dismissed EB-1A Case: Sciences

identifying data deleted to 
prevent ckGC:)i .lilwarranted 
invasion of personal privacy 
PlffiLICCOPY 
DATE: MAY 09 201l Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AI\O) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 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. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
c;¥Jo:- $,-
fY" 
Perry Rhew 
Chief, Administrative Appeals Office 
·www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective 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. 
The petitioner's priority date established by the petition filing date is November 20, 2009. On March 5, 
2010, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued her decision on July 26, 2010. On appeal, the 
petitioner submits a brief with a copy of a Ninth Circuit court decision. For the reasons discussed 
below, the AAO upholds the director's ultimate determination that the petitioner has not established his 
eligibility for the classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
Page 3 
(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 101st 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.; 
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 alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion. 1 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." [d. at 1121-22. 
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». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. Id. 
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). 
Page 4 
II. ANALYSIS 
A. Director's Decision Regarding Kazarian Analysis 
Within the appellate brief: counsel claims that the director's decision violated the tenets of the Kazarian 
decision. Counsel summarized the body of his appellate brief by referencing the Kazarian tenet, which 
precludes US CIS from imposing novel standards beyond those enumerated within the regulation when 
applying the antecedent procedural step. Counsel further issued a conclusory statement that the 
petitioner met the following criteria: 
• Receipt of lesser national or international prizes or awards for excellence in the field at 8 C.F.R. 
§ 204.5(h)(3)(i); 
• Membership in associations in the petitioner's field that require outstanding achievements of 
their members at 8 C.F.R. § 204.5(h)(3)(ii); 
• Published material about the alien relating to his work in professional or major trade journals or 
other major media at 8 C.F.R. § 204.5(h)(3)(iii); and 
• Participation as a judge of the work of others at 8 C.F.R. § 204.5(h)(3)(iv). 
Counsel offered no discussion of these criteria within his appellate brief, nor did he identify a specific 
manner in which the director's decision contained an error in law or an error in fact relating to these 
criteria. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 n.2 (BlA 1988); Matter of Lallreano, 19 I&N Dec. 1,3 n.2 (BlA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BlA 1980). The unsupported assertions of counsel in a 
brief 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). A review of the record reveals no violation of Kazarian relating to 
8 C.F.R. § 204.5(h)(3)(i), (ii) or (iii). However, the AAO notes an error relating to 8 C.F.R. 
§ 204.S(h)(3)(iv), which it will discuss below under the judging criterion. 
B. Eligibility as of the Date of Filing 
Counsel's other major assertion on appeal is that uscrs should consider the response to the petitioner's 
article in Cell Stem Cell that itself did not appear in print until after the date of filing because the 
petitioner had already completed the research underlying that article prior to that date. 
The petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. §§ 103.2(b)(I), (12); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In this matter, that means that he must 
demonstrate his acclaim as of that date. All of the case law on this issue focuses on the policy of 
preventing petitioners from securing a priority date in the hope that they will subsequently be able to 
demonstrate eligibility. Matter of Katigbak provides: 
PageS 
If the petItIOn is approved, he has established a pnonty date for visa number 
assignment as of the date that petition was filed. A petition may not be approved for a 
profession for which the beneficiary is not qualified at the time of its filing. The 
beneficiary cannot expect to qualify subsequent! y by taking additional courses and 
then still claim a priority date as of the date the petition was filed, a date on which he 
was not qualified. 
Section 204 of the Act requires the filing of a visa petition for classification under 
section 203(a)(3). The latter section states, in pertinent part: "Visas shall next be 
made available to qualified immigrants who are members of the professions." 
(Emphasis added.) It is clear that it was the intent of Congress that an alien be a 
recognized and fully qualified member of the professions at the time the petition is 
filed. Congress did not intend that a petition that was properly denied because the 
beneficiary was not at that time qualified be subsequently approved at a future date 
when the beneficiary may become qualified under a new set of facts. To do otherwise 
would make a farce of the preference system and priorities set up by statute and 
regulation. 
