dismissed EB-1A Case: Nuclear Medicine

(b)(6)
DATE: 
SEP 2 3 2013 
INRE: Petitioner: 
Beneficiary : 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
#-rfL-{L-
Ron Rosenberg 
Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition on September 6, 2012 and affirmed his decision on December 18, 2012. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences as a postdoctoral 
fellow, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence on behalf of the alien under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a brief. For 
the reasons discussed below, upon review of the entire record, 
the petitioner has not established his eligibility for the exclusive classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has 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. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
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 H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 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 ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. On appeal, counsel states that ''USCIS erred in not 
determining that Petitioner met the standards of 49 Buletini v. INS, 860 F. Supp 1229 [(E.D. Mich. 
1994)] for 3 other criteria." In contrast to the broad precedential authority of the case law of a 
United States circuit court, the AAO is not bound to follow the published decision of a United States 
district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). The reasoning underlying a district judge's decision will be given due consideration when it 
is properly before the AAO; however, the analysis does not have to be followed as a matter of law. 
/d. at 719. 
Moreover, the court in Buletini acknowledged that "the examiner must evaluate the quality, 
including the credibility, of the evidence presented to determine if it, in fact, satisfies the criteria." 
1 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. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Buletini, 860 F. Supp. at 1234. Regardless, as discussed below, the petitioner has not submitted 
qualifying evidence that meets the plain language requirements for at least three criteria. As the 
petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that 
the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
!d. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, counsel asserts that the petitioner's awards are not regional and 
any age restrictions are not disqualifying. As stated by the director in his request for evidence, in order 
to satisfy this criterion, the petitioner could submit such evidence as: 
o The criteria used to grant the prizes or awards; 
o The significance of the prizes or awards, to include the national or international 
recognition that the prizes or awards share; 
o The reputation of the organization or panel granting the prizes or awards; 
o Who is considered for the prizes or awards, including the geographic scope for 
which candidates may apply; 
o How many prizes or awards are awarded each year[.] 
The petitioner failed to submit any information which demonstrates that any of the awards are 
nationally or internationally recognized for excellence. 
Regarding the award from the and 
according to information submitted in response to the director's request for evidence, "[t]he 
purpose of this award is to encourage young and talented nuclear medicine investigators to have the 
financial aid to attend the meeting and present their work." Irrespective of any age limits, the 
petitioner's receipt of financial assistance to present his work at a conference does not constitute his 
receipt of a nationally or internationally recognized prize or award for excellence in his field of 
endeavor. 
Regarding the 
and 
although the 
and 
record contains information regarding 
certificate from the 
respectively, 
the record contains no information to demonstrate the national or 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
international significance of the award. The national reach of the conference itself does not establish 
that every award the conference organizers issue is a nationally or internationally recognized award 
for excellence in the field. 
Regarding the selection of the petitioner's book as the fsicl," 
the record only contains a copy of the certificate and a translation. Regarding the 
-==-- , it was awarded by the petitioner's university to _ 
Again, the record contains no evidence to demonstrate 
the national or international significance of the awards. 
On appeal, counsel asserts that "USCIS has engaged in unauthorized rule-making by claiming that 
the criteri[on] requires multiple awards." The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) requires the petitioner's receipt of more than one prize or award. Significantly, not all 
of the criteria at 8 C.P.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 
C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high salary. 
When a regulatory criterion wishes to include the singular within the plural, it expressly does so as 
when it states at 8 C.P.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. In 
a different context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 
(D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 
30, 2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" 
foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) requires a single degree rather than a combination of 
academic credentials). Regardless, the petitioner has not established that at least one of his awards is a 
nationally or internationally recognized award for excellence. 
In light of the above, the petitioner has not established that he meets the plain language requirements of 
the regulation at 8 C.P.R. § 204.5(h)(3)(i). 
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. 
The director thoroughly discussed the submitted evidence and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel states on the Form I-290B that 
"[ d]ocumentation submitted about these associations described the requirements for membership which 
reach the level of outstanding, not the level of extraordinary that USCIS seems to require." Contrary to 
counsel's assertion that USCIS seemed to be relying on "extraordinary" requirements, the director 
correctly stated in his decision that "[ e ]vidence must demonstrate that the association requires 
outstanding achievement as an essential condition for admission to membership." The director also 
stated that: 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
Requirements that only include employment or activity in a given field; minimum 
education, experience or achievement; recommendations by colleagues or current 
members; or payment of dues do not satisfy this criterion since these requirements do 
not constitute outstanding achievements. 
