dismissed EB-1A Case: Research

identifying data deleted to 
prevent cit..;;;; jIlwarramed 
invasion of personal pri v acy 
PrJBLJC COpy 
DATE: JAN 25 201tFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Ollice (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; 8 U.S.C. § l1S3(b)(I)(A) 
ON BEHALF OF PETITIONER: 
[NSTRUCTIONS: 
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. § 103.5. All motions must he 
submitted to the office that originally decided your case by filing a Form [-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 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. 
Thank you" 
-l 
Perry Rhew 
Chief, Administrative Appeals Office 
www.llscis.gov 
--Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on May 27, 2009, 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)(I)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of her 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.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, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific 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. 
In the director's decision, he determined that the petitioner failed to establish eligibility for the 
awards criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(i), the published material 
criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iii), the judging criterion pursuant to 
the regulation at 8 C.P.R. § 204.5(h)(3)(iv), the original contributions criterion pursuant to the 
regulation at 8 C.P.R. § 204.5(h)(3)(v), the scholarly articles criterion pursuant to the regulation 
at 8 C.P.R. § 204.5(h)(3)(vi), the display criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(vii), and the leading or critical role criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(viii). However, in counsel's brief on appeal, counsel did not contest the findings 
of the director or offer additional arguments for the awards criterion pursuant to the regulation at 
8 C.P.R. § 204.5(h)(3)(i), the published material criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(iii), the display criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(vii), 
and the leading or critical role criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(viii). 
The AAO, therefore, considers these issues to be abandoned. See Sepulveda v. U.S. Att'y Gen., 
401 P.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at * 1, *9 (E.D.N.Y. Sept. 30, 2(11) (the court found the plaintiffs claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
Counsel also claims: 
The appellant was approved in the EB-2 NIW category without even been sent a 
Request for Evidence. The NIW criteria overlap those for Extraordinary Researcher 
but with greater emphasis that the work performed fits within the parameters set for 
being in the national interests of the U.S. as set forth in the regulations and 
authoritative interpretations thereof. It is so unreasonable to conclude that the 
Page 3 
appellant does not satisfy even one of criteria for Extraordinary Researcher that it 
has to be concluded that the appellee's finding was arbitrary and capricious. 
Contrary to counsel's assertions, Congress clearly distinguished the two classifications as 
demonstrated by creating separate immigrant visa classifications. See sections 203(b )(1 )(A) and 
203(b )(2) of the Act. Therefore, the corresponding regulations set forth under the regulation at 8 
C.F.R. § 204.5(h) for an alien of extraordinary ability are separate and distinct to the regulation at 8 
C.F.R. § 204.5(k) for a national interest waiver as a member of the professions holding an advanced 
degree or an alien of exceptional ability. Moreover, the regulations governing an alien of 
extraordinary ability do not "overlap," as asserted by counsel, the regulations governing an alien 
seeking a national interest waiver as an alien who is a member of the professions holding an 
advanced degree or an alien of exceptional ability. See 8 C.F.R. §§ 204.5(h) and 204.5(k). In 
addition, counsel implies that the requirements for a national interest waiver are more restrictive 
than for an alien of extraordinary ability. Significantly, as opposed to an alien applying for a 
national interest waiver, an alien of extraordinary ability must demonstrate "sustained national or 
international acclaim and that his or her achievements have been recognized in the field of 
expertise" and "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." See 8 C.F.R. §§ 204.5(h)(2) and 204.5(h)(3). 
Conversely, "[ e ]xceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or businesses." See 8 C.F.R. 
§ 204.5(k)(2). Furthermore, if the AAO were to accept counsel's assertion that approval of a 
national waiver petition demonstrates eligibility for an alien of extraordinary petition, which the 
AAO clearly does not, it would render meaningless that separate statutory and regulatory 
requirements exist for each immigrant visa classification. For these reasons, the AAO is not 
persuaded by the assertions of counsel for this issue. 
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, 
Page 4 
(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 Ped. 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.P.R. § 204.5(h)(2). 
