dismissed EB-1A Case: Periodontics

(b)(6)
Date: 
NOV 1 2 2013 
Office: Nebraska Service Center 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachus etts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
APPLICATION: 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:ljwww.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. 
Thankyo~~ 
~nberg 1"--
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, specifically as a 
periodontist, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b)(l)(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)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, counsel asserts that USCIS erroneously determined that the petitioner did not establish his 
eligibility as an alien of extraordinary ability. Counsel asserts that the petitioner submitted credible 
evidence in support of the regulatory criteria and that USCIS failed to interpret its own regulations 
correctly by denying the petition. 
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. 
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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 10151 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)." ld. 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. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
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.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
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NON-PRECEDENT DECISION 
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II. ANALYSIS 
A. Evidentiary Criteril 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The director determined that none of the awards the petitioner submitted under this criterion met the 
requirements of the regulation. On aQPeal, counsel asserts that the director erred in finding that the 
etitioner's finalist showing in the and the 
do not meet the plain language requirements of the criterion. The plain language 
of 8 C.F.R. § 204.5(h)(3)(i) requires prizes or awards and does not allow for finalists and nominees of 
awards, or other lesser distinctions. Therefore, the record supports the director's conclusion that the 
petitioner's status as one of four finalists in the cannot meet the 
plain language requirements of this criterion. 
Regarding the _ the petitioner submitted evidence 
indicating that the 12,000 members are from all over the world and that winners of the Merit 
Award come from all regions of India. The national scope of a selection process does not automatically 
equate to national recognition and the petitioner has not submitted independent documentation that 
demonstrates national recognition of the award by the field. Furthermore, even if the petitioner had 
submitted sufficient documentation evidencing national recognition of the Merit Award, 8 C.F.R. § 
204.5(h)(3)(i) requires receipt of prizes or awards (in the plural), which is consistent with the statutory 
requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the 
criteria at 8 C.F.R. § 204.5(h)(3) use 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.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." 
Thus, 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. 3 
Accordingly, the record supports the director's conclusion that the petitioner did not meet this criterion. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
3 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.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
(b)(6)
NON-PRECEDENT DECISION 
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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. 8 C.P.R. 
§ 204.5(h)(3)(iii). 
The director concluded that the petitioner did not submit evidence that established this criterion. On 
am:Jeal, counsel asserts that the news article titled, 
_ . which references the petitioner and 
includes a quote from him, is sufficient to meet this criterion. Counsel further asserts that the article 
meets the requirement for major media because it is carried on which counsel describes 
as an international medical news portal that is the world's largest source of important health news about 
the latest scientific discoveries. The regulations specifically require that the published material be 
"about the alien." The submitted article includes a short quote and briefly mentions the petitioner, but it 
is not focused on the petitioner or his work. On appeal, counsel cites to Muni v. INS, 891 F.Supp. 440, 
445 (N.D. Ill. 1995) and Racine v. INS, 1995 WL 153319 at 6 (N.D. Ill. 1995), and asserts that there is 
no requirement that an alien be established as one of the stars in the article. The courts in the cited cases 
noted that the alien need not show that the published material expressly characterizes the alien as one of 
the stars of the NHL. Neither decision, however, suggests that the article need not be about the alien. 
The courts in those two decisions did not re-interpret or otherwise depart from the plain language of the 
regulation that requires published material to be about the petitioner. A brief reference and a short 
quote in an article does not equate to published material about the petitioner, as required by the 
regulation. Therefore, the record supports the director's conclusion that the petitioner did not meet this 
criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for which classification is sought. 8 C.P.R. 
§ 204.5(h)(3)(iv). 
The director determined that the petitioner submitted sufficient evidence demonstrating he met this 
criterion. Upon review of the evidence of record and the director's decision, there is sufficient 
documentation in the record to meet the plain language requirements under 8 C.P.R.§ 204.5(h)(3)(iv). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The director's decision concluded that the petitioner did not satisfY 8 C.P.R. § 204.5(h)(3)(v). On 
appeal, counsel asserts that the petitioner established this criterion as evidenced by his original research, 
above average citation record, and the high number of invitations for presentations. In addition, counsel 
asserts that the petitioner's work is the subject of two textbook chapters, further evidencing that his 
work constitutes a contribution of major significance in the field. 
