dismissed EB-1A Case: Physical Science

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Office of Administrative App eals 
20 Massachus etts Ave., N.W ., MS 2090 
Washington , DC 20529-20 ~0 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 2 3 2014 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
JJD tadnotu r Ron Rosenberg 
\ Chief, Administrative 
Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien 
of extraordinary ability in the sciences. The director determined that the petitioner had not met the 
requisite criteria for classification as an alien extraordinary ability. The director also determined that 
the petitioner had failed to demonstrate sustained acclaim and that she is among that small 
percentage who has risen to the very top of the field of endeavor. 
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.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. The director determined that the petitioner's evidence had met the 
category of evidence at 8 C.F.R. § 204.5(h)(3)(iv). 
On appeal, the petitioner submits a brief and additional documentary evidence. The petitioner asserts 
that she meets the categories of evidence at 8 C.F.R. § 204.5(h)(3)(ii), (iii), (v), and (vi). For the 
reasons discussed below, the director's decision is upheld. 
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 
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NON-PRECEDENT DECISION 
(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 H.R. 723 101st 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, 580 F.3d 1030 (9th Cir. 2009) aff'd in part 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." Id. 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.P.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. 
II. ANALYSIS 
A. Evidentiary 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). 
· -···--------- -- --------------- - -----------------
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This petition, filed on September 22, 2012, seeks to classify the petltwner as an alien with 
extraordinary ability as a physical scientist. The petitioner earned her Ph.D. degree in Physics and 
Astronomy from in August 2008. At the time of filing, the petitioner was 
working as an Assistant Research Scientist in the Department of Physics and Astronomy at 
The petitioner has submitted documentation pertaining to the following categories 
of evidence under 8 C.F.R. § 204.5(h)(3).2 
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 evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish her eligibility. On appeal, the petitioner does not contest the director's 
findings for this 
criterion or offer additional arguments. When an appellant fails to offer argument 
on an issue, that issue is abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th 
Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 
30, 2011) (plaintiff's claims abandoned when failed to raise them on appeal to the AAO). 
Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Documentation of the alien's membership in associations in the field for whicfz 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
The petitioner submitted membershi certificates for the and 
The director determined that the petitioner had not 
submitted documentary eviaence demonstrating that the and require outstanding 
achievements of their members, as judged by recognized national or international experts in their 
disciplines or fields. On appeal, the petitioner does not contest the director's findings or offer 
additional arguments concerning the petitioner's membership in the and The issue of 
the preceding memberships, therefore, is considered to be abandoned. Sepulveda, 401 F.3d at 1228 
n.2; Hristov, 2011 WL 4711885 , at *9. 
The petitioner also submitted documentary evidence showing that she is a "Full Member" of 
which has "membership of nearly 60,000 members." The petitioner argues that her membership in 
meets the requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). The submitted 
materials about indicate that the society invites to full membership "those who have 
demonstrated noteworthy achievements in research." According to bylaws: "Noteworthy 
achievement in research ... must be evidenced by publications, patents, written reports or a thesis or 
dissertation." In addition, the petitioner submitted an October 17, 2011letter from Dr. 
Executive Director, stating that "qualifications for full membership include primary 
authorship of two papers" and that the "Committee on Qualifications and Membership, represented by 
recognized international experts, carefully considers and votes on all nominations that have been duly 
received, and recommends for election/promotion those candidates with noteworthy achievements for 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. Therefore, the AAO has not considered whether the petitioner meets the remaining categories of evidence. 
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full membership." The petitioner, however, has not established that "primary authorship of two papers" 
constitutes outstanding achievements in her field? 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "membership 
in associations" in the plural. The use of the plural is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(1)(A)(i) of the Act. Significantly, not all of the criteria at 
8 C.F.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.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. Cf Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 
*1, *12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005, at *1, *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). Therefore, even if the petitioner were to 
establish that her membership in meets the elements of this regulatory criterion, which she 
has not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires evidence of the 
petitioner's membership in more than one association requiring outstanding achievements of its 
members, as judged by recognized national or international experts. 
. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
The petitioner submitted articles from the New York Times, Physics Today, China Central 
Television's website, and the online newsletter of the Chinese Center for In 
addition, the petitioner submitted citation evidence indicating that articles she coauthored have been 
cited to by other researchers in their publications. The director determined that the preceding 
material was not about the petitioner and therefore did not meet the requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). For instance, the director pointed out that the articles from the New York 
Times, Physics Today, China Central Television's website, and the online newsletter of the Chinese 
Center for . did not mention the petitioner by name. On appeal, the petitioner 
does not contest the director's findings or offer additional arguments concerning the articles from the 
New York Times, Physics Today, China Central Television's website, and the online newsletter of 
the Chinese Center for As the petitioner does not challenge the director's 
3 With respect to Physicists and Astronomers' job duties, the U.S. Department of Labor's Occupational Outlook 
Handbook, 2014-15 Edition, states: "Physicists and astronomers typically ... [w]rite scientific papers that may be 
published in scholarly journals ." See http://www.bls.gov/ooh/life-physical-and-social-science/physicists-and­
astronomers.htm#tab-2, accessed on April 9, 2014, copy incorporated into the record of proceedings. 
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finding that the articles are not about herself, the issue of the preceding articles is considered 
abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. 
With regard to the citation evidence, the petitioner maintains that "16 independent citations by 
international researchers" meet the requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). 
Articles which cite to the petitioner's work are primarily about the authors' own work or recent trends 
in the field, and are not about the petitioner or even her work. The plain language of the regulation at 
8 C.P.R. § 204.5(h)(3)(iii) requires that the published material be "about the alien ... relating to the 
alien's work in the field." Compare 8 C.P.R. § 204.5(i)(3)(i)(C) relating to outstanding researchers or 
professors pursuant to section 203(b)(1)(B) of the Act (requiring evidence of only published material 
"about the alien's work"). Thus, an article that briefly mentions the petitioner but is "about" someone 
or something else cannot qualify under the plain language of this regulation. See Noroozi v. 
Napolitano, 11 CV 8333 PAE, 2012 WL 5510934 at *1, *9 (S.D.N.Y. Nov. 14, 2012); also see 
generally Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. : 8, 2008) 
(upholding a finding that articles about a show or a character within a show are not about the 
perfonner). The petitioner has not established that the research articles citing to her work discuss her 
career as a physicist or any other information so as to be considered published material about her as 
required by this regulatory criterion. Moreover, the research articles similarly cited to numerous 
other authors. 
In addition, the petitioner points to letters of support explaining the impact of her research, but the 
letters are not published material and do not meet the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). The regulations contain a separate criterion for original scientific 
contributions of major significance in the field. 8 C.P.R. § 204.5(h)(3)(v). The letters explaining the 
impact of the petitioner's research and the research articles citing to her work are more relevant to the 
category of evidence at 8 C.P.R.§ 204.5(h)(3)(v) and will be further addressed there. 
The petitioner further states: 
The is sponsored by the National Astronomical Observatory of 
China, the Chinese Academy of Sciences and the Chinese National Science Foundation .... 
Thus all the research work and documents are classified. I, as a researcher representing 
am not allowed to publish anything related to this project on public 
media. Here, I would like to use 8 C.F.R. Section 204.5(h)(4), "If the above standards do not 
readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility." The ... submitted documents ... indicate that I am 
the person in charge of the project that has been 
reported by public media .... 
