dismissed EB-1A Case: Neurosurgical Oncology

# 
U.S. Department of Homeland Security 
jdmtifying data deleted to 
Prevent cleai.~p 4 Warranted 
in~sion ofpersonal prlvay 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
- 
SRC 08 265 51319 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
u 
Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (MO) on appeal. The appeal 
will be dismissed. 
The petitioner is a hospital. It seeks to classify the beneficiary as an employment-based immigrant 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 153(b)(l)(A), as an alien of extraordinary ability in the sciences. The director determined the 
petitioner had not established that the beneficiary has earned the sustained national or international 
acclaim necessary to qualify for classiiication as an alien of extraordinary ability. More specifically, 
the director found that the petitioner had failed to demonstrate the beneficiary's receipt of a major, 
internationally recognized award, or that he meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
On appeal, counsel argues that the beneficiary meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international 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 (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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means 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). The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
the beneficiary has sustained national or international acclaim at the very top level. 
Page 3 
This petition, filed on September 4, 2008, seeks to classify the beneficiary as an alien with 
extraordinarv abilitv in the field of neurosurgical oncolorrv. At the time of filing. the beneficiarv 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner, however, cannot establish the beneficiary's 
eligibility for this classification merely by submitting evidence that simply relates to at least three 
criteria at 8 C.F.R. fj 204.5(h)(3). In determining whether the beneficiary meets a specific criterion, 
the evidence itself must be evaluated in terms of whether it is indicative of or consistent with 
sustained national or international acclaim. 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). The petitioner has submitted evidence pertaining to the following criteria 
under 8 C.F.R. $ 204.5(h)(3).' 
Documentation of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted a May 1, 2006 certificate from the Congress of Neurological Surgeons 
(CNS) as evidence of the beneficiary's membership in the congress. The petitioner also submitted 
information from the CNS internet site stating: 
An applicant for Active Membership in the Congress of Neurological Surgeons (CNS) must 
be a licensed physician whose practice is substantially limited to neurological surgery. 
Further, an applicant for Active Membership must: 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
1. be certified by the American Board of Neurological Surgery, The Royal College 
of Physicians and Surgeons of Canada, or the equivalent; or 
2. have completed the residency training requirements of a program approved by the 
American Board of Neurological Surgery; or 
3. have acceptable academic training equivalent to the requirements for eligibility 
for examination by the American Board of Neurological Surgery; or 
4. have an outstanding record in the field of neurological surgery over a period of 
years, due to the high standard of quality of the applicant's work; and be a 
member in good standing in the applicant's local or regional medical society, or 
provide equivalent documentation of good standing in the local medical 
community. Applicants who are active duty officers in the Armed Forces are 
exempt from this requirement; and have a record consistent with the highest 
standards of the profession. 
We cannot conclude that being a licensed physician, being certified by the American Board of 
Neurological Surgery (ABNS), having completed the residency training requirements of a program 
approved by the ABNS, or having acceptable academic training equate to outstanding achievements. 
Further, with regard to item 4 above, the documentation submitted by the petitioner does not specify 
what type of achievements constitute an "outstanding record" or "high standard of quality of . . . 
work." Nevertheless, item 4 is not required if the applicant fulfills requirements 1, 2, or 3. 
Moreover, there is no evidence showing that prospective CNS members are evaluated by recognized 
national or international experts in the beneficiary's field or an allied one. 
The petitioner submitted a September 2004 certificate from the American Association of 
Neurological Surgeons and the CNS stating that the beneficiary was a "Resident Member" of the 
Section on Tumors. The record, however, does not include evidence of the membership 
requirements (such as bylaws or rules of admission) for the Section on Tumors' "Resident Member" 
designation. There is no evidence showing that this membership designation requires outstanding 
achievements as judged by recognized national or international experts in the beneficiary's field or 
an allied one. 
