dismissed EB-1A Case: Science

identifying data deleted to 
prev~nt clearly unwarranted 
InvasIon of perSOnal . prIVacy 
PUBLIC COpy 
DATE: SEP 2 7 20110FFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service, 
Administrative Appeals Office (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)(1 )(A) of the Immigration and Nationality Act; 8 U .S.c. § 1 IS3(b)(1 )(A) 
ON BEHALF OF PETITIONER: 
SELF- REPRESENTED 
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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 c.F.R. § 1 03.S(a)(1 )(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
fJfjti n JtL/ 
Perry Rhew 
. Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on January 27, 2010, 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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(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 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 "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. §§ 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 found that the petitioner failed to establish eligibility for the awards 
criterion pursuant to the regulation at 8 c.F.R. § 204.5(h)(3)(i), the membership criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 8 c.F.R. 
§ 204.5(h)(3)(iv), the scholarly articles criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vi), the artistic display criterion pursuant to the regulation at 8 c.F.R. 
§ 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)( viii), and the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). Moreover, the director found that the petitioner met the original contributions 
criterion pursuant to the regulation at 8 c.F.R. § 204.5(h)(3)(v), and the director found that the 
petitioner failed to submit any evidence relating to the commercial successes criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(x). On appeal, the petitioner argues that he meets the 
membership criterion, the published material criterion, the judging criterion, and the leading or 
critical role criterion. Moreover, the petitioner stated that he "agrees with the director on his 
decision" regarding the awards criterion, the scholarly articles criterion, the artistic display criterion, 
the high salary criterion, and the commercial successes criterion. Accordingly, the AAO considers 
these criteria to be abandoned and will not further discuss them on appeal. See Sepulveda v. U.S. 
Att'y Gen., 401 F.3d 1226, 1228 n. 2 (l1th Cir.2005). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
Page 3 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
st 
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. § 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; 
Page 4 
(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; 
(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; 
(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] field of endeavor," 
1 Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements 
beyond those set forth in the regulations at 8 c.F.R. § 204.5(h)(3)(iv) and 8 c.F.R. § 204.5(h)(3)(vi). 
-Page 5 
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). 
!d. 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 anal ysis 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); 
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 August 26, 2008, seeks to classify the petitioner as an alien with 
extraordinary ability as a computer scientist. The petitioner has submitted evidence pertaining to 
the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
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. 
A review of the record of proceeding reflects that the petitioner initially claimed eligibility for 
this criterion based on his inclusion in the 2009 Edition of Who's Who in America. The plain 
language of the regulation at 8 c.F.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of the alien's 
membership in associations in the field for which is classification is sought, which require 
outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields." In order to demonstrate that membership in an association 
meets this criterion, a petitioner must show that the association requires outstanding achievement 
as an essential condition for admission to membership. Membership requirements based on 
employment or activity in a given field, minimum education or experience, standardized test 
scores, grade point average, recommendations by colleagues or current members, or payment of 
dues do not satisfy this criterion as such requirements do not constitute outstanding 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
achievements. Further, the overall prestige of a given association is not determinative; the issue 
here is membership requirements rather than the association's overall reputation. 
submitted a letter from 
who congratulated the petitioner for his selection of his 
, The petitioner also submitted a copy of 
his biograph that was included in the 2009 edition. In addition, the . submitted an 
email from 
stated: 
Who publications aim to profile those who hold key positions or 
have made noteworthy accomplishments within all significant fields of endeavor. 
Our editorial staff screens all submissions. The selection criteria are: 1. Position 
of leadership held at significant organization, 2. educational attainments, 3. 
noteworthy achievement in creative works (writings, music, television, movies, 
etc.), 4. significant publishing or public speaking experience, and 5. contributions 
to the community. 
