dismissed EB-1A Case: Physiology

(b)(6)
DATE: FEB 2 5 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S: Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigratio
1
n 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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you inight have concerning your case must be made to that office. 
\ 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a·motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.ER. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cfJo:-25~ 
Ron Rosenberg ~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
\_ 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas 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 p~titioner seeks classification as an "alien of extraordinary ability" in the sciences, 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.F.R. § 204.S(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at le.ast three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, counsel asserts that the director failed to evaluate the submitted evidence and render a 
decision with respect to the criterion for serving in a leading or critical role for organizations with a· 
·distinguished reputation. Counsel further asserts that the director did not consider all the evidence of 
record and erroneously determined that the petitioner did not establish that he had made original 
contributions of major significance in his field of endeavor. Finally, counsel maintains that the 
petitioner sufficiently submitted documentation to meet the regulatory criterion for · membership in 
associationsin the field that require outstanding achievements of their members. Counsel submits an 
appeal brief and mostly previously submitted evidence on appeal. 1 
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 
I Counsel submits two new items on appeal; two affidavits from staff members from herlaw firm 
who attest to the preparation and submission of a cover letter and a citation list before the director. 
(b)(6)
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international acclaim and whose achievements have .been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the . ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion.2 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
Page 4 
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 Criteria3 
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 petitioner initially submitted evidence relating to this criterion. The director, after reviewing the 
evidence, concluded that the petitioner failed to satisfy the regulatory requirements and the petitioner 
does not identify any factual or legal error in this conclusion on app~al. Consequently, the AAO 
concludes that the petitioner abandoned this claim. See Sepulveda v. US Att 'y Gen., 401 F.3d 1226, 
1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 
1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 
2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
A petitioner must demonstrate that he meets all the elements of the regulation to meet this criterion. 
The director determined that the petitioner in this instance failed to show that the associations in which 
he is a member requires outstanding achievements of their members and that the membership eligibility 
was not judged by recognized national or international experts in the field. 
The petitioner submitted evidence showing that he is a member of the American Physiology Society 
(APS), in addition to the membership requirements, as outlined by the organization's bylaws and a 
statement from the Membership Services Assistant. According to the bylaws, fot eligibility for 
membership in APS, a person must have "conducted and published meritorious original research in 
physiology," and the person must "presently engaged in physiological work." The letter from the 
Membership Services Assistant clarifies that "an applicant's bibliography is evaluated on the basis of 
publications in major refereed journals." Counsel asserts on appeal that the regulations do not require 
the bylaws for the organization to specifically include the language "outstanding achievements" to meet 
this criterion. While the bylaws need not specifically include the words "outstanding achievements," a 
mere review of an applicant's bibliography to determine whether an applicant conducted and published 
meritorious research is insufficient to indicate that outstanding achievement is a necessary condition for 
membership. Furthermore, the evidence of record indicates that a six-member membership committee 
3 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
Page 5 
is responsible for making recommendation for membership. Nothing in the bylaws requires the 
appointed members to be recognized national or international experts in physiology. While counsel 
maintains on appeal that appointment to a membership committee of a national organization is 
sufficient to demonstrate recognized national or international expertise, USCIS will not presume such 
expertise on mere participation on a membership committee. Therefore, the petitioner's membership in 
APS does not meet the requirements for this criterion. 
The petitioner also submitted evidence showing that he is a member of the American Association of 
Immunologists (AAI). The bylaws for AAI state that: "[a ]ny qualified person engaged in the study of 
immunology and who supports the mission of AAI can be recommended for active membership by a 
member of the AAI." In a letter, the Membership Coordinator for the AAI further states that the 
membership requirements include: 
• 
• 
• 
possessing an M.D., Ph.D. or equivalent degree; 
being an established scientist with substantial achievement in a related discipline; and 
being an author of one publication on an immunological topic in a reputable, English language, 
peer-reviewed journal. 