The petitioner submitted a July 9, 2007 certificate and welcome letter from - 
President of the Society for Neuro-Oncology (SNO), as evidence of the beneficiary's membership in 
the society. letter states: 
Criteria for active membership, as stated in our Bylaws, include the following: 
An applicant for Active Membership in the SNO must hold a doctoral degree and 
have an interest and/or family practice which includes neuron-oncology. 
Furthermore, an applicant for Active Membership must (I) be a member in good 
standing in one or more of the applicant's appropriate, respective professional 
societies; (2) have a record consistent with the highest ethical, medical and scientific 
standards of his or her profession; (3) have an advanced educational degree consisting 
of M.D., D.O., Ph.D. or equivalent alone or in combination; (4) have a demonstrated 
and recognized commitment to the field. 
We cannot conclude that holding a doctoral degree; having an interest and/or family practice which 
includes neuro-oncology; being a member in good standing in at least one appropriate professional 
society; having a record consistent with the highest ethical, medical and scientific standards of one's 
profession; having an advanced educational degree consisting of M.D., D.O., Ph.D. or their - 
equivalent; and having a demonstrated and recognized commitment to the field equate to outstanding 
achievements. Further, letter does not define what constitutes "a record consistent with 
the highest ethical, medical and scientific standards of [one's] profession." For instance, no specific - 
examples of ethical, medical or scientific standards are identified. Moreover, there is no evidence 
showing that prospective members in the SNO are evaluated by recognized national or international 
experts in theben&iciary7s field or an allied one. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the Jield for which classijcation is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the 
beneficiary and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. An alien would not earn acclaim at the national level from a local publication. 
Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify 
as major media because of significant national distribution, unlike small local community papers.2 
The petitioner submitted 2006 and 2007 articles in Baystate Health and Alphasites (both Baystate 
Medical Center marketing publications) that quote the beneficiary or discuss his work. There is no 
evidence (such as national circulation statistics) showing that these marketing publications qualify as 
professional or major trade publications or some other form of major media. The petitioner also 
submitted marketing materials for Baystate Neurosurgery and the Baystate Regional Cancer Program. 
The plain language of this regulatory criterion requires the submission of "[plublished material about 
the alien in professional or major trade publications or other major media" including "the title, date, and 
author of the material." The marketing materials from Baystate Neurosurgery and the Baystate 
Regional Cancer Program do not meet these requirements. 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
The petitioner submitted a Question and Answer interview of the beneficiary posted in the 
"Stories/Spotlight" section of the Brain Science Foundation's internet site.3 The date and author of this 
material were not provided as required by the plain language of this criterion. Further, there is no 
evidence showing that this organization's internet site qualifies as a professional or major trade 
publication or some other form of major media. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien S participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedjield of specification for which classijication is 
sought. 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "a 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 evidence submitted 
to meet this criterion, or any criterion, must be indicative of or consistent with sustained national or 
international acc~aim.~ 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. 
5 204.5(h)(2). 
The petitioner submitted a July 17, 2007 contract the beneficiary executed with Current Medicine 
Group LLC stating: 
As per this contract, you agree to the following terms. 
1. You consent to serve as the Associate Editor ("AE") of the following collection: 
2. You agree to review all of the content in your assigned collections, which currently 
consists of 300 images. 
3. As an Associate Editor, you agree to maintain and develop the above listed collection(s). 
To do so, you will accept the following responsibilities: 
3 The record reflects that the petitioner was a Clinical Fellow of Neurosurgical Oncology at :- 
According to the Brain Science Foundation's internet site, the foundation partners with the Department of 
Neurosurgery at the to facilitate progress in brain cancer research. See 
htt~://www.brainsciencefoundation.ora/matriarch/MultiPiecePage.as~ Q PaaelD E 21 A PageName E Aboutcenter, 
accessed on February 18,2010, copy incorporated into the record of proceeding. 
