dismissed EB-1A Case: Research Scientist

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
JUL 1 7 2012 
IN RE: 
U.S. I)cpartment of Homeland Security 
U.S. Citizen~hip and immigration Services 
Admini,,(ralivc Appeals Office (1\1\0) 
20 Massachusc!ls ;\ve" N.W., MS 2()9{J 
Washington, DC 20529-2()90 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition It)r Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; H U.s.c. § 1153(h)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase 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 
he advised that any further inquiry that you might have concerning your case must be made to that of rice. 
If you believe the AAO inappropriately applied tht:; law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that H C.F.R. § 103.5(a)(I)(i) requires any motion to he filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on August 9, 2011, and is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed, 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability as a research scientist. The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(1)(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 award. 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. 
In the director's decision, she found that the petitioner established eligibility for the judging 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(3)(iv) and the scholarly articles criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi). However, the director determined that the 
petitioner failed to establish eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), 
the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the original 
contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), and the artistic display 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii). Moreover, the director indicated 
that the petitioner failed to submit any evidence relating to the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h )(3)(viii), the high salary criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(ix), and the commercial successes criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(x). On appeal, counsel only contests the director's adverse 
decision regarding the original contributions criterion. Accordingly, the AAO considers the 
uncontested criteria to be abandoned and will not further discuss them on appeal. See Sepulveda v. 
u.s. All'y GeIJ., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2(05); Hristov v. Roark, No. 09-CY-273120l1, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2(11) (the court found the plaintitTs claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
Page 3 
(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 10 1st 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.S(h)(3) requires that the pelltIOner 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.S(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.! 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." Id. at 1121-
22. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations atS c.r.R. § 204.S(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
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 suflicient evidence, '·the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." ld. 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. A, 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. ld. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Evidence of the alien ~~ participation. either individually or on a panel, as a judge oj 
the work oj others in the same or an allied field oj .Ipecification Jor which 
classification is sought. 
While the director determined that the petitioner established eligibility for this criterion, the AAO 
must withdraw the decision of the director for this criterion based upon a review of the record of 
proceeding. The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(iv) requires "[e)vidence 
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." 
In the director's request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). 
the director indicated: 
The evidence provided states that the petllloner has reviewed research grant 
applications, manuscripts and reviews for peers and colleagues for scientific journals 
such as Cancer Immunological Review, Vaccine and Melanoma Research, and 
eCam since 1999. However, there is no evidence to establish that the [petitioner) 
actually participated in the judging of the work of others. 
In response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. 
§ \03.2(b )(8), the petitioner did not address or submit any documentary evidence regarding her 
previous claims regarding reviewing research grant applications and manuscripts for scientific 
journals. Instead, the petitioner claimed: 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
Her role in the 
Advisory capacity was to assess papers for the Internal Medical Journal and 
Conferences. She was the nominated to select speakers from an array of 
Further, she 
The petitioner submitted documentary evidence reflecting that she served as a moderator for three 
topics at the GHHS, as well as promotional material for the summit. However, the summit occurred 
from April 1 - 3, 2011. The petition was filed on October 8, 2010. Eligibility must be established 
at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12). Whether referencing an immigrant or a 
nonimmigrant classification, case law requires that an alien applying for a benefit, or a petitioner 
seeking an immigration status for a beneficiary, must demonstrate eligibility for the benefit or the 
status at the time the petition is filed. See Matter of Pazandeh, 19 I&N Dec. 884, 886 (BIA 1989) 
(citing Matter of Atembe, 19 I&N Dec. 427, 429 (BIA 1986); Matter of Drigo, 18 I&N Dec. 223, 
224-225 (BIA 1982); Matter of Bardouille, 18 I&N Dec. 114, 116 (BIA 1981». A petition may not 
be approved if the beneficiary or the self-petitioner was not qualified at the priority date. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971); see also Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg' I Comm'r 1978) regarding nonimmigrant petitions. The Regional 
Commissioner in Matter ()f Wing's Tea House. 16 I&N Dec. 158, 160 (Reg'l Comm'r 1977) 
emphasizes the importance of not obtaining a priority date prior to being eligible, based on future 
experience. This follows the policy of preventing affected parties from securing a priority date in 
the hope that they will subsequently be able to demonstrate eligibility. In fact, this principle has 
been extended beyond an alien's eligibility for the classification sought. For example, an employer 
must establish its ability to pay the proffered wage as of the date of filing. See Matter of Great 
Wall, 16 I&N Dec. 142, 144-145 (Act. Reg'l Comm'r 1977), which provides that a petition should 
not become approvable under a new set of facts, Ultimately, in order to be meritorious in fact, a 
petition must meet the statutory and regulatory requirements for approval as of the date it was filed. 