The regulation at 8 c.P.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) 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 ofthe alien's participation, either individually or on a panel, as ajudge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic. or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles III the field, III 
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; 
-Page 5 
(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 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. 
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. § 204.5(h)(3». The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir 1 field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § 1153(b)(1)(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), affd, 345 F.3d 683 (9th Cir. 2003); 
I 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.S(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3 levi). 
Page 6 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on September 18, 2008, seeks to classify the petitioner 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. § 204.5(h)(3). 2 
Evidence ()f'the alien '.I' 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. 
The director determined that the petitioner failed to establish eligibility for this criterion. 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 individuall y 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." A review of the record of proceeding 
reflects that the petitioner claimed eligiblity for this criterion based on the following documentation: 
1. 
2. 
3. 
4. 
5. 
An email, dated August 3, 2007, from 
individuals including the petitioner 
comments!" and attached a document entitled 
sent to several 
any 
An email, dat~006, for 
Oncogene, to _ requesting a a the 
~ was then forwarded from _to the petitioner and 
_requesting a discussion; 
An email, dated April 7, 2006, from the petitioner to _ reflecting 
comments regarding the email in item 2 and indicated that further discussion 
would be required; 
An email, dated June 3, 2004, from _ to 
review of a manucript that was then forwarded from 
individuals including the petitioner; 
requlestillg a 
to several 
for 
requesting a review 
manuscript for the publication that was then forwarded to several individuals 
including the petitioner; and 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 7 
6. 27, 2009, from 
to the petitioner requesting her to review a manuscript. 
As indicated above, the petitioner based 
AAO notes that the email requests from 
_ instruct the recipients to conduct the reviews via Internet-based systems. The regulation 
at 8 C.P.R. § 103.2(b )(2) provides in pertinent part: 
(i) The non-existence or other unavailability or required evidence creates a 
presumption of ineligibility. If a required document, such as a birth or marriage 
certificate, does not exist or cannot be obtained, an applicant or petitioner must 
demonstrate this and submit secondary evidence, such as church or school records, 
pertinent to the fact at issue. If secondary evidence also does not exist or cannot be 
obtained, the applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit two or more 
affidavits, sworn to or affirmed by persons who are not parties to the petition who 
have direct personal knowledge of the event and circumstances. Secondary 
evidence must overcome the unavailability of primary evidence, and affidavits must 
overcome the unavailability of both primary and secondary evidence. 
The regulation at 8 C.P.R. § 103.2(b )(2)(i) provides that the non-existence or unavailability of 
required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may 
the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. While the emails do not demonstrate the 
petitioner's eligibility for this criterion, which will be discussed further below, the petitioner failed 
to submit primary evidence of her participation as a judge of the work of others. Clear! y, primary 
evidence does exist as the emails indicated that reviews are completed online. The petitioner could 
have submitted primary evidence from the respective websites demonstrating that she actually 
completed the reviews instead of submitting secondary evidence in the form of emails requesting 
the review of manuscripts. A~ such, the petitioner failed to comply with the regulation at 8 C.P.R. 
§ 103.2(b )(2). 
Nevertheless, regarding item 1, the vague email contains insufficient information to establish that 
the petitioner participated "as a judge of the work of others" consistent with the plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(iv). There is no indication, for example, the nature of the 
activity requested for comments, whose work was being requested for comments, if the petitioner 
actually provided comments, and if providing comments equate to serving as a judge of the work of 
others. The phrase "ajudge" implies a formal designation in ajudging capacity, either on a panel or 
individually as specified pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iv). The regulation 
cannot be read to include every informal instance of simply providing "comments" to an 
unidentified attached document to an email. 
-Page 8 
Regarding items 2 and 3, there is no indication that the manuscript review was completed by the 
petitioner and forwarded to_ Based on the documentation submitted by the petitioner, the 
petitioner indicated that further discussion would be required without any evidence that 
the review was completed. Again, the petitioner failed to submit primary evidence 
such as screenshots evidencing that the petitioner reviewed the manuscript. 
