dismissed EB-1A Case: Research Scientist

U.S. Department of Homeland Security 
US. Citizenshir, and lmrnieration Services 
identieing data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COPY 
Ojj'ice o/ild,niiisrralive ~Geals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: AU~ 1 9 2010 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe Immigration and Nationality Act; 8 U.S.C. 8 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $585. Please be aware that 8 C.F.R. 5 103,5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Gerry  hew' 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on June 18, 2009, and is now before the Administrative Appeals Office on appeal. 
The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), 
as an alien of extraordinary ability as a research scientist. The director determined that the 
petitioner had not established the beneficiary's requisite extraordinary ability and failed to 
submit extensive documentation of his sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her achievements. See section 
203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. 
$ 204.5(h)(3) states that an alien can establish sustained national or international acclaim through 
evidence of a one-time achievement, specifically a major, internationally recognized award. 
Absent the receipt of such an award, the regulation outlines ten categories of specific evidence. 
8 C.F.R. $5 204.5(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 claims: 
However, with all due respect to USCIS, the Director's decision is littered with 
blithe assertions of Congressional intent wholly lacking in reference to legal 
authority or the Congressional record, improper statutory interpretation not 
entitled to chevron' deference, and numerous factual errors regarding the record 
and the evidence contained within. 
Furthermore, counsel claims that the beneficiary meets at least three of the regulatory criteria at 8 
C.F.R. $ 204.5(h)(3). On appeal, we will address counsel's arguments as they pertain to the 
specific criteria pursuant to the regulation at 8 C.F.R. $ 204.5(h)(3). 
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): 
I See Chevron USA. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 1984 
Page 3 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation. 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101" Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5@)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields: 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
Page 4 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 11 15 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.' With respect to the criteria 
at 8 C.F.R. 55 204,5@)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concems about the significance of the evidence submitted to meet those two criteria, 
those concems should have been raised in a subsequent "final merits determination." Id. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. 5 204.5@)(3)). The court also explained the ''final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. 8 204.5(h)(2), and "hat 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. 5 204.5(h)(3). Only aliens whose achievements have garnered 
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. 5 204.5(h)(3)(iv) and 8 C.F.R. 5 204.5(h)(3)(vi). 
Page 5 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. 9 1153(b)(l)(A)(i). 
Id. at 1119 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 (91h Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
11. Analysis 
A. Evidentiary Criteria 
This petition, filed on November 7, 2008, seeks to classify the beneficiary as an alien with 
extraordinary ability as a research scientist. The petitioner has submitted evidence pertaining to 
the following criteria under 8 C.F.R. 5 204.5(h)(3). 
Documentation of the alien's membership in associations in the field for which 
classz~cation is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
The petitioner never claimed the beneficiary's eligibility for this criterion at any time during this 
proceeding. However, in the director's request for additional evidence pursuant to the regulation 
at 8 C.F.R. 5 103.2(b)(8) on April 24,2009, the director referred to the beneficiary's membership 
with the Florida Nursery, Growers and Landscape Association (FNGLA) and indicated that the 
petitioner failed to submit the admission standards in order to determine the beneficiary's 
eligibility for this criterion. 
A review of the record of vroceeding reflects that in suvvort of the original contributions of - A A - 
major significance criterion set forth at 8 C.F.R. 3 204.5(h)(3)(v), the petitioner submitted a letter 
from FNGLA, who stated that the beneficiary "is a 
very active and prominent member of the FNGLA." A further review of the record fails to 
reflect that any additional documentation regarding FNGLA was submitted by the petitioner. 
In response to the director's request for additional evidence, counsel stated: 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
The petitioner did not make a claim of extraordinary ability under subcategory 
two as at 8 C.F.R. 5 204.5(h)(3)(ii). In its haste to find reasons to deny this 
petition, USCIS states "the record does not provide the admission standards for 
the [FNGLA]. Hence, it cannot be said belonging to this organization meets 
criterion number two." [The beneficiary] fully agrees, and therefore he did not 
argue that his membership in this particular organization should qualify under 8 
C.F.R. 5 204,5(h)(3)(ii). 
