dismissed EB-1A Case: Physics

f&@h1: clioa deleted to 
Prevent clearly unw-~ 
'"Vasion of prsmal Mpivwy 
pmtFC Copy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 08 103 5 1277 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(l)(i). 
wf,yizinistrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the sciences. 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. More specifically, the director found that the petitioner had 
failed to demonstrate receipt of a major, internationally recognized award, or that he meets at 
least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and 
at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very 
high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See 56 
Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). As used in this section, the term "extraordinary 
ability" means a level of expertise indicating that the individual is one of that small percentage 
who has risen to the very top of the field of endeavor. 8 C.F.R. 8 204.5(h)(2). The specific 
requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, 
however, that the petitioner must show that he has sustained national or international acclaim at 
the very top level. 
This petition, filed on February 19, 2008, seeks to classify the petitioner as an alien with 
extraordinary ability as a research physicist. The regulation at 8 C.F.R. tj 204.5(h)(3) indicates 
that an alien can establish sustained national or international acclaim through evidence of a one- 
time achievement (that is, a major, internationally recognized award). Barring the alien's receipt 
of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for 
an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary 
ability. A petitioner, however, cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three of the criteria outlined in 8 C.F.R. 
5 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "a level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 
5 204.5(h)(2). 
The petitioner has submitted evidence that, he claims, meets the following criteria under 8 C.F.R. 
5 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the Jield of endeavor. 
The petitioner claims to meet this criterion based on his receipt of the Japan Society for the 
Promotion of Science (JSPS) Postdoctoral Fellowship. The petitioner submitted a copy of a 
December 20, 2002 letter from the JSPS advising him that the application submitted on his 
behalf had been approved and that he would be awarded "a fellowship under the 'FY2003 JSPS 
Postdoctoral Fellowship for Foreign Researchers' to conduct research in Japan under the 
leadership of your host researcher for a period of 24 consecutive months." 
In response to the director's request for evidence (WE) dated December 2, 2008, the petitioner 
provided a document from the website of the JSPS describing the organization's history and 
purpose: 
The [JSPS] . . . is an independent administrative institution, established by way of 
a national law for the purpose of contributing to the advancement of science in all 
fields of the natural and social sciences and the humanities. JSPS plays a pivotal 
role in the administration of a wide spectrum of Japan's scientific and academic 
programs. While working within the broad framework of government policies 
established to promote scientific advancement, JSPS carries out its programs in a 
manner flexible to the needs of the participating scientists. 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
JSPS was founded in 1932 as a non-profit foundation through an endowment 
granted by Emperor Showa. JSPS became a quasi-governmental organization in 
1967 under the auspices of the Ministry of Education, Science, Sports and Culture 
(Monbusho), and since 2001 under the Ministry of Education, Culture, Sports, 
Science, and Technology (Monbukagakusho). Over this 70-year period, JSPS has 
worked continuously to develop and implement a far-reaching array of domestic 
and international scientific programs. 
The petitioner also provided copies of pages from a 2008-2009 brochure from the JSPS. In a 
section entitled "Message from JSPS President," stated: 
JSPS administers the Grants-in-Aid for Scientific Research Program, aimed at 
forging milestone advances in highly creative, cutting-edge research across the 
spectrum of the humanities, social sciences and natural sciences. JSPS1s Research 
Fellowships for Young Scientists serve to foster and secure a top world-class 
caliber of Japanese researchers, whereas our international exchange programs 
place strong emphasis on collaborations with partner countries that work to build 
research hubs of the highest world order. 
Page 19 of the brochure indicates that the "JSPS carries out programs to invite researchers for 
other countries to Japan" and that the programs "are open to all eligible researchers irrespective 
of their nationally or specialization." Page 28 of the brochure indicates that the program for 
Postdoctoral Fellowship for Foreign Researchers "allows researchers affiliated with Japanese 
universities or research institutes to invite promising young researchers from overseas to Japan to 
participate in collaborative research activities at their institutions for 1-2 years. The fellowship 
includes a travel grant and monthly stipend." At the request of the director, the petitioner also 
provided information regarding the selection process for applicants for the fellowship program, 
which he indicated was taken from the JSPS website. According to the petitioner, selection is 
done by committee comprised of 47 members and approximately 1,700 examiners and involves a 
document review followed by a panel review. The document review is based on a grading system 
of 1 to 5, with 5 being "superlative," and "tak[es] into account research achievements, the 
research plan, estimated research capacity, and future potential of the research." 