Regarding items 4 and 5, the documentation reflects email requests to -."ho forwarded the 
emails to several individuals. As the plain language of this regulatory criterion specifically requires 
"the alien's participation ... as the judge of the work of others," the mere request to review 
manuscripts without evidence of actually reviewing the manuscripts is insufficient to meet the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). The petitioner failed to establish that she 
actuall y reviewed the manuscripts. 
Regarding item 6, which was submitted in response to the director's request for additional evidence 
pursuant to the regulation at 8 C.F.R. § 103.2(b )(8), the email request occurred after the filing of the 
petition. Eligibility must be established at the time of filing. Therefore, the AAO will not consider 
this item as evidence to establish the petitioner's eligibility. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg'l Cornm'r 1971). A petition cannot be approved at a future date 
after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
175 (Cornm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981), that USCIS cannot "consider facts that corne into being only subsequent to the filing of 
a petition." Id. at 176. Nonetheless, the email reflects a request to review a manuscript rather than 
evidence that she actually reviewed the manuscript. 
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 
consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. 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 tield." Here, the evidence must be reviewed to see whether it rises to 
the level of original scientific or scholarly-related contributions "of 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. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15,2(03). 
-Page 9 
A review of the record of proceeding reflects that the petitioner submitted screenshots from 
Google Scholar reflecting that the petitioner's work was cited 73 times by others. Specifically: 
1. 
citations; 
2. 
3. 
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, the 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. The AAO is not persuaded that the modest citation of the 
petitioner's work by others is reflective that her work has been of major significance in the field. 
While the petitioner submitted some articles that cited her work, a review of those articles failed 
to reflect that her work has been unusually influential, such as articles that discuss in-depth the 
petitioner's findings or credit the petitioner with influencing or impacting the field. In this case, 
the petitioner's documentary evidence is not ret1ective of having a significant impact on the 
field. Merely submitting documentation ret1ecting that the petitioner's work has been cited by 
others in their published material is insufficient to establish eligibility for this criterion without 
documentary evidence reflecting that the petitioner's work has been of a major significance in 
the field. The AAO is not persuaded that the modest citations of the petitioner's articles are 
ret1ective of the significance of her work in the field. The petitioner failed to establish how 
those findings or citations of her work by others have significantly contributed to her field as a 
AAO that the also submitted some emails that were addressed 
from other researchers and postgraduate students 
or There is insufficient information contained in the 
emails that the requests were made, in fact, for the petitioner's work, such as the three articles 
that were published. Regardless, as with the citations, the fact that the field has taken some 
interest to the petitioner's work is insufficient to establish that the petitioner's work has been of 
major significance to the field. The emails ret1ect only inquiries into her work rather than that 
the petitioner's work has been widely applied throughout her field, so as to demonstrate original 
contributions of major significance in the field. 
The petitioner'S evidence also includes documentation that the she has presented her findings at 
four scientific conferences, such as the 95th American Association for Cancer Research (AACR) 
in March 2004. Many professional fields regularly hold conferences and symposia to present 
new work, discuss new findings, and to network with other professionals. These conferences are 
Page 10 
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. Although the petitioner submitted a screens hot 
from www.medicexchange.com that briefly mentioned the petitioner as presenting at an MeR 
conference in November 1999, the screenshot simply summarizes various poster presentations 
without reflecting any impact of the petitioner's presentation. There is no evidence showing that 
any of the petitioner's conference presentations have been ffequently cited by independent 
researchers or have otherwise significantly impacted the field. 
Again, while the presentation of the petitioner's posters demonstrate that the petitioner's work 
was 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 couple of 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 documentation from the University of Medicine and 
Dentistry of New Jersey reflecting that the petitioner was listed on the financial and other 
personal interest disclosure forms as one of the investigators for five research projects. 
However, the petitioner failed to submit any documentation to establish that any of the research 
projects resulted in any original contributions of major significance in the field. Simply 
submitting documentation reflecting the petitioner's participation in research projects is 
insufficient to establish eligibility for this criterion without documentary evidence reflecting that 
the research projects resulted in any contributions of major significance in the field. 
