dismissed EB-1A Case: Science

ideJdifYIng data deleted to 
prevent clearly unwarranted 
invasion of persunal pnvacy 
t'1mUC copy 
U.S. Department of Homeland Security 
U.S. Citizenship and Innnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: MAR 0 7 2011 
INRE: Petitioner: 
Beneficiary: 
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. § I 1 53(b)(l)(A) 
ON BEHALF OP PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Porm 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.P.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, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The employment-based immigrant visa pehtlon was denied by the Director, 
Nebraska Service Center, on September IS, 2009. On motion, the director affirmed his decision on 
November 18, 2009. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner seeks to classifY the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(l)(A), 
as an alien of extraordinary ability. The director determined that the petitioner had not 
established the beneficiary's requisite extraordinary ability and failed to submit extensive 
documentation of his sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her achievements. See section 
203(b)(l)(A)(i) of the Act and 8 C.P.R. § 204.S(h)(3). The implementing regulation at 8 C.P.R. 
§ 204.S(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.S(h)(3)(i) through (x). The petitioner must submit qualifYing evidence under at 
least three of the ten regulatory categories of evidence to establish the basic eligibility 
requirements. 
On appeal, counsel claims that the beneficiary meets at least three of the regulatory criteria at 8 
C.P.R. § 204.S(h)(3). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 the beneficiary's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifYing evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(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 perfonned 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 connnercial successes in the perfonning 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 detennination." 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 detennination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS detennines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the [ir] field of endeavor," 
8 C.F.R. § 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. § I I 53(b)(l)(A)(i). 
Id. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits detennination. 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), afj'd, 345 FJd 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. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on March 2, 2009, seeks to classify the beneficiary as an alien with 
extraordinary ability as a physicist. 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 receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
At the time of the original filing of the petition, the petitioner claimed the beneficiary's eligibility 
for this criterion based on a long-term grant from the International Science Foundation in 1994. 
In the director's initial decision on September 15,2009, he found that the beneficiary's research 
grant failed to establish eligibility for this criterion. On motion and on appeal, counsel did not 
contest the decision of the director or offer additional arguments for this criterion. As such, we 
deem this issue to be abandoned. See Sepulveda v. us. AUy Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir.2005). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in thefieldfor which classification 
is sought. Such evidence shall include the title, date, and author of the material, 
and any necessary translation. 
In the director's decision, he found that the petitIOner failed to establish the beneficiary's 
eligibility for this criterion. A review of the record of reflects that the npj;t;,~n'>r 
claimed the based on an article entitled, 
by EE Times UK in 
on_,2001. 
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 order for published material to 
meet this criterion, it must be primarily about the alien and, as stated in the regulations, be printed in 
professional or major trade publications or other major media. To qualify as major media, the 
publication should have significant national or international distribution. Some newspapers, such as 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
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 
A review of the article fails to meet the plain language of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(iii). Specifically, the article is about 
quotes the not the 
rei<ltinlg to his work. Compare 8 C.F.R. § 204.5(i)(3)(i)(C) relating to outstanding 
researchers or professors pursuant to section 203(b)(1 )(B) of the Act, which on~ 
material about the alien's work. In this case, the article is primarily about __ 
developing a new technique and does not discuss the beneficiary. Articles that are not about the 
beneficiary 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, as evidence to establish that Electronics Times or www.eetimes.euJuk is a professional 
or major trade publication or other major media, the petitioner submitted background 
information from the of Electronic Times and www.eetimes.euJuk, and 
an e-mail stated that "60,000 hard printed copies 
~WCUlalt;U and "over a million unique visitors 
every month around the world" are reached online. However, the petitioner failed to submit any 
independent, objective evidence regarding Electronic Times or www.eetimes.ue/uk. Further, we 
are not persuaded that 130,000 printed and digital copies are reflective of a major trade 
publication. Regarding www.eetimes.ue/uk, we are also not persuaded that the fact that the 
article was posted on the Internet from a printed publication is automatically considered major 
media. The petitioner failed to submit independent, supporting evidence establishing that the 
website is considered major media. In today's world, many publications, regardless of size and 
distribution, post at least some of their stories on the Internet. To ignore this reality would be to 
render the "major media" requirement meaningless. However, we are not persuaded that 
international accessibility by itself is a realistic indicator of whether a given website is "major 
media. II 
Accordingly, the petitioner failed to establish that the beneficiary 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. 