Id. The Regional Commissioner continued this reasoning in Matter a/Wing's Tea House, 16 I&N Dec. 
158, 160 (Reg'l Comm'r 1977). That decision reemphasizes the importance of not obtaining a priority 
date prior to being eligible based on future experience. In fact, this principle has been extended beyond 
the alien's eligibility for the classification sought. For example, an employer must establish its ability to 
pay the proffered wage as of the date of filing. Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Act. 
Reg'l Comm'r 1977). That decision provides that a petition should not become approvable under a new 
set of facts. Recognizing that Matter of Katigbak, 14 I. & N. Dec. at 49 was not "foursquare with the 
instant case" in that it dealt with the beneficiary's eligibility, Matter of Great Wall, 16 I&N Dec. at 
145 still applies the reasoning. The decision provides: 
In sixth-preference visa petition proceedings the Service must consider the merits of 
the petitioner's job offer, so that a determination can be made whether the job offer is 
realistic and whether the wage offer can be met, as well as determine whether the 
alien meets the minimum requirements to perform the offered job satisfactorily. It 
follows that such consideration by the Service would necessarily be focused on the 
circumstances at the time of filing of the petition. The petitioner in the instant case 
cannot expect to establish a priority date for visa issuance for the beneficiary when at 
the time of making the job offer and the filing of the petition with this Service he 
could not, in all reality, pay the salary as stated in the job offer. 
Id. (Emphasis in original.) Finally, when evaluating revisions to a partnership agreement submitted in 
support of a petition seeking classification as an alien entrepreneur pursuant to section 203(b)( 5) of the 
Act, this office relied on Matter of Katigbak, 14 I. & N. Dec. at 49 for the proposition that "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 (Assoc. Comm'r 1998). That decision further provides, 
Page 6 
citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that 
come into being only subsequent to the filing of a petition." Id. at 176. Ultimately, in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. Ogllndipe v. Mllkasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Citations published after the date of filing cannot be considered evidence that the alien was already 
influential as of that date. Moreover, articles by the alien that were not published as of the date of 
filing and, thus, had not been disseminated in the field as of that date, cannot establish acclaim as of 
the date of filing. To hold otherwise would have the untenable result of an alien securing a priority 
date based on the speculation that he will attain acclaim while the petition is pending. 
C. Evidentiary Criteria2 
Documentation of the alien's receipt (?f lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien be the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires evidence that each prize or award is one for excellence in the field of endeavor rather than 
simply for participating in or contributing to the event. The petitioner must satisfy all of these elements 
to meet the plain language requirements of this criterion. 
The petitioner provided the Award for Excellence in Research on Alzheimer's and Related Disorders 
from The Alzheimer's Association of Northern California and Northern Nevada, one online news brief 
and one online news article relating to this award, and a document indicating that the petitioner was the 
recipient of a student scholarship in Japan. The director determined that the petitioner failed to meet the 
requirements of this criterion. Counsel has failed to specifically identify an error in law or error in fact 
within the director's decision relating to this criterion. 
Regarding the Alzheimer's award, the petitioner provided two forms of media that acknowledged the 
award. The news brief originates from the online version of Synapse, the University of California, San 
Francisco (UCSF) student newspaper. The petitioner failed to provide any information relating to the 
circulation or the distribution data of Synapse and thus, the petitioner may not rely on this news brief to 
establish that this award is nationally or internationally recognized. The online news article originates 
from Novato Advance, a local community newspaper in the Marin County area in California. The 
record also lacks evidence demonstrating that Novato Advance is distributed or circulated beyond the 
local region in the state of California. Media coverage by local or regional newspapers is insufficient to 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
reflect the award is nationally or internationally recognized. In view of the foregoing, the petitioner 
may not rely on this award to satisfy the plain language requirements of this criterion. 