In denying the petition, the director stated: 
[Tlhe evidence submitted fails to establish that this fellowship satisfies this 
criterion. Most notably, the petition has failed to provide specific evidence to 
establish the actual eligibility requirements to compete for the Postdoctoral 
Fellowship for Foreign Researchers. In any instance, the evidence submitted 
indicates the program was established to assist promising and highly qualified 
young foreign researches [sic] wishing to conduct research in Japan. It is readily 
apparent that this award is designed for young postdoctoral researchers. The 
Service finds that this award is limited in scope as more established and 
experienced researchers do not compete for such awards. 
On appeal, counsel states that "nothing in the JSPS criteria for Post-Doctoral Fellowship relates 
to age or youth." Referencing the JSPS website, counsel further states that applicants for the year 
2010 "must have received their doctorate within the past six years" and that, based on a Canadian 
study, "all students from a doctorate program graduating from a Canadian university in 2004- 
2005, the average age was 36 years." Counsel thus opines that "a JSPS Award might be given to 
a scientist six years after their PhD is awarded might be well into their 40s." The petitioner 
submits a ~ebiar~ 26, 2009 letter from director of the San ~rancisco Office 
of the JSPS, in which he states, "JSPS offers a fellowship program for foreign post-doc 
researchers who have received a doctorate degree within the past 6 years." 
We note that while the JSPS does not specify an age limit in its selection process, its brochure 
provides, at page 28, that the Postdoctoral Fellowship for Foreign Researchers "allows 
researchers affiliated with Japanese universities or research institutes to invite promising young 
researchers from overseas to Japan to participate in collaborative research activities." [Emphasis 
added.] 
"Young" in this context therefore limits those who are eligible to apply for the JSPS Postdoctoral 
Fellowship for Foreign Researchers to those who have obtained a doctorate degree within the six 
years prior to applying for the fellowship. Thus it excludes from consideration other experienced 
experts in the field. Honors limited by their terms to a specified group are not an indication that 
the recipient "is one of that small percentage who have risen to the very top of the field of 
endeavor." 8 C.F.R. 5 204.5(h)(2). The petitioner's receipt of the JSPS Postdoctoral Fellowship 
for Foreign Researchers offers no meaningful comparison between him and more experienced 
professionals in the field who have long since completed their educational training. Thus, they 
cannot establish that the petitioner is one of the very few at the top of his field. 
Furthermore, the petitioner has not established that the JSPS Postdoctoral Fellowship for Foreign 
Researchers is a nationally or internationally recognized award for excellence in the petitioner's 
field of endeavor. That the fellowship is sponsored in part by the Japanese government or that it 
selects from an international pool is not sufficient, by itself, to establish that the award is 
recognized as an award of excellence, either nationally or internationally. The plain language of 
the regulatory criterion at 8 C.F.R. 5 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and it is his burden to 
establish every element of this criterion. In this case, there is no evidence showing that the JSPS 
Postdoctoral Fellowship for Foreign Researchers commanded a significant level of recognition 
beyond the context of the process in which it was awarded. For example, there is no evidence 
showing that the petitioner's award was announced in major media or in some other manner 
consistent with national or international acclaim. 
Accordingly, the petitioner has failed to establish that he meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classlJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as The New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner did not initially claim to meet this criterion. However, with the petition, he 
submitted a copy of a purported translation of an undated copy of Nikkan Industrial Business 
Newspaper containing an article on "High Efficiency Diode Development." The article does not 
mention the petitioner or that he was a member of the team working on the project. Therefore, 
the article is not about the petitioner or his work. Further, the petitioner provided no 
documentation to establish that the Nikkan Industrial Business Newspaper is a professional or 
major trade publication or other major media. Additionally, petitioner did not submit the original 
copy of the publication and the article does not contain a date or author, as required by 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The petitioner also provided a copy of an article that appeared in the June 2, 2006 edition of 
SLAC today. The article includes the petitioner in a list of team members that had "recently made 
a promising breakthrough in understanding a fundamental process associated with [random 
access memory (RAM)] magnetic storage devices." The article describes the work of the team. 
Nonetheless, the petitioner provided no documentation to establish that SLAC today is a 
professional or major trade publication or other major media. 