4 
 We note that although not binding precedent, this interpretation has been upheld in Yasar v. DHS, 2006 WL 778623 *9 
(S.D. Tex. March 24, 2006) and All Pro Cleuning Services v. DOL et al., 2005 WL 4045866 * 11 (S.D. Tex. Aug. 26, 
2005). 
To review the images in your assigned collection(s) while considering if 1) the 
images contained within reflect up to date, relevant information, 2) the images are 
located in the proper collection and section, and 3) the images are classified 
correctly. 
You will suggest the removal of images and tables that are no longer of interest. 
You will also notify Current Medicine Group if any of the imagesltables should 
be relocated to another collection/section. You agree to submit a maintenance 
report to Current Medicine Group outlining imagesitables that should be removed 
or relocated by August 1, 2007. 
You will be required to add artwork that will either replace outdated images or fill 
a current void within our collections. You agree to begin contributing new 
materials by September 1,2007. 
You will continue to develop your collections through the following capacities: 
- Recommend outside sources for images (other than those published by 
Current Medicine Group) 
- Submit your own original imagesitables or ones created by your 
colleagues 
- UpdateIEdit images removed from images.MD so they contain current 
material where possible 
You agree to review images, published in Current Reports or Current Treatment 
Options journals related to your collections, for inclusion in any of your assigned 
images.MD collections. You will advise us in which collectionsisections 
published images should be placed. 
4. Current Medicine Group LLC prohibits the inclusion of industry slides and promotional 
materials that have been prepared by pharmaceutical companies. As Associate Editor, you 
agree to develop your collection comprehensively and will not slant the material contained 
within to reflect any personal or professional conflict of interests. 
5. Current Medicine Group LLC by means of this contract agrees to share copyright with 
creator of all images contributed to images.MD and, hereby, grants permission for the 
unlimited use of such images. 
6. For your time and assistance, an honorarium of $500 will be paid at the end of the fiscal 
year. 
The petitioner also submitted' a May 15, 2008 printout from Current Medicine Group LLC's internet 
site stating: "Our newest product, imanes.MD, an online encyclopedia of over 70,000 medical images, 
Page 8 
is collected from over 100 of our most popular titles with contributions from more than 2,000 medical 
professionals." 
There is no evidence from - confirming that the beneficiary complied with 
the terms set forth in the preceding contract or identifying his completed work. Accordingly, the 
beneficiary's participation as a reviewer of image content for images.MD has not been established. 
Nevertheless, the petitioner has not demonstrated that the beneficiary's review, maintainance, and 
development of image content for his assigned 1mages.MD collection equates to his "participation, 
either individually or on a panel, as a judge of the work of others" in his field or an allied one. 
Moreover, there is no evidence demonstrating that serving as an Associate Editor for the ima~es.MD 
online Neuro-oncology collection is commensurate with sustained national or international acclaim at 
the very top of his field. For instance, aside from the self-serving information submitted from Current 
Medicine Group LLC's own internet site, there is no evidence indicating that the company's "newest 
product," the imanes.MD online encyclopedia, has a distinguished reputation when compared to other 
forms of medical literature. 
The petitioner submitted a December 8, 2006 e-mail from the Behavioral Health Director at = 
to the beneficiary inviting him to participate as a member of the Steering Committee to develop 
"a strategic plan for neurosciences." The e-mail requests the beneficiary's "input, feedback and 
participation regarding . . . future vision and plans, and in particular how neurosurgery will play a 
critical role in these plans." The plain language of this criterion requires "[elvidence of the alien's 
participation . . . as a judge of the work of others." An invitation expressing "hope" that the 
beneficiary will be able to join the committee is not tantamount to evidence of his "participation." 