The petitioner also submitted a combined foreign language and English language certificate of a 
Japanese Government scholarship indicating the petitioner received 175,000 Japanese Yen over a three 
year period. Academic study is not a field of endeavor; rather it is training for a future field of 
endeavor. As such, academic scholarships cannot be considered nationally or internationally 
recognized prizes or awards in the petitioner 'sfield of endeavor. Moreover, financial aid awards in the 
form of scholarships are reserved for students in need of financial assistance to pay for tuition and not 
based on excellence in the field. Therefore, the petitioner failed to establish that his scholarship was a 
nationally or internationally recognized prize or award for excellence in the field. Moreover, the 
petitioner failed to submit any documentary evidence outside of the awarding entity to demonstrate that 
the scholarship was recognized nationally or internationally for excellence in the field of endeavor. 
Finally, while scholarships and other sources of competitive financial support may be noteworthy, they 
are not nationally or internationally recognized prizes or awards because only other students compete 
for such funding, not recognized experts in the field. The AAO cannot conclude that receiving funding 
for one's research and academic training constitutes receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. Such support funding is presented not to 
established researchers with active professional careers, but rather to students seeking to further their 
research, training, and experience. Academic awards and honors received while preparing for a 
vocation fall substantially short of constituting a national or international prize or award for recognition 
in the field. Therefore, this scholarship will not qualify to meet the plain language requirements of this 
criterion. 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
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. 
This criterion contains several evidentiary elements the petitioner must satisfy. First, the petitioner must 
demonstrate that he is a member of more than one association in his field. Second, the petitioner must 
demonstrate that the associations require outstanding achievements (in the plural) of their members. 
The final requirement is that admittance is judged, or adjudicated, by nationally or internationally 
recognized experts in their field. The petitioner must submit evidence satisfying all of these elements to 
meet the plain language requirements of this criterion. 
The petitioner provided evidence of his membership in the Society for Neuroscience (SfN) and his 
membership in the American Association for the Advancement of Science (AAAS). Within the initial 
brief, counsel also lists additional memberships in associations, however the petitioner failed to 
document the record with this evidence. The director determined that the petitioner failed to meet the 
Page 8 
requirements of this criterion. Counsel has failed to specifically identify an error in law or error in fact 
within the director's decision relating to this criterion. 
Regarding the SfN, the criteria for new members are: (1) sponsorship by two regular or emeritus active 
members of the Society (this criterion also contains exceptions for underrepresented countries); 
(2) submission of a curriculum vitae and bibliography; and (3) student applications require proof of 
enrollment in a degree-granting institution of higher education. These criteria do not represent 
requirements of outstanding achievements in the field. Additionally, the petitioner failed to provide 
evidence that admittance is determined by nationally or internationally recognized experts in the field. 
Consequently, this association will not contribute to the petitioner satisfying the plain language 
requirements of this criterion. 
Regarding the membership in AAAS, the petitioner provided an "About AAAS" website printout. 
However, this printout lacks any specific membership requirements. It merely indicates that 
membership is "[o]pen to all." This membership will not contribute to the petitioner satisfying the plain 
language requirements of this criterion. The initial filing brief also lists three additional organizations 
that the petitioner claimed membership within, however evidence of these memberships is not part of 
the record. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Softici, 22 I&N Dec. 158, 165 (Assoc. 
Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The unsupported assertions of counsel do not constitute evidence. Obaigbena, 19 I&N Dec. at 534 n.2; 
Laureano, 19 I&N Dec. at 3 n.2; Ramirez-Sanchez, 17 I&N Dec. at 506. The unsupported assertions of 
counsel in a brief are not evidence and thus are not entitled to any evidentiary weight. See Phinpathya, 
464 U.S. at 188-89 n.6. Consequently, the petitioner's claimed membership in these additional 
organizations will not factor into this proceeding. 
As such, the petitioner has not submitted evidence that meets the plain language requirements of 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. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b )(3). The 
Page 9 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
Accompanying the initial petItIon filing, the petItIoner provided various forms of media-related 
evidence from: Science Daily; R&D Mag; EurekaAlert; FirstScience News; ScienceBlog; PR Leap; 
PsychCentral; Medical News Today; and other unknown sources. In response to the RFE, the petitioner 
provided multiple new forms of evidence related to this criterion. The director determined that the 
petitioner failed to meet the requirements of this criterion. 
