dismissed EB-1A Case: Psychiatry

(b)(6)
DATE: DEC 0 5 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
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 
F1LE: 
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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
�0� 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition on May 6, 2014. The petitioner, who is also the beneficiary, appealed the decision to 
the Administrative Appeals Office (AAO) on June 2, 2014. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences as a psychiatrist, 
pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(A), which makes visas available to aliens can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation. The director determined the petitioner had not established 
the sustained national or international acclaim necessary to qualify for this visa classification. 
On appeal, the petitioner files an appellate statement and additional evidence. The petitioner asserts 
that he meets the criteria under the regulations at 8 C.F. R. § 204.5(h)(3)(ii), (v) (vi) and (ix). For the 
reasons discussed below, the petitioner has not established his eligibility for the exclusive 
classification sought. Specifically, the petitioner has not submitted qualifying evidence under at 
least three of the ten regulatory criteria set forth in the regulations at 8 C. F.R. § 204.5(h)(3)(i)-(x). 
As such, the petitioner has not demonstrated that he is one of the small percentage who are at the 
very top in the field, and that he has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
I. THE LAW 
Section 203(b) of the ACt states, in pertinent part, that: 
1. Priority workers. - Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -An alien is described in this subparagraph if-
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have been 
recognized in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very high 
standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 
101st Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term 
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"extraordinary ability" refers only to those individuals in that small percentage who have risen to the 
very top of the field of endeavor. 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 initial evidence of a one-time achievement, that is a major, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (91h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
201 0) (holding that the "truth is to be determined not by the quantity of evidence alone but by its 
quality" and that USCIS examines "each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine whether 
the fact to be proven is probably true"). 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner, as initial evidence, may present 
evidence of a one-time achievement that is a major, internationally recognized award. In this case, 
the petitioner has not asserted or shown through his evidence that he is the recipient of a major, 
internationally recognized award at a level similar to that of the Nobel Prize. As such, as initial 
evidence, the petitioner must present at least three of the ten types of evidence under the regulations 
at 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
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). 
On appeal, the petitioner asserts that he is a member of the American Psychiatry Association (AP A), 
which designated him as a Distinguished Fellow. He further asserts that "only [a] few [members] 
are selected as a [sic] Distinguished Fellows," and that although the "By-laws and website publish 
the minimal qualification for selection of [a] Distinguished Fellow, [] only topmost and 
2 The petitioner does not claim that he meets the regulatory categories of evidence not discussed in this decision. 
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extraordinary member[s] with outstanding achievement get selected." The petitioner has not shown 
that he meets this criterion. 
First, the petitioner initially submitted his membership card which lists his status as a General 
Member, not a Distinguished Fellow. While the record contains a September 10, 2013 letter from 
Dr. Secretary of the informing the petitioner of the Board of Trustee's 
approval for membership at the Distinguished Fellow level, the letter further states that the petitioner 
would receive this level of membership in May 2014. Accordingly, the petitioner was not a member 
at this level when he filed the petition in October 2013. A petitioner must establish eligibility at the 
time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. See 8 C. F.R. § 103. 2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 19 71). 
Regardless, the petitioner has not established that membership at the Distinguished Fellow level is 
qualifying. Notably, Dr. _ asserts that the Distinguished Fellow honor "reflects your 
dedication to the work of the APA and the psychiatric profession." Dedication to one's profession, 
while commendable, is not an outstanding achievement. The bylaws do not provide the criteria for 
Distinguished Fellows, stating: "The criteria and procedures for selection and nomination of General 
Members or Fellows for Distinguished Fellowship shall be established by the board and the 
Membership Committee and shall apply uniformly for all District Branches." 
The AP A online materials do not state that the AP A requires "outstanding achievements" of its 
Distinguished Fellows, "as judged by recognized national or international experts in their disciplines 
or fields." Specifically, the Distinguished Fellow nomination requirements are: 
Not less than eight consecutive years as a General Member or Fellow of the AP A. 
Certification by the American Board of Psychiatry & Neurology, the Royal College of 
Physicians & Surgeons of Canada, the American Osteopathic Association or equivalent 
certifying board. 
Nomination is initiated by your local District Branch/State Association. 
Three letters supporting your nomination must be received from current Distinguished 
Fellows or Distinguished Life Fellows. 
The materials further state that "Distinguished Fellowship is awarded to outstanding psychiatrists 
who have made significant contributions to the psychiatric profession in at least five of the following 
areas: administration, teaching, scientific and scholarly publications, volunteering in mental health 
and medical activities of social significance, community involvement, as well as for clinical 
excellence." The online materials then explain that, for nomination to the Distinguished Fellow 
level, the general member or fellow must have made significant contributions to five of the 
following ten areas: 
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1. Certification by the American Board of Psychiatry & Neurology, the Royal 
College of Physicians & Surgeons of Canada, the American Osteopathic 
Association or equivalent certifying board. 