Ogundipe v, MII!wsey, 541 F.3d 257, 261 (4th Cif. 2008), Therefore, the petitioner's participation at 
the GHHS will not be considered to establish the petitioner's eligibility. The AAO notes that the 
petitioner failed to demonstrate that participating as a "moderator" equates to participating "as a 
judge of the work of others," The petitioner submitted no documentary evidence that reflected her 
responsibilities as a moderator, so as to demonstrate that she judged the work of others as opposed 
to simply presiding over a discussion or panel. 
Furthermore, the petitioner failed to submit any documentary evidence to support her assertions 
claiming that she "assess[ ed] papers for ' and selected 
Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings, Matter of Sojjici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972). Moreover, the petitioner failed to demonstrate that "advis[ing] several participants, 
Page 6 
speakers and exhibitors" equates to participating as ajudge of the work of others consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
In addition, the petitioner claimed that she "presented" her work at several conferences. Although 
the petitioner submitted documentary evidence confirming her attendance and participation, simply 
presenting one's work. as well as attending and participating, at conferences does not meet the plain 
language of the regulation at 8 C.F.R. § 204.S(h)(3)(iv) that requires the petitioner's "participation 
... as a judge of the work of others," There is no evidence, for example, to establish that the 
petitioner judged the presentations of others at the conferences. 
Finall y, the petitioner claimed that she "attended 
, on April I 
submitted two screenshots from 
listing the pel1l1oner on the However, the petitioner 
submitted no documentary evidence demonstrating that she was a panelist at the conference in April 
2010, as well as her co-founding status of the society. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Crafi of Calij(mlia, 
14 I&N Dec. at 190). Further, the petitioner failed to submit any documentary evidence to establish 
that her role on the board of advisors involves jUdging the work of others. 
For the reasons discussed above, the petitioner failed to demonstrate that she served as a judge of 
the work of others in the same or an allied field of specification for which classification is sought at 
the time of the filing of the petition consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv). Therefore, the AAO withdraws the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence oj the alien's original scientific. scholarly. artistic. athletic, or business­
related contributions of major significance in the field. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]videnee of the alien's 
original scientific, scholarly, artistic, athletic, or business-related contributions of major significance 
in the field." Here, the evidence must be reviewed to see whether it rises to the level of original 
scientific or scholarly-related contributions "01' major significance in the field." The phrase "major 
significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3'd Cir. 1995) quoted in APWU v. Potier, 343 F.3d 619, 626 
(20d Cir. Sep 15,2003). 
In response to the director's request for additional evidence, the 
from that the petitioner',:: 
was one 
appeal, the petitioner submitted a self-compiled list claiming that her work as been cited 30 times. 
