dismissed EB-1A Case: Pipeline Inspection

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
C.S. Drpsrtrnenl of Homeland Srcurily 
U.S. Citlrcnship and lrnrnigration Serwoes 
Admlnislrative Appezils Office (AAO) 
20 hlassachuselts Ave.. N.W. MS 2lFjO 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
- 
Office: TEXAS SERVICE CENTER 
 Date: A~R 0 4 2011 
IN RE: 
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 I IS3(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 might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion Lo reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. 3 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. 8 103.S(a)(l)(i) requires that any motion must 
be filed within 70 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
,/ / i,l',LL 
/'~erry Rhew 
' Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based imllligrant visa petition was denied by the Director, Texas 
Service Center, on September 23, 2009, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary 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. The director determined that the petitioner had not 
established the beneficiary's requisite extraordinary ability and failed to submit extensive 
documentation of his sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her 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, specifically a major, internationally recognized sward. 
Absent the receipt of such an award, the regulation outlines ten categories of specific 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. 
At the time of the original filing of the petition, counsel claimed the beneficiary's eligibility for 
this classification based on comparable evidence pursuant to the regulation at 8 C.F.R. 
$ 204.5(h)(4). Specifically, counsel argued: 
The highest level of training to do [guided ultrasonic] inspections is monitored 
and granted internationally by The 
highest level of training is called a Level 3 Certificate. Until now. everv holder of - - 
this level has a Ph.D. and is a faculty memb 
July 3, 2009, [the beneficiary], a citizen of 
Level 3 Certificate. He is the only other Level 3 holder in the world who does not 
also have a doctorate. He is the only lay person in the world who can teach and 
prepare trainees for Certificates needed for guided wave, not1 invasive inspection 
of virtually all types of pipelines. 
The rarity and extraordinary achievement of this title cannot be overstated. To 
date, there are 8 holders of the Level 3 Certificate, seven of whom hold PhD's. 
There are only 17 holders of the Level 2 certificate. There are 11 in the United 
States and only seven are active. That means when a company requircs Level 2 
holders to comply with federal inspection regulations, they must wait until one is 
available to fly to the location for testing. Until now, no one was available in the 
United States to teach and train use of the equipment to create more Level 2 
Page 3 
holders. Now, [the beneficiary] is available to perform this task. Besides this 
fact, [the beneficiary] is often requested by name to inspect especially challenging 
pipelines to satisfy national requirements. 
Counsel then argued the beneficiary's eligibility as it related to an alien of exceptional ability 
pursuant to the section 203(b)(2)(A)(1) of the Act; 8 C.F.R. # 204,5(k)(l). Specifically counsel 
claimed that the beneficiary "has proof [of] certificate of exceptional ability in a limited, but vital 
field" and then described and submitted documentary evidence relating to the beneficiary's 
eligibility pursuant to the regulation at 8 C.F.R. $# 204.5(k)(3)(ii) and 204.5(k)(3)(iii). 
Again, the record of proceeding clearly reflects that the petitioner filed a petition seeking to 
classify the beneficiary as an alien of extraordinary ability pursuant to section 203(b)(l)(A) of 
the Act, and not as an alien of exceptional ability pursuant to section 203(b)(2)(A)(l) of the Act. 
Therefore, the petitioner must establish that the beneficiary meets the regulatory requirements 
pursuant to 8 C.F.R. # 204.5(h) and not pursuant to the regulation at 8 C.F.R. $ 204.5(k). 
Moreover, even if the beneficiary met the regulatory requirements as an alien of exceptional 
ability, which we do not imply that he does, the regulatory requirements for an alien of 
extraordinary ability are separate and distinct, and would require a separate petition. 
The record of proceeding reflects that the director issued a request for additional evidence 
pursuant to the regulation at 8 C.F.R. 5 103.2(b)(8) informing the petitioner of the regulatory 
requirements of an alien of extraordinary ability. In response, counsel argued: 
This is not a request for an immigrant worker of extraordinary ability due to 
having a Ph.D, but a request for an immigrant of extraordinary ability by showing 
comparable evidence to establish the beneficiary's eligibility. He holds an 
advanced certificate to and there are onlyf them in the 
world. The other Certificate 3 holders have doctorate degrees and are 
faculty members at [The beneficiary] has a number of 
qualifications which happen to cotnply with [the director's request for additional 
evidence], but complies with the definition of extraordinary ability in his own 
right. 