The petitioner submits a National Science Foundation (NSF) proposal for the . 
entitled written by 
Dr. Director of the With regard to 
_ the petitioner asserts that the "all the research work and documents are 
classified," but the petitioner submitted information about the project from the New York Times, 
Physics Today, China Central Television's website; and the online newsletter ofthe Chinese Center 
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Page 7 
for 
charge of the 
In addition, contrary to the petitioner's assertion that she is "the person in 
project," the "Management Plan" section of 
Dr. 's NSF proposal states: 
and will manage the project and take prime responsibility for 
related contracts and for risk management. together with Research Scientist 
and [the petitioner] at will supervise the 
manufacturing of and technical parts and integration. Prof. will provide help 
in the analyses of the data and compare them with similar data collected from 
other astronomical sites. Assistant research scientist [the petitioner] will be in charge of all 
electronics and will support software development and realtime data reduction. 
Although the NSF proposal states that the petitioner is "in charge of all electronics," she does not 
hold the same level of responsibility as project managers Dr. and Dr. 
Regardless, where an individual is simply unable to satisfy the plain language requirements of at 
least three categories of evidence at 8 C.F.R. § 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)(4) 
does not allow for the submission of comparable evidence. The petitioner asserts that she is "not 
allowed to publish anything related to this project on public media," but the petitioner's appellate 
brief does not explain why the regulatory criteria are not readily applicable to physicists, astronomers, 
or physical scientists. Moreover, the petitioner has not established that her occupation is one in which 
there is not published material about such scientists in professional or major trade publications or other 
major media. 
In addition to the NSF proposal, the petitioner submits letters of support explaining her involvement 
with the project, a job performance evaluation of her work by Dr. a copy of the 
e-mai1s from the 
connectim! the petitioner to the project, a "2"
0 
Annual 
listing the petitioner's conference abstract 
entitle - -- and a conference poster entitled 
None of this documentation, however, meets the 
requirements of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(iii) as it is not published material 
about the petitioner. Additionally, the submitted documentation does not demonstrate that the 
criterion is not readily applicable to the petitioner's occupation. 
Furthermore, even if the petitioner were to demonstrate that she is eligible for the provisions of the 
regulation at 8 C.F.R. § 204.5(h)(4), which she has not, the petitioner has failed ·to establish that the 
evidence she submitted is comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) that requires 
"[p ]ublished 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." For instance, none of the 
documents submitted as comparable evidence demonstrate that the petitioner has garnered a wider 
reputation in the field in the same manner as having material published about her in professional or 
major trade publications or other major media. The petitioner has not established that the evidence 
she submitted as comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) is of the same caliber as 
that required by the regulation. 
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In light of the above, the petitioner has not established that she meets this regulatory 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. 
The petitioner submitted evidence demonstrating that she peer-reviewed manuscripts for Journal of 
Modern Optics and Review of Scientific Instruments. Accordingly, the director's finding that the 
petitioner's evidence meets this regulatory criterion is affirmed. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted letters of support, evidence of her publications and presentations, citation 
indices for her published work, and documentation that the director had already addressed under the 
categories of evidence at 8 C.F.R. § 204.5(h)(3)(i)- (iv). The director acknowledged the petitioner's 
submission of the preceding evidence, but found that it was not sufficient to demonstrate that the 
petitioner's work equated to original contributions of major significance in the field. The director 
therefore concluded that the petitioner did not establish eligibility for this regulatory criterion. 
The plain language ofthe regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's 
original scientific, scholarly, artistic, athletic, or business-related contributions of major significance 
in the field." Here, the evidence must be reviewed to see whether it rises to the level of original 
scientific or scholarly-related contributions "of major significance in the field." The phrase "major 
significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2"ct Cir. Sep 15, 2003). 
On appeal, the petitioner states: 
[T]he major significance of my work is demonstrated in the totality of the submitted evidence 
of my achievements, including my membership earned in association in the field for which 
classification is sought and require [sic] outstanding achievements ... , published material 
about me in professional or major trade publications or other major media ... , my 
participation as a judge of the work of others in the same or allied field. . . , and my 
authorship of scholarly articles in the field published in professional or major trade 
publications or other major media ... and related documents of new evidence showing my 
contributions to the field .... 