As the petitioner is not claiming the beneficiary's eligibility for this criterion, and the record fails 
to reflect the beneficiary's eligibility, no further discussion of this criterion is necessary. 
Accordingly, the petitioner failed to establish that the beneficiary meets 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 
classiJication is sought. Such evidence shall include the title, date, and author of 
the material, and any necessary translation. 
At the time of the original filing of the petition, the petitioner claimed the beneficiary's eligibility 
for this criterion based on the following submitted documentation: 
1. An article entitled, "Arsenic-Eating Fern Holds Hope for Tainted Soils," 
June 17, 2005,, www.thenewstribune.com; 
s May Put Brakes on Arsenic," February 21, 
Orlando Sentinel; 
3. An article entitled, "Systems Agriculture: Towards a Sustainable 
Agricultural and Environmental Policy," unidentified date, - 
Agricultural Biotechnology: Beyond Food and Energy to 
Health and the Environment; 
5. An article entitled "Ferns Remove Arsenic from Soil and Water," August 
6,2004,, www.eenornenenetwork.org; 
6. An article entitled "Pteris Vittata (FERN) Sucks Arsenic Out of Water," 
unidentified date, www.mieappleseed~roiect.org; and 
7. A Florida ~nternational University News  ele ease entitled, "FIU 
Researching Arsenic-Eating Ferns," May 21, 2001, m 
, www.news.fiu.edu. 
In the director's request for additional evidence, he stated: 
Also, the articles provided from media such as the Tacoma News Tribune, 
Orlando Sentinel and Nature may discuss the same type of work which the 
Page 7 
beneficiary is involved. However, none of these or any other article submitted 
with the petition is about the beneficiary as required by the statute governing 
criterion number three. None of them even mention his name. 
In response to the director's request for additional evidence, counsel claimed: 
The statute mentions nothing about published materials, but the regulations at 8 
C.F.R. 5 204.5(h)(3)(iii) do. The Service seems confused by the definition of 
"about" in 8 C.F.R. 5 204.5(h)(3)(iii). As a Plant Biologist, whenever major or 
trade media discuss advanced scientific discoveries, these publications (suffering 
from rapidly declining circulation figures due to the proliferation of different 
types of media sources) are likely to generally discuss the research finding and its 
practical applications to society at large, as opposed to a profile exclusively 
devoted to the inventor. 
The publishing world has changed significantly since 1990 (the year the 
Extraordinary Ability category was created by Congress), with declining 
circulation figures and changing reader tastes forcing surviving newspapers to 
adjust to these changing realties. Thus, while the Service's position may have 
been relevant in 1991, the brutally changing nature of major media and the types 
of stories it publishes in 2009 signifies that the Service's position is antiquated at 
best. Just because [the beneficiary] may not be as well known or recognizable in 
areas outside of his field as perhaps a movie star or head of a British airline or 
even a Nobel Prize winner may be, it nonetheless does not in any way diminish 
his expertise and exceptional ability in his scientific field. 
Furthermore, counsel claimed the beneficiary's eligibility under 8 C.F.R. 3 204.5(h)(iii) because 
"major media expertise in the field" and 
referred to a letter by for the University of Florida 
IFAS, who stated: 
When I write features for the Orlando Sentinel and any other periodical I look for 
the best experts in the field. I'm an Extension Agent of 37 years 
now with Emeritus status with the University of Florida. I am very active in the 
media of TV, Radio and Newspaper and often need the help of the best and most 
knowledge [sic] experts in the field. That is why I went to [the beneficiary] of 
[the petitioner] for help with a Fern feature. 
Ultimately, the director concluded that the documentary evidence submitted by the petitioner and 
counsel's arguments failed to establish eligibility for this criterion. Specifically, the director 
stated in the denial of the petition: 
However, this statute remains as clear as of this writing as it was in the early 
1990's when passed by Congress. The printed articles appearing in professional 
Page 8 
or major trade publications or other major media must have the beneficiary as its' 
[sic] focal point. Printed articles about work similar to that which the beneficiary 
is engaged without him being the main topic do not qualify here, declining 
circulation figures and potential perceptions as to the challenging nature of major 
media notwithstanding. Otherwise, any number of individuals working in any 
given area could conceivably state a published article implicitly concerned them 
despite being unnamed by the author. 
