dismissed EB-1A Case: Psychology

(b)(6)
Date: NOV 1 2 2013 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Admini strative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
APPLICATION: Immigrant Petition for AJien Worker as an AJien 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: 
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, tiling location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO . 
Thank you, 
~ZI--Ron Rosenberg 
Chief, Administr ative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences as a psychology 
researcher, 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.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.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.P.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. 
On appeal, counsel asserts the director erred in finding that the petitioner met only two of the regulatory 
criteria outlined in 8 C.P.R. § 204.5(h)(3). Counsel asserts that there is sufficient evidence to conclude 
that the petitioner met three additional regulatory criteria and established her eligibility as an alien of 
extraordinary ability. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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.1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /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 
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 
As an initial matter, counsel asserts on appeal that the proper standard in these proceedings is the 
preponderance of the evidence standard of proof. According to the preponderance of evidence standard, 
USCIS determines the truth not by the quantity of the evidence alone but by its quality. Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 
1989). A thorough review of the record reveals that the petitioner has not submitted probative evidence 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
of eligibility, as required by 8 C.P.R. §§ 204.5(h)(3)(i)-(x). Accordingly, the record indicates that the 
director did not violate the appropriate standard of proof in these proceedings. 
A. Evidentiary Criteria2 
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.P.R.§ 204.5(h)(3)(ii). 
The director determined in his decision that the petitioner did not meet the requirements for eligibility 
under 8 C.P.R. § 204.5(h)(3)(ii). Counsel asserts on appeal that the petitioner submitted sufficient 
evidence to meet this criterion. Specifically, counsel observes that at least one of the associations to 
which petitioner belongs has multiple levels of membership, which reflects significance of 
achievements and contributions. In addition, counsel asserts on appeal that the director did not fully 
consider the expert letter that the petitioner submitted as supplemental evidence under this criterion. 
This criterion contains several evidentiary elements the petitioner must establish. First, the petitioner 
must demonstrate that the beneficiary is a member of more than one association in his field. Second, 
the petitioner must demonstrate that the associations require outstanding achievements (in the plural) of 
its members. The final requirement is that admittance is judged, or adjudicated, by nationally or 
internationally recognized experts in their field. The petitioner must submit evidence satisfying all of 
these elements to meet the plain language requirements of this criterion. 
The petitioner submitted evidence to substantiate her membership in two associations: the J 
Along with evidence of her membership in . the petitioner 
submitted printouts of webpages that describe how a person can join the organization along with pages 
that include the Articles of Association and the Charter. The information relating to membership 
describes the process of applying to become a member. Specifically, the information indicates that to 
become a member, a person needs to "serve a written statement addressed to [the President] ... "and 
the requestor's application is "considered by the Board of the and can be examined in the absence 
of the applicant." Additional materials indicate that members of are: 
The age of 18 Russian citizens, foreign citizens - doctors, psychologists, speech 
pathologists, social workers, researchers and other persons who share the goals of the 
Association who are ready to accept the Charter of the Association, pay an entrance fee, 
pay membership dues regularly and take a personal part of the work of the Association. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. · 
3 The petitioner also submitted information on the of Voice as part of the record, but 
the petitioner neither submits documentation indicating that she is a member of this organization nor asserts 
on appeal that she is a member. 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
While there are higher requirements for honorary members, the petitioner has not established that she is 
an honorary member. The basic membership requirements are not outstanding achievements as 
required by the regulatory language under 8 C.F.R. § 204.5(h)(3)(ii). Thus, the petitioner's membership 
in NAS does not meet this criterion. 