Regarding the evidence submitted with the initial petition filing, the above named news sources contain 
11 different pieces of evidence. However, several are the same news piece reprinted by different media 
outlets and are promotional press releases from Gladstone Institutes where the petitioner served his 
postdoctoral fellowship. The petitioner actually provided four different news pieces, some of which are 
press releases or an equivalent. Most notably, no form of evidence lists an author of the news piece and 
two pieces of evidence lack the material's publication date. The regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
requires that the evidence under this criterion include the date and the author of the published material. 
Without the author, and in two instances the date, the petitioner cannot comply with the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). 
Regarding the evidence submitted in response to the RFE, each form of evidence bears some form of 
evidentiary defect. Several of the articles postdate the petition filing date of November 20, 2009, and 
may not be relied upon within this proceeding. These articles appeared in Alzheimer Research Forum, 
Health News Digest, Science Daily, Science Blog, and Genetic Engineering and Biology News. Each of 
the referenced articles was published between December 3, 2009, and December 8, 2009. Therefore, 
these articles cannot demonstrate the petitioner's eligibility under the published material criterion within 
this petition. 8 C.F.R. § 103.2(b)(I), (12); see Matter of Katigbak, 14 I&N Dec. at 49. The petitioner 
also provided evidence deriving from Wikipedia. With regard to information from Wikipedia, there are 
no assurances about the reliability of the content from this open, user-edited internet site? See Lamilem 
Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
Based on the fact that the petitioner's evidence fails to comply with the regulation and that the 
remaining evidence postdates the petition filing date, the petitioner has not submitted evidence that 
meets the plain language requirements of this criterion. 
J Online content from Wikipedia is subject to the following general disclaimer, "WIKIPEDIA MAKES NO 
GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative encyclopedia, that is, a 
voluntary association of individuals and groups working to develop a common resource of human knowledge. 
The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that 
nothing found here has necessarily been reviewed by people with the expertise required to provide you with 
complete, accurate or reliable information. . .. Wikipedia cannot guarantee the validity of the information found 
here. The content of any given article may recently have been changed, vandalized or altered by someone whose 
opmlOn does not correspond with the state of knowledge in the relevant fields. See 
hHp;JI~(},yyikjv~~Ij<!,QIg!wiki!\:YiJs:ip(:CQia:G~f1~r(lUIi~~I;~if11t,:t:, [accessed on April 24, 2012, a copy of which is 
incorporated into the record of proceeding. J 
Page 10 
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. 
This criterion requires not only that the petitioner was selected to serve as a judge, but also that the 
petitioner is able to produce evidence that he actually participated as a judge. The phrase "a judge" 
implies a formal designation in a judging capacity, either on a panel or individually as specified at 
8 C.F.R. § 204.5(h)(3)(iv). Additionally, these duties must have been directly judging the work of 
others in the same or an allied field in which the petitioner seeks an immigrant classification within the 
present petition. The petitioner must submit evidence satisfying all of these elements to meet the plain 
language requirements of this criterion. 
Within the director's decision, she acknowledges that the evidence on record demonstrates the 
petitioner has performed peer-review at his mentor's request. The director then concludes that because 
a journal did not request that the petitioner perform the reviews, that this is insufficient to meet the 
requirements of this regulatory criterion. The AAO does not concur with the director's determination as 
it relates to this criterion. As such the AAO withdraws the director's adverse determination and 
considers the petitioner to have met the plain language requirements of this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) to his field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that his contributions are original. The evidence must establish that the 
contributions are scientific, scholarly, artistic, athletic, or business-related in nature. The final 
requirement is that the contributions rise to the level of major significance in the field as a whole, rather 
than to a project or to an organization. The phrase "major significance" is not supert1uous 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). Contributions of major 
significance connotes that the petitioner's work has significantly impacted the field. The petitioner 
must submit evidence satisfying all of these elements to meet the plain language requirements of this 
criterion. 
The petitioner provided seven letters from experts within the petitioner's field identifying the possible 
future impact that the petitioner's contributions bear out. The director determined that the petitioner 
met the requirements of this criterion. The AAO departs from the director's eligibility determination 
related to this criterion for the reasons outlined below . 