The director determined that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. Specifically, on motion, the director stated: 
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 individual's reputation outside of that county. 
Page 7 
The petitioner again makes the assertion that the alien has performed reviews of 
other scientists' research. However the Service found no documentation of the 
actual peer reviews. Instead, the Service notes that the articles which were 
submitted to corroborate this claim are more applicable to the "authorship" 
criterion below, as these published articles are about the beneficiary's review 
research and findings. 
On appeal, counsel argues: 
The Service errs in its contentions as sufficiently detailed evidence was provided 
in the RFE Response to corroborate that [the beneficiary] has reviewed the works 
of others. The articles that were submitted as evidence for this criterion were 
Review articles, in which [the beneficiary] reviewed others' work in his field. 
A review of the record of proceeding reflects that the petitioner submitted five of the 
beneficiary's authored scholarly articles: 
I. 
2. 
3. 
4. 
5. 
The plain language of the 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." In this case, the petitioner claims 
the beneficiary's eligibility based on the beneficiary's authorship of scholarly articles in which he 
cites or references the works of others in his own authored articles. The regulations contain a 
separate criteria for authorship of scholarly articles found in 8 C.F.R. § 204.5(h)(3)(vi). We will not 
presume that evidence relating to or even meeting the authorship of scholarly articles criterion is 
presumptive evidence that the beneficiary also meets this criterion. Because the regulatory criteria 
under the regulation 8 C.F.R. § 204.5(h)(3) are separate and distinct from one another, USCIS 
clearly does not view these criteria as being interchangeable. If evidence sufficient to meet one 
Page 8 
criterion mandated a finding that an alien met another criterion, the requirement that an alien 
meet at least three criteria would be meaningless. 
Moreover, a review of the beneficiary's articles listed above do not reflect that the beneficiary 
reviewed or judged the work of others. Instead, the articles reflect the authorships and publications 
of the beneficiary's own findings and research. Merely submitting articles authored by the 
beneficiary that cite, reference, or credit the work of others is insufficient to demonstrate that the 
beneficiary has served "as a judge of the work of others" pursuant to the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(vi). The petitioner failed to establish that the beneficiary has 
judged the work of other physicists' scholarly articles or work, such as serving on a peer review 
panel determining whether the manuscripts should be published in a professional journal. 
We note here that in response to the director's request for additional evidence pursuant to the 
regulation at 8 C.F .R. § 103 .2(b )(8), the petitioner also claimed the beneficiary's eligibility for this 
criterion based on the beneficiary's participation as a grant reviewer for the National Science and 
Engineering Research Council of Canada (NSERC). We also note that the director did not address 
this issue in either of his decisions, nor did counsel address this issue or offer additional arguments 
on motion or on appeal. 
The petitioner submitted an e-mail, dated July 23, 2009, who thanked the 
beneficiary "for the review of the grant application that [he] nrc.v;(hl 
competition [emphasis added]." The petitioner failed to submit any primary evidence of the 
beneficiary's participation as a grant reviewer for NSERC in 2008, or evidence that primary or 
secondary evidence does not exist or cannot be obtained pursuant to the regulation at 8 C.F .R. 
§ 103.2(b)(2). Given that the e-mail was dated and sent a year after the beneficiary allegedly 
performed the review, the lack of sufficient information contained in the e-mail, and the failure to 
submit primary evidence, there is insufficient evidence reflecting that the beneficiary performed as a 
grant reviewer for NSERC in 2008. 