Moreover, the petitioner has not established that the beneficiary's service on a Baystate Health Steering 
Committee to develop a strategic plan for neurosciences equates to his "participation, either individually 
or on a  ane el. as a iudge of the work of others" in his field or an allied one. Such work amears inherent 
J " I I 
to the beneficiary's position as Director of 
and does not demonstrate acclaim beyond his immediate employer. For instance, internal review of 
student work is not indicative of or consistent with national or international acclaim and, thus, cannot 
serve to meet this criterion. See, e.g., Kazarian v. USCIS, 580 F.3d 1030, 1035 (9" Cir. 2009). 
The petitioner submitted a November 26, 2004 letter from 
 at 
Brigham and Women's Hospital, Professor of Neurosurgery at Harvard Medical School, and Chairman 
of the Editorial Board of Neuro~ur~er~,~ stating: 
[The beneficiad was selected . . . for a coveted fellowship in brain tumor surgery at Brigham 
and Women's Hospital, affiliated with 1. Since he joined us in July of 
2003, he has continued to distinguish himself from other neurosurgeons in the field. 
5 
We note that the beneficiary trained under and coauthored an article and book chapters with him during the 
beneficiary's fellowship in brain tumor surgery at - 
[The beneficiary] has performed peer review on the subject of Neurosurgical Oncology for the 
journal Neurosurgery . . . . I am Chairman of the Editorial Board for this journal, and can 
certify that [the beneficiary's] contributions as a reviewer have been indispensable to our 
publication. 
letter does not specify the Neurosurgical Oncology material reviewed by the beneficiary or 
the nature of his contributions. For example, letter does not specifically identify the 
manuscripts reviewed by the beneficiary and his dates of participation. Further, there is no information 
regarding the means by which the beneficiary was selected to review material for Neurosurgery. It is 
certainly reasonable to conclude that the beneficiary was selected because his supervisor at the time, 
, happened to serve in an editorial capacity for the journal. Moreover, peer review is a 
routine element of the process by which articles are selected for publication in scientific journals. 
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 researchers who publish themselves in 
scientific journals. Normally a journal's editorial staff will enlist the assistance of numerous 
professionals in the field who agree to review submitted papers. It is common for a publication to 
ask several reviewers to review a manuscript and to offer comments. The publication's editorial 
staff may accept or reject any reviewer's comments in determining whether to publish or reject 
submitted papers. Without evidence pre-dating the filing of the petition that sets the beneficiary 
apart from others in his field, such as evidence that he has received and completed independent 
requests for review from a substantial number of reputable journals or medical conferences, or 
served in an editorial position for a distinguished journal in the same manner as Dr. Black (for 
example), we cannot conclude that the beneficiary meets this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field. 
The petitioner submitted several letters of support discussing the beneficiary's work. We cite 
representative examples here. In evaluating the reference letters, we note that letters containing 
mere assertions regarding the beneficiary's talent and skill in performing various surgical techniques 
are less persuasive than letters that specifically identify his original contributions and provide 
specific examples of how those contributions have influenced the field. For example, many of the 
individuals offering letters of support focus on the beneficiary's educational qualifications and 
training, his experience and ability in performing highly specialized neurosurgical procedures, the 
general importance of his specialty, and his teaching skills, rather than how work primarily 
attributable to him equates to original scientific contributions of major significance in his field. 
Vague, solicited letters from local colleagues or letters that do not specifically identify original 
contributions or how those contributions have influenced the field are insufficient. See Kazarian v. 
USCIS, 558 F.3d at 1036. 
Because of his rare knowledge and unique abilities, [the beneficiary] has been involved with 
major companies including InSightec and GE Healthcare Technologies to help develop the 
next generation of machines and techniques for use in minimally invasive and maximally 
effective brain tumor surgery. With InSightec, he has been a key participant in the 
development of a High-Intensity Focused Ultrasound System for treating tumors, and with 
GE he was involved in developing an advanced intraoperative MRI system for use in image- 
guided neurosurgery. Much of this work was performed in collaboration with MIT engineers 
and General Electric (GE) at a joint facility known as the Center for Integration of Medicine 
and Innovative Technology (CIMIT) for a project dubbed "Operating Room of the Future" 
(ORF). His contributions are integral in configuring the operating room of the future. 