••••••••••••••••••••••••••••••• where the petitioner 
served his postdoctoral fellowship, indicated that the petitioner's findings are "extremely promising and 
exciting." _ also indicated: "[The petitioner's] studies have revealed a new way to prevent 
and even reverse the abnormal accumulation of [damaging fibers] in the brain, which could lead to the 
development of better strategies to prevent and reverse AD [Alzheimer's disease]." (Emphasis added.) 
_ also indicated that other areas of the petitioner's research "has shed new light on neural stem 
cells and AD and could lay the groundwork for treating AD with stem cells in the future." (Emphasis 
added.) indicated that the petitioner's most prominent contributions will have a very 
important but future impact within the petitioner's field. That the petitioner will provide a prospective 
benefit to the United States as a permanent resident is a requirement under the Act. See section 
203(b)(1)(A)(iii) of the Act. However,_ did not identify how the petitioner had already made 
a significant impact on his field, which is required by this regulatory criterion. A petitioner must 
establish the elements for the approval of the petition at the time of filing. 8 C.F.R. §§ 103.2(b)(1), 
(12). A petition may not be approved if the beneficiary was not qualified at the priority date, but 
expects to become eligible at a subsequent time. See Katigbak, 14 I&N Dec. at 49. This evidence does 
not establish that, as of the priority date, the petitioner had contributed to his field in a significant 
manner as required by the regulation. 
- -- --- -- noted the petitioner's achievement relating to Parkinson's 
disease at Saitama University in Japan. However, _ failed to explain in what manner the 
petitioner's findings have impacted the field as it relates to Parkinson's disease or any other disease. _ 
_ claimed: "With his skills and dedication to the science, [the petitioner] has made significant 
contributions to our understanding of AD pathogenesis since he has come here.'_, like _ 
_ , indicated that the petitioner's findings relating to the damaging fibers that playa role in "AD­
neuronal and cognitive deficits, [lay] the foundation for new therapeutic strategies." (Emphasis added.) 
_ also attested that the petitioner'S findings in other research "shed new light on the mechanistic 
insights into the development and integration of newborn neurons in AD brain, which may lay the 
[ground work] for AD treatment with stem cells." (Emphasis added.) The AAO is not disputing that the 
petitioner's research findings may eventually prove to be extremely beneficial to the field; however the 
impact of his findings has yet to materialize within his field. Speculation of future possible benefits, 
even from some of the top researchers in the field, continues to be theoretical and speculative. 
Many of the remaining letters from those who were not the petitioner's present or former collaborators 
persuasively discuss the future promise of the petitioner's research and the impact that may result from 
his work, rather than how his past research already qualifies as a contribution of major significance in 
the field. A petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. See Katigbak, 14 I&N Dec. at 49. The assertion that the petitioner's research results are 
likely to be influential is not adequate to establish that his findings are already recognized as major 
contributions in the field. While the experts praise the petitioner's research and work as both 
trailblazing and of great potential, the fact remains that any measurable impact that results from the 
petitioner's research will occur in the future. These remaining letters extol the petitioner's talent and 
experience in various areas of research. Talent and experience in one's field, however, are not 
necessarily indicative of original research contributions of major significance in the petitioner's field. 
An alien must have demonstrably impacted his field in order to meet this regulatory criterion. The 
reference letters submitted by the petitioner discuss his research findings, but they do not provide 
Page 12 
specific examples of how the petitioner's work has already significantly impacted the field at large or 
otherwise constitutes original contributions of major significance. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The Board also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998) . • , solicited letters from local colleagues 
that do not specifically identify contributions or provide specific examples of how those contributions 
influenced the field are insufficient. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aird in 
part 596 F.3d 1115 (9th Cir. 2010). While the expert letters in this case are not ~, it is apparent that 
each letter was solicited, as all reference the petitioner being qualified for the extraordinary ability 
immigrant classification. More importantly, the letters fail to "provide specific examples of how [the 
petitioner's] contributions influenced the field," as noted in Kazarian 580 F.3d at 1036. 