In the case here, the petitioner failed to establish that noteworthy accomplishments equate to 
outstanding achievements. The AAO is not persuaded that the selection criteria, such as 
occupation status or educational experience, for Who's Who in America is consistent with the 
plain language of "outstanding achievements" pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii). The noteworthy achievements standard required by Marquis Who's Who® is 
significantly less than the higher standard of outstanding achievement required by the regulation. 
Furthermore, the petitioner submitted a screenshot from www.marquiswhoswho.com that stated: 
The 
Since 1899, _has remained the standard for reliable and 
comprehensi~~rive to continue the tradition 
established our founder, _____ over 100 years ago with the 
in America [emphasis added]. 
The family of ications presents unmatched coverage of 
the lives of from both the United States and around 
the world, and from every significant field of endeavor [emphasis added]. 
regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "the alien's 
·s addedJ." Based on the docu~ence submitted 
is a set of publications, i.e., __ in America and 
an association. The petitioner failed to establish that 
the plain language of the regulation requiring membership in 
associations. 
Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires that the 
outstanding achievements are "judged by recognized national or international experts in their 
Page 7 
disciplines or fields." The petitioner failed to submit any documentary evidence demonstrating 
that the editorial staff is comprised of recognized national or international experts in their 
disciplines or fields. 
The petitioner also claimed eligibility for this criterion based on his invitation "to join as an 
s and is currentI y an the 
The regulations contain a 
separate criterion regarding the judging of the work of others pursuant to the regulation at 8 CF.R. 
§ 204.5(h)(3)(iv). The AAO will not presume that evidence relating to or even meeting the judging 
criterion is presumptive evidence that the petitioner also meets this criterion. To hold otherwise 
would render meaningless the regulatory requirement that a petitioner meet at least three separate 
criteria. Therefore, while the petitioner's editorial experience will not be considered under this 
criterion, the judging criterion will be addressed later. 
course III 
beyond the U,",'.U'-'HH 
purported email from 
for this criterion based on his invitation "to join 
a public university, to develop and teach a 
I which requires outstanding achievements 
science." The petitioner submitted a 
who stated: 
Based on our telephone conversation, a comprehensive review of your application 
materials and our projected instructional needs, I would like to offer you the 
following initial course assignment (which will be BOTH development of the 
course in Fall 2009 and instruction of the course in Early Spring 2010). 
Start Term (Development): Early Fall 2009 (August 24 - October 26,2009) 
The petitioner filed the petition on August 26, 2008. Eligibility must be established at the time 
of filing. 8 CF.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'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 (Comm'r 1998). That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (B IA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Regardless, the petitioner failed to submit any documentary evidence demonstrating that he 
actually accepted and developed the course. Moreover, as the plain language of the regulation at 
8 CF.R. § 2i1o.5 h (3)(ii) requires "the alien's membership in associations," an offer of 
employment at does not satisfy the elements of this regulation. Furthermore, ~itioner 
was offered emp oyment based, in part, on the "projected instructional needs" of _ rather 
than outstanding achievements of the petitioner. In addition, the petitioner failed to establish that 
his employment offer was judged by recognized national or international experts in their 
disciplines or fields. 
For the reasons discussed above, the petitioner failed to demonstrate that he is a member of 
associations requiring outstanding achievements of its members, as judged by recognized 
national or international experts in their disciplines or fields consistent with the plain language of 
Page 8 
the regulation at 8 C.F.R. § 204.5(h)(3)(ii). It IS the petitioner's burden to establish every 
element of this regulatory criterion. 
Accordingly, the petitioner failed to establish that he 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 
classification is sought. Such evidence shall include the title, date, and author of 
the material, and any necessary translation. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. 
2. 
3. 
4. 
5. 
6. 
7. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p ]ublished 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 general, in order for published 
material to meet this criterion, it must be primarily about the petitioner and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify 
Page 9 
as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.3 
Furthermore, the plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(iii) requires that 
"[ s ]uch evidence shall include the title, date, and author of the material, and any necessary 
translation." 
The AAO notes that six of the petitioner's seven documents were posted on the Internet. 