The record, however, does not establish that the beneficiary initially invented or holds a patent for 
the InSightec High-Intensity Focused Ultrasound System or GE's advanced intraoperative MRI 
system. Further, there is no evidence from these companies describing the extent of beneficiary's 
participation in their projects or the impact these systems have had in the surgical field. 
[The beneficiary] has pioneered the use and research of new methods to manage certain brain 
tumors, such as the novel technique of infusing therapeutic drugs into the brain after tumor 
removal to fight off tumor recurrence. [The beneficiary] has authored a number of scientific 
papers, and published in the leading neurosurgery journal Neurosurgical Clinics of North 
states that the beneficiary has pioneered the use and research of a "novel technique of 
infusing therapeutic drugs into the brain after tumor removal to fight off tumor recurrence," but she 
does not provide any specific examples of how the beneficiary's technique is impacting the field. With 
regard to the beneficiary's published work as discussed by and others, we note that the 
regulations contain a separate criterion regarding the authorship of scholarly articles. 8 C.F.R. 
5 204.5(h)(3)(vi). We will not presume that evidence relating to or even meeting the scholarly articles 
criterion is presumptive evidence that the beneficiary also meets this criterion. Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate 
criteria exist for authorship of scholarly articles and original contributions of major significance, 
USCIS clearly does not view the two as being interchangeable. To hold otherwise would render 
meaningless the statutory requirement for extensive evidence or the regulatory requirement that a 
beneficiary meet at least three separate criteria. We will fully address the beneficiary's published 
work under the next criterion. 
Neurosurgery at the Huntsman Cancer Institute, 
 states that 
he and the beneficiary are a part of a consortium formed to "facilitate innovative clinical trials and 
cutting edge research in the treatment of brain tumors." 
 further states: 
Page 1 1 
[The beneficiary's] record of publications is very impressive and includes review articles, 
original research papers, and book chapters. For example, his first-author article, "A low- 
field intraoperative MRI system for glioma surgery: is it worthwhile?'was recently accepted 
for publication in the top tier journal Neurosurgery Clinics of North America, and has 
received numerous citations and recognition in the field. In the article, he explains how 
intra-operative MRI allows for the precise localization of brain tumors and the clear 
definition of their margins, avoiding the risks and uncertainties of discerning tumor from 
normal brain during surgery. . . . Not only does this technique, mastered by [the beneficiary], 
assist the surgeon during the operation, it also prevents postoperative neurological deficits 
and can lessen recovery time. The more aggressive removal of tumor that this technique 
allows also improves patient survival following surgery. 
While 
 states that the beneficiary has "mastered" the technique of using intra-operative 
MRI for brain tumor removal, there is no evidence showing that the beneficiary was the original 
- - 
pioneer of this surgical technology. In fact, the beneficiary's article in Neurosurgery Clinics of 
North America, which he co-wrote with, states: "A decade ago, intraoperative MRI was 
regarded as a novelty and somewhat of a luxury. In the past few years, it has steadily moved toward 
becoming a standard practice in the surgery of critical areas of the brain." 
, states that the beneficiary has collaborated 
- 
 - 
with Kyphon (a company "recently acquired by Medtronic") by providing feedback on its products 
and by teaching other surgeons how to use Kyphon's products. 
 states: 
One of our major products, X-S'TOPB, is a metal implant that is inserted between the 
vertebrae in the lower spine to alleviate pressure and any pinched nerves caused by lumbar 
spinal stenosis. X-STOP@ is revolutionary because unlike other products with similar 
functions, it can be inserted into the spine through only a small incision in the lower back, 
without general anesthesia, and no drilling into the bone is required to hold the device in 
place. 