In considering the petitioner's research, the petitioner submitted multiple letters from experts attesting 
to the impact of his original research in the field. This group consists of letters from the following 
individuals: Dr. Associate Professor of Dr. 
Clinical Fellow at ; Dr. Chairman and 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Program Director, Department of Periodontology at 
Chair of the Department of Dental Specialties at the 
Post Graduate Periodontics Program Director at the 
and Dr. 
Dr. 
This group of letters discusses several of studies that the petitioner conducted and observe that the 
results of the analysis provide new literature, new information, and new possibilities for patient 
treatment. The bulk of the letters attest that patient care has been altered in the field as a result of the 
petitioner's work. However, some of the letters merely suggest that the petitioner's work has potential 
for future impact. For example, Dr. writes: "[the petitioner's] research will change the way that 
dentistry is practiced on head and neck cancer patients!" 
Moreover, while the letters identify the petitioner's area of research, they do not provide much detail on 
how the petitioner's research will alter the practitioners' plan of treatment. For instance, Dr. 
writes about a research topic that the petitioner explored: 
This is a very significant observation and changed the way dentists approached 
rehabilitating head and neck radiation patients. This study restored hope for subjects 
who have residual deformities following head and neck radiation. The study has 
followed up patients for longer periods of time and recruited more subjects than most of 
the studies in the past. This particular study was published in "Clinical Implant 
Dentistry and Related Research." I certainly expect a lot of citations for this article 
because it is simply the first of its kind in this field. 
While Dr. comments that the petitioner's research changed the way dentists approached 
rehabilitation of certain patients, he does not articulate the basis of his observation. It is unclear whether 
the change is limited to a single clinic, region, or the local community. Regarding Dr. 
expectation of a lot of citation for the study, the plain language requirements of this criterion 
contemplates major contributions that have already impacted the field. 
Dr. also writes about the effect of the petitioner's research on head and neck patients: 
His research has a widespread and long-term impact on how clinicians treat head and 
neck cancers patients and the types of implants that they would use. Prior to [the 
petitioner], there was very little information available to clinicians. His research helped 
establish criteria to guide Periodontists and oral surgeons in their treatment of patients .. 
Again, Dr. observations suggest that the petitioner's data may help guide Periodontists and 
oral surgeons in their treatment, but does not conclusively state that clinicians have changed their 
treatment and the effect that change has had on the field as a whole. 
Dr. letter attests to the impact of the petitioner's research on Indian clinicians: 
All these accomplishments only further emphasize the fact that his work has had a major 
impact in terms of enhancing the dental profession's nnderstanding of dental implants in 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
head and neck cancer patients treated with radiation. His research has particular 
relevance to the Indian population group as India has one of the highest incidences of 
head and neck cancers ... In fact [the petitioner's] research findings have been so 
significant that Departments of Oral Surgery, Periodontics and Implantology at various 
institutions in India have modified their treatment protocols for patients who have 
received head and neck radiation. 
Again, the letter does not provide the critical details, such as the actual or approximate number of 
institutions and whether the scope of the impact have been limited to regional institutions - the type of 
detail that would help determine whether the petitioner's contributions are contributions of major 
significance in the field. The plain language of the regulation requires both that the petitioner's 
contributions be original and of major significance in the field. USCIS must presume that the word 
"original" and the phrase "major significance" are not superfluous and, thus, that they have some 
meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted 
inAPWU v. Potter, 343 F.3d 619, 626 (2nct Cir. Sep 15, 2003). 
Vague, solicited letters that do not specifically identify contributions or provide specific examples of 
how those contributions influenced the field are insufficient. Kazarian v. USCIS, 580 F.3d 1030, 
1036 (91h Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010).4 In addition, while the letters 
conclude that practitioners have or will change their plan of treatment as a result of the petitioner's 
original research, the record lacks evidence of widespread implementation, such as hospital guidelines 
incorporating the petitioner's research results. USCIS need not accept primarily conclusory assertions. 
1756, Inc. v. The Attorney General of the United States, 745 F. sup. 9, 15 (D.C. Dist. 1990). 
As for the above average citation numbers that the petitioner's articles generate , Dr. 