However, the AAO is not persuaded that postings and blogs on the Internet from printed 
publications, organizations, or Internet-based media outlets are automatically considered major 
media. The petitioner failed to submit any documentary evidence establishing that the websites are 
considered major media. In today's world, many newspapers, businesses, and other media outlets 
post stories and information on the Internet. To ignore this reality would be to render the "major 
media" requirement meaningless. However, the AAO is not persuaded that international 
accessibility by itself is a realistic indicator of whether a given website is "major media." 
Regarding item 1, the screenshot reflects a blog announcing that the petitioner will be one of the 
presenters at the Web2New York networking party rather than published material about the 
petitioner relating to his work. Furthermore, the petitioner failed to submit any documentary 
evidence establishing that http://web2newyork.comis major media. 
Regarding item 2, the press release reflects information regarding iMedia Streams' development 
of iPoint, iServe, and iMusic. While the press release quotes the petitioner, it is not about the 
petitioner relating to his work rather than iMedia Streams' technology. Articles that are not about 
the petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07 -CV -820-
ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about 
the actor). Moreover, the petitioner failed to indicate where the press release was published, and 
if was published in a professional or major trade publication or other major media. 
Regarding item 3, the petitioner failed to include the date and author of the material as required 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, a review of the screenshot 
merely lists a photograph of the petitioner and indicates that he is one of eight speakers at the E­
Marketing Arts seminar. Also, the petitioner failed to submit any documentary evidence 
reflecting that http://ernarketingarts.comis major media. 
Regarding item 4, the petitioner failed to include the date and author of the material as required 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, the screenshot is from the 
petitioner's business, iMedia Streams, and reflects the petitioner's description of the company 
rather than published material about the petitioner relating to his work. Further, the petitioner 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example. an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County. 
Virginia. for instance, cannot serve to spread an indi vidual's reputation outside of that county. 
Page 10 
failed to submit any documentary evidence establishing that www.imediaconnection.com1s 
major media. 
Regarding item 5, the screens hot reflects the debut of iPoint, iServe, and iMusic by 
iMediaStreams. In fact, the screenshot never mentions the petitioner let alone published material 
about him relating to his work. In addition, the petitioner failed to submit any documentary 
evidence demonstrating that www.emarketingandcommerce.comis major media. 
Regarding item 6, the screenshot is about iMedia Streams seeking investment rather than 
published material about the petitioner relating to his work. Furthermore, the petitioner failed to 
submit any documentary evidence reflecting that www.mergermarkeLcom is major media. 
item 7, the screenshot is a video clip of the petitioner's interview on the ._ 
Again, this regulatory criterion requires "published material" in 
professional or major trade publications or other major media and "the title, date, and author of 
the material." As a video clip from YouTube, as well as an interview on a television show, is not 
published material in professional or major trade publications or other major media, it clearly 
does not meet the plain language of this regulatory criterion. 
On appeal, the petitioner submitted an article entitled, • 
Eligib ity must 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (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." Id. at 176. Nonetheless, the article is about 
cleaning negative material from Google' s first pages. While the article quotes the petitioner, the 
fact remains that the article is not published material about the petitioner relating to his work. 
As discussed above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
"[p]ublished 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 this case, 
the petitioner's documentary evidence fails to reflect any published material about him relating 
to his work in professional or major trade publications or other major media. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
Although the director determined that the petitioner participated as a judge of the work of others, 
the director ultimately concluded that the petitioner failed to establish eligibility for this criterion 
based on the absence of sustained national or international acclaim. The plain language of the 
-Page 11 
regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of the alien's participation, either 
individually or on a panel, as a judge of the work of others in the same or an allied field of 
specification for which classification is sought." Pursuant to Kazarian, 596 F.3d at 1121-22, the 
petitioner submitted sufficient documentation establishing that he meets the plain language of the 
regulation at 8 c.F.R. § 204.5(h)(3)(iv). Therefore, the AAO withdraws the findings of the director 
for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in thefield. 