Because [the beneficiary's] successful use of X-STOP@ in his patients with lumbar spinal 
stenosis is so high, we have invited him to become a member of our faculty, and teach other 
neurosurgeons the procedure. We have also tapped [the beneficiary] as a research and 
development resource . . . in order to help advance the design and use of XSTOPB to make it 
even more effective. 
While the beneficiary has provided his services to Kyphon, there is no evidence demonstrating that 
he was the original inventor of any of their products or that his work equates to contributions of 
major significance in the surgical field. 
of Neurosurgery at Hartford Hospital and Connecticut Children's Medical 
Center, and Full Clinical Professor of Neurosurgery at Tufts University School of Medicine, states: 
The reason why [the beneficiary] is such an important asset to the neurosurgical community 
is that he combines knowledge of the most advanced neurosurgical techniques with 
exceptional skill in utilizing and teachirig such techniques. . . . [The beneficiary] completed 
the Brainlab Academy Stereotactic Radiotherapy Course into become 
certified in stereotactic radiosurgery and is largely responsible for the success of the program 
at Baystate. 
[The beneficiary] is . . . pioneering minimally invasive neurosurgical techniques such as 
minicraniotomies, neuroendoscopy and intraoperative image guidance. Minicraniotomies or 
keyhole craniotomies allow surgeons to operate on tumors that are significantly larger than 
the incision. Despite the hesitation of many surgeons in reducing their workspace, the 
advantages to the patient cannot be denied: less swelling and blood loss, less damage to 
healthy brain tissue, fewer instances of infection and smaller scars. Through the use of 
multidimensional imaging, [the beneficiary] is able to perform minicraniotomies with a 
comprehensive picture of the brain identical to that available to other surgeons who perform 
full-scale craniomities with much larger incisions. 
letter states that the beneficiary is pioneering minimally invasive neurosurgical 
techniques such as minicraniotomies, neuroendoscopy and intraoperative image guidance, but there 
is no evidence showing that the beneficiary was the original inventor of these techniques. Moreover, 
letter does not provide any specific examples of how the beneficiary's particular 
techniques have impacted others in his field. 
further states: "[The beneficiary] has also lent his expertise outside of the operating room 
through his authorship of book chapters and journal articles. . . . His 2005 journal article published 
in Neurosurgical Clinics of North America was cited several times by others in the field." With 
regard to the beneficiary's publications, and letters note that the beneficiary's 
work has been cited by others in his field. The petitioner's appellate submission includes Google 
Scholar search results reflecting less than ten cites to the beneficiary's work. While the citation 
evidence submitted by the petitioner demonstrates some outside interest in the beneficiary's work, the 
petitioner has not shown that nine citations is an indication that the beneficiary's work equates to 
original contributions of major significance in the field. See also Kazarian v. USCIS, 580 F.3d at 
1036 (publications and presentations are insufficient absent evidence that they constitute contributions 
of major significance). 
Australian Neurosurgeon at the Royal Melbourne Hospital, and Senior 
Lecturer in the Department of Surgery, - states: 
I am familiar with [the beneficiary's] exceptional work in Boston and we have collaborated 
on research projects by telephone and e-mail. 
One of the most revolutionary innovations in surgery for glioma over the past decade is the 
intraoperative MRI scanner. [The beneficiary] has worked extensively with this remarkable 
technology, as have I. He is one of the few individuals in neurosurgery who have such an 
experience. The technique involves operating on a patient's brain within a specially designed 
MRI scanner, so images can be taken constantly during the actual surgery. 
[The beneficiary] has many talents and achievements, but none as outstanding as the 
intraoperative MRI-guided brain tumour surgery described above. This neurosurgical service 
is currently available in only a few centers in the world. However, given its great 
advantages, it is likely to be adopted in many more centers at the cutting-edge of brain 
tumour surgery. 