In response to the director's RFE, the petitioner resubmitted the purported translation from 
Nikkan Industrial Business Newspaper, which counsel alleged is also known as Nikkan Kogyo 
Shimbun. The petitioner again failed to provide a copy of the original publication. The petitioner 
submitted information about Nikkan Kogyo Shimbun, retrieved from the online encyclopedia 
Wikipedia, which reports that Nikkan Kogyo Shimbun is "one of the leading daily newspapers in 
Japan" with a circulation of approximately 420,000. We note first that Wikipedia does not 
support counsel's assertion that Nikkan Industrial Business Newspaper and Nikkan Kogyo 
Shimbun are the same. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
Furthermore, with regard to information from Wikipedia, there are no assurances about the 
reliability of the content from this open, user-edited internet site.2 See Lamilem Badasa v. 
Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). Accordingly, we will not assign weight to 
information for which Wikipedia is the only cited source. 
In response to the RFE, the petitioner also submitted a copy of an article from S&T Today. The 
document shows a date of January 1 but does not contain a year. Additionally, the article does 
not identify the author of the material as required by 8 C.F.R. 5 204.5(h)(3)(iii). The article 
reports on the development of a "new type of diode" by a "joint research team" from the Japan 
Science and Technology Agency, the Osaka University, the National Institute of Advanced 
Industrial Science and Technology and Canon ANELVA Corporation. The article does not 
mention the petitioner and therefore there is no evidence that it is about his work. 
The director determined that the petitioner did not meet this criterion and the petitioner did not 
challenge this determination on appeal. Accordingly, we find that the petitioner has failed to 
establish that he meets this criterion. 
Evidence of the alien's original scientzjic, scholarly, artistic, athletic, or business-related 
contributions of major signz~cance in thejield. 
The petitioner claims to meet this criterion based on his work in the field of spintronics, "a 
cutting edge revolutionary technology which exploits the quantum spin states of an electron as 
well as its charge." In his personal statement submitted in support of the petition, the petitioner 
stated: 
I am studying nano-meter sized magnetic heterostructures which exhibit GMR 
effect. These nano-devices can be used as non-volatile memory called Magneto- 
resistive random Access Memory (MRAM). MRAM has been touted as the 
universal memory which combines all the strengths and none of the weaknesses 
of the existing memory types. Thus MRAM can be used in digital cameras as well 
as personal computers. My research is focused on writing MRAM cells by a new 
2 
 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open- 
content collaborative encyclopedia, that is, a voluntary association of individuals and groups 
working to develop a common resource of human knowledge. The structure of the project allows 
anyone with an Internet connection to alter its content. Please be advised that nothing found here 
has necessarily been reviewed by people with the expertise required to provide you with 
complete, accurate or reliable information. . . . Wikipedia cannot guarantee the validity of the 
information found here. The content of any given article may recently have been changed, 
vandalized or altered by someone whose opinion does not correspond with the state of knowledge 
in the relevant fields. [Emphasis in the original.] 
See http://en.wiki_pedia.org/wiki/Wikipedia:General disclaimer, accessed on October 27, 2009, a copy of 
which is incorporated into the record of proceeding. 
technique called spin-transfer torque (STT) switching where spin-polarized 
current is used to change the magnetic state of MRAM bits. This technique is far 
superior to the conventional use of magnetic field for writing MRAM bits, and 
will lead to increase in area-density of MRAM and decrease in its power 
consumption. Myself, working with the team at SLAC is developing techniques to 
obtain precise, high-speed, microscopic details of exactly how the magnetic state 
of MRAM bit reverses by spin-polarized current. We are using ultrafast X-ray 
pulses from linear electron accelerator, to image the magnetic state during the 
reversal process. 
The petitioner submitted documentation indicating that, with co-inventors, he has applied for two 
patents, one internationally and one in the United States. Although counsel initially alleged that 
the international patent had been approved, in response to the RFE, he acknowledges that both 
patents are still pending. The petitioner also submitted letters of reference commenting on the 
significance of his work in spintronics. These include: 
of Physics and Chemistry at the University of 
California, Irvine (UC Irvine). 
[The petitioner's] research turned to the exploitation of the new experimental 
demonstration that a current can rotate the spin (spin-torque effect) and thus 
change the magnetic properties of layered materials. Surprisingly, [he] discovered 
that a dc current is induced by an ac current in the radio frequency range because 
of the spin-torque effect in specially fabricated nanostructured materials. This 
work is very important and potentially has novel technological applications . . . . 
In his present position . . . [the petitioner] is continuing the work in probing the 
speed at which the magnetism can be changed by a short pulse of current. 