The obvious and undeniable reality is that none of the articles submitted with the 
petition even mention the beneficiary, let alone treat him personally as the central 
topic as originally - and currently - intended by Congress. 
However, being used as a source in articles - if indeed the beneficiary has been so 
employed by or any other journalist - would not necessarily 
qualify him as having met this criterion as it would not automatically mean the 
beneficiary was the central topic of that written piece. 
On appeal, counsel argues: 
The Director first radically expands the definition of "about" contained within 8 
C.F.R. § 204,5(h)(3)(iii), claiming that "the printed article ... must have the 
beneficiary as its' [sic] focal point." The Director further claims that this "focal 
point" standard was "originally - and currently - intended by Congress." 
However, the Director fails to cite any legal authority, case law, the 
Congressional record, committee reports, or anything else other than the 
Director's own word for his assertion that "about" equates to "focal point." This 
"trust me, what I say is true and should be accepted approach was deemed 
improper by Matter of Treasure Craft, 14 I&N Dec. 190. Matter of Treasure 
Craft considered the question of whether a petitioner's statement of fact, 
unsupported by documentary evidence submissions, should be accorded that 
status of being "on record." (Id. at 190). The petitioner is entitled to the same 
standard. The Director is asking us to accept his interpretation of Congressional 
intent without offering an iota of proof beyond his word, denying the petitioner 
and beneficiary their right to substantive due process under the Administrative 
Procedures Act ("APA"). 
The Director's newly created "focal point" standard radically narrows the range 
of beneficiaries who could ever demonstrate acceptable evidence of articles 
"about" them under 8 C.F.R. 5 204.5(h)(3)(iii). Under this "focal point" standard, 
the Director would no longer accept evidence under the following scenario in 
which four scientists, all of whom are Nobel laureates (assuming that 8 C.F.R. 
5 204.5(h)(3) would not otherwise accept a Nobel Prize an internationally 
Page 9 
recognized award), have their cure for cancer discussed in a front page feature in 
the Sunday edition of the New York Times. 
Plainly, under this "focal point" standard, four people cannot serve as a focal 
point of an article. Thus, under the Director's new "focal point" standard, an 
adjudicator would have no choice but to not accept this front-page feature in the 
nation[']s most widely circulated newspaper because four people and their work 
are discussed. Congress could not have intended such a result. As the Supreme 
Court stated in Chevron, 'yrst always, is the question whether Congress has 
directly spoken to the precise question at issue. Ifthe intent of Congress is clear, 
that is the end of the matter; for the court as well as the agency, must give effect 
to the unambiguously expressed intent of Congress." Chevron U.S.A. v. Natural 
Resource Defense Council, Inc., 467 U.S. 837, 1984). 
Despite the Director's assertion, the intent of Congress is far from clear and 
Congress has done nothing to provide additional clarity. Chevron also stands for 
the proposition that "if the statute is silent or ambiguous with respect the specific 
issue, the question for the court is whether the agency's answer is based on a 
permissible construction of the statute." (Id.) The imposition of this new "focal 
point" standard is an "arbitrary and capricious" interpretation of the statute by the 
Director. Since the Director's interpretation of the statute in devising this new 
"focal point" standard is unreasonable, the Director's decision is not entitled to 
Chevron deference. 
We are not persuaded by counsel's arguments. Counsel claimed in response to the director's 
request for additional evidence that the director's interpretation of the regulation at 8 C.F.R. 
5 204.5(h)(3)(iii) was "relevant in 1991" and "the brutally changing nature of major media and 
the types of stories it publishes in 2009 signifies that the Service's position is antiquated at best." 
Therefore, while counsel did not claim that the director's interpretation of the regulation at 8 
C.F.R. 3 204.5(h)(3)(iii) was in error, she argued that the director's interpretation was outdated 
and did not take into account the changing nature of the media. Hence, whenever the media 
publishes material about the beneficiary's field, they "are likely to generally discuss the research 
finding and its practical applications to society at large, as opposed to a profile exclusively 
devoted to the inventor." Moreover, while the changing nature of the media may be relevant to 
what constitutes "major media," it has no bearing on what constitutes material that is "about" the 
alien. 