The letter from 
 states that the beneficiary has worked extensively with the 
intraoperative MRI scanner, but notes that this innovation for glioma surgery has been in existence 
for a decade. While the beneficiary has experience with this technology that is "available in only a 
few centers in the world," there is no evidence showing that he was the original inventor of the 
innovation. 
of Neuroradiology at the Center of :- 
[The beneficiary] is highly respected by his colleagues and is recognized for his innovative 
work in image-guided brain tumor surgery. This includes the use of the revolutionary 
intraoperative MRI that enables the surgeon to have instant feedback on the location of tumor 
remnants and the position of critical areas of the brain. The technique results in a more 
complete removal of tumor tissue while maintaining utmost safety for the patient in terms of 
avoiding surgical complications. JThe beneficiary1 is among the few neurosurgeons who 
have extensive experience in this rare capacity. 
letter notes that the beneficiary possesses skills and experience that are rare in the United 
States. The issue of whether similarly-trained workers are available in the United States, however, is 
an issue under the jurisdiction of the Department of Labor. Matter of New York State Dep't. of 
Transp., 22 I&N Dec. 21 5,221 (Comm'r. 1998). 
While the beneficiary's neurosurgical oncology research is no doubt of value, it can be argued that 
any research must be shown to be original and present some benefit if it is to receive funding and 
attention from the scientific community. Any Ph.D. thesis or postdoctoral research, in order to be 
accepted for graduation, publication or funding, must offer new and useful information to the pool of 
knowledge. It does not follow that every researcher who performs original research that adds to the 
general pool of knowledge has inherently made a contribution of major significance to the field as a 
whole. According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not 
Page 14 
only original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. While the evidence indicates that the beneficiary 
performed admirably on the projects to which he was assigned (such as those supervised by 
at, the submitted documentation does not establish that the 
beneficiary has made original scientific contributions of "major significance" in his field 
commensurate with sustained national or international acclaim. For example, the record does not 
indicate the extent to which his work has impacted others in his field nationally or internationally, 
nor does it show that the field has significantly changed as a result of his work. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
regulatory criterion. We note that the majority of the letters submitted are from those with whom the 
beneficiary has collaborated. While such letters are important in providing details about the 
beneficiary's role in various projects, they cannot by themselves establish his acclaim beyond his 
immediate circle of professional contacts. USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Commr. 1988). However, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795-796. Thus, the content 
of the writers' statements and how they became aware of the beneficiary'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 that one would expect of a neurosurgeon who has sustained 
national or international acclaim. Without evidence showing that the beneficiary's work has been 
unusually influential, highly acclaimed throughout his field, or has otherwise risen to the level of 
contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the Jield, in professional or 
major trade publications or other major media. 
As previously discussed, the petitioner submitted evidence of the beneficiary's co-authorship of an 
artiEle with in ~eirosur~er~ Clinics of North America. The petitioner also submitted 
evidence showing that the beneficiary coauthored book chapters with in - - 
We note that, the beneficiary's superior at - ' ' 
- - was the editor 
of both On appeal, counsel states: 
"[Als [the beneficiary] is a full-time practicing physician, we believe it is of particular note that he 
has been sought out to author medical textbook chapters and review articles despite the fact that he is 
a clinician rather than an academic." We do not find it unusual for a research fellow to author 
scholarly material in conjunction with his research supervisor. Moreover, there is no evidence 
showing that the beneficiary was "a full-time practicing physician" when he coauthored the 
preceding material as claimed by counsel. The record reflects that the preceding journal article and 
book chapters were coauthored with while the beneficiary was training as a - 
Page 15 
beneficiary posted in the "StoriesJSpotlight" section of the Brain Science Foundation's internet site 
states: 
neurosurgical management of meningiomas and gliomas . . . . 
Since is one of the top surgeons . . . in our field, I have known about him and his 
work for a long time. I found the Brigham and the Fellowship funded by BSF [Brain Science 
Foundation] . . . 
I have been studying neurosurgery for seven years, and became interested in brain tumors . . . . 