2. Involvement in the work of the district branch, chapter, and state association 
activities. 
3. Involvement in other components and activities of APA. 
4. Involvement in other medical and professional organizations. 
5. Participation in non-compensated mental health and medical activities of social 
significance. 
6. Participation in non-medical, non-income-producing community activities. 
7. Clinical contributions. 
8. Administrative contributions. 
9. Teaching contributions. 
10. Scientific and scholarly publications. 
The petitioner has not shown that "significant contributions," as the term is used in the online 
materials, constitute "outstanding achievements ... as judged by recognized national or international 
experts in their disciplines or fields," as required under the plain language of the criterion. The 
online materials do not define what constitutes "significant contributions" or contributions. The 10 
specific items listed in the online materials also do not show that the AP A requires "outstanding 
achievements" from its Distinguished Fellows. Item 1 relates to an applicant's professional 
certification. Items 2 to 6 relate to an applicant's professional, social and community activities. 
Items 7 to 9 lack specific information as to what constitutes "contributions" and do not clarify the 
"significant contributions" requirement. Item 10 merely requires an applicant to show publication 
activity, without requiring the applicant to show or the APA to judge the influence or impact of the 
applicant's publication activity. The petitioner has not shown that the evidence in the record, 
including the AP A online materials, establishes that his Distinguished Fellowship membership level 
meets this criterion. 
In addition, although the petitioner states on appeal that "only topmost and extraordinary member[ s] 
with outstanding achievement get selected" as Distinguished Fellows, the petitioner has not provided 
probative, relevant and credible evidence showing how many AP A members have been designated 
as Distinguished Fellows or how selective the AP A is when choosing a Distinguished Fellow. 
Going on record without supporting documentary evidence is not sufficient for the purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. 
Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
Accordingly, the petitioner has not presented documentation of his 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. The petitioner 
has not met this criterion. See 8 C. F.R. § 204. 5(h)(3)(ii). 
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Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.P. R. § 204.5(h)(3)(v). 
On appeal, the petitioner asserts that he meets this criterion because he has authored published 
articles that have garnered moderate citations and because he has published articles on The 
evidence in the record indicates that the petitioner is a psychiatrist, whom the 
has employed since 2010. In their letters, the petitioner's supervisor and a 
colleague praise his skills and experience as a researcher and clinician. The evidence further shows 
that the petitioner has published articles in professional publications and presented in medical 
conferences. Although the petitioner has shown that he is an experienced and skilled psychiatrist, 
who has an approved petition for a National Interest Waiver (NIW), pursuant to section 
203(b )(2)(B)(i) of the Act, he has not established that he meets this criterion. 
First, the regulations contain a separate criterion regarding the authorship of published articles. 
See 8 C.P.R. § 204. 5(h)(3)(vi). As discussed below, we conclude that the petitioner has met the 
authorship of published articles criterion. Evidence directly relating to one criterion is not 
presumptive evidence that the petitioner meets a second criterion. Such a presumption would negate 
the statutory requirement for extensive evidence and the regulatory requirement that the petitioner 
meets at least three criteria. See section 203(b)(1)(A)(i) of the Act; see also 8 C. P.R. § 204.5(h)(3). 
Accordingly, the regulation views contributions as a separate evidentiary requirement from 
authorship of scholarly articles. Authorship of published articles is not sufficient evidence under this 
criterion absent evidence that the articles are of "major significance" in the field of psychiatry. 
Kazarian v. US CIS, 580 F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d at 1115. In its 
second Kazarian decision, the court reaffirmed its holding that our adverse finding under this 
criterion was not an abuse of discretion. 596 F.3d at 1122. Typically, in considering whether a 
published article is a contribution of major significance, we look at the impact an article has after 
publication. 
Although the petitiOner has asserted that his published materials have garnered citations, the 
petitioner has not shown that his work has impacted the field of psychiatry consistent with 
contributions of major significance in the field. The petitioner has submitted an online printout from 
researchgate.net, that provides information relating to "total publication views," "total full-text 
downloads" and "total citation." The figures provided are aggregate figures for four of the 
petitioner's published articles. The online printout does not provide information specifically relating 
to each published article. The online printout also does not provide information relating to who 
viewed the articles, if the same people viewed the articles multiple times; who downloaded the 
articles, or if the same people downloaded the articles multiple times. Significantly, the printout the 
petitioner provided does not list the citing articles, such that the petitioner has established who cited 
his articles or if the citations appeared in scholarly articles or other professional publications. The 
petitioner also submitted no evidence regarding the reliability of researchgate.net as a website. For 
example, the petitioner did not submit evidence about the website, indicating whether it is an 
independent online citation index, a search engine that compiles citations, or a social networking site 
on which scientists maintain profiles to which they contribute data. The petitioner also did not 
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submit evidence explaining how the site captures citations or what it includes as citations, relevant 
information given that the petitioner did not include a list of the citing articles. 3 As such, this 
document is insufficient to show the impact of the petitioner's published work. 