Moreover, a review of the record of proceeding reflects that the petitioner submitted 
recommendation letters. In this case, while the recommendation letters praise the petitioner for 
her work and research, they fail to indicate 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 example, _ 
briefly indicated that the petitioner 
indicate how these discoveries are of 
~nifilcallce in the field, beyond being published in 
professional the petitioner's original findings 
regarding the '-indicated 
that "[t]his is cells turn cancerous as well as 
finding a way to treat cancers," failed to provide any additional information or 
examples to show how the has been actually applied in her 
demonstrate that her contributions have been of major significance. Likewise, 
_ stated that the petitioner's "application of laboratory 
investigations is designed to generate new clinical treatments." Again, 
Page 11 
explain or discuss any "new clinical treatments" that have been developed based on the 
petitioner's research, so as to demonstrate that the petitioner's work has been of major 
significance in the field. 
In addition, a petitioner cannot this classification based on the expectation of 
future eligibility. For example, stated that "[a]nswers to questions ... would 
certainly help in calculating the patients [emphasis added]." Further,_ 
Kang stated that the petitioner "is now establishing the genetic criteria for making 
[the appropriate preventive treatment plan] [emphasis added]." 
that "I have every expectation that [the petitioner] will emerge as one of the leading researchers 
in this field and will make major contributions to this important area of research [emphasis 
added)." Given the descriptions in terms of future applicability and determinations 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 are not currently being implemented in his field. Again, while the 
AAO acknowledges the originality of the petitioner's findings, the letters do not indicate that 
anyone is currently applying the petitioner's research findings, so as to establish that these 
findings have already impacted the field in a significant manner. Accordingly, while the AAO 
does not dispute the originality of the petitioner's research and 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 references 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)(1), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. at 114, that USCIS cannot "consider facts that come into 
being only subsequent to the filing of a petition." [d. at 176. Many of the letters proffered 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. The assertion that the petitioner's research results 
are likely to be influential is not adequate to establish that her findings are already recognized as 
major contributions in the field. While the experts praise the petitioner's research and work, the 
fact remains that any measurable impact that results from the petitioner's research will likely 
occur in the future. 
Further, several of the recommendation letters refer to the petitioner's "unique" skills, 
experience, and background. For example, _referred to the petitioner's "unique 
insights combined with her relentless diligence are uniquely informed by her singular 
background." Moreover that "[b]ecause of [the petitioner's] experience as a 
primary care physician, position to recognize the results of her basic laboratory 
research that can improve the care of patients in the clinic." In addition,_ stated that 
the petitioner's "stature in the field is singular because her work bridges t~ 
laboratory investigations and their applications in clinical settings." Finally, __ 
_ stated that the petitioner is "in the unique position of investigating genetic 
polymorphisms in the laboratory and then to find out clinically how they are predictors of the 
Page 12 
recurrence of breast cancer." However, none of the letters indicated how the petitioner's skills or 
experience are original contributions of major significance to the field. Merely having a diverse 
skill set 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. Furthermore, 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 State Department of 
Transportation, 22 I&N Dec. 215, 221 (Comm'r 1998). 
While those familiar with the petitioner's work generally describe it as "extraordinary," 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 
influenced 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), affd, 905 F. 2d 41 (2d. Cir. 1990);Aryr 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 Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 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 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 influential, widely applied throughout her 
field, or has 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 olthe alien's authorship of scholarly articles in the field, in prolessional 
or major trade publications or other major media. 
The director determined that the petitioner failed to establish eligibility for this criterion. The 
plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(vi) requires "[eJvidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other 
major media." The petitioner has submitted sufficient documentary evidence demonstrating that 
she meets the plain language of the regulation. Therefore, the AAO withdraws the findings of 
the director for this criterion. 
Accordingly, the petitioner established that she meets the plain language of the regulation for this 
criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opmlOn, the AAO must next conduct 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[irJ field of endeavor," 8 C.P.R. § 204.5(h)(2); 
and (2) "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See section 203(b)(1)(A)(i) of the 
Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.P.R. § 204.5(h)(3). See also Kazarian, 596 P.3d at 
1115. The petitioner met the plain language of the regulation for one of the criteria, in which at 
least three are required under the regulation at 8 C.P.R. § 204.5(h)(3). In this case, many of the 
deficiencies in the documentation submitted by the petitioner have already been addressed in the 
preceding discussion of the regulatory criteria at 8 C.P.R. § 204.5(h)(3). 