Regarding the powers and duties of the Secretary of Homeland Security, section 103(a)(3) of the 
Act, 8 U.S.C. 5 1103(a)(3) provides that "[hle shall establish such regulations." As such, DHS 
has broad authoritative power to establish regulations. Specifically regarding 8 C.F.R. 
5 204,5(h)(3)(iii), the rule was published in accordance with the Administrative Procedures Act, 
and the public was given the proper notice and opportunity to comment on the rule. The 
appropriate time for counsel to make objections regarding this regulatory criterion was during 
the allowable notice and comment period. Moreover, the regulation at 8 C.F.R. 5 204.5(h)(3)(iii) 
Page 10 
is consistent with the legislative history, which indicated that documentation may include "media 
accounts of the alien's contributions to his profession." Therefore, the plain language of the 
regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires "[p]uhlished 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 [emphasis added]." In other words, the regulation at 8 
C.F.R. 5 204.5(h)(3)(iii) requires that the published material be about the beneficiary relating to 
his work. Merely submitting documentary evidence reflecting published material in the 
beneficiary's field fails to meet the plain language of the regulation and fails to comply with the 
legislative intent of this regulatory criterion. Compare 8 C.F.R. 5 204.5(i)(3)(i)(C) (requiring 
only published material about the alien's work). 
On appeal, counsel shifts her argument from the director's antiquated position and interpretation 
to the director's creation of a "focal point" position. As cited above, the plain language of the 
regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires "[p]uhlished material about the alien in 
professional or major trade publications or other major media, relating to the alien's work in the 
field for which classification is sought." In other words, the petitioner is required to submit 
published material about the beneficiary relating to his work. In this case, the petitioner 
submitted articles that relate to the field in which the beneficiary is employed. However, as 
correctly indicated by the director, none of the submitted articles are about the beneficiary 
relating to his work in horticulture. In fact, none of the articles even mention the beneficiary or 
discuss work that can be specifically credited to the beneficiary. Simply submitting articles that 
relate to the beneficiary's field, without documentary evidence reflecting published material 
about the beneficiary relating to his work, is insufficient to meet the plain language of this 
regulatory criterion. Moreover, even providing expert guidance to reporters for articles fails to 
meet the plain language of the regulation since the articles are not about the beneficiary relating 
to his work. 
While the regulation at 8 C.F.R. 5 204,5(h)(3)(iii) does not specifically state that the beneficiary 
must be the "focal point" of the published material, we agree with the ultimate decision of the 
director for this criterion. Ultimately, under any reasonable definition of the word "about," the 
articles submitted cannot be credibly considered to be "about" the beneficiary. 
For the reasons stated above, none of the documentary evidence submitted by the petitioner 
qualifies the beneficiary for eligibility under this criterion. Furthermore, counsel's argument that 
any published material about the beneficiary's field is sufficient to establish eligibility for this 
criterion is not persuasive, fails to meet the plain language of the regulation, and does not 
contravene the intent of Congress in limiting this classification to those able to demonstrate 
sustained national or international acclaim. Section 203(b)(l)(A)(i) of the Act. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion 
Evidence of the alien S original scientijc, scholarly, artistic, or business-related 
contributions ofa major signzjicance in the field. 
Page I I 
The petitioner claims the beneficiary's eligibility for this criterion based on patents and several 
recommendation letters. In response to the director's request for additional evidence, counsel 
argued: 
The Service also seeks to reject [the beneficiary's] patents as evidence of original 
scientific contributions. A patent is, by definition, an original scientific 
contribution. One is not granted a patent by the U.S. Patent & Trademark Office 
unless the patent submission is for something that can only be described as 
"original." For the Service to take the position that a patent is not evidence of an 
original scientific contribution strains all reason and constitutes an abuse of 
discretion. 
