dismissed EB-1A Case: Sciences

identitying data deleted to 
preve.nt clearlY :mwarranted 
mvaslOn of personal pnvacy 
PuBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Cilizenship and Immigration S('rvicc~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Wa:.hinglon, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
JAN 1 1 2011 
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 153(b)( I )(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 I-290B, Notice of Appeal or 
Motion. The fee for a Fonn I-290B is currently $585, but will increase to $630 on November 23. 20 I O. 
Any appeal or motion filed on or after November 23, 2010 must be filed with the $630 fee. 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, 
I;i
lJe tJir7CL 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on September 18, 2009, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(l)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of his sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act 
and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) 
through (x). The petitioner must submit qualifying evidence under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.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, 
alts, 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. 723 101" Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. [d. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor: 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as ajudge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles 111 the field, 1I1 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USClS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." !d. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination"' as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
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. § 1 153(b)(1)(A)(i). 
Id.atII19. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. 1'. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DO], 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements 
beyond those set t()rth in the regulations at 8 c.F.R. § 204.5(h)(3)(iv) and 8 c.F.R. § 204.5(h)(3)(vi). 
-Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on November 19, 2008, seeks to classify the petltIoner as an alien with 
extraordinary ability as a commodities trader. The petitioner has submitted evidence pertaining 
to the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
Published material about the alien in proJessional or major trade publications or 
other mqjor 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 
At the time of the original filing of the petition and 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 did not 
claim eligibility for this criterion. However, in the decision of the director, he found that the 
petitioner's submission of articles from www.bloombcrg.net. Bloomberg Markets, The New York 
Times, and Institutional Investor's Alpha failed to establish eligibility for this criterion. We note 
that the petitioner submitted the documentary evidence in order to demonstrate eligibility for the 
leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). On 
appeal, counsel failed to contest the decision of the director or offer additional arguments. 
Therefore, we will not further discuss this criterion on appeal. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or busincss­
related contributions oj major significance in thefield. 
At the time of the original filing of the petition, counsel claimed the petitioner's eligibility for 
this criterion by stating: 
[The petitioner J has made substantial contributions to the financial industry in the 
area of commodities trade, both in England and in the United States. Indeed, I the 
petitioner) is one of the financial industry's most successful and talented cutting­
edge traders today, specializing in the base metals market. His analysis regarding 
trade activities contributes significantly to investment decisions made by 
governments, individual investors and institutional investors worldwide. His 
leadership role in the commodities trade market has earned him a loyal following 
from the ranks of top investment banks and financial industry executives who 
have recognized and applauded his outstanding achievements, while continuously 
relying on his innovative analysis and expertise. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
In support of the petition, the petitioner submitted several recommendation letters. In response 
to the director's request for additional evidence, the petitioner submitted two additional 
recommendation letters. In the director's decision, he found that the petitioner's 
recommendation letters failed to establish eligibility for this criterion. On appeal, counsel argues 
that the director erred in not properly considering the "highly probative and relevant expert 
testimony" in the 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 business-related contributions "of major significance in 
the field." In this case, the recommendation letters submitted by the petitioner fail to specifically 
identify the petitioner's original contributions. Moreover, the recommendation letters fail to 
indicate that the petitioner's contributions have been of major significance in the field and not 
limited to the business organizations in which he has worked. 
We cite representative examples of the recommendation letters here: 
I The petitioner] is a commodities trader at 
LP, a US based hedge fund that is uniquely positioned within the commodity 
investment world. As such, he is responsible for billions of dollars of assets 
which_ invests on behalf of institutional and private investors to whom it 
holds the highest fiduciary duty. Relying on nearly 20 years of experience in the 
area of commodities trade, [the petitioner] has produced phenomenal results and 
has brought tremendous profits to _ investors. [The petitioner] boasts a 
unique familiarity and expertise in the base metals market that he enabled I the 
petitioner] to gain recognition in all commodities markets as one of the largest 
and most successful participants. There are very few in the US financial services 
industries, who have gained the kind of knowledge and skills in this field to 
accurately make healthy risk adjusted investments, as I the petitioner I has. 