Page 7 
with with Therapeutic Cancer 
Vaccine" was cited 18 times and her second article, "Phase I Study oflpilimumab, an Anti-CTLA-4 
Monoclonal Antibody, in Patients with Relapsed and Refractory B-Cell Non-Hodgkin Lymphoma" 
(Clinical Cancer Research, 2(09), was cited 12 times. Besides the previously mentioned screenshot 
from www.nchi.nlm.nih.gov reflecting one citation, the petitioner failed to submit any documentary 
evidence supporting her assertions. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 
22 [&N Dec. at 165 (citing Matter of Treasure Crafi of California, 141&N Dec. at 190). It is noted 
that the petitioner claimed that 13 of the citations purportedly occurred in articles that were 
published in joumals after the filing of the petition. Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b )(1), (12). Whether referencing an immigrant or a nonimmigrant 
classification, case law requires that an alien applying for a benefit, or a petitioner seeking an 
immigration status for a beneficiary, must demonstrate eligibility for the benefit or the status at the 
time the petition is filed. See Matter of Pazandeh, 19 [&N Dec. at 886 (citing Matter of At em he, 19 
I&N Dec. at 429; Matter ofDrigo, 18 I&N Dec. at 224-225; Matter of Bar doui lie, 18 [&N Dec. at 
116). A petition may not be approved if the beneficiary or the self-petitioner was not qualified at 
the priority date. See Matter of Katighak, 14 I&N Dec. at 49; see also Matter of Michelin Tire 
Corp., 17 [&N Dec. at 249 regarding nonimmigrant petitions. The Regional Commissioner in 
Matter of Wing's Tea House, 16 [&N Dec. at InO emphasizes the importance of not obtaining a 
priority date prior to being eligible, based on future experience. This follows the policy of 
preventing affected parties from securing a priority date in the hope that they will subsequently be 
able to demonstrate eligibility. [n fact, this principle has been extended beyond an alien's eligibility 
for the classification sought. For example, an employer must establish its ability to pay the 
proffered wage as of the date of filing. See Maller of Great Wall, In [&N Dec. at 144-145, which 
provides that a petition should not become approvable under a new set of facts. Ultimately, in order 
to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval 
as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d at 261. 
While the number of total citations is a factor, it is not the only factor to be considered in 
determining the petitioner's eligibility for this criterion. Generally, tbe number of citations is 
ret1ective of the petitioner's original findings and that the field has taken some interest to the 
petitioner's work. However, it is not an automatic indicator that the petitioner's work has been of 
major significance in the field. [n this case, the petitioner only demonstrated that her work has been 
cited one time, and the AAO is not persuaded that such citation is reflective that the petitioner's 
work has been of major significance in the field. Even the petitioner submitted documentary 
evidence establishing that her work was cited 17 times prior to the filing of the petition, which she 
clearly did not, such purported citations are not demonstrative of having been of major significance 
in the field. Furthermore, the petitioner failed to submit any documentary evidence reflecting that 
her articles have been unusually influential, such as articles that discuss in-depth the petitioner's 
findings or credit the petitioner with int1uencing or impacting the field. In this case, the petitioner's 
documentary evidence is not reflective of having a significant impact on the field. Merely 
submitting a document reflecting that the petitioner's work has been cited one time is insufficient to 
establish eligibility fix this criterion without documentary evidence retlecting that the petitioner's 
Page 8 
work has been of a major significance in the field. The AAO is not persuaded that the minimal 
citation of the petitioner's article is reflective of the significance of her work in the field. The 
petitioner failed to establish how those findings of her work by others have significantly contributed 
to her field as a whole. 
As discussed under the judging criterion, the petitioner submitted documentary evidence refle~ 
that she has her work and at a few scientific conferences such as the _ 
in July 
Canada in April 2003. However, many professional fields regularly hold conferences 
to present new work, discuss new findings, and to network with other professionals. These 
conferences are promoted and sponsored by professional associations, businesses, educational 
institutions, and government agencies. Participation in such events, however, does not equate to an 
original contribution of major significance in the field. There is no evidence showing that the 
petitioner's conference presentations have been frequently cited by independent researchers or have 
otherwise significantly impacted the field. 