Counsel again claimed the beneficiary's eligibility based on comparable evidence pursuant to the 
regulation at 8 C.F.R. 5 204.5(h)(4). Based on a review of the submitted documentary evidence, 
the director found that the beneficiary failed to meet the original contributions criterion pursuant 
to the regulation at 8 C.F.R. # 204.5(h)(3)(v) and the scholarly articles critcrion pursuant to the 
regulation at 8 C.F.R. # 204.5(h)(3)(vi), as well as the comparable evidence regulation pursuant 
to 8 C.F.R. # 204.5(h)(4). 
At the time counsel filed Form I-290B, Notice of Appeal or Motion, on October 23, 2009, 
counsel argues: 
Page 4 
Imposing 8 CFR 204.5(h)(2) and (3) is helpful in allowing us to show 
extraordinary ability, but 8 CFR 204,5(h)(4) is more appropriate. Beneficiary's 
unique award given by an internationally recognized institution of higher learning 
was gained after he published two articles in a major trade and scholastic journal, 
he trained others, underwent rigorous practical and scholastic exams and he gave 
a guest lecture on his techniques for visiting students at - 
He is the only candidate without a doctorate to achieve this extraordinarily high 
level of training. 
Counsel then argues, without referring to any documentary evidence, that the beneficiary has 
shown extraordinary ability based on the awards criterion pursuant to the regulation at 8 C.F.R. 
(i 204.5(h)(3)(i), the published material criterion pursuant to the regulation at 8 C.F.R. 
9: 204.5(h)(3)(iii), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
Q: 204.5(h)(3)(viii), and the high salary criterion pursuant to the regulation at 8 C.F.R. 
5 204.5(h)(3)(xi). Again, at no time during these proceedings has counsel identified which 
documents pertain to the specific claimed criteria. As counsel has failed to specify which 
documentary evidence relates to the regulatory criteria at 8 C.F.R. (i 204.5(h)(3), we have 
considered the evidence submitted under the criterion we find to be most applicable. If it is 
counsel's contention that the documentary evidence meets a different criterion, she has never 
explained which criteria they are or how the evidence relates to those criteria. We note that counsel 
submitted a supplemental brief with additional documentary evidence but again claimed that it 
related to the comparable evidence regulation pursuant to 8 C.F.R. # 204,5(h)(4). 
Here, we must address the beneficiary's Level 3 Certification by in 
guided wave testing, and counsel's arguments that the beneficiary qualifies for an extraordinary 
ability immigrant visa based on the beneficiary attaining this "unique" and "rare" certification. 
Assuming the beneficiary's skills are unique, that issue properly falls under the jurisdiction of 
the Department of Labor. Moreover, whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Dep't. cfl Trcmsp., 22 1 & N 
Dec. 215, 221 (Commr. 1998). In order to meet the requirements of an alien of extraordinary 
ability pursuant to section 203(b)(l)(A) of the Act, the petitioner must demonstrate that the 
beneficiary "has sustained national or international acclaim and whose achievements have been 
recognized in the field through extensive documentation." The regulatiou at 8 C.F.R. 
(i 204.5(h)(3) states that an alien can establish sustained national or international acclaim through . 
evidence of a one-time achievement, specifically a major, internationally recognized award, and 
absent the receipt of such an award, the regulation outlines ten categories of specific evidence in 
which the petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. Therefore, while the 
beneficiary's possession of a Level 3 Certification is relevant to his uualifications as a vice 
president in we are not persuaded that the benef:lciary3s educational or 
training experience alone establishes that he meets at least three of the ten regulatory categories 
of evidence and "has sustained national or international acclaim and that his or her achievements 
have been recognized in the field of expertise." 