In evaluating the final merits determination, the AAO must look at the totality of the evidence to 
detennine the petitioner's eligibility pursuant to section 203(b)( I )(A) of the Act. In this case, the 
petitioner has published scholarly articles, has had some of her work cited by others, and has 
performed research in laboratories. However, the accomplishments of the petitioner fall far short 
of establishing that she "is one of that small percentage who have risen to the very top of the 
field of endeavor" and that she "has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See 8 C.P.R. § 204.5(h)(2), 
section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.P.R. § 204.5(h)(3). 
The regulation at 8 C.P.R. § 204.5(h)(3) provides that "[aJ 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.P.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's tield 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 thal small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
Regarding the documentation submitted for 8 C.F.R. § 204.5(h)(vi), the petitioner submitted five 
copies of articles that she authored in professional publications. The AAO notes here that the 
petitioner's reference letters indicated several more articles that were authored by the petitioner; 
however the petitioner failed to submit primary evidence of her authorship of these articles 
pursuant to the regulation at 8 C.P.R. § 103.2(b)(2). Regardless, the petitioner has not 
established that her publication record sets her apart through a "career of acclaimed work." H.R. 
Rep. No. 101-723,59 (Sept. 19, 1990). Published research does not necessarily set an individual 
apart from other medical scientists employed in that researcher's field. 
As authoring scholarly articles is inherent to research scientists, the AAO will also evaluate a 
citation history or other evidence of the impact of the petitioner's articles to determine the impact 
and recognition his work has had on the field and whether such influence has been sustained. 
Por example, numerous independent citations for an article authored by the petitioner would 
provide solid evidence that her work has been recognized and that other researchers have been 
influenced by her work. Such an analysis at the final merits determination stage is appropriate 
pursuant to Kazarian, 596 F. 3d at 1122. On the other hand, few or no citations of an article 
authored by the petitioner may indicate that her work has gone largely unnoticed by his field. As 
previously discussed, the petitioner submitted documentary evidence reflecting that her work has 
been cited 73 times with the highest article cited 55 times. As these citations demonstrate 
moderate interest in her published work, they are not sufficient to demonstrate that her articles 
have attracted a level of interest in her field commensurate with sustained national or 
international acclaim at the very top of her field. Many of the petitioner's references' 
credentials, such as_ are far more impressive than those of the petitioner and appear to 
have risen to a level far above her own accomplishments. Although the petitioner met the plain 
language of the regulation through her co-authorship of scholarly articles, she has not established 
that the publication of such articles demonstrates a level of expertise indicating that she is among 
that small percentage who have risen to the very top of the field of endeavor. See 8 C.P.R. 
§ 204.5(h)(2). 
While the AAO found that the petitioner failed to meet the original contributions criterion 
pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(v), the petitioner based her claim of 
eligibility mainly on recommendation letters. It must be emphasized that the favorable opinions 
of experts in the field, while not without evidentiary weight, are not a solid basis for a successful 
extraordinary ability claim. Again, USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. 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. [d. The submission of letters from individuals, 
especially when they are colleagues of the petitioner without any prior knowledge of the 
petitioner's work, supporting the petition 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 
795-796; see also Matter of V-K-, 24 I&N Dec. at 500, n.2. It is again noted that the authors of 
the recommendation letters speculated on the significance of the petitioner's work at some point 
in the future. Eligibility must be established at the time of filing. 8 C.P.R. §§ 103.2(b)(I), (12); 
Page 15 
Matter of Katigbak, 14 I&N Dee, at 49. A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of lzummi, 22 I&N Dec. at 175. 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 
176. 