While _ briefly discussed the petitioner's responsibilities at_ the petitioner's roles 
and responsibilities are more relevant to the leading or critical role criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii) and will be discussed later under that criterion. 
Moreover, __ failed to specifically identify any original contributions made by the 
petitioner; instead _ praised the petitioner's knowledge, skills, and experience. 
Assuming the petitioner's skills are unique, the classification sought was not designed merely to 
alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of 
the Department of Labor through the alien employment certification process. See Maller of New 
York State Dep 'to of Transp., 22 1. & N. Dec. 215, 221 (Commr. 1998). Finally, _ refers 
to the petitioner's impact solely on _ rather than to the field as a whole. 
stated: 
During his employment with", [the petitioner] has augmented an already 
impressive list of industry contacts, and accelerated the expansion of our 
investment platform to unprecedented levels, further solidifying our reputation 
within the area of commodities trade industry. Certainly, one of Ithe petitioner's] 
most remarkable skills is his ability to cement the kind of loyal and sustainable 
relationships, over a broad spectrum of the financial industry and specifically 
throughout the commodities market, which ultimately translates into phenomenal 
value to our customers. [The petitioner I has created a dynamic network amongst 
senior management teams, international investment banks, and other market 
participants that puts him in a class by himself within the highly specialized field 
of commodities trade. 
Similar to letter, . . on the petitioner's occupational skills but 
failed to establish that those skills are original contributions. We are not persuaded that 
cementing and sustainable relationships demonstrates original contributions to the field. 
Moreover, refers to the petitioner's effect on _ and not to the field as a whole. 
stated: 
I The petitioner's] inestimable contribution to the overall success of the 
commodity business at _ over the past three years perhaps best reflects the 
great enthusiasm he has for the Base Metals Market. His willingness to bring his 
talent and expansive knowledge of the base metal commodities market to the 
United States has contributed to the overall vitality of this sector of the United 
States financial industry, one that is fortunately immune to the current financial 
crisis and is therefore critical to the future vitality of the US economy. 
ndicated that the petitioner contributed to the overall vitality of United 
, he failed to specifically identify an original contribution. Rather,_ 
stated that the petitioner contributed based on his "talent and expansive 
knowledge." to explain how the petitioner's "talent and expansive 
knowledge," resulted in original contributions to the field. Without specific examples, we are 
not persuaded by . broad claim that the petitioner's talents are of major significance 
to the field. 
stated: 
[The petitioner] provides a remarkably comprehensive, expert and effective set of 
research and trading skills related to the commodities markets and has established 
strong relationships with senior management teams in a broad spectrum of 
international banks and institutions that are active in the industry. Working for 
Page 8 
a global leader in commodity related alternative investments, with nearly 
4 billion dollars asset under management, [the petitioner 1 has been in charge of 
billions of dollars in investments and has earned a reputation for excellence in the 
area of commodities trade. His achievements thus far could only have been made 
by a business professional of the highest caliber, one with vision, passion and 
fortitude to manage risk adjusted investments of these proportions. 
Again, __ failed to identify any original contributions of major significance to the field. 
Instead, referred to the petitioner's research and trading skills. Moreover,. 
to indicate how the petitioner contributed to the field beyond his work at 
[The petitioneri is responsible for investing and expanding the revenue of 
numerous institutional clients, including the endowments of key universities. His 
work is globally recognized as critical to enabling the US economy to recover 
from the nearly cataclysmic asset decline of 2008. iThe petitioneri is beyond any 
controversy, one of the world's leading commodities trade authorities, and has 
been so for many years, having been a Trade Manager at the London Market. 
While _enerally stated that the petitioner's work "is globally recognized," he failed to 
identify any of the petitioner's specific work that is globally recognized. Furthermore,_ 
failed to establish that the petitioner's work has been of major significance to the field. Instead, 
_ndicated that the petitioner'S work is critical "to enabling the U.S. economy to recover 
from the nearly cataclysmic asset decline of 2008." _ failed to describe specific 
examples of the petitioner's works to demonstrate its previous or current impact or influence on 
the field. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); 
Matter olKatighak, 14 I&N Dec. 45, 49 (Reg!. Commr. 1971). A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter ()lIZlImmi. 22 
I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing Matter olBardollille. 