With regard to the petitioner's association memberships, published material about herself, 
participation as a judge of the work of others, and authorship of scholarly articles, the regulations 
contain separate criteria for those categories of .evidence. 8 C.F.R. § 204.5(h)(3)(ii)- (iv) and (vi). 
Evidence relating to or even meeting the criteria for those categories of evidence is not presumptive 
evidence that the petitioner also meets the criterion at 8 C.F.R. § 204.5(h)(3)(v). In Kazarian v. 
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USCIS, 580 P.3d at 1036, the court held that publications are not sufficient evidence under 8 C.P.R. 
§ 204.5(h)(3)(v) absent evidence that they were of "major significance" and in 2010, the Kazarian 
court reaffirmed its holding that the AAO did not abuse its discretion in finding that the alien had not 
demonstrated 
contributions of major significance. 596 P.3d at 1122. The regulatory criteria are 
separate and distinct from one another. Because separate criteria exist for association memberships, 
published material, judging the work of others, authorship of scholarly articles, and original 
contributions of major significance, users clearly does not view those categories of evidence as 
being interchangeable. To hold otherwise would render meaningless the statutory requirement for 
extensive evidence or the regulatory requirement that a petitioner meet at least three separate criteria. 
In addition, the petitioner points to the letters of support from experts in the field as evidence that 
she meets the criterion at 8 C.P.R. § 204.5(h)(3)(v). The petitioner asserts that the "letters provide 
independent and objective evaluations for the significant international impact of [her] contributions to 
the research field." 
Dr. Professor, School of Physics, stated: 
I have been working with researchers from the USA and China in developing instruments 
installed on an autonomous astronomical observatory called 
on in Antarctica. The is a remote, self-powered, self-heated automated 
Antarctic observatory designed and built by the Antarctic 
astronomy group. epresents the major component of \. contribution to the 
Chinese-led program of astronomical research at , the highest point on the Antarctic 
plateau. 
* * * 
In 2009, [the petitioner] contacted me for the interface document when she was 
designing an instrument called which would be installed on to monitor 
atmospheric turbulence within the ground layer on Earth. Dr. from 
, [the petitioner] and I coordinated the international delivery, installation 
and troubleshooting of through email during and after installation on 
[The petitioner] was also a key contributor in the remote controlling and collection 
of data using after its installation and testing on by Dr. m 
2010. 
Dr. comments that the petitioner designed "an instrument called to monitor 
atmospheric turbulence within the ground layer" at the project and that she w:as "a key 
contributor in the remote controlling and collection of data using after its installation," but 
he does not provide specific examples of the petitioner's work has iillluenced the field as a whole or 
otherwise constitutes an original contribution of major significance in the field. 
Dr. Associate Director of Chinese Center for Antarctic Astronomy and Professor, 
, stated: 
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In early 2010, I installed and site tested the lunar 
instrument at on the Antarctic plateau. is used to probe the seeing 
conditions at to provide critical data for assessing the quality of the site for 
astronomical applications. . . . T_he ultimate goal is to build an astronomical observatory on 
the Antarctic Plateau and is a critical instrument for site survey. was 
designed and developed by [the petitioner] from [The petitioner] 
shipped to me from the USA and communicated with me directly through emails 
to assist us in installation and troubleshooting. Afte1 had been successfully 
installed and tested in our Antarctic labs, [the petitioner] worked with both Chinese and 
Australian researchers in the controlling and data acquisition using In 2011, [the 
petitioner] provided the replacements and service plan for 
for the 2ih Chinese 
Antarctic Research Expedition team. 
Although Dr. and Dr. mention that the petitioner designed and developed the 
for the on project in Antarctica and that she helped control data 
acquisition from the instrument , they do not state and the record does not reflect that the petitioner 
was the first scientist to have originated or invented a lunar instrument. While Dr. 
and Dr. comments indicate that the petitioner's instrument was useful to the 
project, there is no documentary evidence showing that the petitioner's specific work rises 
to the level of an original scientific contribution of major significance in the field. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(v) requires that the petitioner's contributions be 
"of major significance in the field" rather than limited to the petitioner's specific collaborative 
projects. 