The record of proceeding reflects that the petitioner submitted the following documentation from 
the U.S. Department of Commerce, Patent and Trademark Office: 
1. Approval for a patent for New Guinea Impatiens Plant Named, Volcano 
Fuchsia Pink, on February 3, 1998, inventor:- 
2. Approval for a patent for New Guinea Im atiens Plant Named, Volcano 
Deep Red, on February 10, 1998, Inventor: b 
3. Approval for a patent for New Guinea Impatiens Plant Named, Volcano 
Light Pink, on February 24, 1998, Inventor:- 
4. Approval for a patent for Spathiphyllum Plant Named, Himalaya, on 
August 4, 1998, Inventor: - 
5. Approval for a Plant Named, Pollux, on August 
4, 1998, Inventor: 
6. Approval for a Plant Named, Vanessa, on May 
1 1, 1999, Inventor: 
7. A~~roval for a ~atent for Soathi~hvllum Plant Named. Nurit. on Januarv 1. 
2,2001, Inventor: Issachar 
8. Approval for a atent for Regina, on May 8, 2001, 
Inventor: P 
9. Approval for a patent for Spathiphyllum Plant Named, Kalypso, on 
August 7,2001, inventor:- 
10. Aooroval for a watent for Soathiwhvllum Plant Named. Galaxv. on August . . . . - 
14,2001,1nven;or:and 
11. Approval for a patent for Spathiphyllum Plant Named, Piccolino 11, on 
October 22,2002, Inventor: - 
We also cite representative examples of the beneficiary's recommendation letters: 
In his capacity as head grower, [the beneficiary's] unique knowledge and 
experience in the field of environmental horticulture have been proven pivotal in 
Page 12 
that process, and the eventual patents that ensue. He travels overseas to identify 
potentially marketable plants in their embryonic stage, introduces and trials [sic] 
them at our R & D facilities, makes the right selections, develops the growing 
protocols, comments to the offshore breeders, and develops the marketing agenda 
for the few varieties that are selected and proven to be patentable. 
Next, [the beneficiary] works closely with the patent lawyers to apply and receive 
the plant patent and guarantees our Company's contribution by getting the 
assignment and ownership of the patent in the U.S. The ability of the company to 
secure these rights is a result of his personal contribution and participation in the 
process and development of the new plant without which there would have been 
no commercially viable patent. 
In a separate letter, asserts that the attached patents, listed above and filed between 
1996 and 2002, were granted "as a result of the [beneficiary's] effort, involvement and 
extraordinary skill." 
 As the patents filed in 1996 and 1997 predate the beneficiary's 
involvement with the petitioner by one or two years and none of the patents list the beneficiary 
as a co-inventor, credibility is diminished. 
for thc petitioner. stated: 
The exclusive rights for commercial propagation and growing of [Pteris vittata] 
were given to our company due to the initial contribution and the unique 
production methods developed by [the beneficiary], our expert grower. [The 
beneficiary] is currently the only national grower capable of and licensed to 
commercially produce the mass quantities needed to satisfy the market for this 
unique ecological breakthrough. 
In his professional career as Head Grower [for the petitioner], [the beneficiary] 
has emerged as the nation's premier propagator, grower, and commercial 
distributor of ferns. The products he grows and delivers fuel a national economic 
engine estimated at tens of millions of dollars. 
Most noteworthy of his commercial products are both the  denf fern^^, the unique 
phytoremediation fern proven to clean arsenic-laden sites (used extensively in 
government, public, and military institutions) and also the Lauae fern, widely 
considered by the Hawaiians to be a revered, traditionally spiritual plant. It is also 
an indigenous plant of considerable landscape value here in the Hawaiian Islands. 
Page 13 
[The beneficiary] was specifically chosen as a trial grower for our new product, 
FertissB Growing media, as he and his company are well known to be reputable 
producers of high quality liners in the Florida foliage market. With the positive 
results that [the beneficiary] experienced, he was then asked to be featured in a 
testimonial advertisement that would have circulation in the North American 
market and beyond. We appreciated the cooperation from [the beneficiary] and, 
as a result of his testimonial we have expanded our business in North America. 