The website materials on membership categories in AAI provide that membership is available to "those 
worldwide who have a strong interest in and have a substantial contribution to the field of 
immunology." Depending on how the association views the phrase, a substantial achievement does not 
necessarily rise to the level of an outstanding achievement. Rather, it is necessary to look to the other 
requirements, as outlined by the association's website and the bylaws to determine the proper context. 
The website indicates under "Qualifications" for regular membership that the applicant must have the 
requisite degree and "be an author on one publication in a reputable English-language, peer-reviewed 
journal." No additional evaluation as to the significance of the appliCant's achievements beyond a 
degree and a publication is referenced. Such requirements are minimal and when taken together with 
the extremely broad bylaw definition on who could become a member, it is apparent that AAI's 
definition of substantial contribution does not rise to the level of "outstanding achievement" as 
contemplated by the regulation. 
Furthermore, while counsel asserts that the Council governing AAI selects the Membership Committee 
from prestigious members who have already been determined to have made a substantial contribution to 
the field and therefore, such members are recognized national or international experts, the record does 
not support such a claim. 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). 
The AAI's bylaws, Article VII, outlining the selection criteria for committee membership, including the 
Membership Committee provides: 
SECTION 2. Membership of Committees. 
(b)(6)
Page 6 
A. Council, President, and Nominating Committee shall take into consideration the 
geographic location and the ethnic and multi-cultural · diversity of the membership 
when making appointments or selecting nominees. 
B. Only AAI members in good standing may be members of crimmittees, and only 
active members may be chairs. 
The selection criteria are primarily focused on geographic location and the ethnic and multicultural 
make-up of the membership committee. Such a focus does not not reflect that national or international 
experts in· immunology judge membership candidates for active membership as required under 8 C.F.R. 
§ 204.5(h)(3)(ii). In light of the above, the petitioner has not submitted qualifying evidenc~ under 
8 C.F.R. § 204.5(h)(3)(ii). . . 
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.F.R. 
§ 204.5(h)(3)(iv). 
The director determined that the petitio.ner satisfied the regulatory requirements for this criterion and the 
AAO affirms the director's decision in this regard. 
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 found that the petitioner failed to satisfy the requirements set forth at 8. C.F.R. 
§ 204.5(h)(3)(v). The plain langliage of the regulation requires both that the petitioner's contributions 
be original and of major significance in . the field. USC IS 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 in APWU 
v. Potter, 343 F.3d 619, 626 (2"d Cir; Sep 15, 2003). . 
On appeal, counsel maintains that the director failed to consider the petitioner's citations . While the 
petitioner documented a significant number of citations in the aggregate, he has not demonstrated 
that, as of the date of filing, any one of his articles had garnered frequent citation. Counsel further 
asserts on appeal that supporting letters indicate that other scientists in the field are making use of 
the petitioner's contributions in their own work. In addition, counsel states · that physicians and 
medical researchers have affirmed that the petitioner's discoveries have 
impacted their clinical 
practice. 
the Head of the Free Radical Metabolism Section at the 
Head of the Immunology and Hyperthermia 
Section, Radiation Biology and Health Science Division of the and 
Chair, 
serve or served as heads in departments or laboratories of 
the various organizations where the petitioner works or worked as a scientist. Significantly, while 
(b)(6)
Page 7 
all three individuals who are current or former supervisors in the respective org~nizations are 
complimentary of the petitioner as a scientist, they do not specifically identify contributions of major 
significance in the field. compliments the petitioner's findings as being important and 
observes that the petitioner has published in multiple peer-reviewed journals; outlines 
the petitioner's duties in his laboratory and comments on the petitioner's publications and his novel 
ideas; and comments that for someone early in his career, the petitioner has a strong 
record of accomplishments, including publications in well-respected journals. 
The next group of letters includes testimonials from the following individuals: 
Erofessor o Radiation Oncology, Free Radical and Radiation Program at the . 