Counsel did not provide any additional evidence or identify any errors of law or fact in the director's 
analysis regarding this criterion in the appellate brief. Therefore, the AAO considers these claims to 
be abandoned. See Desravines v. United States Attorney Gen., No. 08-14861, 343 F. App'x 433, 435 
(11th Cir. 2009) (finding that issues not briefed on appeal are deemed abandoned). 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted foreign language documents and uncertified translations of three news articles. 
The director found that "[t]he evidence submitted does meet this criterion." However, the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the "evidence shall include the 
title, date, and author of the material, and any necessary translation" and that the material be published 
"in professional or major trade publications or other major media." Based on a review of the record of 
proceeding, the AAO must withdraw the findings of the director for this criterion. 
None of the material contained the name of the author. Furthermore, the submitted translations did 
not comply with the terms of 8 C.F.R. § 103.2(b)(3): 
Translations. Any document containing foreign language submitted to [USCIS] shall 
be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she 
is competent to translate from the foreign language into English. 
Specifically, the translator did not certify the translations as complete and accurate. In addition, the 
petitioner failed to provide any evidence that the material appeared in professional or major trade 
publications or other major media, such as circulation and/or distribution data for the publications. 
In light of the above, the petitioner has not established that he meets the plain language requirements of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
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. 
The director found that "evidence submitted does not satisfy this criterion." Based upon a review of the 
record, the AAO withdraws the findings of the director for this criterion. There is sufficient 
documentation that the petitioner satisfies the plain language requirements of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv) through his research proposal and manuscript review positions. 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director thoroughly discussed the submitted evidence and found that the petitioner failed to 
establish that the evidence was qualifying. The petitioner's field, like most science, is research­
driven, and there would be little point in publishing research that did not add to the general pool of 
knowledge in the field. According to the regulation at 8 C.P.R. § 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. The phrase "major significance" is 
not superfluous and, thus, that it has some meaning. Silverman v. Eastrich Multiple Investor Fund, 
L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. 2003). 
To be considered a contribution of major significance in the field of science, it can be expected that 
other experts would have reproduced or otherwise applied the petitioner results. Otherwise, it is 
difficult to gauge the impact of the petitioner's work. 
On appeal, counsel states on the Form I-290B that the "[p ]etitioner submitted ample evidence to satisfy 
this requirement within its original application and its [m]otion to [r]econsider." It must be noted 
however, that counsel did not contest the director's finding for this criterion in the motion to reopen and 
motion to reconsider. In the attached appeal brief, counsel provides the same quotes from the 
Adjudicator's Field Manual that counsel quoted in the initial cover letter, lists the petitioner's awards, 
and quotes from a reference letter characterizing the petitioner's background as solid. Counsel does 
not, however, point to any specific error in the director's analysis under this criterion and offers no 
analysis of the evidence under the guidelines quoted other than to suggest that the petitioner 's awards 
demonstrate the significance of the petitioner's contributions. Counsel cites no legal authority 
holding that evidence directly relating to one criterion is presumptive evidence of meeting a separate 
criterion. Regardless, as discussed above, the petitioner has not established the significance of his 
awards. Given the absence of any discussion of this issue on motion or a specific discussion 
regarding the issue on appeal, the petitioner has abandoned this issue. Sepulveda, 401 F.3d at 1228, 
n.2; Hristov, 2011 WL 4711885, at *9. With regard to the appeal, a passing reference without 
substantive arguments is insufficient to raise that ground on appeal. Desravines v. U.S. Atty. Gen., 
343 Fed.Appx. at 435. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director found that the petitioner satisfies the plain language requirements of the regulation at 
8 C.P.R. § 204.5(h)(3)(vi) and the record supports the director's finding. 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 
The director thoroughly discussed the submitted evidence and found that the petitioner failed to 
establish that the evidence was qualifying. Counsel did not provide any additional evidence or offer 
any additional discussion identifying any errors of law or fact in the director 's analysis regarding this 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
criterion. Therefore, the petitioner has abandoned this claim. Desravines v. U.S. Atty. Gen., 343 
Fed.Appx. at 435. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
Ill. CONCLUSION 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary under at least three 
evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national 
or international acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO 
concludes that the evidence is not indicative of a level of expertise consistent with the small percentage 
at the very top of the field or sustained national or international acclaim, the AAO need not explain that 
conclusion in a final merits determination.3 Rather, the proper conclusion is that the petitioner failed to 
demonstrate that the beneficiary has satisfied the antecedent regulatory requirement of three types of 
evidence. /d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1)(A) of the Act and the petition 
may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). In any future proceeding, 
the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last 
decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the 
Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).