The petitioner also submitted a letter, dated August 25, 2009, who 
thanked the beneficiary for "providing [his] expertise in evaluating research 
application for the 2009 Strategic Projects competition." However, the petition was filed on March 
2, 2009. The beneficiary's evaluation for the 2009 Strategic Projects competition occurred after the 
filing of the petition. Eligibility must be established at the time of filing. Therefore, we will not 
consider this item as evidence to establish the beneficiary's eligibility. 8 C.F.R. §§ 103 .2(b)(I), 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 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 (BIA 1981), that we cannot "consider facts that come into being 
only subsequent to the filing ofa petition." Id. at 176. 
As the petitioner failed to establish that the beneficiary has participated as a judge of the work of 
others, the petitioner failed to demonstrate the beneficiary meets the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
-Page 9 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
The director found that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner claimed the 
beneficiary's eligibility based on patents, the citation of the beneficiary's work by others, and 
recommendation letters. 
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." 
Regarding the patents, at the time of the original filing of the petition, counsel claimed that the 
beneficiary "has over 7 patents and 20 patents pending," "another 20 patents which have not been 
applied for," and "European patents that have been applied for." Although the petitioner 
submitted copies of the pending patents, 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 we cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id at 176. Therefore, merely submitting evidence that the beneficiary has 
applied for numerous patents is insufficient to demonstrate that the pending patents are original 
contributions of major significance in the field. 
In addition, on motion and on appeal, counsel claimed that "[t]he 27 patents and patents pending 
represent approximately 10% of [the beneficiary's] innovations" and "[a]pproximately 90% of 
[the beneficiary's] inventions are company secrets and cannot be disclosed." Counsel failed to 
submit any documentary evidence supporting the assertions. The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). The burden is on the petitioner 
to establish that he or she is eligible for the benefit sought. Matter of Brantigan, 11 I&N Dec. 
493 (BrA 1966); section 291 of the Act, 8 U.S.c. § 1361. 
Moreover, this office has previously stated that a patent is not necessarily evidence of a track 
record of success with some degree of influence over the field as a whole. See Matter of New 
York State Dep't. of Transp., 22 I&N. Dec. 215, 221 n. 7, (Commr. 1998). Rather, the 
significance of the innovation must be determined on a case-by-case basis. Id. A patent 
recognizes the originality of the idea, but it does not state that the beneficiary made a 
Page 10 
contribution of major significance in the field through his development of this idea. The 
petitioner failed to establish that the beneficiary's patents, including the beneficiary's p~ 
~been of major significance in the field and not limited to the petitioner or_ 
~ith whom the beneficiary has worked. In other words, the petitioner failed to 
demonstrate that the beneficiary's patents have influenced or impacted the field beyond his 
employers. 
Regarding the beneficiary's work cited by others, at the time of the original filing of the petition, 
the petitioner submitted screenshots from Google Scholar reflecting that 11 of the beneficiary's 
articles were cited approximately 36 times. In response to the director's request for additional 
evidence, the petitioner submitted screenshots from 
article entitled, 
was cited 64 times. samples of published 
cited the beneficiary's work. We note here that the petitioner submitted only a few 
full articles that the beneficiary authored. A review of those articles reflects that the beneficiary 
cited himself numerous times. For example, the articles cited below contain the following self­
citations: 
1. 
2. 
3. 
4. 
5. 
While the number of total citations is a factor, it is not the only factor to be considered in 
determining the beneficiary's eligibility for this criterion. Generally, the number of citations is 
reflective of the beneficiary's original findings and that the field has taken some interest in the 
beneficiary's work. However, it is not an automatic indicator that the beneficiary's work has 
been of major significance in the field In this case, we are not persuaded that the documentary 
evidence submitted by the petitioner regarding the beneficiary's work cited by others, as well as the 
beneficiary citing his own work, is reflective that the beneficiary's work has been of major 
significance in the field. Furthermore, a review of the petitioner's documentary evidence fails to 
reflect that the beneficiary'S work has been unusually influential. For example, the petitioner has 
Page 11 
not submitted evidence such as articles that discuss in-depth the beneficiary's findings or credit the 
beneficiary with influencing or impacting the field. In this case, the petitioner's documentary 
evidence is not reflective of the beneficiary having a significant impact on the field. Merely 
submitting documentation reflecting that the beneficiary'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 beneficiary's work has been of major significance in the field. We are 
not persuaded that the citations of the beneficiary's articles are reflective of the significance of 
his work in the field. The petitioner failed to establish how those findings or citations of the 
beneficiary's work by others have significantly contributed to his field as a whole. In fact, the 
petitioner failed to demonstrate how many times the beneficiary's work has been independently 
cited by others, so as to demonstrate that the beneficiary's work has been of major significance in 
the field and not limited to the beneficiary's own work. 