In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors 
attesting to [the alien's] contributions in the field" was insufficient was "consistent with the relevant 
regulatory language." 596 F.3d at 1122. The opinions of experts in the field are not without weight and 
have been considered above. While such letters can provide important details about the petitioner's 
skills, they cannot form the cornerstone of a successful extraordinary ability claim. USCIS may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. 791, 795 (Cornm'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 from experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may, as this decision has done above, evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may even 
give less weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id. at 795; see also Soffici, 22 I&N Dec. at 165. 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. 
The director's RFE properly noted that the petitioner'S most notable contribution is not one that is 
already of major significance. However, the director reversed her position after she received the 
response to the RFE. Within this response, counsel confirmed that the article titled 
an 
Alzheimer's Disease" was not at petition, but that Cell 
Stem Cell had published this article and featured it on the publication's cover in between the petition 
filing date and the date counsel responded to the RFE. A review of this publication reveals that Cell 
Stem Cell did feature the article on the cover. In response to the RFE, counsel asserted that since the 
petitioner had already submitted the article, and that the article was published and featured on the 
publication's cover as of the RFE response date, that the that petitioner had already completed the work 
Page 13 
prior to the petition filing date and he only had to wait for the article to be published. Counsel also 
acknowledged that the article's recognition occurred after the petition filing date, but that Cell Stem Cell 
had previewed the article prior to publishing it. In fact the "preview" appeared after the date of filing in 
the same issue of Cell Stem Cell in which the petitioner's article appeared. 
As discussed above, the petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See Katigbak, 
14 I&N Dec. at 49. Therefore, a petitioner may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to USCIS requirements. See 
Matter of Izummi, 22 I&N Dec. at 175. At the time of filing, the petitioner had not established that the 
aforementioned article constitutes a contribution of major significance in the petitioner's field. The 
AAO is not persuaded by counsel's attempt to gloze the fact that the petitioner's work had not yet made 
an impact in his field, asserting that because the petitioner had completed the work on the article, that 
this satisfies the regulatory requirement as a contribution of major significance. Publications are not 
sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence that they were of "major 
significance." Kazarian, 580 F.3d at 1030, aff'd in part 596 F.3d at 1122. The petitioner's findings 
cannot be considered a contribution of major significance unless, and until these findings have resulted 
in some impact in his field. 
Regarding the petitioner's research, his field, like most science, is research-driven, and there would be 
little point in publishing research that did not add to the general pool of knowledge in the field. 
According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. The AAO must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. Silverman, 51 F. 3d at 31. To be considered a 
contribution of major significance in the field of science, it can be expected that the results would have 
already been reproduced and confirmed by other experts and applied in their work. Otherwise, it is 
difficult to gauge the impact of the petitioner's work. 
Within the RFE, the director noted, "[A]s you indicated, numerous citations of a finding by others is an 
indication in medical research that the finding is significant." The director then noted the small number 
of citations the petitioner's submitted article had garnered. This portion of the RFE was discussing the 
contributions of major significance criterion under 8 C.F.R. § 204.5(h)(3)(v). In response, counsel cited 
the Kazarian decision. The court's language to which counsel refers discussed the regulatory criterion 
at 8 C.F.R. § 204.5(h)(3)(vi) relating to the scholarly articles criterion. The discussion states: "Nothing 
in [the scholarly articles criterion] requires a petitioner to demonstrate the research community'S 
reaction to his published articles before those articles can be considered as evidence." Counsel 
subsequently alluded that the director would "break the law" if she were to consider "the NUMBER of 
citations as material to whether or not a certain evidentiary criteria was met." (Capitalization in the 
original.) Counsel's analysis is misplaced due to the fact that nothing in the Kazarian opinion suggests 
that USCIS may not consider the number of citations under the contributions criterion. 
The record contains 24 articles published in scientific journals; six in the English language and 18 in 
Chinese. The record also contains evidence of multiple conference presentations. It remains the 
petitioner's burden to document the actual impact of his articles. The regulation at 8 CF.R. 