In support of her membership in , the petitioner submitted the following documents: a copy of 
her membership card showing that she is a full member; printed webpages stating the requirements of 
membership for the organization and its history; and a letter from 
Vice President of of Russia. Criteria for membership include the selection of "[individuals] 
dealing with various health problems and who have made a significant contribution to solving these 
problems ... " and election to membership "Dis an expression of recognition of academic 
achievement and organizational creativity of the person." The director concluded, the selection criteria 
of "significant contributions" and "recognition of academic achievement and organizational creativity" 
do not rise to the level of outstanding achievement, as required by the regulation. Consistent with this 
conclusion, the record contains no information explaining how defmes a "significant 
contribution." While the letter from the Vice President of of Russia states that the Presidium of 
of Russia elected the petitioner as a full member because it recognized that she has "outstanding 
achievements in the field," the letter does not state that demonstrable outstanding achievement is a 
necessary requirement to becoming a full member. While counsel on appeal states that it is arguable 
that different levels of membership with would require more stringent requirements, the 
submitted letter does not substantiate that claim and the petitioner has not submitted additional 
documentation establishing that different membership levels have different requirements. Therefore, 
the petitioner has not demonstrated that her membership in meets the elements required for 
eligibility under 8 C.F.R. § 204.5(h)(3)(ii). Moreover, the plain language of the regulation requires 
membership in more than one qualifying association. 
Accordingly, the petitioner cannot meet this criterion. 
Published material about the alien in professional or major trade publications or other major media, 
relating to the alien 's work in the field for which classification is sought. Such evidence shall 
include the title, date, and author of the material, and any necessary translation. 8 C.P.R. § 
204.5(h)(3)(iii). 
The petitioner previously submitted evidence under this criterion. The director's denial concluded that 
the petitioner did not meet this criterion and the petitioner does not identify any factual or legal error 
relating to this criterion on appeal. Consequently, 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
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 in his decision that the petitioner met this regulatory criterion and the record 
supports the director's conclusions 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 language of the regulation requires both that the petitioner's contributions 
be original and of major significance in the field. USCIS 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 asserts that the director erroneously dismissed expert letters corroborating the 
petitioner's publications, 
citation of her work, invitations to present her work, commercial 
exploitation of her patents, and the role of her contributions in the work of other scientists. 
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). Evidence relating to or even meeting the 
scholarly articles criterion is not presumptive evidence that the petitioner also meets this criterion. 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, the two are not 
interchangeable. 4 To hold otherwise would render meaningless the statutory requirement for extensive 
evidence or the regulatory requirement that a petitioner meet at least three separate criteria. 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 her article or presentation. 
In response to the RFE, counsel indicated that exhibit 8 included "a list of [the petitioner's] publication 
in 99 publications by other researchers in this field." This list, however, is a 
list of "related citations," all of which predate the petitioner's article. Thus, this list is not a list of 
articles that cite to the petitioner's work, which would not appear in print for several more years in most 
cases. Rather, they are "citations" (author, title, publication, date and page number) of articles on a 
related topic. The petitioner submitted copies of only a handful of articles that actually cite her work. 
The petitioner has not demonstrated that this level of citation is indicative of a contribution of major 
significance in the field. 
4 
Publication and presentations are not sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence 
that they were of "major significance." Kazarian v. USCIS, 580 F.3d at 1036 (91h Cir. 2009) aff'd in part 
596 F.3d 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
The letter fro Vice President oJ the letter from Dr. 
the letter from Dr. 
and the letter from Dr. 
Professor of Psychology at 
President of the 
President of the all attest to the petitioner's involvement in 
conferences or other venues where she was invited to present her work. The group of letters does not 
provide additional detail regarding the significance of a particular conference or series. More 
significantly, the record does not include evidence of the impact the petitioner's presentations on the 
field. Consequently, the record supports the director's determination that the submitted evidence 
regarding the petitioner's conference participation falls short of establishing contributions of major 
significance in the field. 
As for the commercial exploitation of the petitioner's patents, counsel on appeal asserts that the record 
indicates that the Center of Speech Pathology and Neurorehabilitation has utilized the petitioner's patent 
innovation nation-wide and submits documentation of her patents for the first time on appeal. The 
director, in the Request for Evidence (RFE), specifically requested evidence of patents and their impact. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established, as on the time the petition is filed. See 8 C.P.R. §§ 103.2(b )(8) and (12). 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.P.R.§ 103.2(b)(14). As in the present matter, where a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The 
response to the director's RFE was the petitioner's opportunity to document her patents and their 
impact. See id. Under the circumstances, the AAO need not, and does not, consider the sufficiency of 
the patent evidence submitted on appeal. 