Again, while the presentation of the petitioner's work demonstrates that her findings have been 
shared with others and may be acknowledged as original contributions based on the selection of 
them to be presented, the AAO is not persuaded that presentations of the petitioner's work at a few 
venues are sufficient evidence establishing that the petitioner's work is of major significance to the 
field as a whole and not limited to the engagements in which they were presented. The petitioner 
failed to establish, for example, that the presentations were of major significance so as to establish 
their impact or influence beyond the audience at the conferences. 
Furthermore, the petitioner submitted several recommendation letters. In this case, the letters 
generally praise the petitioner for her work but fail to demonstrate that her contributions are of 
major significance in the field. The letters provide only general statements without offering any 
specific information to establish how the petitioner's work has been of major significance. For 
instance, briefly discussed the petitioner's authorship of two articles. 
The regulations contain a separate criterion regarding authorship of scholarly articles pursuant to the 
rcgulation at 8 C.F.R. § 204.5(h)(3)(vi) that will be addressed later in this decision. The AAO will 
not presume that evidence relating to or even meeting the scholarly articles is presumptive evidence 
that the petitioner also meets this criterion. To hold otherwise would render meaningless the 
regulatory requirement that a petitioner meet at least three separate criteria. 
Moreover, the authors of the letters indicate other scientists who have modeled the petitioner's work 
in their own work. ~le, stated that "[the petitioner's] work 
propelled researchers _ and and their research team at the Cleveland Clinic 
Foundation to effects of the tumor derived GM2 on the overall immune 
response:' and conducted a study 
based on [the with positive results." Rather than submitting documentation 
from the researchers who conducted studies based on the petitioner's work, it appears that. 
_ offers his opinion based on reading their published work. While ~escribes the 
Page 9 
significance of the other researchers' work, there is insuflicient intonnation to demonstrate that the 
petitioner's work has been widely influential, so as to establish original contributions of major 
significance in the field as a whole rather than limited to selective research studies. 
Furthermore, the letters make reference to the petitioner's talents and abilities. For example, • 
stated that the petitioner's "diligence and skill, and meticulous attention to 
detail in her ability to think creatively, and to hone in on the right questions and 
~ them have provided excellent scientific research contributions." In addition, 
_ stated that the petitioner "is truly an extraordinary researcher with unique skills and 
outstanding abilities." However, none of the letters indicated how the petitioner's skills or personal 
traits are original contributions of major significance to the field. Merely having a diverse skill sct 
is not a contribution of major significance in and of itself. Rather, the record must be supported by 
evidence that the petitioner has already used those unique skills to impact the field at a significant 
level in an original way. Furthennore, assuming the petitioner's skills are unique, the classification 
sought was not designed merely to alleviate skill shortages in a given field. In fact, that issue 
properly falls under the jurisdiction of the Department of Labor through the alien employment labor 
certification process. See Matter of New York Siale Dep't. of Transp., 22 I&N Dec. 215, 221 
(Comm'r 1998). 
The recommendation letters also speculate on the future impact that the petitioner's work may have 
on the field rather than how the petitioner's work has already been of major significance. For 
instance, stated that the petitioner's "work will prove very beneficial to the 
health profile of the of US, in years to come [emphasis added]." Further,_ 
Chalukya stated that the petitioner's "ongoing and future work will have a national impact of great 
magnitude [emphasis added]." A petitioner cannot file a petition under this classification based on 
the expectation of future eligibility. Given the descriptions in tenns of future applicability and 
detenninations that may occur at a later date, it appears that the petitioner's research, while original, 
is still ongoing and that the findings she has made have not been of major significance in the field. 