Finally, the petitioner submitted recommendation letters from two individuals. While the 
recommendation letters praise the beneficiary for his work as a physicist and indicate his original 
findings, they fail to indicate that his contributions are of major significance in the field. The 
letters provide only general statements without offering any specific information to establish how 
the beneficiary's work has been of major significance in the field. For example, __ 
_ University of Florida, stated that the beneficiary's "approach has been used by many 
followers and eventually led of contrast -enhancing layers in a number of 
display solutions." However, failed to specifically identify the "many followers" and 
the "number of display establish that the beneficiary's work has impacted or 
influenced the field. Similarly, Ore~tate University, stated that the 
beneficiary "greatly contributed to a better understanding of_dis~d made a~t 
impact on the entire process of device characterization and testing at_" Again,_ 
failed to provide specific information demonstrating that the beneficiary has made original 
contributions of . or significance in the field and failed to indicate the petitioner's impact beyond 
The petitioner cr~eneficiary for his contributions 
in developing and _. Although the beneficiary's 
work may have contributed to success of the petitioner, the letters fail to reflect 
the significant impact or influence of the beneficiary's work beyond the petitioner. In other words, 
the petitioner failed to establish that the beneficiary's work in developing products has been of major 
significance in the field and that the impact of his work is not limited to his employer. Assuming 
that the beneficiary's skills and talents are unique to his occupation, 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 certification 
process. See Matter of New York State Dep't. ofTransp., 22 I&N Dec. at 221. The letters of 
recommendation fail to indicate any original contributions of major significance in the field 
made by the beneficiary. 
While those familiar with the beneficiary's work generally describe it as "trailblazing" "world­
class," and "groundbreaking," the letters contain general statements that lack specific details to 
Page 12 
demonstrate that the beneficiary's work is of major significance. This regulatory criterion not 
only requires the beneficiary to make original contributions, but also requires those contributions 
to be of major significance in the field. We are not persuaded by vague, solicited letters that 
simply repeat the regulatory language but do not explain how the beneficiary'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 documentary evidence 
gives the AAO no basis to gauge the significance of the beneficiary's contributions as of the 
filing date of the petition. 
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 (Commr. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id The submission of letters of support from the beneficiary's personal contacts 
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. Thus, the content of the writers' 
statements and how they became aware of the beneficiary's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the beneficiary's work has 
been original, unusually influential, or has otherwise risen to the level of contributions of major 
significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media. 
In the director's decision, although he found that the beneficiary published articles in scientific 
journals, he found that the petitioner failed to establish the beneficiary's eligibility for this 
criterion as the beneficiary's work was not cited extensively by others. The plain language of the 
regulation at 8 C.F.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." Pursuant 
to Kazarian, 596 F.3d at 1122, the petitioner submitted sufficient documentation establishing that 
the beneficiary meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). Therefore, 
we withdraw the findings of the director for this criterion. 
The petitioner established that the beneficiary meets the plain language of the regulation for this 
criterion. 
4 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), ajj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 13 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director found that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires 
"[ e ]vidence 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. A review of the record of 
proceeding reflects that the claimed the beneficiary's eligibility based on his 
employment with and with the petitioner. 