Biophysics, 
Professor and Chief, Section of Cardiology, Department of Medicine at the 
Professor and Vice-Chairman, De artment of 
Graduate School of Public Health at the 
Chair Professor, Department ·Of Medical Research at 
Chairman and Professor of Biophysics, Department of 
Professor and Chair, Department of 
Pathology, Microbiology and Immunology at the ,. ,, 
and Associate Member , the 
--------------------------~~ 
and Director of 
the 
The above group of letters share common characteristics. They all indicate that they do not know 
the petitioner directly but have followed his research in some way. The letters also identify the 
various areas of the petitioner ' s research, highlight some of the petitioner's publications, discuss 
some of the petitioner's awards, especially emphasizing the importance of the National Institutes of 
Health (NIH) Pathway to Independence Award (PI), and then conclude repeating the language of the 
statute or regulations. Evidence in existence prior to the preparation of the petition carries greater 
weight than new materials prepared especially for submissions with the petition. Also, merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. V. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Instead 
testimonial letters must provide specific examples of how the results .from the petitioner's work are 
being widely applied by others in the field or that they otherwise equate to original contributions ot' 
major significance in the field. 
As for the comments regarding the petitioner's published work, the regulations contain a separate 
criterion regarding the authorship of scholarly articles. 8 C.F.R. § 204.5(h)(3)(vi). The AAO will not 
presume that evidence relating to or even meeting the scholarly articles criterion is presumptive 
evidence that the petitioner also meets this criterion. Here it should be emphasized that the regulatory 
criteria are separate and distinct from one another. Because separate criteria exist for authorship of 
scholarly articles and original contributions of major significance, USCIS clearly does not view the 
two as being interchangeable. 4 To hold otherwise would render meaningless the statutory requirement 
4 Publication and presentations are not sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence 
(b)(6)
Page 8 
for extensive evidence or the regulatory requirement that a petitioner meet at least three separate 
criteria. Thus, there is no presumption that every published article or presentation is a contribution of 
major significance; rather, the petitioner must document the actual impact of his article or presentation. 
As for the above letters' focus on the petitioner's awards, particularly on the PI award, the regulations 
also contain a separate criterion regarding lesser nationally or internationally recognized awards. 
8 C.F.R. § 204.5(h)(3)(i). At the outset, the petitioner does not separately meet the criterion relating to 
awards and the AAO again will not presume that evidence relating to the awards criterion is 
presumptive evidence that the petitioner also meets this criterion. Furthermore, the awards mentioned 
by the authors of the letters are restricted: The Fellows Award for Research Excellence (FARE) is 
limited to those fellows who are conducting research within NIH and the restriction for fellows limit the 
award to scientists in that early stage of their career who are still in training.5 While the NIH is a large 
research organization, comprised of multipie institutes of inquiry, it nonetheless is just one among many 
research institutions and organizations, both nationally and internationally, that offers post-doctoral 
fellowships. Similarly, the record reveals that the PI award also is restricted to postdoctoral trainees 
who propose research relevant to the mission of one or more of the participating NIH institutes and 
centers. The background information for the PI Award also indicates that 150 to 200 Awards were 
anticipated to be awarded in just the initial year of the award. Given the restrictions relating to both the 
FARE and PI awards, and the number of PI awards contemplated in just the initial year, they are not 
indicative of contributions of major significance in the field. 
The remaining testimonial letters submitted in support of this criterion are from individuals who have 
had a direct relationship with the petitioner. Professor of Medicine and Chief of the 
Division of Gastroenterology at writes a letter support. However, this 
letter shares the same characteristics identified in the above group of letters and includes some of the 
same deficiencies outlined above. Furthermore, while summarily states that "[the 
petitioner's] work has resulted and will continue to result in a greater understanding of how [obesity 
related] diseases progress and point to new options," her letter does not provide any specific examples 
of how the petitioner's discoveries have impacted her clinical practice, as alleged in counsel's appeal 
brief. Rather, she asserts generally that her collaboration with the petitioner is enhancing her team's 
knowledge of oxidative stress and teaching the team how to interrogate the roles of reactive oxygen 
species in cellular processes. 