Furthermore, he is using the unique x-ray source at Stanford University to image 
the changes that occur as the spins rotate. In addition to the work aiming at a 
fundamental understanding of the electronic spin in nanostructured solids, [the 
petitioner] also has focused on fabricating device structures that are relevant to 
technological applications. This has resulted in a number of patents. 
University, stated that he was the petitioner's host researcher at the national Institute of Japan. 
[The petitioner] worked on magnetization reversal of nano-pillars by spin 
polarized current and obtained distinctive results on the high speed spin-transfer 
switching . . . . He then led the work on the spin-accumulation effects in spin- 
transfer process, and discovered a novel effect of spin-torque diode. He showed 
that spin-transfer effect can excite ferromagnetic resonance, which can be 
detected by measuring dc voltage produced across the sample . . . . Based on this 
work we have also submitted a patent for use of magnetic tunnel junctions as an rf 
detector. 
Page 9 
also provided a letter in response to the director's RFE in which he stated: 
[The petitioner] has applied for patents based on [his] work. His discoveries will 
be especially useful as a nano-scale microwave detector especially in 
telecommunication circuits. Another important component of this invention is that 
it is shown to work in MgO based magnetic tunnel junctions. These kind of 
magnetic tunnel junctions are highly promising for Spintronics applications, and 
some of the applications based on them are already in production stage. Thus, 
new inventions such as shown by [the petitioner] which use these magnetic tunnel 
junctions, will be easy to incorporate into new and advanced technology. 
of the Nanoelectronics Research Institute of the National 
Institute of Advanced Industrial Science and Technology (AIST) stated that he met the petitioner 
when he joined their group as a JSPS Fellow, although the petitioner did not work directly with 
him. 
[The petitioner] worked on switching of magneto-resistive random access 
memory (MRAM) bits by spin-polarized current. He had made extremely 
important contributions to this field. He was the very first scientist in the world to 
measure the switching speed of MRAM bits by applying current pulses of nano- 
second durations. This work is particularly significant for practical application of 
spin-transfer effect in the next generation of MRAM chips. He followed this work 
by yet another remarkable discovery of a new effect called as 'spin-torque diode 
effect'. This effect can be used to distinguish between different fundamental 
processes which are responsible for the spin-transfer effect. It also has a potential 
for applications in telecommunication circuits as a nano-meter scale radio- 
frequency detector. 
a research staff member with the IBM T.J. Watson Research Center, stated: 
[The petitioner's] work . . . pioneered the method of spin-torque-induced 
ferromagnetic resonance. The work was published in Nature in 2005, and was 
immediately followed up by many groups around the world including ours as a 
way for quantitative experimentation with the phenomenon of spin-torque. Since 
the, [he] has moved to Stanford University to continue his investigation of spin- 
excitation phenomenon using the state-of-the-art tools available at the Stanford 
Synchrotron Radiation Laboratory (SSRL). I followed the research of the SSRL 
group enthusiastically. Through site visits and collaborative discussions I come 
[sic] to appreciate the power and significant promise of their work. Over the last 
few years [the petitioner] worked diligently with his colleagues to bring that 
vision to reality. These efforts have brought the successful demonstration of time- 
resolved X-ray magnetic imaging of a nanostructured spin-valve. This is another 
pioneering experiment, representing the first demonstration of a time-resolved, 
element-specific imaging of magnetic dynamics on the smallest structure to date. 
of the Stanford Linear Accelerator Center (SLAC) and 
Director of the SSRL, stated: 
I hired [the petitioner] in April 2005 as a researcher at SSRL because of his 
expertise in nanomagnetism, in particular, his previous work on switching 
magnetic nanoelements by means of spin polarized currents. This new technique 
of spin torque switching is a forefront area in magnetism research because of its 
revolutionary underlying concept and its potential for spintronics applications . . . 
At the time of his hire, I wanted to move SSRL into this research area with the 
goal of using advanced time-resolved x-ray imaging techniques to directly 
observe the fast magnetic switching processes in nanomagnets. 
who also works at the SSRL, described the petitioner's work as "rich and 
outstanding." 
In his research related to spin injection, one of the basic processes of Spintronics, 
[the petitioner] achieved a number of outstanding results already before he joined 
us from his work in Japan . . . I mention here the invention of a "spin diode" 
which might find application as a nano-scale radiofrequency detector in 
telecommunication circuits. This work also opens the door to the development of 
numerous future spintronic devices. 