Dr. Professor of Physics, stated: 
I came to know [the petitioner] after I accepted a position as professor of physics in 
Department of Physics in 2009 .... One group, led by Dr. 
caught my particular attention because they have been doing fundamental tests ot quantum 
mechanics for many years and made significant achievements. As a key researcher of this 
group, [the petitioner] plays a very important role in the exact experimental realization of 
Bohm's version of the Einstein-Podolsk -Rosen (EPR) experiment. Recently I attended 
School on Quantum Science and 
Engineering in WY, where she gave a very interesting and stimulating talk on 
mercury dimer spectroscopy and classic version ofBohm's EPR experiment. 
* * * 
[The petitioner] has demonstrated outstanding ability in her professional field. In her Ph.D. 
research project , she made by far the most · accurate measurements of mercury dimmer 
spectrum. . 
. . Her research work has been presented in several national and international 
conferences and gained substantial interests as well, such as the SPIE [Society of Photo­
optical Instrumentation Engineers], APS [American Physical Society] and Ocean Optics 
Meetings. 
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Page 11 
Dr. comments on the petitioner's presentations at SPIE and APS conferences, Ocean Optics 
Meetmgs, and the Summer School on Quantum Science. With regard to the p~titioner's 
presentations, many professional fields regularly hold meetings and conferences to present new 
work, discuss new findings, and to network with other professionals. Professional associations, 
educational institutions, employers, and government agencies promote and sponsor these meetings 
and conferences. Participation in such events, however, does not equate to original contributions of 
major significance in the field. There is no documentary evidence showing that the petitioner's 
presented work has been frequently cited by independent researchers, has substantially impacted the 
field, or has otherwise risen to the level of contributions of major significance in the field. Although 
presentation of the petitioner's work demonstrates that her findings were shared with others and may 
be acknowledged as original contributions based on their selection for presentation, presentations of 
the petitioner's work at various meetings and conferences are not sufficient evidence establishing 
that her work is of "major significance" to the field as a whole and not limited to the engagements in 
which her work was presented. The petitioner has failed to establish, for example, the impact or 
influence of her presentations beyond those in attendance so as to establish that her work was 
majorly significant to the field. 
Dr. Emeritus Professor in the Department of Chemistry and Chemical Biology 
at stated: 
In my visits to I have met [the petitioner] and become familiar with her 
research. 
* * * 
[The petitioner's] research, ... published in a highly respected journal, Chemical Physics, 
provided a major body of high resolution data enabling detailed analysis of the rotational and 
vibrational structure of a key triplet-singlet electronic transition in Hg2 produced in a f~ee-jet 
expansion beam. Her results constitute an important step in the experimental realization of 
Bohm's spin-1/2 particle version of the famous Einstein-Podolsky-Rosen (EPR) "thought" 
experiment. 
* * * 
Furthermore, [the petitioner] has studied experimental tests of Bell's Inequalities. . . . [The 
petitioner], together with Dr. and Dr. , co-authored a book chapter, 
"Do Experimental Violations of Bell Inequalities Require a Non-Local Interpretation of 
Quantum Mechanics? II: Analysis ala Bell", in Quantum Reality, Relativistic Causality, and 
Closing the Epistemic Circle. In this paper, analyses based both on Bell's derivation of the 
inequality and on the Clauser-Harne version for inherently stochastic theories were 
provided.... Her results showed that the assumption of hidden variables in the derivation of a 
Bell inequality leads to probabilities whose quantum mechanical counterparts are, in fact, 
negative under some conditions. 