Many growers in the United States and Canada are familiar with [the 
beneficiary's] extraordinary high quality plant production ability and great service 
to his customers. 
According to counsel's letter submitted in support of the filing of the petition, the beneficiary 
"has been employed by [the petitioner] since 2003 after graduating from Florida Southern 
College [emphasis added]." indicates that the beneficiary worked as an intern for the 
petitioner beginning in 1998, which is also reflected on the beneficiary's self-serving curriculum 
vitae. The petitioner filed five of the eleven patents with the U.S. Department of Commerce in 
1996 and 1997, prior to the beneficiary's employment with the petitioner. Furthermore, as 
indicated above, the beneficiary is not listed as the inventor for any of the patents. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Id While the petitioner can be credited with 
receiving eleven patents, the record does not consistently demonstrate that the beneficiary was 
involved in any way with the submission or approval of any of these patents. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[elvidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In this case, while the recommendation letters praise the beneficiary 
for his employment skills, they fail to indicate any original contributions of major significance to 
the field of horticulture. The letters provide only general statements without offering any 
specific information to establish how the beneficiary's work has been original and of major 
significance. This regulatory criterion not only requires the beneficiary to make significant 
contributions, the regulatory criterion also requires those contributions to be original. We are not 
persuaded by vague, solicited letters that simply repeat the regulatory language but do not 
specifically identify contributions or how those contributions have influenced the field. 
In this case, the majority of the reference letters are from individuals who worked with or 
otherwise interacted with the beneficiary. While such letters can provide important details about 
the beneficiary's skills, they cannot form the comerstone of a successful extraordinary ability 
claim. Further, USCIS may, in its discretion, use as advisory opinion statements as expert 
testimony. See Matter of C'aron 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 from the beneficiary's 
personal contacts in not presumptive evidence of eligibility; USCIS may evaluate the content of 
Page 14 
those letters as to whether they support the alien's eligibility. See id. at 795. Thus, the content 
of the writers' statements and how they became aware of the beneficiary's reputation are 
important considerations. Even when written by independent experts, letters solicited by an alien 
in support of any immigration petition are of less weight than preexisting, independent evidence. 
The remaining information contained in the reference letters, while describing the beneficiary's 
accomplishments and job responsibilities, fails to explain how his research has currently 
impacted his field so as to be considered contributions of major significance. Assuming the 
beneficiary's skills are unique, that issue properly falls under the jurisdiction of the Department 
of Labor. See Matter ofNew York State Dep '1. of Transp., 22 I. & N. Dec. 215, 221 (Commr. 
1998). We note that while indicates the beneficiary's "initial contribution and the 
uniquc production mcthuds," he fails to identiiy the initial contribution and how this contribution 
has affectcd thc ilcld as a \\hole. Further. a~thou~hrcfcrs to, he 
failed to demonstrate that these commercial products are the benefici 
 's ori inal contributions 
and have been of major significance to the field. Finally, while 
 credits the 
beneficiary for expanding his business in North America, it does not reflect any original 
- 
contributions of kajor significance to the field, rather than to the specific business ofl 
- 
Finally, although we found that the petitioner can not be credited for his involvement with any of 
the eleven patents, this office has previously stated that a patent is not necessarily evidence of a 
track record of success with some degree of influence over the field as a whole. Id at 221, n.7. 
Rather, the significance of the innovation must be determined on a case-by-case basis. Id. A 
patent recognizes the originality of the idea, but it does not state that the beneficiary made a 
contribution of major significance in the field through his development of this idea. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not 
only original but of major significance. We must presume that the phrase "major significance" is 
not superfluous and, thus, that it has some meaning. Without extensive documentation showing 
that the beneficiary's work has been unusually influential or widely accepted throughout his 
field, or has otherwise risen to the level of original contributions of major significance, we 
cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
At the time of the initial filing of the petition, counsel claimed the beneficiary's eligibility for 
this criterion was based on the eleven patents mentioned above, which were granted to the 
petitioner. As discussed previously, the record fails to reflect that the beneficiary was involved 
in any way in the petitioner's obtaining any of these eleven patents. Therefore, we are not 
persuaded that the beneficiary meets this criterion based on the patents. 