- 
Page 5 
On appeal, we will address the beneficiary's eligibility as it relates to the criteria pursuant to the 
regulation at 8 C.F.R. S: 204.5(h)(3), and then we will address the beneficiary's eligibility as it 
relates to the comparable evidence regulation pursuant to 8 C.F.R. S: 204.5(h)(4). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
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" 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. Id. and 8 C.F.R. # 204.5(h)(2). 
The regulation at 8 C.F.R. S: 204,5(h)(3) requires that the petitioner demonstrate his or her 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 
following ten categories of evidence. 
(i) Docr~mcntation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for cxcellence in the field of endeavor; 
Page 6 
(ii) 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; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significa~ltly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 I1 15 (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.' With respect to the criteria 
at 8 C.F.R. $5 204.5(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. 
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 
- 
' Specifically, the court stated that the AAO had unilaterally imposed novel, substentive, or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. $ 204.5(h)(3)(iv) and X C.F.K. $ 204.5(h)(3)(vi). 
Page 7 
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)." Id. at 
1122 (citing to 8 C.F.R. S; 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[irj field of endeavor," 
8 C.F.R. # 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. $ 1153(b)(l)(A)(i). 
Id. at 11 19 
Thus, Kazariun sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazuriun. As the AAO maintains cle novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kuzarian court. See Spencer Enterprises, lac. v. 
United Stc~tes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), uffd, 345 F.3d 683 (9Ih Cir. 2003); 
see also Soltclne v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that thc AAO conducts 
appellate review on a de novo basis). 
11. Analysis 
A. Evidentiary Criteria 
This petition, filed on September 1, 2009, seeks to classify the beneficiary as an alien with 
extraordinary ability as a vice president in pipeline inspection. The petitioner has submitted 
evidence pertaining to the following criteria under the regulation at 8 C.F.R. $ 204.5(h)(3). ' 
Docurnerztation of the alien's receipt of lesser nationally or internationc~llv 
recognized prizes or awurds,for excellence in the field r?fendeclvor. 
The petitioner did not claim the beneficiary's eligibility for this criterion at the time the petition 
was originally filed. However, on appeal, the petitioner is claiming the beneficiary's eligibility 
for this criterion. As such, the director could not have erred in his decision as the petitioner only 
claimed the beneficiary's eligibility for this criterion for the first time on appeal. 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 8 
The plain language of the regulation at 8 C.F.R. $ 204,5(h)(3)(i) requires "ld]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or uwurds for excellence 
in the field of endeavor [emphasis added]." A review of the record of proceeding reflects that 
the petitioner submitted sufficient documentary evidence establishing that the beneficiary 
received Level 3 Certification from - However, the petitioner failed 
to demonstrate that the beneficiary's Level 3 Certification equates to a prize or award. The 
petitioner submitted the training curriculum for Level 3 Certification and a letter from- 
who stated that the beneficiary "has 
been appointed Level I11 practitioner qualification in guided waive testing in accordance with the 
that was based on the following: 
1. Gaining Level I1 certification by examination and subsequent 6 years 
experience in using this technology in the field; 
2. Successful ad-hoc review by a ~evel 111 of testing data collected and 
analysis undertaken post Level I1 qualification; 
3. Publication of papers on the application of guided wave testing in a 
recognized technical journal; 
4. Successful interview and presentation to two non-executive members of 
the Board of Directors; 
5. Evidence of mentoring other Is & 11s; 
6. Standing within the guided testing community, among his peers and with 
the end clients is outstanding; 
7. High level of performance on many guided wave test specimen used 
by end clients to evaluate the guided wave technology; and 
8. Involvement with on-site evaluation of new guided wave developmellts 
such as permanently installed monitoring systems. 
It is clear from above that the beneficiary was "appointed" Level 3 Certification based on his 
successful completion of themraining Scheme. We are not persuaded that completing 
training courses or receiving degrees or certificates in furtherance of a profession constitutes 
prizes or awards. Furthermore, academic study is not a field of endeavor, but training for a 
future field of endeavor. As such, education degrees or training certificates cannot be considered 
nationally or internationally recognized prizes or awards in the beneficiary's field of endeavor. 