[The petitioner's] findings have already been much utilized by other scientists. For example, 
Dr. , of , used [the petitioner's] results in his own 
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Page 12 
experiments and cited her book chapter in his paper, "The EPR thought experiment, the 
Bell's inequality and the experimental evidence of quantum correlations." Similarly, Dr. 
from used [the petitioner's] analyses given in her widely cited 
Chemical Physics paper to calculate and validate the rotational and vibrational spectroscopic 
constants of mercury dimer. 
Dr. asserts that the petitioner's "findings have already been much utilized by other 
scientists," but he identifies only two scientists who have relied on the petitioner's work. In 
addition, Dr. . points to articles coauthored by the petitioner in Chemical Physics and 
Quantum Reality, Relativistic Causality, and Closing the Epistemic Circle and states that other 
scientists have cited to her work. The petitioner submitted citation evidence from Google Scholar 
showing that the preceding articles each garnered two independent citations. The petitioner has not 
established, however, that such a level of citation is indicative of scientific contributions of major 
significance in the field. Although the petitioner's research findings have value, any research must 
be original and likely to present some benefit if it is to receive funding and attention from the 
scientific community. In order for a university, publisher or grantor to accept any research for 
graduation, publication or funding, the research must offer new and useful information to the pool of 
knowledge. Not every physicist who performs original research that adds to the general pool of 
knowledge in the field inherently has inherently made a contribution of "major significance" to the 
field as a whole. 
The petitioner submitted citation evidence reflecting an aggregate of 26 cites to her body of research 
work. Eleven of the submitted citations are self-cites by the petitioner's coauthors (such as Dr. 
or Dr. Self-citation is a normal, expected practice. Self-citation cannot, 
however, demonstrate the response of independent researchers. The submitted documentation 
reflects that none of the petitioner's articles was independently cited to more than five times. 
Specifically: 
1. 
2. 
3. 
4. 
5. 
was indeoendentlv cited to two times: 
J 
cited to zero times (plus one self-citation by Dr. 
five times (I:>lus one self-citation by Dr. 
to two times (plus four self-citations by Dr. 
) was independently cited to 
[1 
1 was independently cited 
was 
independently cited to four times (plus one self-citation by Dr. and 
(b)(6)
Page 13 
6. 
self-citation by Dr. 
In the same manner as Dr. 
Engineering, 
the petitioner's work. Dr. stated: 
Dr. 
NON-PRECEDENT DECISION 
was independently cited to once (plus one 
Senior Director of Design and 
Texas, commented on citations garnered by 
[The petitioner's] work has also been widely cited worldwide. For instance, Dr. 
at cited to [the petitioner's] EPR breakthroughs, 
in Quantum Reality, Relativistic Causality, and Closing the Epistemic Circle, in his paper, 
Building on her findings, he developed an experiment to create quantum 
entanglement using hydrogen molecules. Dr. from has cited [the 
petitioner's] work on mercury dimer spectroscopy several times. He used [the petitioner's] 
analytic methods and results to calculate the potential energy curve of the electronic ground 
state of the mercur dimer. Dr. results, citing to fthe petitionerl, .were published in 
both the Furthermore, Dr. 
of the utilized [the petitioner's] approach of 
using photorefractive holographic interferometry to build a Fizeau interferometry instrument. 
His published results, in cited to [the petitioner's] 
breakthrough findings. 
In addition, Dr. Professor, Germany, pointed 
to further examples where the petitioner's work has been cited to by others, stating: 
As an experimental physicist, [the petitioner] has focused her research on mercury dimer 
(Hg2) spectroscopy and the Einstein-Podolsky-Rosen Experiment. 