Regarding the petitioner submitted a termination letter that reflected that 
the was as a "Principal Scientist." Besides the submission of six patents 
that list the beneficiary as the inventor, the petitioner failed to submit any other documentary 
evidence reflecting the beneficiary's job responsibilities or duties, so as to demonstrate that he 
performed in a leading or critical role. . documentary evidence demonstrating 
that the beneficiary was employed is insufficient to establish that he 
performed in a leading or critical role. to submit, for example, an 
organizational ch~umentation that compared his position or role with the 
other at __ Moreover, the petitioner failed to establish that_ 
a distinguished reputation. The from _ 
website and a press release issued by However, the 
to submit any objective, independent that _ 
has a distinguished reputation. 
Regarding the beneficiary's role with the 
referenced recommendation letters. 
beneficiary is a "member of the 
and "executes program plans." 
who stated that the beneficiary "has been critical to the development and 
at [the petitioner]." Moreover, the petitioner 
who stated that the beneficiary "has reported to 
[him] for the past 2 Y, years" and is the "Director of the group developing 
vacuum coatings for solar energy and electronics." Again, besides copies of approved and 
pending patents developed by the beneficiary for the petitioner, the petitioner failed to submit 
any other documentary evidence establishing that the beneficiary has performed in a leading or 
critical role for the petitioner. While the petitioner established that the beneficiary is employed 
with the petitioner as a physicist, the petitioner failed to submit sufficient documentary evidence 
reflecting that the beneficiary's role is leading or critical. In fact, we are not persuaded that being 
a "member" within a section of the company is reflective of a leading or critical role within the 
company as a whole. Again, the petitioner failed to submit an organizational chart or similar 
documentary evidence comparing the role of the beneficiary with other employees of the 
-Page 14 
company. Clearly, the beneficiary is in a subordinate position to_ 
Finally, besides the brief self-serving statements contained in the reference letters, 
failed to submit any other documentary evidence establishing that the petitioner has a 
distinguished reputation pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
As discussed above, the petitioner failed to demonstrate that the beneficiary has performed in a 
leading or critical role with organizations or establishments with a distinguished reputation 
pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(viii). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services. in relation to others in the field 
At the time of the original filing of the petition, the petitioner claimed the beneficiary's eligibility 
for this criterion. In the director's initial decision on September IS, 2009, he found that the 
petitioner failed to establish that the beneficiary has commanded a high salary in relation to 
others in his field. On motion and on appeal, counsel did not contest the decision of the director 
or offer additional arguments for this criterion. As such, we deem this issue to be abandoned. 
See Sepulveda v. u.s. Afty Gen., 401 FJd at 1228 n. 2. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) 
a "level of expertise indicating that the individual is one of that small percentage who have risen 
to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.S(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
§ I IS3(b)(l)(A)(i), and 8 C.F.R. § 204.S(h)(3). See also Kazarian, S96 F.3d at IllS. The 
petitioner established that the beneficiary met the plain language of the regulation for one of the 
criteria, of which at least three are required under the regulation at 8 C.F.R. § 204.S(h)(3). In this 
case, many of the deficiencies in the documentation submitted by the petitioner have already 
been addressed in our preceding discussion of the regulatory criteria at 8 C.F.R. § 204.S(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. In this case, 
the beneficiary is employed as a physicist, has authored some scholarly articles, has pending and 
approved patents of his work, and has garnered some attention by others. However, the 
accomplishments of the beneficiary 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 
Page 15 
field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
§ I I 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.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.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 beneficiary failed to 
meet the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the 
petitioner claimed the beneficiary's eligibility based on a single article that was published 
approximately eight years prior to the filing of the petition. We do not find evidence that a 
single article published eight years prior to the filing of the petition is sufficient to establish the 
level of sustained national or international acclaim required for this highly restrictive 
classification. 