Moreover, the plain language of the regulation at 8 C.F.R. # 204.5(h)(3)(1) requires that the 
beneficiary's prizes or awards he "nationally or internationally recognized" for excellence in the 
field of endeavor. On appeal, the petitioner submitted another reference letter from- 
Page 9 
as well as reference letters from individuals involved with training such as- 
all of whom indicated the petitioner's successful 
er, the reference letters fail to demonstrate that 
Level 3 Certification is nationally or intemationally recognized for excellence in the field of 
endeavor. Furthermore, the petitioner failed to submit any other documentary evidence to 
establish that Level 3 Certification is recognized nationally or internationally for excellence 
beyond- 
As discussed above, the plain language of this regulatory criterion specifically requires that the 
beneficiary receive nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor, and it is the petitioner's burden to establish every element of this cr~terion. In 
this case, there is no evidence demonstrating that the beneficiary has received any prizes or 
awards, and that Level 3 Certification is tantamount to a nationally or internationally recognized 
prize or award for excellence in the field of endeavor. Moreover, even if we found that the 
beneficiary's Level 3 Certification was a qualifying prize or award, which we clearly did not, the 
plain language of the regulation at 8 C.F.R. $ 204.5(h)(3)(i) requires the petitioner to 
demonstrate the beneficiary's receipt of more than one prize or award, in which the petitioner 
only claimed one prize or award 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Published material about the alien in prqfessional or mqjor trade publications or 
other major media, relating to the alien's work in the ,field ,fir which 
classification is sought. Such evidence shall include the title, date, ar~d author oj 
the material, and any necessaty translation. 
The petitioner did not claim the beneficiary's eligibility for this criterion at the time the petition 
was originally filed. However, on appeal, the petitioner is claiming the beneficiary's eligibility 
for this criterion. As such, the director could not have erred in his decision as the petitioner only 
claimed the beneficiary's eligibility for this criterion for the first time on appeal. 
The plain language of the regulation at 8 C.F.R. 9 204.5(h)(3)(iii) 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." In general, in order for published 
material to meet this criterion, it must be primarily about the beneficiary and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. A review 
of the record of proceeding fails to reflect that the petitioner submitted any documentary evidence of 
published material aho~it the beneficiary relating to his work in professional or major trade 
publications or other major media. 
We note that the petitioner submitted an article and papers that were authored by the beneficiary. 
Articles authored by the beneficiary are not articles about the beneficiary relating to his work. 
However, although the beneficiary's article and papers are not relevant to this criterion, they will bc 
Page 10 
considered below as they relate to the authorship of scholarly articles criterion pursuant to the 
regulation at 8 C.F.R. $ 204.5(h)(3)(vi). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's original scient$c, scholtrrly, artistic, athletic, or brrsiness- 
related contributions ofmqjor significance in thr,field. 
The director found that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. In counsel's brief, she did not contest the decision of the director or offer additional 
arguments. We, therefore, consider this issue to be abandoned and will not further discuss this 
criterion on appeal. See Sepulveda v. U.S. Art) Gen., 401 F.3d 1226, 1228 n. 2 (I lth Cir.2005). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in thefield, in professiorzcil 
or mqjor trade publications or other mqjor media. 
In the director's decision, he found that the petitioner failed to submit any evidence regarding the 
impact of the heneficiary's article on the field or evidence of the number of times that the article 
was cited by others. The plain language of the regulation at 8 C.F.R. $ 204,5(h)(3)(vi) requires 
"[ejvidencc of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media." Pursuant to Kazarirrn, 596 F.3d at 1122, the petitioner 
must establish that the beneficiary has authored scholarly articles in professio~ial or major trade 
publications or other major media. Therefore, the impact or citation history of the beneficiary's 
article is irrelevant to meeting thc plain language of the regulation for this criteiron. Whilc we do 
not agree with the basis of the director's decision, we concur with the ultimatc decision of the 
director that the petitioner failed to establish the heneficiary's eligibility for this criterion. 
proceeding reflects that the petitioner submitted the following five papers that list the beneficiary 
as the author: 
However, the petitioner failed to submit any documentary evidence reflecting that any of the fivc 
papers have been published "in professional or major trade publications or other major media." 