In the director's decision, he concluded that the petitioner established eligibility for this criterion 
based on documentary evidence reflecting "that the petitioner's work represents original 
scientific contributions of significance in his field." 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." In compliance with 
Kazarian, the AAO must focus on the plain language of the regulatory criteria. 596 F.3d at 
1121. Here, the evidence must be reviewed to see whether it rises to the level of original 
scientific-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 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2nd Cir. Sep 15, 2003). Although the director found that the petitioner's original contributions 
were significant, he failed to find that the petitioner's original contributions have been "of major 
significance in the field." Upon review, the AAO finds the director's decision must be 
withdrawn. 
A review of the record of proceeding reflects that the petItIoner submitted several 
recommendation letters from colleagues in the petitioner's field. The authors of the 
recommendation letters indicate the original contributions of the petitioner. In fact, the letters 
are very similar in describ' the 'tioner's contributions to the multimedia and data mining 
areas. For example, stated: 
[The petitioner's] work in developing a new mathematical model that 
automatically personalizes Composite Multimedia Objects while adhering to both 
temporal and spatial constraints is outstanding and has demonstrated methods to 
reorganize composite multimedia objects. 
* * * 
Among [the petitioner's] most significant and groundbreaking contributions to the 
field is the development of a dynamic method for manifesting composite 
multimedia objects. This innovative method enables the personalization of 
-Page 12 
composite multimedia objects based on the user credentials, profile and device 
being used. 
However, when discussing the significance of the petitioner's work in the field, the authors of 
the recommendation letters fail to demonstrate that his original contributions have been of major 
significance in the field as a whole. Instead, the authors indicate that the petitioner's research 
was used by U.S. Department of Homeland . and the Port Authority of New York and 
New Jers For ex the letters from 
research was used as a part of a U.S. Department of Homeland Security 
information to first responders on their handheld devices." Moreover, 
also indicated that the petitioner's "approach of using online multimedia techniques and data 
mining have allowed the Port Authority of New York and New Jersey first responders to receive 
instant customized information on their handheld devices which minimalize [sic] the information 
load and allowing accessibility to vital information in emergency situations." Although the 
letters reflect that the petitioner's research and work has been applied in the field by specific 
agencies or organizations, they do not reflect that his work has been of major significance in the 
field. The letters fail to indicate, for example, that the petitioner's work has been widely applied 
or implemented in the field rather than limited to select projects. In addition, the 
recommendation letters do not indicate that the petitioner's work has widely influenced or 
impacted the field as a whole, so as to demonstrate original contributions of major significance in 
the field. 
Moreover, the authors of the recommendation letters made general statements without providing 
specific information to establish that the petitioner's contributions have been of major 
significance in the field. For example, _ stated that the petitioner's "skills and 
expertise have enabled him to develop new concepts for online Multimedia and Data Mining that 
have led the scientific community in new directions." However, _ failed to provide 
any specific examples supporting his claim that the scientific comm~uided in a new 
direction based on the petitioner's work. Further, the letter from _ as well as the 
others letter that refer to the petitioner's skills, indicate how the petitioner's skills or personal 
traits 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 level of major significance 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). Further,_ stated 
that he "can confirm that it has contributed a great deal to the international body of knowledge 
related to Online Multimedia Systems." However, _ failed to describe how the 
petitioner has greatly contributed to the international body of knowledge. The AAO cannot 
make a favorable determination for this criterion based on personal confirmations without any 
information describing how the petitioner's work has been of major significance in the field. 
Page 13 
Furthermore, to the pending applications of the 
This work has led to three patent applications by [the petitioner1. These are on 
Mining web modalities for online marketing and content ranking, a Cross 
Platform Digital Right Management system and Bridging the Communication 
Divide by Connecting Online and Offline User Behavior for Targeted Online 
Marketing. 