18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. A petitioner cannot file a petition under this 
classification based on the expectation of future eligibility. The assertion that the petitioner's 
work is likely to be influential and may enable the United States economy to recover is not 
adequate to establish that his work has already been recognized as a major contribution in the 
field. While _ praises the petitioner, the fact remains that any measurable impact that 
results from the petitioner's work, beyond TCM, will likely occur in the future or has yet to be 
determined. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of' 
major significance in the field (emphasis added)." While the recommendation letters praise the 
petitioner for his knowledge, skills, and talent, they fail to indicate that his contributions are of 
Page 9 
major significance to the field. The letters provide only general statements without offering any 
specific information to establish how the petitioner's work has been of major significance. This 
regulatory criterion not only requires the petitioner to make original contributions, but also 
requires those contributions to be significant. We are not persuaded by vague, solicited letters 
that simply repeat the regulatory language but do not explain how the petitioner's contributions 
have already influenced the field. Merely repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proor.J The lack of supporting documentary evidence 
gives the AAO no basis to gauge the significance of the petitioner's present contributions. 
USC IS 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. [d. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. Thus, the content of the writers' 
statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
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. We must presume that the phrase "major significance" is 
not superfluous and, thus, that it has some meaning. To be considered a contribution of major 
significance in the field of finance and investment, it can be expected that the petitioner's 
original work would be demonstrably influential beyond his employers and clients. In other 
words, providing sound financial or investment advice to one's clients may contribute to the 
client's future but is not necessarily either original or a contribution to the financial or 
investment field at large. 
Without additional, specific evidence showing that the petitioner'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 he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
At the time of the original filing of the petition, counsel claimed eligibility for this criterion by 
stating: 
) Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, liDS (E.D.N.Y. 1989), affd, 90S F. 2d 41 (2d. Cir. 1990): AIT!' 
Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 10 
~held critical positions 
___ Moreover, [the petitioner] has served in a critical and 
essential capacity for one fo the mostilies ected and powerful commodities trade 
hedge funds in the United States, . Over the past three years [the 
petitioner 1 has substantially contributed to the generation of new investment flow 
of _, establishing them as one of the largest and most successful participants 
across all commodities markets. Few professionals are uniformly recognized as 
leaders within this industry, and Ithe petitioner] is one of these uncommon 
commodities trade specialists who provide direction to the field as a whole. 
Simply put, only a select group of international commodities trade professionals 
operate at this level. [The petitioner 1 has provided critical direction within _ 
and within the industry as a whole and has facilitated some of the~ 
noteworthy commodities trade transactions during one of the most difficult times 
in market history. 
In support of the petition, the petitioner submitted the previously mentioned recommendation 
letters. In response to the director's request for additional evidence, the petitioner submitted the 
following documentation: 
1. An article 
provided a quote for the article while employed at 
-
2. An article entitled, 
April 4, 2003; in which 
provided a quote for the article while employed at 
-3. Screenshots from www.lme.co.uk regarding the London Metal Exchange 
(LME); 
4. Barron's Hedge Fund 100, dated May 11,2009, ranking. as number 
16; 
5. 
6. An article entitled, 
May 2009; and 
7. An article entitled, 
2009. 
Page II 
The director found that the petitioner's documentary evidence failed to establish eligibility for 
this criterion. On appeal, counsel argues that the recommendation letters establish the 
petitioner's leading or critical roles, and items 1 - 7 establish the distinguished reputations of the 
organizations or establishments. 
A review of the recommendation letters fails to reflect that the petitioner has performed in a 
leading or critical role consistent with the meaning of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii). The letters a~nd only generally assert that the petitioner is in a 
leading position. For example, _ stated that "[the petitioner] is the leading player 
behind the scenes, spearheading US commodities trade" without specifically identifying the 
responsibilities of the petitioner or differentiating him from other employees, so as to establish a 
leading or critical role. 