The petitioner has submitted two reference letters, but they also do not establish the impact of the 
petitioner's published work. For example, in her letter, Dr. Chief of Staff, 
describes five of the petitioner's published materials, including a 
conference presentation. Dr. , however, does not provide any specific information relating to 
how the published materials have impacted the field, other than stating in a conclusory manner that 
the petitioner "has been instrumental in several useful findings" and that his articles on analgesics 
"have been useful for scientist[s] all over the USA for research work." Going on record without 
supporting documentary evidence is not sufficient for the purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. We need not accept primarily conclusory 
assertions. See 1756, Inc. v. United States Atty Gen., 745 F. Supp. 9, 17 (D.C. Dist. 1990). 
On appeal, the petitioner files a March 2011 document entitled 
The document shows that 
the average number of citations over the ten-year period in the field of Psychiatry/Psychology was 
11.26, with a 2000 citation average of 21.84, and a 2010 citation average of 0.34. The petitioner has 
not provided evidence relating to how many citations each of his published articles has garnered or 
where the citations of his articles appeared such that we can compare them with the average number 
of citations appearing in scholarly articles. As such, the petitioner has not submitted evidence that 
we may compare to the average citation information noted in the document that the petitioner has 
filed on appeal. Moreover, even if the petitioner has shown that one or more of his published articles 
have garnered more than the citation average, the petitioner has not presented evidence showing that 
an article that has been cited more frequently than the average citation rate constitutes a contribution 
of major significance in the field. 
Second, the petitioner's articles published on xPharm do not meet this criterion. The petitioner 
asserts that he has published 15 articles on xPharm, which, according to a December 19, 2005 article 
from marketwired.com that the petitioner submitted, is a database that provides medicinal chemists, 
biologists, pharmacologists and other researchers information on chemical compounds. The 2005 
article also provides that , which owns has "announced an agreement with the 
to contribute to the J effort to catalog information on the 
biological properties of small molecules in its freely available database. 
will enrich the resource for the scientific community by furnishing chemical structures 
from database, giving scientists with an license the ability to move from 
3 While Google.scholar is not an exhaustive resource, a search on that website, which located the petitioner's same four 
articles, only revealed approximately a quarter of the number of citations listed on the researchgate.net printout the 
petitioner submitted. (We accessed the website December 2, 2014 and incorporated the results into the record of 
proceeding.) Accordingly, USCIS was not able to confirm the number of citations listed on researchgate.net. 
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biological data in 
research." 
to more focused pharmacology data in that is essential to drug 
The petitioner has submitted only the first pages of his articles. These first pages show that 
each article relates to one chemical compound and provides general information relating to that 
particular compound. According to , DO, Assistant Medical Director, 
_ 
_ California, the petitioner "has published monographs for on 
multiple analgesics which have served as a valuable resource for our staff." The petitioner has not 
established that his articles present original work rather than summarize and/or reiterate already 
discovered information about the compounds. Even if these articles represent original work, the 
petitioner has not established that his articles contribute to the field beyond adding to the 
general pool of knowledge for certain compounds. Ultimately, the evidence is insufficient to show 
that the petitioner's articles are original, such that he is the first person or one of the first people to 
have discovered the information relating to the compound. Moreover, the petitioner has not shown 
that the impact of his articles is consistent with contributions of major significance in the 
field. The petitioner has provided insufficient specific evidence on the researchers who have relied 
on the information in his articles and/or how frequently or under what circumstances they 
have relied on the information. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board has also held, however, "[w]e not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." /d. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner 
to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). Vague, solicited 
letters from colleagues or associates that do not specifically identify contributions or provide specific 
examples of how those contributions influenced the field are insufficient. Kazarian, 580 F.3d at 
1036, aff'd in part, 596 F.3d 1115 (9th Cir. 2010). 4 The opinions of experts in the field are not 
without weight and have been considered. users may' in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron /nt'l, 19 r&N Dec. 791, 795 
(Comm'r 1988). However, users is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; users may, as this decision has 
done, evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 
795; see also Matter of V-K-, 24 r&N Dec. 500, n.2 (BrA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). users may even give less weight to an 
opinion that is not corroborated, in accord with other information or is in any way questionable. 
