 
2. 
3. 
.. . 
Page 33 
Investigation, Life Sciences, Obesity Research, Molecular and Cellular 
Endocrinology, Placenta, Prostaglandins, and Regulatory Peptides; 
Editorial board for Journal of Endocrinology, Journal of Medical 
Primatology, Experimental Biology and Medicine, Biology of 
Reproduction, and American Journal of Primatology; Ad hoc proposal 
reviewer for Contraceptive Development Branch (NIH), Minority 
Biomedical Research Support Program (NIH), March of Dimes, National 
Heart Lung, and Blood Institute (NIH), National Institutes of Child Health 
and Human Development (NIH); Regular member NIH reviewer for 
Diabetes, Endocrinology, and Metabolic B Subcommittee. 
When compared to the petitioner, the petitioner's references have considerably distinguished 
themselves based on their editorial and review experience. We also determined that the 
petitioner met the authorship of scholarly articles criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv). A review of the documentary evidence reflects that the petitioner submitted 
four scholarly articles: 
I. 
2. 
3. 
4. 
We note that the record contains two additional articles 
Care, July 2009). These articles were published after the filing of the petition on March 13, 
2009. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter 
of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. at 175. 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Again, however, when compared to the authorship of those in his field, the record reflects: 
• :10 •• 
Page 34 
1. 82 articles; 
2. ,utllOn~d 35 articles and 15 abstracts; 
3. \utl~on~d 118 articles and 3 books; 
4. ~ 1I11,m,eel 20 articles, 1 book, and 14 abstracts; 
5. .ut~Lorf:d 19 articles, 4 abstracts, and 10 book chapters; 
6. Authored 69 articles and 11 abstracts; 
7. - Authored 130 articles and 19 book chapters; and 
8. Authored 142 articles, 4 books, and 224 abstracts. 
Although the petitioner met the plain language of the regulation through his co-authorship and 
authorship of scholarly articles, he has not established that the minimal publication of such 
articles demonstrates 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 8 C.F.R. § 204.5(h)(2). As authoring 
scholarly articles is inherent to science, we will evaluate a citation history or other evidence of 
the impact of the petitioner'S articles to detennine the impact and recognition his work has had 
on the field and whether such influence has been sustained. For example, numerous independent 
citations for an article authored by the petitioner would provide solid evidence that his work has 
been recognized and that other researchers have been influenced by his work. Such an analysis 
at the final merits determination stage is appropriate pursuant to Kazarian. 596 F. 3d at 1122. 
On the other hand, few or no citations of an article authored by the petitioner may indicate that 
his work has gone largely urmoticed by his field. As previously discussed, the petitioner 
submitted documentary evidence reflecting that his work has been independently cited 58 times. 
While these citations demonstrate some interest in his published work, they are not sufficient to 
demonstrate that his articles have attracted a level of interest in his field commensurate with 
sustained national or international acclaim at the very top of his field. 
As previously discussed, the petitioner also claimed eligibility based on approximately 40 
presentations with the majority of them presented at _ When compared to the 
petitioner's references, however, the number and venue of the presentations by the petitioner's 
references are far above the accomplishments of the petitioner. For example: 
1. presentations throughout the United States; 
2. 247 presentations throughout the United States including 
. ", \ 
Page 35 
3. - 206 presentations throughout the United States and 
internationally. 
Likewise, our finding that the petitioner failed to establish his leading or critical role pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(viii) is supported by a comparison of the petitioner's 
roles with those of his references. The petitioner seeks to continue to work in the United States 
It must be emphasized that the favorable opinions of experts in the field, while not without 
evidentiary weight, are not a solid basis for a successful extraordinary ability claim. Again, 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. at 795. However, users is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters from individuals 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 r&N Dec. 500, n.2 
(BrA 2008). 
Finally, we cannot ignore that the statute requires the petJtlOner to submit "extensive 
documentation" of the petitioner's sustained national or international acclaim. See section 
203(b)(I )(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(I )(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5,1991). Although we found that the petitioner failed to establish eligibility for the 
high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix), we note that the 
petitioner failed to submit sufficient documentary evidence comparing his salary to others in his 
field of expertise. The petitioner failed to submit evidence demonstrating that he "is one of that 
small percentage who have risen to the very top of the field." As demonstrated by the 
accomplishments of those who submitted letters on his behalf, it appears that the highest level of 
the petitioner's field is far above the level he has attained. In addition, the petitioner has not 
demonstrated his "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. 
No. 101-723,59 (Sept. 19, 1990). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. The documentation submitted in support of a claim of extraordinary ability must clearly 
Page 36 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore. the petitioner has not established eligibility pursuant to section 
203(b)(I )(A) ofthe 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 
and 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 burden has not been met. 
ORDER: The appeal is dismissed.