Chief of the Laboratory of Toxicology and Pharmacology at submitted a letter 
that largely focuses on the petitioner's productivity as a fellow and his awards. As stated above, 
that they were of "major significance." Kazarian v. USCIS, 580 F.3d at 1036 (91h Cir. 2009) aff'd in part 
596 F3d 1115 (9th Cir. 2010). 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 F.3d at 1122. 
5 The NIH defines fellowship as "[a]n NIH training program award where the NIH specifies the individual 
receiving the award." http:Ugrants.nih.gov/grants/glossary.htm#F, accessed on February 14, 2013. 
(b)(6)
Page 9 
distinction as a fellow, including awards, is insufficient evidence of contributions of major significance 
in the field. 
, Professor of Chemistry, Department of Natural Sciences at 
submitted a letter that provides the most detail on how the petitioner's work is applied by others. 
writes very specifically, regarding the petitioner's · 
[The petitioner] has developed the technique of for use in 
detecting the presence of I have used it in my own research 
and it has resulted in breakthroughs in my own work. It continues to be applied to the 
research of other scientists and is extremely significant as it enables 
m1scroscopy lO uetec , rmage, anu 1ucauze prutt::m ut::t:: raUJcais .... 
summarizes the petitioner's contributions into three areas: 
[The petitioner] has developed novel research techniques that have been applied 
throughout the field, he has established connections between various areas of research 
that have provided new directions for future research and revealed new information in 
established disciplines, and he has made basic scientific discoveries of great 
importance to obesity and environmental effects on health research. 
As support for the above conclusion, details the application of the 
and how she is making use of them in her own research and work. 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. Any 
. Ph.D. thesis or postdoctoral research, in order to be accepted for graduation, publication or funding, 
must offer new and useful information to the pool of knowledge. It does not follow that every 
researcher who performs original research that adds to the general pool of knowledge has inherently 
made a contribution of major significance to the field as a whole. The applicability of the 
petitioner's work in laboratory does not, by itself, demonstrate the type of widespread . 
use that would be expected of a contribution of major significance. While asserts that 
the petitioner's approach "is becoming a common laboratory technique," the petitioner does not 
support this assertion with letters from rriore independent sources or the actual citations themselves 
confirming the authors' use of the petitioner's approach. 
In addition, Staff Scientist with the Free Radical Metabolism Group, Laboratory of 
Pharmacology at attests to the continued usage of the techniques in her laboratory. The 
application of the petitioner's techniques in a laboratory of the institute where the petitioner workS is not 
evidence of a wider impact in the field. 
(b)(6)
Page 10 
Professor of Molecular Genetics, School of Chemistry, Biochemistry & 
Pharmacology at the __, also observes that the petitioner "has played a 
.1 critical role in extending the applications of a powerful technique, named 
Thus, there is support for observations about the petitioner 's development ot a novel 
application of a laboratory tecnmque. .However, the record only 2ives definitive i.ndication that two 
laboratories are using the techniques and does not support broad claim that the techniques 
have been "applied throughout the field." Notably, the petitioner's article on this topic has not been 
widely cited, especially as of the date of filing. 
Nonetheless, even accepting, arguendo, the novel applicatio-ns of the . 1 as 
an original contribution, the petitioner fails to satisfy the regulatory requirements for this criterion 
because the development of the novel techniques is a singular contribution. The pla~n language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) requires evidence of "contributions" in the plural, which 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. Thus, the AAO 
can infer that the plural in the remaining regulatory criteria has meaning. While counsel challenges this 
interpretation of the 1,1se of the plural on appeal, he does so based on vague language in the 
Adjudicator's Field Manual in a paragraph that concludes with the statutory standard (a final merits 
issue). Regardless, the observation that one piece of evidence could satisfy a criterion worded in the 
plural does not answer whether USCIS constructs the use of the plural as having meaning. For 
example, an awarding authority could attest to multiple awards in a single document. 