Merely submitting documentary evidence reflecting that the beneficiary has authored papers is 
insufficient to meet the plain language of the regulation at 8 C.F.R. # 204.5(h)(3)(vi) without 
documentary evidence establishing that the papers have been published in professional or major 
trade publications or other major media. 
Although the petitioner established that the beneficiary has authored one scholarly article, the 
plain language of the regulation at 8 C.F.R. $ 204,5(h)(vi) requires more than one scholarly 
article. We do not find that a single article that was merely divided into two parts is equivalent 
to more than one article. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence thut the alierz has petformed iiz a leudi~zg or critical rolefiir orgc~nizurion.r 
or e.stahlishments that have u distinguished reputation. 
The petitioner did not claim the beneficiary's eligibility for this criterion at the time the petition 
was originally filed. However, on appeal, the petitioner is claiming the beneficiary's eligibility 
for this criterion. As such, the director could not have erred in his decision as the petitioner only 
claimed the beneficiary's eligibility for this criterion for the first time on appeal. 
The plain language of the regulation at 8 C.F.R. $ 204,5(h)(3)(viii) requires "[elvidence that thc 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." In general, a leading role is evidenced from the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of 
the organization or establishment. 
On appeal, the petitioner submitted a letter claiming that "3mmIyr average" was the income that 
was generated through the beneficiary's training, that "15mm in 5 years" was the amount on 
contracts generated through the beneficiary's training, that the beneficiary has trained six 
individuals for Level I or I1 certification, that the beneficiary has trained "more than 250" pcople 
to do inspections, that the beneficiary has taught or been an il~structor for the petitioner on 10 
occasions, that the beneficiary has been called upon in the last two years to inspect for or confirm 
compliance with DOT requirements "250 times," and that the beneficiary "can go on any nuclear 
installation in the United States." However, the petitioner failed to provide any documentary 
evidence supporting these assertions. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter qf 
Sqffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Marrrr nf Treasure Cr~ift c?fCcrljforr~itr, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Page 12 
A review of the record of proceeding also reflects that the petitioner submitted the following 
documentation: 
1. A "Customer Listing" claiming that it reflected 90 companies "for whom 
[the beneficiary] has done work"; 
2. A letter from who 
stated that "lwlithout [the beneficiary's1 vresence in this country with a . . - .. 
company like [the petitioner] the safety of the pipeline infrastructure will 
be affected"; 
3. An email to the petitioner from - 
who thanked the beneficiary and others "for the outstanding 
work they did here on-site"; 
4. An email from who stated that 
the beneficiary's "call[ing] out [of] a Casing Centralizer (-F3) and a wall 
loss Feature of approximately <25% at 5 o'clock (-F4)" was very accurate; 
and 
5. A letter from who 
stated that the beneficiary has provided the Guided Wave Technology 
procedures for the- inspections. 
Although the documentary evidence reflects that the beneficiary has performed work on behalf 
of the petitioner for other companies or organizations, as well as praising the beneficiary for his 
work, the documentation provides no evidence that the beneficiary has performed in a leading or 
critical role for either the petitioner or the other companies. The documentary evidence contains 
general statements that lack specific details to demonstrate that the petitioner has performed in a 
leading or critical role. This regulatory criterion not only requires the petitioner to perform in 
roles, but also requires those roles to be leading or critical. We are not persuaded by vague 
documentation that only indicates that the petitioner has performed work but does not reflect 
how the beneficiary's roles have been leading or critical. Merely submitting docume~ltary 
evidence demonstrating the beneficiary's employment with the petitioner is insufficient to 
establish eligibility pursuant to the regulation at 8 C.F.R. $ 204.S(h)(?)(viii) without 
documentary evidence reflecting that the petitioner has performed in a leading or critical role. 
The petitioner failed to submit, for example, an organizational chart or other similar 
documentation that differentiates his position from other vice presidents or similar positions with 
the petitioner. For instance, who submitted documentary evidence on the 
bencficiary's behalf, is also a vice president for the petitioner. There is no evidence 
distinguishing position as a vice president from the beneficiary's position as 
technical vice president that would indicate that the petitioner has performed in a leading or 
critical role. 