Regarding the petitioner's original research findings discussed under the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), as stated above, they do not appear to rise to the level of contributions of 
"major significance" in the field. Demonstrating that the petitioner's work was "original" in that 
it did not merely duplicate prior research is not useful in setting the petitioner apart through a 
"career of acclaimed work." H.R. Rep. No. 101-723,59. That report also says that "an alien 
must (1) demonstrate sustained national or international acclaim in the sciences, arts, education, 
business or athletics (as shown through extensive documentation) ... " Research work that is 
unoriginal would be unlikely to secure the petitioner a master's degree, let alone classification as 
a scientific researcher of extraordinary ability. To argue that all original research is, by 
definition, "extraordinary" is to weaken that adjective beyond any useful meaning, and to 
presume that most research is "unoriginal." 
Although the AAO determined that the petitioner's documentary evidence failed to meet the 
judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv), the petitioner's 
documentary evidence reflected requests to review three manuscripts. However, the record of 
proceeding is absent evidence demonstrating that the petitioner actually served as a "judge" of 
the work of others. An evaluation of the significance of an alien's judging experience is 
sanctioned under Kazarian, 596 F. 3d at 1121-11. In the petitioner's profession, peer review is a 
routine element of the process by which articles are selected for publication in literary or 
scholarly journals or for presentation at literary conferences. Occasional participation in the peer 
review process does not automatically demonstrate that an individual has sustained national or 
international acclaim at the very top of his field. Reviewing manuscripts is recognized as a 
professional obligation of scientists and researchers who publish themselves in journals or who 
present their work at professional conferences. Normally a journal's editorial staff or a 
conference technical committee will enlist the assistance of numerous professionals in the field 
who agree to review submitted papers. It is common for a publication or technical committee to 
ask multiple reviewers to review a manuscript and to offer comments. The publication's 
editorial staff or the technical committee may accept or reject any reviewer's comments in 
determining whether to publish, present, or reject submitted papers. Without evidence pre-dating 
the filing of the petition that sets the petitioner apart from others in her field, such as evidence 
that she has received and completed independent requests for review from a substantial number 
of journals or conferences, or chaired a technical committee for a reputable conference, the AAO 
cannot conclude that the petitioner is among that small percentage who has risen ~ 
of the field of endeavor. See 8 C.F.R. § ~ The AAO again notes that..­
requested __ who forwarded the request to several 
. , to review the manuscripts rather than the petitioner that is 
not retlective that "her achievements have been recognized in the field of expertise." See 8 
C.F.R. § 204.S(h)(3). Further, it appears that the petitioner's references have significantly 
Page 16 
themselves based on their editorial ~v.,~.;~n"~ 
and 
Drugs. 
Finally, the AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of her sustained national or international acclaim. See section 203(b)(I)(A) of 
the Act. The commentary for the proposed regulations implementing section 203(b )(1 )(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). The petitioner failed to submit evidence demonstrating that she "is one of 
that small percentage who have risen to the very top of the field." In addition, the petitioner has 
not demonstrated his "career of acclaimed work in the field" as contemplated by Congress. H.R. 
Rep. No. 101-723,59. 
While the petitioner need not demonstrate that there is no one more accomplished than she to 
qualify for the classification sought, it appears that the very top of her field of endeavor is far 
above the level she has attained. The petitioner seeks a highly restrictive visa classification, 
intended for individuals already at the top of their respective fields, rather than for individuals 
progressing toward the top at some unspecified future time. USCIS has long held that even 
athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r. 1994); 56 Fed. Reg. 
at 60899. While the AAO acknowledges that a district court's decision is not binding precedent, 
the AAO notes that in Matter of Racine, 1995 WL 153319 at *1, *4 (N.D. Ill. Feb. 16, 1995), the 
court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison 
is not a comparison of Racine's ability with that of all the hockey players at all 
levels of play; but rather, Racine's ability as a professional hockey player within 
the NHL. This interpretation is consistent with at least one other court in this 
district, Crimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the 
definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and 
circuit, the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. 
In this case, the petitioner has not established that her achievements at the time of filing the 
petition were commensurate with sustained national or international acclaim, or that she was 
among that small percentage at the very top of the field of endeavor. 
Ill. Conclusion 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b )(1 )(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, 
affd, 345 F.3d at 683; see also Sollane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.