I decided to pursue further work and training in this . . . subspecialty. 
My work is divided into clinical and research. . . . In research, I am writing a book chapter 
on meningiomas for a publication is writing and spend time testing other medical 
technologies such as the Intraoperative MRI. 
While we acknowledge that we must avoid requiring acclaim within a given criterion, it is not a circular 
approach to require some evidence of the scientific community's reaction to the beneficiary's published 
work in instances where publication is routine or expected. See Kuzuriun v. USCIS, 580 F.3d at 1036. 
As authoring scholarly articles is inherent to research in a university setting (in conjunction with a 
fellowship or professorship),6 we will evaluate a citation history or other evidence of the impact of 
the beneficiary's articles when determining their significance to the field. For example, numerous 
independent citations for an article authored by the beneficiary would provide solid evidence that 
6 For instance, we note that the beneficiary currently serves as Assistant Clinical - 
and that his published work was authored while he was training at a hospital affiliated 
with Harvard Medical School. With regard to research in a university setting, the Department of Labor's Occupational 
Outlook Handbook, 2010-1 1 Edition (accessed at http:llwww.bls.govlocoj), provides information about the nature of 
employment as a postsecondary teacher (professor) and the requirements for such a position. See http://data.bls.gov/cgi- 
bin~~rint.~l~oco/ocos066.htm, accessed on February 15, 2010, copy incorporated into the record of proceeding. The 
handbook expressly states that faculty members are pressured to perform research and publish their work and that the 
professor's research record is a consideration for tenure. Moreover, the doctoral programs training students for faculty 
positions require a dissertation, or written report on original research. Id This information reinforces USCIS' position that 
publication of scholarly articles is not automatically evidence of sustained national or international acclaim; we must consider 
the field's reaction to those articles. 
Page 16 
other researchers have been influenced by his work and are familiar with it. On the other hand, few 
or no citations of an article authored by the beneficiary may indicate that his work has gone largely 
unnoticed by his field. As previously discussed, the petitioner submitted evidence showing that the 
beneficiary's article with has been independently cited less than ten times. While these 
citations demonstrate some interest in one of the beneficiary's articles, they are not sufficient to 
demonstrate that his body of published work has attracted a level of interest in his field 
commensurate with sustained national or international acclaim. Accordingly, the petitioner has not 
established that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted evidence showing that the beneficiary is the Director - - The petitioner also submitted evidence showing that this 
institution has a distinguished reputation. Accordingly, the petitioner has established that the 
beneficiary meets this single criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high 
remuneration for services, in relation to others in the$eld 
The petitioner submitted a July 20, 2007 letter from Baystate Medical Center stating that the 
beneficiary's "annual compensation for 2007 is $450,000." The plain language of this regulatory 
criterion requires the petitioner to submit evidence of a high salary "in relation to others in the field." 
The petitioner offers no basis for comparison showing that the beneficiary's compensation was 
significantly high in relation to other neurosurgeons. Accordingly, the petitioner has not established 
that the beneficiary meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate the 
beneficiary's receipt of a major, internationally recognized award, or that he meets at least three of 
the criteria that must be satisfied to establish the national or international acclaim necessary to 
qualify as an alien of extraordinary ability. 8 C.F.R. 5 204.5(h)(3). 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 beneficiary as one of 
the small percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). 
While USCIS has approved a prior 0-1 nonirnmigrant visa petition filed on behalf of the beneficiary, 
this prior approval does not preclude USCIS from denying an immigrant visa petition based on a 
different, if similarly phrased standard. Each case must be decided on a case-by-case basis on the 
evidence of record. It must be noted that many 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E,.D.N.Y. 1989). Because USCIS spends less time reviewing I- 
129 nonimmigrant petitions than I- 140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M 
Page 17 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals 
do not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to suggest 
that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 
1 139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim or to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established the beneficiary's eligibility pursuant 
to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. fj 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
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. tj 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.