Page 15 
In response to the director's request for evidence, the petitioner submitted three 
recommendations from the following individuals: 
[The beneficiary] has been working in fern production for the past 10 years in 
central Florida. Through the course of his career, he has established his 
credentials by producing and supplying tens of millions of fern liners (young 
plants) to nurseries all across the United States and beyond. In addition, he is 
now in charge of producing over a million finished (potted) plants every year. 
The ultimate retail economic impact of his work easily surpasses $20 MILIyear, 
all of which would not have been possible without his expertise in the field. 
In order to assure crop availability for our commercial applications, we have 
partnered with [the beneficiary] of [the petitioner], widely known as the nation's 
premier propagator, cultivator, and commercial grower of fern liners (starter 
plants). [The petitioner] has provided ferns for our research and commercial 
applications for the past nine years and [the beneficiary's] practical application 
and field production are essential to the success of our business. He has 
a proven extraordinary ability and track record in the field of fern cultivation and 
propagation. 
The record also includes a letter purportedly from R- 
. The letter, however, is unsigned and, thus, has no evidentiary value. On appeal, counsel 
argues: 
The Director again attempts to introduce new adjudicative standards not 
contemplated by Congress. The Director does concede "USCIS agrees the 
beneficiary has performed in a leading or critical role for the petitioner." 
However, the Director attempts to reject the volume of evidence submitted about 
the distinguished reputation by introducing a new element not permitted in the 
regulations by claiming "the record does not prove either the petitioner's size or 
reputation or indicate the approximate number of these businesses that exist in 
this country. 
The plain language of the regulation at 8 C.F.R. 5 204,5(h)(3)(viii) requires "[elvidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." At issue for this criterion are the position the beneficiary was selected to 
fill and the reputation of the entity that selected him. While the director determined that the 
beneficiary performed in a leading or critical role for the petitioner, we are not persuaded that the 
documentary evidence submitted by the petitioner is sufficient to establish the beneficiary's 
eligibility for this criterion. Moreover, although the number of individuals employed by the 
Page 16 
petitioner is not necessarily indicative of the petitioner's "distinguished reputation," we do find that 
the size of the petitioner, generated revenue, and geographic national or international locations can 
be a factor in determining the petitioner's "distinguished reputation." In this case, as indicated in 
the director's decision, the petitioner failed to submit sufficient documentary evidence 
demonstrating that the petitioner has a distinguished reputation. We are not persuaded that letters 
from the petitioner describing its own business is sufficient to establish the distinguished reputation, 
without objective, independent documentary evidence. 
Even if we found that the petitioner established that the beneficiary performed in a leading or 
critical role for an organization or establishment that has a distinguished reputation, which we do 
not, the plain language of this regulatory criterion requires the petitioner to demonstrate the 
beneficiary's critical or leading role with more than one organization, consistent with the statutory 
requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. In this case, the petitioner 
only claimed the beneficiary's eligibility with one organization. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other sign$cantly high 
remuneration for services, in relation to others in the field. 
At the time of the original filing of the petition, the petitioner claimed the beneficiary's eligibility 
for this criterion based on a letter from who stated: 
Whereas the standard income in this position within the horticulture industry, for 
a company our size, is $70,000 - $80,000 per year we are willing to offer him an 
annual salary of $120,000 plus all the benefits including health insurance and a 
company car. 
In response to the director's request for evidence, counsel claimed: 
Objective data was presented that [the beneficiary's] annual salary figure exceeds 
the Level Four prevailing wage salary figures for horticulture researcher in 
Apopka, Florida, as determined by the U.S. Department of Labor's Occupational 
Employment Statistics (OES) by 176%. 
However, a review of the record of proceeding fails to reflect that this documentation was ever 
submitted either at time of the original filing of the petition or in response to the director's 
request for evidence. As the plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(ix) 
requires "[elvidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field," the director found that there was no 
documentary evidence supporting the claims of counsel. 