Furthermore, that "[the petitioner] has lead our commodities trading 
operation ... including serving as Senior Trader at London Metals Exchange." However, we are 
not persuaded-that general statements which only indicate that the petitioner has led an operation 
or was a senior trader necessarily demonstrate that the petitioner has performed in a leading or 
critical role. to compare the responsibilities of the petitioner to other 
commodities traders at , or provide other relevant evidence such as an 
organizational chart, so as to establish that the petitioner has distinguished himself in a leading or 
critical role. Simply repeating the regulatory language without providing any specific 
information regarding the petitioner's position provides us no meaningful way to differentiate the 
petitioner from others within _ 
submitted a letter 
stated that he as 
In addition, _stated that "[the petitioner] was instrumental in 
negotiations and the management of two active trading books while he was at 
•••••••• ' However, we are not persuaded that such statements demonstrate that the 
petitioner performed in a leading or critical role for In fact, it appears that the 
petitioner performed the routine duties of a commodities trader of an investment or financial 
firm. 
Regarding IBL, the only evidence of the petitioner's employment with IBL were items I and 2 
listed above. We are not persuaded that two articles that quote the petitioner equates to evidence 
that the petitioner has performed in a leading or critical role with_ 
The documentation submitted by the petitioner is simply reflective of the petitioner's position as 
a commodities trader. The petitioner failed to submit sufficient documentary evidence that is 
demonstrative of a leading or critical role. USCIS may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. at 
795. However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. !d. The submission of letters of support from the 
petitioner's personal contacts is not presumptive evidence of eligibility; USCIS may evaluate the 
-Page 12 
content of those letters as to whether they support the alien's eligibility. See id. at 795. 
Furthermore, merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Moreover. 
simply submitting recommendation letters that generally state that the petitioner performed in a 
leading or critical position for an organization or establishment without specific evidence 
demonstrating that the petitioner's roles were leading or critical is insufficient to establish 
eligibility for this criterion. 
We note that regarding items 4 - 7, the petitioner submitted documentary evidenc~ 
events . after the filing of the petition. However, we are persuaded that __ 
have distinguished reputations. 
Although the documentary evidence submitted by the petitioner reflects that_ is a successful 
commodity-based hedge fund, the petitioner failed to submit sufficient documentary evidence 
establ . that he has performed in a leading or critical role for _ as well as • 
The petitioner failed to submit evidence showing his position in relation 
to that of the other commodities traders with any of these organizations. In fact, it is clear that 
the petitioner actually reported to those offering letters on his behalf. As there is no evidence 
demonstrating how the petitioner's roles differentiated him from the other commodities traders, 
much less from that of his superiors, the documentation is not sufficient to establish his "leading 
or critical role" pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has commanded a hiRh salary or other significantly hiRh 
remuneration for services, in relation to others in the field. 
In the director's decision, he concluded that the petitioner established eligibility for this criterion. 
A review of the record reflects that the petitioner submitted sufficient documentation 
demonstrating that he has commanded a high salary in relation to others in his field. Therefore, 
we agree with the findings of the director. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
B. Comparable Evidence 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the 
following regulation categories. The ten categories in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. For example, the criterion at 8 
C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 C.F.R. 
§ 204.5(h)(3)(x) expressly applies to the performing arts. We further acknowledge that the 
regulation at 8 C.F.R. § 204.5(h)(4) provides "[ilf the above standards do not readily apply to the 
I petitioner's I occupation, the petitioner may submit comparable evidence to establish the 
Ipetitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to her occupation and how the evidence submitted is "comparable" to the 
objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
On appeal, counsel claimed that the "[pJetitioner meets the 'comparable evidence' standard 
under 204.5(h)( 4)" without providing any additional arguments or evidence. The regulatory 
language precludes the consideration of comparable evidence in this case, as there is no 
indication that eligibility for visa preference in the petitioner's occupation as a commodities 
trader cannot be established by the ten criteria specified by the regulation at 8 C.F.R. 
§ 204.5(h)(3). In fact, as indicated in this decision, counsel mentions evidence in his brief that 
specifically addresses three of the ten criteria at 8 C.F.R. § 204.5(h)(3). An inability to meet a 
criterion, however, is not necessarily evidence that the criterion does not apply to the petitioner's 
occupation. Moreover, although the petitioner failed to claim these additional criteria, we find 
that a commodities trader could win lesser nationally or internationally recognized prizes and 
awards, and that a commodities trader could be a member of associations that require 
outstanding achievements, and that a commodities trader could have published material about 
him regarding his work. 