§ 204.5(h)(3) contains a separate criterion regarding the authorship of published articles. 8 CF.R. 
§ 204.5(h)(3)(vi). If every provision of the regulation is to have meaning, USCIS must presume that the 
regulation views contributions as a separate evidentiary requirement from scholarly articles. 
Publication and presentations are not sufficient evidence under 8 CF.R. § 204.5(h)(3)(v) absent 
evidence that they were of "major significance:' Kazarian, 580 F.3d at 1036. In 2010, the Kazarian 
court reaffirmed its holding that the AAO did not abuse its discretion in finding that the alien had not 
demonstrated contributions of major significance. 596 F.3d at 1122. 
The record reflects that two of the petitioner's English language articles and two of his Chinese 
language articles had received a moderate amount of citations as of the date of filing. While the AAO 
takes into consideration the citations and ranking of the journals in which the petitioner's articles 
appear, it is not persuasive that the moderate citations of the petitioner's articles are reflective of the 
major significance of his work in the field. The petitioner failed to establish how those findings or 
citations of his work by others have significantly contributed to his field as required by this regulatory 
criterion. 
In view of the foregoing, the AAO departs and withdraws the director's favorable determination that the 
evidence submitted satisfies the plain language requirements of this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director determined the petitioner met the requirements of this criterion. The petitioner submitted 
evidence of serving as the author of 24 published scholarly articles. The AAO concurs with the 
director's eligibility determination related to this criterion. 
D. Burden of Proof 
Counsel also asserted that the basis of the director's adverse decision seemed to be that the petitioner 
did not claim under which criteria he qualified for the requested classification. However, a review of 
the director's decision reveals that the director was referencing the petitioner's response to the RFE 
rather than claiming that the petitioner failed to claim any criteria throughout the entire administrative 
process. The director's decision first references the March 5, 2010, RFE, then notes the petitioner's 
response to the RFE dated May 18, 2010. Subsequently, the director states, "In his response [to the 
RFE] the petitioner did not contend that he met any of the remaining eight criteria. USCIS again 
reviewed his initial evidence regarding the first four criteria [8 CF.R. § 204.5(h)(3)(iv) - (v)], but it 
cannot find that the evidence establishes that the petitioner met any of these four (and he has made no 
contention of having met any of the last four criteria in the list [8 CF.R. § 204.5(h)(3)(vii) - (x)])." The 
director's decision continues, discussing the individual criteria that the petitioner claimed within the 
initial petition filing brief. The director also addressed these criteria within her RFE. 
Page 15 
Counsel subsequently stated, "Indeed, it is not up to the petitioner to claim criteria, and his not claiming 
them is not a reason for denial. The evidence was submitted, and the examiner should have decided on 
the basis of the law WHICH criteria [the] petitioner met." (Capitalization in the original). Contrary to 
counsel's contention, the burden of demonstrating eligibility lies with the petitioner. Section 291 of the 
Act, 8 U.s.C § 1361. This burden also includes the petitioner's responsibility of identifying under 
which criteria the director should consider his evidence. A petitioner must establish the elements for the 
approval of the petition at the time of filing. 8 CF.R. §§ l03.2(b)(l), (12). The burden does not shift 
from the petitioner to the director after the petitioner provides evidence allegedly demonstrating his 
eligibility. If it is the petitioner's contention that he meets a particular criterion, it remains his 
responsibility to specifically identify under which criterion USCIS should consider the evidence. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for 
the benefit sought has been established, as of the time the petition is filed. See 8 CF.R. 
§§ 103.2(b )(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 CF.R. § 103.2(b)(14). He failed to provide such 
a statement or argument in this regard in response to the director's RFE. The burden is on the petitioner 
to establish eligibility. It is not USCIS' s responsibility to infer or second-guess the intended criteria. 
E. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (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" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 CF.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
, ; 
Page 16 
final merits determination. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See SO/lane v. DOl, 381 F.3d 143,145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the 
office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 
8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, 
now USCIS, is the sole authority with the jurisdiction to decide visa petitions).