On appeal, counsel submitted "Online Wage Library - FLC [Foreign Labor Certification] Wage 
Search Results" showing the median wages of soil and plant scientists in the Orlando - Kissimmee, 
Page 17 
FL area. For example, the Level 4 Wage (fully competent) for soil and plant scientists was $68,266 
per year. However, median regional wage statistics do not meet this requirement. Accordingly, 
the petitioner has not established that the beneficiary's salary is high in relation to other soil and 
plant scientists as a whole and not limited to the Orlando and surrounding areas. 
We also note that the petitioner relies on a job letter from the petitioner expressing a willingness to 
offer the beneficiary a particular salary. However, the petitioner failed to submit any supporting, 
objective evidence such as pay stubs or income tax documents verifying that the beneficiary had 
already earned the claimed salary as of the filing date. The regulation at 8 C.F.R. 5 204.5(h)(3)(ix) 
requires that the beneficiary already have commanded such a salary. The petitioner must establish 
the beneficiary's eligibility as of the date the petition was filed. See 8 C.F.R. 55 103.2(b)(l), (12); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Without independent, objective 
evidence that the beneficiary had already received a high salary in relation to others in the field, the 
petitioner has failed to establish his burden of proof for this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion 
Evidence of commercial successes in the performing arts, as shown by box ofice 
receipts or record, cassette, compact disk, or video sales. 
The petitioner failed to claim the beneficiary's eligibility for this criterion at the time of the 
original filing of the petition. In response to the director's request for evidence, counsel then 
claimed the beneficiary's eligibility for this criterion based on the above mentioned reference 
letters. On appeal, counsel did not contest or address the decision of the director for this 
criterion. 
The plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(x) requires "[elvidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales." This criterion, however, relates to the "performing arts." The 
petitioner is a scientist, and therefore, does not meet the plain language of the regulation. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct 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," 8 C.F.R. 5 204.5(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
5 1153(b)(l)(A)(i), and 8 C.F.R. 9: 204.5(h)(3). See also Kazarian, 596 F.3d at 11 15. The 
petitioner failed to establish the beneficiary's eligibility for any of the criteria, in which at least 
three are required under the regulation at 8 C.F.R. 5 204.5(h)(3). In this case, many of the 
Page I8 
deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
The regulation at 8 C.F.R. 5 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. 5 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. 5 204.5(h)(2). The petitioner's submission of 
articles that relate to the beneficiary's field without submitting published material about him 
relating to his work is insufficient to establish the sustained national or international acclaim 
required for this highly restrictive classification. Similarly, the petitioner's claim that the 
beneficiary was responsible for eleven patents when the documentary evidence submitted by the 
petitioner reflects othenvise is not persuasive evidence that the beneficiary has made original 
contributions of major significance or performed in a leading or critical role for an organization. 
Furthermore, while the petitioner submitted numerous recommendation letters praising the skills 
of the beneficiary, letters cannot form the cornerstone of a successful extraordinary ability claim. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. Moreover, as previously indicated USCIS may, in its discretion, use as advisory 
opinion statements submitted as expert testimony, it is ultimately responsible for making the 
final determination regarding an alien's eligibility for the benefit sought. See Matter of Caron 
International, 19 I&N Dec. at 795. 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 from the beneficiary'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. 
Finally, we cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b)(l)(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(l)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). Although we found the beneficiary ineligible for the critical role criterion, we 
note that the petitioner only claimed the beneficiary's eligibility with one organization. In addition, 
the petitioner failed to submit sufficient documentary evidence comparing his salary with others in 
his field. 
Page 19 
The petitioner failed to submit evidence demonstrating that the beneficiary "is one of that small 
percentage who have risen to the very top of the field." In addition, the petitioner has not 
demonstrated the beneficiary's "career of acclaimed work in the field" as contemplated by 
Congress. H.R. Rep. No. 101-723,59 (Sept. 19,1990). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the beneficiary as one of the small percentage who has risen to the very top of the field 
of endeavor. The documentation submitted in support of a claim of extraordinary ability must 
clearly demonstrate that the alien has achieved sustained national or international acclaim and is one 
of the small percentage who has risen to the very top of the field of endeavor. 
111. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(A) of the Act, and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
afd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.