Notwithstanding that the petitioner failed to submit any documentary evidence establishing that 
he has been awarded any patents, the AAO 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. 
See Matter of New York State Department of Transportation, 22 I&N Dec. at 221. Rather, the 
significance of the innovation must be determined on a case-by-case basis. [d. A patent 
recognizes the originality of the idea, but it does not state that the petitioner made a contribution 
of major significance in the field through his development of this idea. 
In addition, the recommendation letters from 
_ indicated that the petitioner has made presentations at conferences, seminars, and 
meetings. With the exception of they failed to provide any further information 
~ng the presentations besides simply stating the petitioner was a presenter. In fact, • 
_ based his recommendation letter on a review of the petitioner's curriculum vitae without 
any prior knowledge of the petitioner's presentations. Regarding _he stated that "[t]he 
importance of his work is also demonstrated by the lively discussions usually following his 
conference presentations, which indicates interest from companies worldwide." The AAO is not 
persuaded that lively discussions following conference presentations are reflective of original 
contributions of major significance in the field. _ failed to demonstrate, for example, how 
the lively discussions from the petitioner's presentations have resulted in the furtherance of 
computer applications throughout the field. Further, many professional fields regularly hold 
conferences and symposia to present new work, discuss new findings, and to network with other 
professionals. These conferences are promoted and sponsored by professional associations, 
businesses, educational institutions, and government agencies. Participation in such events, 
however, does not equate to an original contribution of major significance in the field. There is 
no evidence showing that the petitioner's conference presentations have been frequently cited by 
independent researchers or have otherwise impacted the field in a manner consistent of major 
significance. None of the authors state that they have cited to any of the petitioner's conference 
presentations or journal articles in their own work and provides no specific examples of any 
independent computer scientists who have applied the petitioner's findings in their work. 
Finally, the AAO notes that the letters from merely summarize 
the petitioner's experience and accomplishments without reflecting the significance of the 
petitioner's work in the field, let alone how the petitioner's work has been of major significance. 
While those familiar with the petitioner describe him as "distinguished," "outstanding," and 
-Page 14 
"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.4 The lack of supporting evidence gives the AAO no basis to 
gauge the significance of the petitioner's present contributions. 
Further, 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 sign~ficance in the field [emphasis added]." Without additional, specific evidence 
showing that the petitioner's work has been unusually influential, widely applied throughout his 
field, or has otherwise risen to the level of contributions of major significance, the AAO cannot 
conclude that he meets this criterion. Therefore, the AAO withdraws the decision of the director 
for this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner claimed eligibility for this criterion based on his role with his own company, 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) 
requires "[ e 1 v idence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation [emphasis added]." In general, a leading role 
is evidenced from the role itself, and a critical role is one in which the alien was responsible for 
the success or standing of the organization or establishment. Based on a review of the record of 
proceeding, the petitioner submitted sufficient documentary evidence demonstrating that he 
4 Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 15 
performs in a leading or critical role for However, the regulation at 8 
C.F.R. § 204.5(h)(3)(viii) also requires that the leading or critical role be "for organizations or 
establishments that have a distinguished reputation." On appeal, the petitioner argues: 
royalties are shared between the different assignees. 
Regarding the petitioner's first argument, the petitioner submitted two unidentified screenshots 
with _ and _ emblems. The screens hots are in a foreign language, and the petitioner 
failed to submit any certified English language translations of the screenshots pursuant to the 
regulation at 8 C.F.R. § 103.2(b)(3). Regardless, a review of the screenshots fails to reflect that 
_ and _ are clients of Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft (~f California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Regarding the petitioner's second 
argument, the petitioner failed to identify which media that he refers to on appeal. Nonetheless, 
assuming that the petitioner is referring to the documentary evidence submitted in support of the 
previously discussed published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), the AAO is not persuaded that websites that simply mention ••••••• 
_ demonstrates that it has a distinguished reputation. In fact, none of the websites indicate 
that has distinguished itself from other or similar online media companies. 