* * * 
To increase the accuracy of the rotational constants and resolve the spectrum of Hgz, [the 
petitioner] developed a novel method to modify the cavity of an Alexandrite laser. Her 
modification significantly improved the quality of the laser beam and hence the precision of 
the rotational constants. . . . This result provides the most accurate bond lengths of Hgz to 
date, which is not only integral to her EPR [Einstein-Podolsky-Rosen] findings, but is also 
very important to other research, and was published in the top ranked international peer 
reviewed journal, 
Her experimental data established excellent benchmarks for other researchers to compare 
with their rotational and vibrational spectroscopic constants. As an example, Dr. 
cited [the petitioner's] rotational structure analysis in his paper published in 
as an erratum to his direct determination of the ground- and excited-state 
bond lengths of the rotational structure of the v' = 45 +-- v" = 0 band of the 10u +(51 P1) +-- X1 
Og+ transition in 228Cd2• As another example, Dr. from cited 
[the petitioner's] results to validate his theoretical calculations of rotational and vibrational 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
soectroscooic constants of mercury dimers. His finding was published in the . 
* * * 
However, [the petitioner's] breakthroughs are not limited to work in the EPR experiment. 
Prior to working on the EPR experiment, [the petitioner] focused her attention on 
photorefractive crystal-based laser holographic interferometers and their applications in 
optical testing. She created several innovative methods to measure the physical properties of 
objects nondestructively (e.g., the temperature distributions of a flame or detecting cracks in 
a metal beam). Her remarkable advances have provided valuable insights in laser holograohv 
testing and optical information processing, and were published in the 
Dr. from 
cited her paper, in his publication in as he 
utilized her results to improve his measurement of the refractive index of optical wave guide. 
Further, Dr from cited her method of nondestructive measurement 
and made his own interferometer design in his paper in 
Dr. Dr. , and Dr. comments demonstrate that some scientists have cited 
to the petitioner's work and relied upon her findings, but are insufficient to establish eligibility for 
this criterion without documentary evidence reflecting that the petitioner's work has been of "major 
significance in the field." Generally, the number of citations is reflective of the petitioner's original 
findings and that the field has taken some interest regarding her work. However, it is not an 
automatic indicator that the petitioner's work has been of major significance in the field. The 
petitioner has not established that the number of independent cites per article for her research work is 
indicative of original scientific contributions of major significance in the field. 
Dr. Distinguished Professor, Department of Chemistry, 
stated: 
[The petitioner's] research involves the study of ab initio calculations of the ground- and 
excited-state potential energy curves of Hg2. In particular, her focus was on the experimental 
measurements of rotational and vibrational constants together with the bond lengths for the 
excited and ground electronic energy states involved in the transition(s). The excellent paper 
by [the petitioner] was a very significant accomplishment, and absolutely critical as she 
provided the most accurate bond length measurements to date for Hg2. Her report highly 
influenced my group's work and helped us to obtain the energy curve of the electronic 
ground state of the mercury dimer, which we found to be in very good agreement with recent 
theoretical calculations and experimental data. Her experimental data also provided an 
opportunity to compare our theoretical equilibrium distances and rotational and vibrational 
spectroscopic constants. Together with our results obtained for non-relativistically-treated 
Hg2, when compared to her previous results, we confirmed that indeed, relativistic effects 
account for the known peculiarities of the mercury dimer. We have cited [the petitioner's] 
report in two of our recent publications .... 
* * * 
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NON-PRECEDENT DECISION 
Page 15 
Certainly the work done by [the petitioner] has contributed significantly to our understanding 
ofHg2. 
Dr. states that he cited to the petitioner's work in and found her bond 
length measurements useful and accurate, but there is no documentary evidence showing that the 
petitioner's fmdings were frequently cited by independent researchers or that they have been utilized 
by other scientists at a level indicative of contributions of major significance in the field. 
Dr. Distinguished Professor, New Zealand, stated·: 
The excellent paper by [the petitioner] in the was a very 
significant accomplishment, and it is absolutely critical as it provides the most accurate 
spectroscopic data of Hg2. Previous to her work, there was very little accurate experimental 
spectroscopic data for the mercury dimer. ... Her findings lay important groundwork for not 
only further explorations of quantum physics, but also, have numerous applications in 
improving the laser design and the accuracy of molecular spectroscopy. 