Counsel provided no documentation as to why these provisions of the regulation would not be 
appropriate to the profession of a commodities trader. Where an alien is simply unable to meet 
or submit documentary evidence of three of these criteria, the plain language of the regulation at 
8 C.F.R. § 204.5(h)( 4) does not allow for the submission of comparable evidence. 
C. 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: (I) 
a "level of expertise indicating that the individual is one of that small percentage who have risen 
to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. 
§ I I 53(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner established eligibility for the plain language of one of the criteria, in which at least 
three are required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the 
deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the total ity of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In this case, the 
petitioner enjoyed personal financial success as a commodities trader and has garnered the 
respect of some of his colleagues. However, the accomplishments of the petitioner fall far short of 
establishing that he "is one of that small percentage who have risen to the very top of the field of 
endeavor" and that he "has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See 8 C.F.R. § 204.S(h)(2), section 
203(b)(l)(A)(i) of the Act, 8 U.S.c. § IIS3(b)(l)(A)(i), and 8 C.F.R. § 204.S(h)(3). 
The regulation at 8 C.F.R. § 204.S(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.S(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.S(h)(2). 
Although the petitioner failed to establish eligibility for the original contributions criterion 
pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(v) and the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(viii), the petitioner based his eligibility on 
almost entirely on recommendation letters. Notwithstanding the numerous opinions in the 
record, the fact remains that the evidence consists almost entirely of testimonial evidence. In 
order to establish eligibility for extraordinary ability classification, the statute requires evidence of 
the alien's "sustained national or international acclaim" and evidence that the alien's achievements 
have been recognized in the field of endeavor through "extensive documentation." Section 
203(b)(I )(A)(i) of the Act. 
Furthermore, it must be emphasized that the favorable opinions of experts in the field, while not 
without evidentiary weight, are not a solid basis for a successful extraordinary ability claim. 
Unusual in its specificity, section 203(b)(I)(A)(i) of the Act clearly requires "extensive 
documentation" of the alien's achievements. Again, USCIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter 01' Caron International, 19 I&N 
Dec. at 79S. 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 evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 79S-796; see 
also Matter of V-K-, 24 I&N Dec. at SOO, n.2. Thus, the content of the experts' statements and 
how they became aware of the petitioner's reputation are impOltant considerations. Here, many of 
the experts are personally acquainted with the petitioner, and some have worked with him as 
colleagues or supervisors. Even when written by independent experts, letters solicited by an alien 
in support of an immigrant petition are of less weight than preexisting, independent evidence of 
original contributions of major significance that one would expect of a commodities trader who 
has sustained national or international acclaim. 
Page 15 
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)(1 )(A) of the 
Act. The commentary for the proposed regulations implementing section 203(b)(1 )(A)(i) of the Act 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary 
ability is reflected in this regulation by requiring the petitioner to present more extensive 
documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 
1991). We are not persuaded that an individual with sustained national or international acclaim 
could not submit extensive evidence of his original contributions of major significance and 
leading or critical roles. 
The petitioner failed to submit evidence demonstrating that he "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated his "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). 
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 petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
III. 0-1 Nonimmigrant Admission 
We note that the petitioner was last admitted to the United States as an 0-1 nonimmigrant on 
November 9, 2008. However, while USCIS has approved at least one 0-1 nonimmigrant visa 
petition filed on behalf of the petitioner, the prior approval does not preclude USCIS from 
denying an immigrant visa petition based on a different, if similarly phrased, standard. It must be 
noted that many 1-140 immigrant petitions are denied after US CIS approves prior nonimmigrant 
petitions. See, e.g., Q Data Consulting, Ine. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US 
v. US Dept. o(Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989). Because USC IS spends less time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in 
error. Q Data Consulting, Ine. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals 
do not preclude USCIS from denying an extension of the original visa based on a reassessment 
of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter 
of Church Scientology International, 19 I&N Dec, at 597, It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex EIlf{g. Ltd. I'. 
MOlltgomery, 825 F.2d at 1090, 
Page 16 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director had approved 
the nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow 
the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 
WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.C!. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
aff'd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l)(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.