Regarding the petitioner's third argument, while the pending patents have already been 
addressed in the AAO's discussion of original contributions criterion, the patent applications 
merely reflect the creation of original work but does not reflect that has a 
distinguished reputation. The AAO also notes that the petitioner su and 
promotional material from However, the petitioner failed to submit any 
independent, objective evidence establishing that has a distinguished 
reputation. See Braga v. Poulos, No. CY 06 5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 
604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions on 
the cover of a magazine as to the magazine's status as major media). 
The director also found that the lJ\..<lll1\J'll\..<l 
his role as an assistant to the 
-Page 16 
Although the petitioner failed to address this issue on appeal, the AAO considered his role under 
the judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv). The AAO will not 
presume that evidence relating to or even meeting the judging criterion is presumptive evidence that 
the petitioner also meets this criterion. To hold otherwise would render meaningless the regulatory 
requirement that a petitioner meet at least three separate criteria. 
In addition, the director found that the petitioner's role as a marketing director for 'led to 
establish eligibility for this criterion. Again, the petitioner failed to address this Issue on appeal. 
However, a review of the record of proceeding reflects that the only evidence submitted by the 
petitioner regarding his role at is the petitioner's self-serving curriculum vitae and the 
recommendation letter from stated that the petitioner "was hired by_ as a 
Director of Online Marketing" and ' is one of the world's most distinguished providers of 
Live online Broadcasts for more than 250 channels from more than 90 countries." The brief 
statement by _ is insufficient to establish that ~ioner's role was leading or critical to 
_. Besides indicating the petitioner's job title, __ fail to indicate any of the petitioner's 
job duties, so as to establish that his role was leading or critical. Moreover, the petitioner failed to 
submit any other documentary evidence comparing his roles to other positions within _ so as 
to demonstrate that he performed in a leading or critical role. It cannot be determined from the 
petitioner's job title alone that his role is leading or critical. Furthermore, while •••• 
indicated that is a distinguished provider, he failed to demonstrate the significance of 
the statistics to other online providers, so as to reflect that _ has a distinguished 
reputation. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "Ielvidence 
that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation [emphasis added]." In this case, althou the 
demonstrated that he performs in a leading or critical role for 
petitioner failed to establish that it has a distinguished reputation. Moreover, the petitioner failed 
to establish that he performed in a leading or critical role for _, and that it has a 
distinguished reputation. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, 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: (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. § 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. § I 153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner met the plain language of one of the criteria, in which at least three are 
required under the regulation at 8 c.F.R. § 204.5(h)(3). In this case, many of the deficiencies in 
Page 17 
the documentation submitted by the petItIoner have already been addressed In the AAO's 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to conclude the petitioner's eligibility pursuant to section 203(b)(1 of the Act. In 
this case the has of judges at the 
In addition, the petitioner has demonstrated his original In 
multimedia and data ~ the petitioner has shown that he is the president of 
his own company,"""'-'-- However, the personal accomplishments of the 
petitioner fall far short of establishing that he "is one of that small percentage who have risen to 
the very top of the field of endeavor" and that he "has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." See 8 C.F.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.F.R. 
§ 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[al 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. § 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. § 204.5(h)(2). 
Although the AAO found that the petitioner did not meet the membership criterion pursuant to 
the regulation at 8 C.F.R. 204. (3)(ii), the petitioner failed to demonstrate that the selection 
of his biography in qualifies him as a member of associations requiring 
outstanding ~chievements of their members, as judged by recognized national or international 
.. . Moreover the petitioner submitted an email from" 
who stated that "there were 18,021 new 
submissions for the latest Who's Who In America" and "[o]f those, 8,660 were selected for the 
book." Clearly, the high acceptance rate does not demonstrate a level of expertise in "that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
While the AAO found that the petitioner failed to meet the published material criterion pursuant 
to the regulation at 8 c.F.R. § 204.5(h)(3)(iii), the AAO notes that the majority of the 
documentary evidence submitted by the petitioner does not even mention the petitioner, and the 
few documents that do mention the petitioner only quote him and are not about him relating to 
his work. In fact, the petitioner failed to submit a single article reflecting published material 
about the petitioner relating to his work in professional or major trade publications or other 
Page 18 
major media. The lack of any published material about the petitioner fails to demonstrate 
sustained national or international acclaim for this highly restrictive classification. 