For all the reasons discussed above, the AAO must conclude that the petitioner failed to establish with 
relevant and probative evidence that he meets this criterion and affirm t~e director's finding in this 
regard. 
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 also determined in his decision that the petitioner met this regulatory criterion and the 
AAO affirms the director's determination relating to this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
·establishments that have a distinguished 
reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The petitioner submitted evidence in support of this criterion along with the Form I-140 petition and the 
accompanying statement. On appeal, counsel states that the director did not include a discussion of the 
evidence relating to this criterion in his decision. The AAO will now review the submitted evidence in 
support of this criterion. See Dor v. INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989) (noting that the AAO 
reviews appeals on a de novo basis). 
Counsel asserts on appeal that the petitioner has· demonstrated his critical role within NIH and 
Counsel further maintains that the petitioner has engaged in highly productive research collaborations 
(b)(6)
Page 11 
with laboratories in other institutions. such as tht: 
who worked in the. same laboratory as the petitioner at mites: "His 
development of new methodologies, significant research discoveries, NIH 'grant, international awards, 
and collaboration with leading laboratories have all established [the petitioner's] critical role at 
discusses the petitioner's work in the laboratory, then mentions an internal grant 
and restricted awards to conclude that he performed a critical role at While the petitioner's 
work that references above and in other portions of her support letter attests to the role that 
the petitioner has in the Pharmacology labqratory, assessment about the petitioner's role 
at the at large is conclusory. USCIS need not accept primarily conclusory assertions. 1756, Inc. 
v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D~C. Dist. 1990). 
Professor. Department of Environmental Sciences and Engineering, School of Public 
Health, at the also attests to the petitioner's critical role 
within the laboratory of the Free Radical Metabolism group at At the outset, while . 
is familiar with the research in the above mentioned laboratory, he is not directly associated with the 
laboratory and therefore, may not be in the be.st position to elaborate on the petitioner's role. See 8 
C.F.R. § 204.5(g)(1) (evidence of experience shall consist of letters from employers). However, even 
assuming, arguendo, that the petitioner served in a critical role in the Pharmacology laboratory of the 
Free Radical Metabolism Group, such a role does not translate to a critical role for the larger 
organization, the 
While counsel asserts on appeal that· the petitioner has had an impact on other organizations through his 
various collaborative work, the record does not support a finding that the petitioner has served in a 
critical role in those organizations. Furthermore, counsel maintains that the evidence in the record 
establishes that the petitioner has served in a critical role at Nlli and and essentially presents 
them as distinct organizations. However, is one of 27 Research Institutes that comprise NIH, 
and is part of the collective organization known as NIH. As such, , and NIH cannot be claimed 
as separate organizations. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires 
evidence of a leading or critical role for "organizations and establishments that have a distinguished 
reputation" (emphasis added) 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) 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 ora 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 AAO can 
infer that the plural in the r~maining 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. 6 
6 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 
(b)(6)
Page 12 
Accordingly, the AAO concludes that the petitioner has failed to satisfy the plain meaning requirements 
of 8 C.F.R. § 204.5(h)(3)(viii). . 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). · 
The petitioner initially submitted documentation relating to this criterion along with the Forin 1-140 
petition. The director determined that the petitioner failed to meet this criterion. The petitioner did not 
raise a legal or factual challenge regarding this criterion on appeal and the AAO concludes that the 
petitioner abandoned this claim. See Sepulveda, 401F.3d at 1228 n. 2; Hristov, 2011 WL 4711885 at 
*9. 
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.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the. AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination. 7 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. at 1122. 
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). 
7 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)(l)(ii). See also section 
103(a)(1) of the 
Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 
8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 t-&-N~ Dec. 458, 460 (BIA 
(b)(6)
' . 
Page 13 
The petitioner has not established eligibility pursuant to ~ection 203(b)(l)(A) of the Act 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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
·petitions).