The final group of expert letters are from the following experts: Dr. 
Professor and Member of the Dr. 
Head of the Department of General Linguistics and the Laboratory for 
Dr. Head of the S ecial Psychology and 
Pedagogy Department of the Dr. and Dr. 
Dr. 
Lecturer of Philology and Teaching Methods in Primary Education at 
and Dr. Assistant Professor of Psychiatry at School 
of Medicine. 5 While these letters generally attest to the petitioner's contributions to the field, the 
assertions are vague and conclusory. For example, Dr. writes generally: "Being a 
leader and active participant of professional community [the petitioner] is an author of scientific 
publications about speech pathology. Theoretical course of speech pathology in Russian universities is 
based on her scientific achievements." Similarly, the joint letter from Dr. and Dr. 
praise the petitioner in general terms: "[The petitioner] is a brilliant scholar , a member of the 
5 The support letter from Dr. and the support letter from Dr. have 
little or no probative value for this criterion because the petitioner has provided incomplete or partial 
translations of these letters. The regulation at 8 C.P.R. § 103.2(b)(3) requires any document submitted as 
evidence and containing a foreign language to be accompanied by a full English translation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
who has made a significant contribution to the 
development of Russian medical science. She is well respected for her engagement into many 
important psychological and logopedic researches." 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). On appeal, counsel asserts that the petitioner's submitted letters attesting to her contributions 
meet the requirements of Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010). However, Kazarian 
specifically states that vague, solicited letters from local colleagues that do not specifically identify 
contributions or provide specific examples of how those contributions influenced the field, such as the 
letters the petitioner submitted under this criterion, are insufficient. 580 F.3d at 1036, aff'd in part 
596 F.3d at 1122. 
Accordingly, the petitioner cannot meet the regulatory requirements under 8 C.F.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 determined in his decision that the petitioner met this regulatory criterion and the record 
supports the director's conclusions in this regard. 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 8 C.F.R. 
§ 204.5(h)(3)(vii). 
The petitioner previously claimed to have submitted evidence under this criterion but does not assert 
eligibility under this criterion on appeal. Accordingly, the petitioner has abandoned this claim for 
purposes of the appeal. See Sepulveda, 401 F.3d at 1228; Hristov, 2011 WL 4711885 at *9. 
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 her Form I-140 and the 
accompanying supplemental statement. In the supplemental statement, counsel references letters from 
Dr. from the 
of the and Dr. 
Professor of Psychology at and indicates that the 
petitioner's clinical work had an impact on the city of Moscow. Counsel on appeal asserts that this 
criterion does not necessarily require a showing that the alien's role was leading or critical to the 
organization as a whole. However, the plain language of 8 C.F.R. § 204.5(h)(3)(viii) indicates that the 
alien must perform a leading or critical role for an organization or an establishment rather than for a 
division or department. Furthermore, a city is not an organization or establishment, as required under 
the regulations, and not every clinician in Moscow who had a positive impact has necessarily performed 
in a leading or critical role for the city of Moscow. Furthermore, additional evidence in the record 
indicates that the petitioner's clinical impact was directed through one specific organization, the 
municipal clinical hospital in Moscow, Russia. Dr. Head of the 
in Moscow, 
attests that the petitioner had a "leading role in the creation ofthe Center, development of the forms and 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
methods of its work." However, Dr. does not state that the Center or hospital 
enjoyed a distinguished reputation, and the record does not otherwise contain evidence of the 
organization's reputation. 
Similarly, counsel indicates in the supplemental statement that the petitioner became a leading figure at 
through involvement in the creation of an animated series as a form of psychotherapy. 
The record includes a letter from Executive Producer of 
attesting to the petitioner's role in the studio's project. However, the letter does not state that 
has a distinguished reputation and the record does not include other evidence establishing that 
the organization enjoys a distinguished reputation. 
Accordingly, the petitioner did not meet all the regulatory requirements outlined m 8 C.P.R. 
§ 204.5(h)(3)(viii). 
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.P.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. 6 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. at 1122. 
6 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)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 
8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I,--&-N7 Dec. 458, 460 (BIA 
1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions). 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 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.