Page 13 
documentary evidence demonstrating that the beneficiary performed in leading or critical roles 
with these organizations as a whole. Simply submitting evidence that reflects the beneficiary has 
performed work for organizations on behalf of the petitioner does not meet the petitioner's 
burden of establishing that the beneficiary has performed in a leading or critical role for those 
organizations. In other words, the beneficiary failed to demonstrate that the beneficiary's 
specific or limited role in inspecting pipelines is leading or critical as a whole when compared to 
the roles of other employees of those organizations. Moreover, it appears that the positions of 
' are far more leading or critical to their 
organizations as compared to the beneficiary, who only provided a specific, but limited, service 
to those organizations. 
Furthermore, according to Form G-325A, Biographic Information, which the beneficiary signed 
on August 6, 2009, the beneficiary claimed that he has been employed by the petitioner as a 
technical vice president since February 2004. Prior to the appeal, the petitioner failed to submit 
any documentary evidence regarding the beneficiary's specific duties, even though he has been 
working as a technical vice president since 2004. Moreover, on appeal, the petitioner submitted 
a letter, dated November 12, 2009, for the 
[emphasis added]" that listed ten duties. As the plain language of the 
regulation at 8 C.F.R. $ 204,5(h)(3)(viii) requires that the petitioner to submit "[elvidence that 
the alien has pe$ormed in a leading or critical role [emphasis added]" the submission of a letter 
reflecting the petitioner's proposed duties as a technical vice president is insufficient without 
documentary evidence establishing that he actually performed those duties. Eligibility must be 
established at the time of filing. 8 C.F.R. §$ 103.2(b)(l), (12); Matter of Kutigbak, 14 I&N Dec. 
45, 49 (Regl. Commr. 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Mutter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 
1998). That decision further provides, citing Matter of Btrrdouille, 18 I&N Dec. 114 (BIA 
1981), that we cannot "consider facts that come into being only subsequent to the filing of a 
petition." Id. at 176. Given the description of duties in terms of future applicability, the 
petitioner failed to demonstrate that the beneficiary performed those duties prior to the filing of 
the petition. A petitioner cannot file a petition under this classification based on the expectation 
of future eligibility. The assenion that the beneficiary's role will likely be leading or critical is 
not adequate to establish that he has performed in a leading or critical role. 
Finally, the plain language of the regulation at 8 C.F.R. 204,5(h)(3)(viii) requires "[elvidence 
that the alien has performed in a leading or critical role for organizations or e.stc~b1ishtnent.s that 
have u distinguished rep~ttation (emphasis added]." The petitioner failed to identify ally 
documentary evidence reflecting that it has a distinguished reputation, as well as any 
documentary evidence for thc other organizations in which the beneficiary performed on the 
petitioner's behalf. 
Page 14 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion 
Evidence that the alien has commanded a high salary or other .sign~Jicantly high 
remunerationfor services, in relation to others in the,field. 
The petitioner did not claim the beneficiary's eligibility for this criterion at the time the petition 
was originally filed. However, on appeal, the petitioner is claiming the beneficiary's eligibility 
for this criterion. As such, the director could not have erred in his decision as the petitioner only 
claimed the beneficiary's eligibility for this criterion for the first time on appeal. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. A job letter, dated November 19, 2009, from the petitioner to the 
beneficiary offering an annual salary of- 
2. A job letter, dated July 15, 2009, from the petitioner to the beneficiary 
offering an annual salaiy of- 
3. A iob letter. dated October 23. 2008. from the oetitioner to the beneficiarv 
ofiering an annual salary of - 
4. A job letter, dated April 15, 2002, fro~n 
Inc. to the beneficiary offering an estim 
5. A job letter, dated April 28, 2003, from - to the 
beneficiary offering an estimated annual salary of - 
The petitioner failed to submit any documentary evidence demonstrating that the beneficiary was 
actually paid the amounts above such as through Form W-2, wage and tax statements. or 
paystubs. In addition, the petitioner submitted numerous bank statements for the beneficiary 
from for 2008 and 2009. However, a review of the bank statements fail to 
reflect any salary or other deposits from the petitioner into the beneficiary's account. Although 
the bank statements reflect general deposits each month, there is no indication that the deposits 
are from the petitioner or any other entity. We note that the petitioner submitted several emails 
and wire transfer requests for the beneficiary in 2007 for training and consulting fees. 