Matter of Caron Int'l, 19 I&N Dec. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. 
eomm'r 1998) (citing Matter of Treasure Craft of California, 14 r&N Dec. 190 (Reg'l eomm'r 
4 In 2010, the Kazarian court reiterated that our conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" were insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. 
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1972)); Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-35 (D.D.C. 2013) (upholding our decision to 
give minimal weight to vague, solicited letters from colleagues or associates that do not provide 
details on contributions of major significance in the field). 
While the evidence confirms that some of the petitioner's work is original and contributes to the pool 
of knowledge in the field of psychiatry, the evidence does not establish that his impact in the field 
has risen to a level consistent with contributions of major significance. Visinscaia, 4 F. Supp. 3d at 
134-35 (upholding a finding that a ballroom dancer had not met this criterion because she did not 
demonstrate her impact in the field as a whole). 
Accordingly, the petitioner has not presented evidence of his original scientific, scholarly, artistic, 
athletic, or business-related contributions of major significance in the field of psychiatry. The 
petitioner has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(v). 
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 concluded that the petitioner meets this criterion. The petitioner has submitted evidence 
showing that he has authored a number of scholarly articles that are published in scientific 
publications, including and 
Accordingly, the petitioner has 
presented evidence of his authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. The petitioner has met this criterion. See 8 C.F.R. 
§ 204.5(h)(3)(vi). 
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.P.R. § 204.5(h)(3)(ix). 
On appeal, the petitioner asserts that he meets this criterion because "[he] was employed by Napa 
State Hospital at [a] higher salary than other psychiatrists." He further asserts that his "annual salary 
is $268,524 (exhibit 4), which is significantly higher than the average salary in the field of 
psychiatry." The petitioner has not shown that he meets this criterion. 
The petitioner has submitted evidence showing that at the time he filed his petition in October 2013, 
his monthly salary was $22,377, which annualizes to $268,524. On appeal, the petitioner has 
submitted evidence showing that his salary has remained the same at the time he filed his appeal. 
The petitioner has not shown that he has "commanded a high salary or other significant high 
remuneration for services, in relation to others in the field." According to an online printout from 
the the petitioner's employer, "California's DHS 
psychiatrists are offered a wide range of monthly salaries starting at $18,146.00 for board-eligible, 
and $18,622.00 for board-certified." The petitioner's monthly salary of $22,377 is higher than the 
minimal monthly compensation his employer offers to board-certified psychiatrists. The petitioner 
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has not, however, demonstrated that board-certified psychiatrists represent the highest paid 
psychiatrists. 5 
Moreover,· on appeal, the petitioner submits a document from the Bureau of Labor Statistics, 
showing that as of May 2013, for the occupation "Psychiatrists," defined as those who are 
"Physicians who diagnose, treat, and help prevent disorders of the mind," the average annual wage is 
$182,660 and the median annual wage is $178,950. The document does not provide information 
relating to the earnings of those in the 75th or 90th percentile. Rather, the document includes an 
endnote under those percentiles that does not appear on the one page the petitioner submitted of what 
is annotated as a nine-page document. As such, this document only shows that the petitioner's salary 
is above the average and median annual wages. Earning more than the average or more than half of 
the people who are in the same occupation is insufficient to show that the petitioner "command[ s] a 
high salary or other significantly high remuneration for services, in relation to others in the field," as 
required by the criterion. 
Accordingly, the petitioner has not presented evidence that he has commanded a high salary or other 
significantly high remuneration for services, in relation to others in the field. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(ix). 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of presenting three types of 
evidence in the field of endeavor, as required under the regulation at 8 C.F. R. § 204.5(h)(3). 
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 have 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 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. As the petitioner has not done so, the proper 
5 According to evidence the petitioner filed in support of his approved National Interest Waiver petition pursuant to 
section 203(b )(2)(B)(ii) of the Act, the petitioner's employer offers compensation higher than that of the petitioner to at 
least one group of psychiatrists. According to a document entitled "Salary Schedule," which the petitioner filed in 
support of his NIW petition, the maximum salary for a "Senior Psychiatrist (Specialist), Correctional and 
Rehabilitative Services (Safety)" is $23,496 a month, which is a higher monthly salary than that of the petitioner. 
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conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of presenting 
evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) and (4). 
Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final merits 
determination referenced in Kazarian, a review of the evidence in the aggregate supports a finding that 
the petitioner has not demonstrated the level of expertise required for the classification sought.6 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
6 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 381 F.3d 
143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final merits determination as 
the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see also INA§§ 103(a)(1), 204(b); DHS 
Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of 
Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the 
jurisdiction to decide visa petitions).