Although the AAO determined that the petitioner met the judging criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv), an evaluation of the significance of the petitioner's 
judging experience is sanctioned under Kazarian, 596 F. 3d at 1121-11. The petitioner 
demonstrated his el· based on his for the 
The petitioner also submitted documentary evidence reflecting 
that he is one of the assistants to the 
_ The AAO notes, however, that the petitioner failed to provide any documentary 
evidence specifying the number of manuscripts reviewed or other evidence that he participated 
as a judge of the work of others for the journal. The AAO further notes that the petitioner 
submitted an email from inviting the petitioner to be an editorial member for 
demonstrating that he actually participated as a judge or editorial board member for any of the 
journals. A request or invitation to be a join member does not equate to actually participating as 
a judge of the work of others. 
Nonetheless, the AAO notes that peer review is a routine element of the process by which articles 
are selected for publication in journals or for presentation at 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 computer scientists 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 his field, such as evidence 
that he has received and completed independent requests for review from a substantial number of 
journals or conferences, served in an editorial position for a distinguished journal, or chaired a 
technical committee for a reputable conference, the AAO cannot conclude that the petitioner is 
among that small percentage who has risen to the very top of the field of endeavor. See 8 C.F.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.F.R. § 204.5(h)(3)(v), the petitioner based his claim of 
Page 19 
eligibility almost entirely 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, USC IS 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. Id. 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; USC IS 
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. Again, none of the letters 
submitted on behalf of the petitioner fail to reflect any original contributions of major 
significance made by the petitioner. 
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 (Sept. 19, 1990). 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." Further, the OOH states specifically that computer scientists "conduct 
research on a wide array of topics." See www.bls.gov/oc0/ocos304.pdf.This information reveals 
that original published research, whether arising from research at a university or private employer, 
does not set the researcher apart from others in that researcher's field. 
Although the AAO found that the petitioner failed to meet the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), the AAO notes that the petitioner 
demonstrated that he performed in a leading or critical role for his own company,_ 
without establishing that it has distinguished reputation. Evidence of the 
pet I oner s ro with organizations that have a distinguished reputation is far more persuasive 
that the petitioner has sustained national or international acclaim. See 8 C.F.R. § 204.5(h)(2). 
Finally, the AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of his sustained national or international acclaim. See section 203(b)(1 )(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). The petitioner failed to submit evidence demonstrating that he "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 (Sept. 19,1990). 
Page 20 
In this matter, the evidence of record falls short of demonstrating the petitioner's sustained 
national or international acclaim as a computer scientist. The regulation at 8 C.F.R. 
§ 204.S(h)(3) requires "[a] petition for an alien of extraordinary ability must be accompanied by 
evidence that the alien has sustained national or international acclaim and this his or her 
achievements have been recognized in the field of expertise." While the petitioner submitted 
documentation demonstrating that he is active in the computer scientist field, the documentary 
evidence is not consistent with or indicative of sustained national or international acclaim. 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.S(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.S(h)(2). The 
petitioner seeks a highly restrictive visa classification, intended for individuals at the top of their 
respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. In this case, the petitioner has not established that his achievements at the time of 
filing the petition were commensurate with sustained national or international acclaim, or that he 
was among that small percentage at the very top of the field of endeavor. 
III. Conclusion 
Review of the record does not establish that the petitioner 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 
petitioner'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)( 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. 
q{fd, 345 F.3d at 683; see also Soltane v. DO}, 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.