The plain language of this regulatory criterion requires the petitioner to submit evidence showing 
that the beneficiary has commanded a high salary "in relation to others in the field." In this case, 
the petitioner failed to establish that the beneficiary was paid the amount claimed and offers no 
basis for comparison showing that the beneficiary's compensation was significantly high in relation 
to others in his field. Merely submitting documentary evidence reflecting offers of salary or wire 
transfers is insufficient to meet the plain language of the regulation at 8 C.F.R. $ 204.5(h)(3)(ix) 
Page I5 
without documentary evidence demonstrating that the beneficiary has commanded a high salary or 
other significantly high remuneration for services, in relation to others in the,field. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
R. Comparable Evidence 
As indicated previously, counsel claims the beneficiary's eligibility for the comparable evidence 
regulation pursuant to the regulation at 8 C.F.R. 5 204.5(h)(4) based on the beneficiary's receipt of 
Level 3 Certification. The regulation at 8 C.F.R. 5 204.5(h)(3) provides that evidence of sustained 
national or international acclaim "shall" include evidence of a one-time achievement or evidence of 
at least three of the following regulation categories. The ten categories in the regulations are 
designed to cover different areas; not every criterion will apply to every occupation. For 
example, the criterion at 8 C.F.R. 5 204,5(h)(3)(vii) implicitly applies to the visual arts, and the 
criterion at 8 C.F.R. $ 204,5(h)(3)(x) expressly applies to the performing arts. We further 
acknowledge that the regulation at 8 C.F.R. $ 204,5(h)(4) provides ''[ilf the above standards do not 
readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to 
establish the beneficiary's eligibility." It is clear from the use of the word "shall" in 8 C.F.R. 
3 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet at 
least three of the regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory 
criteria are not readily applicable to the beneficiary's occupation and how the evidence submitted is 
"comparable" to the objective evidence required at 8 C.F.R. $204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as 
there is no indication that eligibility for visa preference in the beneficiary's occupation as a vice 
president in pipeline inspection cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. 5 204.5(h)(3). In fact, as indicated in this decision, counsel mentions 
evidence in her brief that specifically addresses four of the ten criteria at 8 C.F.R. 5 204.5(h)(3). 
An inability to meet a criterion, however, is not necessarily evidence that the criterion does not 
apply to the beneficiary's occupation. Moreover, although the petitioner failed to claim this 
additional criterion on appeal, we find that a vice president in pipeline inspection could make 
original contributions of major significance in the field pursuant to the regulation at 8 C.F.R. 
$ 204.5(h)(3)(v). Moreover, counsel failed to establish that the beneficiary, in his occupation, could 
not be a member of an association requiring outstanding achievements pursuant to the regulation at 
8 C.F.R. 5 204.5(h)(3)(ii), could not have published material about him regarding his work pursuant 
to the regulation at 8 C.F.R. 5 204.5(h)(3)(iii), and could not be a judge of the work of' others 
pursuant to the regulation at 8 C.F.R. # 204.5(h)(3)(iv). Counsel provided no documentation as to 
why these provisions of the regulation would not be appropriate to the profession of a vice 
president in pipeline inspection. 
Where an alien is simply unable to meet or submit documentary evidence of three of these 
criteria, the plain language of the regulation at 8 C.F.R. $ 204.5(h)(4) does not allow for the 
submission of comparable evidence. We notc that we addressed the petitioner's documentary 
evidence as it related to the appropriate criteria under the regulation at 8 C.F.R. $ 204,5(h)(3). 