It is not possible to describe all his interesting inventions and experiments here. I 
just mention yet another important example . . . where [he] measures the speed 
with which the magnetization of small nano-scopic magnetic elements can be 
switched by spin injection. This is essential for applications, e.g., in random 
access memories. The important result is that the reversal of the magnetization 
can take place within a few 100 Picoseconds at low cost of energy . . . 
Further insight into the physics of magnetic switching by spin injection arises 
from his work here at SLAC. Together with his collaborators, he developed a 
unique technique to actually image the switching process in a spin transfer 
structure in space and time using advanced pump probe x-ray microscopy. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. It does not follow that every researcher who performs original research 
that adds to the general pool of knowledge has inherently made a contribution of major 
significance to the field as a whole. 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.F.R. fj 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. We must presume that the 
phrase "major significance" is not superfluous and, thus, that it has some meaning. 
While it is clear from the petitioner's references that he has been involved in novel research and 
is one of the pioneers in spintronics, they do not indicate that the petitioner's advances in this 
area constitute a contribution of major significance to his field. Further, the opinions of experts 
in the field, while not without weight, cannot form the cornerstone of a successful extraordinary 
ability claim. USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id The submission of letters from experts supporting the 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id. at 795-796. Thus, the content of 
the experts' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support 
of an immigration petition are of less weight than preexisting, independent evidence of original 
contributions of major significance that one would expect of a researcher who has sustained 
national or international acclaim. 
The ten regulatory criteria at 8 C.F.R. 5 204.5(h)(3) reflect the statutory demand for "extensive 
documentation" in section 203(b)(l)(A)(i) of the Act. Opinions from witnesses whom the petitioner 
has selected do not represent extensive documentation. Independent evidence that already existed 
prior to the preparation of the visa petition package carries greater weight than new materials 
prepared especially for submission with the petition. The petitioner's references indicate that his 
work has been significant. However, the regulation requires the petitioner to establish that his work 
has been of major significance to his field of endeavor. It is reasonably assumed that evidence of a 
contribution of such significance would be readily available in the form of public recognition from 
the scientific community or the public at large, including generous publicity of the import of the 
petitioner's work. 
Counsel alleges that the fact that the petitioner's research was published in Nature should by itself 
establish the petitioner as one of extraordinary ability. Apparently quoting from the website of 
Nature, counsel asserts, "A publication in Nature means the subject matter is not only 'novel' but 'of 
extreme importance in the specific field."' Again, however, that a contribution is important or even 
extremely important does alone establish that it is a contribution of major significance. 
The petitioner's evidence does not establish that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the Jield, in professional or 
major trade publications or other major media. 
The director determined that the petitioner meets this criterion and we will not disturb his 
finding. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner initially claimed to meet this criterion based on his presentations "at international 
conferences." In his WE, the director advised the petitioner that this criterion pertained to the 
visual arts. The petitioner did not challenge this finding either in response to the RFE or on appeal. 
In this case, the petitioner's field is not in the arts. The plain language of this criterion indicates 
that it applies to visual artists (such as sculptors and painters) rather than to scientists such as the 
petitioner. The ten criteria in the regulations are designed to cover different areas and not every 
criterion will apply to every occupation. The petitioner's presentations in scientific conferences 
have been considered under the criterion listed at 8 C.F.R. 5 204.5(h)(3)(v). 
The regulation at 8 C.F.R. 5 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility.'' [Emphasis added]. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address evidence counsel believes is applicable to this provision. 
Counsel asserted that the petitioner's recognition by other experts in his field is evidence of his 
standing as a physicist of extraordinary ability. We have considered the petitioner's references as 
discussed above. Additionally, while they state that the petitioner ranks among the very top of 
scientists in the field of spintronics, the documentation provided by the petitioner does not 
support their assessment. Counsel stresses the importance of the field in which the petitioner 
performs his research, indicating that researchers in that field have won the Nobel Prize. 
Nonetheless, the petitioner provided no documentation to establish that he has been the recipient 
of a Nobel Prize, and while others may have used his research as a building block for their own, 
that is the very nature of scientific research. 
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 his field of endeavor. Review of the record, 
however, does not establish that the petitioner has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small 
percentage at the very top of his field. The evidence indicates that the petitioner is a talented and 
skilled researcher, but is not persuasive that the petitioner's achievements set him significantly 
above almost all others in his field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the ,4ct and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.