While we determined that the beneficiary failed to meet the judging criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv), an evaluation of the significance of the beneficiary's 
judging experience is sanctioned under Kazarian, 596 F. 3d at 1121-11. Although the record of 
proceeding fails to reflect that the beneficiary served, or claimed to serve, as a manuscript 
reviewer, we note that 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 or scholars 
who publish themselves in joumals 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. In 
this case, while the beneficiary has authored scholarly and scientific papers for professional 
journals, he failed to perform as a reviewer for journals in his field. Without evidence pre-dating 
the filing of the petition that sets the beneficiary 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, we cannot conclude that the beneficiary is 
among that small percentage who have risen to the very top of the field of endeavor. See 8 
C.F.R. § 204.5(h)(2). 
-Page 16 
Nonetheless, while the record of proceeding contains a claim of performing as a grant reviewer, 
there is no evidence reflecting that the beneficiary reviewed grant applications for acclaimed 
physicists and scientists who are at the top of the field. C/, Matter of Price, 20 I&N Dec. 953, 
954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899 (USerS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" 
standard). We cannot conclude that the beneficiary's claimed minimal participation as a 
reviewer of research grant applications demonstrates a level of expertise indicating that he is 
among that small percentage who have risen to the of the field of endeavor. See 
8 C.F.R. § Even when cornpared 
considerably distinguished himself based on his editorial and review experience. 
We determined that the beneficiary met the authorship of scholarly articles criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(vi). However, the petitioner has not established that the 
beneficiary's moderate publication of such articles demonstrates a level of expertise indicating 
that he is among that small percentage who have risen to the very top of the field of endeavor. 
See 8 C.F .R. § 204.5(h)(2). As authoring scholarly articles is inherent to scholars, we will 
evaluate a citation history or other evidence of the impact of the beneficiary's articles to 
determine the impact and recognition his work has had on the field and whether such influence 
has been sustained. For example, numerous independent citations for an article authored by the 
beneficiary would provide solid evidence that his work has been recognized and that other 
physicists or researchers have been influenced by his 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 beneficiary may indicate that his work has gone 
largely unnoticed by his field. As previously discussed, the petitioner submitted documentary 
evidence on two different occasions that his work was cited approximately 36 times, and his 
most cited article was cited 64 times. We again note that based on a review of the complete 
articles submitted by petitioner of the beneficiary's own articles, the beneficiary cited himself 
numerous times. Nevertheless, while the citations demonstrate some interest in his published 
work, they are not sufficient to demonstrate that his articles have attracted a level of interest in 
his field commensurate with' or international acclaim at the very top of his 
field. Again, when compared to who stated that he has authored "more than 360 
publications in national and and proceedings," the beneficiary has fallen far 
short in establishing that he "is one of that small percentage who have risen to the very top of the 
" 
years prior to the filing of the petition. 
Although the beneficiary failed to meet the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) and the leading or critical role criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii), the petitioner submitted recommendation letters and 
self-serving letters praising the beneficiary. However, such letters cannot form the cornerstone 
of a successful extraordinary ability claim. Further, USCIS may, in its discretion, use as 
advisory opinion statements submitted as expert testimony. See Matter (){ Caron international, 
Page 17 
19 I&N Dec. at 795. USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters of support 
from the beneficiary's personal contacts is not presumptive evidence of eligibility; USCIS may 
evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 
795. The submission of letters from individuals 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. 500, n.2 
(BIA 2008). 
Finally, we cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b)(I)(A) of the Act. The commentary for the proposed regulations implementing section 
203 (b)(I )(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 the beneficiary 
"is one of that small percentage who have risen to the very top of the field." In addition, the 
petitioner has not demonstrated the beneficiary'S "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The truth is to be 
determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N 
Dec. at 376 citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r. 1989). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the beneficiary as one of the small percentage who have risen to the very top of the field 
of endeavor. The documentation submitted in support of a claim of extraordinary ability must 
clearly demonstrate that the alien has achieved sustained national or international acclaim and is one 
of the small percentage who have risen to the very top of the field of endeavor. 
III. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
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 the beneficiary'S eligibility 
pursuant to section 203(b)(1 )(A) of the Act, and the petition may not be approved. 
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.