Page I6 
C. Final Merits Determination 
In accordance with the Kuzarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the beneficiary 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," 8 C.F.R. # 204.5(h)(2); 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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
# 1153(b)(l)(A)(i), and 8 C.F.R. S; 204.5(h)(3). See also Kuzuriun, 596 F.3d at 1115. The 
petitioner failed to establish the beneficiary's eligibility for any of the criteria, in which at least 
three are required under the regulation at 8 C.F.R. # 204.5(h)(3). In this case, many of the 
deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.F.R. # 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the beneficiary's eligibility pursuant to section 203(b)(l)(A) of the Act. In this case, 
the beneficiary received Level 111 Certification by authored a scholarly article, and is 
employed as a vice president. However, the accomplishments of the beneficiary fall far short of 
establishing that he "is one of that small percentage who have risen to the very top of the field of 
endeavor" and that he "has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See 8 C.F.R. 5 204.5(h)(2), section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. # 1153(b)(l)(A)(i), and 8 C.F.R. # 204.5(h)(3). 
Thc regulation at 8 C.F.R. # 204.5(h)(3) provides that "[a] petition for an alien of extraordi~rary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. # 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. 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). 
Although we found that the beneficiary failed to meet the awards criterion pursuant to the 
regulation at 8 C.F.R. S; 204,5(h)(3)(i), the petitioner's submission of the beneficiary's 
completion of Level 111 Certification is insufficient to establish the sustained national or 
international acclaim required for this highly restrictive classification. Furthermore, academic 
study is not a field of endeavor, but training for a future field of endeavor. As such, education 
degrees or training certificates cannot be considered nationally or internationally recognized 
prizes or awards in the beneficiary's field of endeavor. In addition, the petitioner only claimed 
the beneficiary's eligibility for one award. 
Page 17 
While we found that the beneficiary did not meet the scholarly articles criterion pursuant to the 
regulation at 204,5(h)(3)(iv), we are not persuaded that a single article that was published six 
months prior to the filing of the petitioner demonstrates sustained national or international acclaim 
for this highly restrictive classification. Further, the petitioner failed to submit any documentary 
evidence regarding the impact or influence of the beneficiary's article on the field, so as to establish 
a level of expertise indicating that he is among that small percentage who have risen to the very 
top of the field of endeavor. See 8 C.F.R. 5 204.5(h)(2). The petitioner failed to submit, for 
example, evidence that the petitioner's work has been cited by others in the field that would 
reflect a level of interest in his field commensurate with sustained national or international 
acclaim at the very top of his field. 
Finally, we cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b)(l)(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(l)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). Although we found that the beneficiary did not meet the leading or critical 
role criterion pursuant to the regulation at 8 C.F.R. $ 204,5(h)(3)(viii), the petitioner failed to 
establish that the beneficiary has performed in a leading or critical role for the petitioner and for 
other companies on behalf of the petitioner. In fact, the petitioner claimed the beneficiary's 
eligibility based on "proposed duties" and not on evidence that the beneficiary has previously 
performed in a leading or critical role for the petitioner. An extraordinary ability claim cannot be 
based on prospective job duties but rather on the previous roles of the beneficiary consistent with 
sustained national or international acclaim. In addition, while we found that thc beneficiary did 
not meet the high salary criterion pursuant to the regulation at 8 C.F.R. $ 204.5(h)(3)(ix), the 
petitioner claimed the beneficiary's eligibility without submitting documentary evidence 
comparing the beneficiary's salary to others in the field. The AAO is not persuaded that such 
evidence that fails to comply with the basic regulatory requirements equates to "extensive 
documentation" and is demonstrative of this highly restrictive classification. The truth is to be 
determined not by the quantity of evidence alone but by its quality. Matter ofChnwnt/ze, 25 I&N 
Dec. 369 (AAO 2010) citing Mutter of E-M- 20 I&N Dec. 77,80 (Comm'r. 1989). 
The petitioner failed to submit evidence demonstrating that the beneficiary "is one of that small 
percentage who have risen to the very top of the field." In addition, the petitioner has not 
demonstrated the beneficiary's "career of acclaimed work in the field" as contemplated by 
Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the beneficiary as one of the small percentage who has risen to the very top of the field 
of endeavor. 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. 
Page 18 
111. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A) of the Act, and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
ufd, 345 F.3d at 683; see c~lso Soltrrne v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.