Editor-in-Chief of observes in his June 7, 
2012 letter that: "[] in dentistry there will never be the number of citations that you see in medicine or 
other medical related specialties. In addition, research in dentistry is disseminated and acknowledged 
more through international conferences and poster presentations than through citation to publications or 
abstracts. "5 An observation that a given work received more than the average number of citations has 
limited utility as a factor in determining whether a work constitutes a major contribution in the field. 
The impact of the citations is further limited by the fact that the record identifies only a handful of 
citations. Furthermore, exceeding the impact factor of the journal in which it appears does not, by 
itself, demonstrate that an article is a contribution of major significance. More probative would be 
evidence that the citations are commensurate with those articles that have impacted the petitioner 's 
specialty. Also, while the petitioner participated in various conferences and presentations, the director 
did not err in concluding that presenting one's work at conferences does not persuasively distinguish the 
petitioner from other competent periodontists or researchers. At issue is the impact of those 
presentations upon dissemination in the field. 
4 
In 2010 , the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language ." 
596 F.3d at 1122. 
5 The record reflects that Dr. 
2012. 
;ubmitted another Jetter in support of the petitioner , which is dated October 25, 
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NON-PRECEDENT DECISION 
Page 8 
Lastly, counsel asserts that the petitioner's work was the basis of two textbook chapters and that such 
evidence is indicative of original contributions of major significance in the field. While counsel asserts 
that the textbook chapters serve as a basis of knowledge and training in the field of periodontology for 
researchers, periodontists, dental residents, and even physicians nationwide, the record does not include 
evidence demonstrating wide-spread usage of the two textbooks in the field. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Furthermore, simply going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972), 
broadened in Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) and Matter of Ho, 22 I&N 
Dec. 206, 211 (Comm. 1998). 
For all of the above reasons, the petitioner did not meet this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The director determined in his decision that the petitioner met this regulatory criterion and the record 
supports the director's conclusions in this regard. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.P.R.§ 204.5(h)(3)(viii). 
The director concluded that the petitioner did not meet the requirements of 8 C.P.R. § 204.5(h)(3)(viii). 
On a eal, counsel asserts that the evidence of the petitioner's role as a chief resident while training at 
the is sufficient to demonstrate that he has performed in a leading or critical role. Dr. 
Former Chairman of the Department of Dental Specialties at the in his letter, 
observes that the Chief Resident position of the is a leading or critical role in 
the institution. Dr. also notes that the has a "reputation as one of the best medical 
facilities in the world." In support of this criterion, counsel also references the October 25, 2012letter 
from Dr. which states that the petitioner wrote a work that became a part of the 
and that the work "has not only benefited the dental department but also the whole organization." 
While the _ may have a distinguished reputation, it does not follow that every Chief 
Resident of every fellowship program in every medical specialty or department of the 
plays a leading or critical role for the as a whole. Moreover, while Dr. attests to the 
fact that the has a reputation as one of the best medical facilities in the world, neither his 
letter nor other evidence in the record suggests that the Department of Dental Specialties, of which the 
Division of Periodontics is one part, has an independent distinguished reputation. Regarding the 
position of Chief Resident, Dr writes: "This position requires [the petitioner] to lead, counsel and 
support other residents, teach medical students, assist in administration of the residency program, and 
provide patient care ... The Chief Resident reports to both the program director and the chairman of the 
dental department and is the first to supervise and review the performance of other residents enrolled in 
the program." This hierarchy does not reflect that the petitioner played a leading role for the 
(b)(6)
Page 9 
Department of Dental Specialties at the 
residency program within the department. 
NON-PRECEDENT DECISION 
At best, the petitioner played a critical role for the 
Regardless, the petitioner did not establish that he performed a critical role for the as a 
whole. In addition, the plain language of the regulation requires that an alien perform a leading or 
critical role for organizations or establishments (in the plural). As noted above, such a requirement is 
consistent with the statutory requirement for extensive evidence and not all of the criteria outlined in the 
regulation use the plural. Section 203(b)(l)(A)(i) of the Act; 8 C.P.R. § 204.5(h)(3). 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 
plural in the remaining regulatory criteria 
has meaning. 
Accordingly, the petitioner did not meet this criterion because he did not perform a leading or critical 
role for an organizations or establishments (in the plural) with distinguished reputations. 
B. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 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. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.P.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.6 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
6 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DRS 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). 
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NON-PRECEDENT DECISION 
Page 10 
regulatory requirement of three types of evidence. Id. 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.