* * * 
My laboratory has cited to [the petitioner's] important findings in two of our recent 
publications, published in the 
In our papers, we presented spectroscopic constants as a function of temperature 
and compared our findings with [the petitioner's] experimental data, as her findings are the 
most current and accurate .... [The petitioner's] findings were integral to the analysis of our 
experimental data, and we found her results very helpful. 
Dr. asserts that the petitioner's work "provides the most accurate spectroscopic data 
of Hg2" and mentions that his laboratory has cited to her findings, but the evidence submitted does 
not demonstrate that the petitioner's work has affected the field in a major way or that the number of 
independent cites to her work is indicative of contributions of major significance in the field. 
Dr. Editor, stated that the petitioner "has 
expertise in the fields of applied optics, quantum optics, lasers, instruments, adaptive optics, optical 
engineering, spectroscopy. He [sic] was chosen as a reviewer based on his expertise." Assuming 
the petitioner's technical expertise is unique, the classification sought was not designed for 
alleviating skill shortages in a given field. The issue of whether similarly-trained workers are 
available in the U.S. is an issue under the jurisdiction of the U.S. Department of Labor through the 
alien employment certification process. See Matter of New York State Department of 
Transportation, 22 I&N Dec. 215, 221 (Comm'r 1998). Dr. fails to provide specific 
examples indicating that the petitioner's work has substantially impacted the field or that her work 
was otherwise of major significance to the field. 
Dr. Editor-in-Chief, also commented on the petitioner's 
work as a peer reviewer, stating: 
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NON-PRECEDENT DECISION 
Page 16 
For the the selection of technical reviewer is serious and rigorous 
and only those who have made significant achievements and established an international 
reputation of excellence in their fields will be selected .... [The petitioner] always provided 
timely and insightful review comments, which not only assisted the editors to determine the 
acceptance of the manuscripts but also helped the authors to improve the quality of their 
manuscripts. 
Dr. comments on the petitioner's participation as a technical reviewer, but there is no 
documentary evidence showing that the petitioner's involvement in the peer review process equates 
to an original contribution of major significance in the field. The regulations contain a separate 
criterion for judging the work of others, 8 C.P.R. § 204.5(h)(3)(iv), a criterion that the petitioner has 
already met. Articles are selected for publication in scientific journals through the peer review 
process. A journal's editorial staff will enlist the assistance of professionals in the field who agree to 
review submitted papers. It is not unusual for a publication to ask several reviewers to review a 
manuscript and to offer comments. The publication's editorial staff may accept or reiect anv 
reviewer's comments in determining whether to publish or reject submitted papers. Dr. 
fails to explain how the petitioner's task of reviewing articles for rises to 
the level of an original contribution of major significance in the field. 
The opinions of the petitioner's references are not without weight and have been considered above. 
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 (Comm'r. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. !d. The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795-796; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the content 
of the references' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of 
an immigration petition are of less weight than preexisting, independent evidence that one would 
expect of physical scientist who has made original contributions of major significance in the field. 
Without additional, specific evidence showing that the petitioner's original work has been unusually 
influential, widely implemented throughout her field, or has otherwise risen to the level of 
contributions of major significance, the petitioner has not established that she meets this regulatory 
criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The director determined that the petitioner did not establish eligibility for this regulatory criterion. 
The petitioner, however, has documented her authorship of scholarly articles in professional 
publications and, thus, has submitted qualifying evidence pursuant to 8 C.P.R. § 204.5(h)(3)(vi). 
Accordingly, the petitioner has established that she meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
(b)(6)
NON-PRECEf)ENT DECISION 
Page 17 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish her eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. 
The issue, therefore, is considered to be abandoned. 
Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has 
not established that she meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories 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. 
Even if the petitioner had 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. Although we conclude 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, we need not explain that conclusion in a final 
merits determination.4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories 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. 
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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
4 The AAO conducts appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012); 
Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004); Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 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.P.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(t)(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). 
(b)(6)