While the AAO acknowledges the originality of the petitioner's findings, as well as the fact that the 
field has taken some notice of her work, the actual present impact of the petitioner's work has not 
been established. Rather, the petitioner's reierences appear to speculate about how the petitioner's 
findings may affect the field at some point in the future. Eligibility must be established at the time 
of filing. 8 C.F.R. §§ 103.2(b)(I), (12). Whether referencing an immigrant or a nonimmigrant 
classification, case law requires that an alien applying for a benefit, or a petitioner seeking an 
immigration status for a beneficiary, must demonstrate eligibility for the benefit or the status at the 
time the petition is filed. See Matter of Pazandeh, 19 I&N Dec. at 886 (citing Matter of Atembe, 19 
I&N Dec. at 429; Matter of Drigo, 18 I&N Dec. at 224-225; Matter of Bardollille, 18 I&N Dec. at 
116). A petition may not be approved if the beneficiary or the self-petitioner was not qualified at 
the priority date. See Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Michelin Tire 
Corp., 17 I&N Dec. at 249 regarding nonimmigrant petitions. The Regional Commissioner in 
Matter oj' Wing '.I' Tea HOllse. 16 I&N Dec. at 160 emphasizes the importance of not obtaining a 
priority date prior to being eligible, based on future experience. This follows the policy of 
preventing affected parties from securing a priority date in the hope that they will subsequently be 
able to demonstrate eligibility. In fact, this principle has been extended beyond an alien's eligibility 
Page 10 
for the classification sought. For example, an employer must establish its ability to pay the 
proffered wage as of the date of filing. See Matter of Great Wall, 16 I&N Dec. at 144-145, which 
provides that a petition should not become approvable under a new set of facts. Ultimately, in order 
to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval 
as of the date it was filed. Ogllndipe v. Mukasey, 541 F.3d at 261. Many of the letters submitted do 
in fact discuss far more persuasively the future promise of the petitioner's research and the impact 
that may result from her work, rather than how her past research already qualifies as a contribution 
of major significance in the field. 
While those familiar with the petitioner's work generally describe it as "extraordinary:' 
"outstanding." and "important," there is insufficient documentary evidence demonstrating that the 
petitioner's work is of major significance. This regulatory criterion not only requires the petitioner 
to make original contributions, the regulatory criterion also requires those contributions to be of 
major significance. The AAO is not persuaded by vague, solicited letters that simply repeat the 
regulatory language but do not explain how the petitioner's contributions have already int1uenced 
the field. Vague, solicited letters from local colleagues that do not specifically identify 
contributions or provide specific examples of how those contributions int1uenced the field are 
insufficient. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2(09) affd in part 596 F.3d 1115 
(9th Cir. 2(10). In 2010, the Kazarian court reiterated that the AAO's conclusion that the "letters 
from physics professors attesting to [the petitioner's] contributions in the field" were insufficient 
was "consistent with the relevant regulatory language." 596 F.3d at 1122. Moreover, the letters 
considered above primarily contain bare assertions of the petitioner's status in the tield without 
providing specific examples of how those contributions rise to a level consistent with major 
significance in the field. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); A vyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The lack of supporting evidence gives the AAO no basis to gauge the significance of 
the petitioner's present contributions. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
Mauer of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters of support trom the petitioner'S personal contacts is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008). Thus, the content of the writers' statements and how they became aware of 
the petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence of original contributions of major significance. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[ e ]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field [emphasis added]" Without additional, specific evidence showing that the 
petitioner's work has been unusually int1uential, widely applied throughout her field, or has 
Page 11 
otherwise risen to the level of contributions of major significance, the AAO cannot conclude that 
she meets this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of/he alien ~~ authorship of scholarly articles in thefield, in professional or 
major trade publications or other major media. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)( vi) requires "[ e ]vidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other 
major media." Based upon a review of the record of proceeding, the petitioner submitted sufficient 
documentation to demonstrate that she authored two scholarly articles in professional publications. 
Therefore, the petitioner minimally meets the plain language of this regulatory criterion. 
Accordingly, the petitioner established that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent 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. 
Even if the petitioner had 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: (I) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 3 Rather, the proper conclusion is that the 
, The AAO maintains de novo review of all questiuns of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
20(4). 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 maller. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(1) of the Act; scction 
204(b) of the Act; DHS Delegation Numbcr 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.I(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BlA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
Page 12 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 2'1 I of 
the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.