dismissed EB-1A Case: Sciences

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'PUBLIC COpy 
FILE: 
INRE: Petitioner: 
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u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
JAN 1 2 2011 
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. § 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 1·290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § I 03.5(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, 
~~~ 
~rrYRhew 
Chief, Administrative Appeals Office 
WW''\''.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa pellllon was denied by the Director, 
Nebraska Service Center. The petitioner appealed the decision to the Administrative Appeals 
Office (AAO). The AAO dismissed the petitioner's appeal. The matter is now before the AAO on 
motion to reopen and reconsider. The motion will be granted, the previous decision of the AAO 
will be affirmed, and the petition will remain denied. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.s.c. * 1153(b)(l)(A). 
The director detennined that the petitioner had not established the requisite extraordinary ability 
through extensive documentation and sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)( I )(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 
regnlation 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. 
On motion, counsel argues that the petitioner meets the categories of evidence at 8 C.F.R. 
** 204.5(h)(3)(i), (v), and (vi). For the reasons discussed below, we affinn our prior decision. 
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 CA) through (C): 
CA) 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 intemational acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
-Page 3 
U.S. Citizenship and Immigration Services (USerS) 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. 723101" 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 an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or intcmationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly mticles in the field, 111 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9
th 
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. 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)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, US CIS 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 thelirl field of endeavor," 
8 C.F.R. ~ 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § I I 53(b)(l)(A)(i). 
Id. at 1119-1120. 
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 COUlt. See Spencer Enterprises. Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), qfJ'd, 345 F.3d 683 (9th Cir. 2003); 
see also So/tane v. DO}, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. * 204.5(h)(3)(iv) and 8 c.F.R. * 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition. filed on February 19, 2008, seeks to classify the petIlloner as an alien with 
extraordinary ability as a research physicist. The petitioner has submitted evidence pertaining to 
the following categories of evidence at 8 C.F.R. § 204.5(h)(3)2 
Documentation ol the alien '.I receipt ollesser nationally or internationally 
recognized prizes or awardsj(Jr excellence in thefield olendeavor. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate 
decision stated: 
The petitioner submitted a 
'I(j''''In'' him that the application 
conduct 
research in Japan under the leadership of your host researcher for a period of 24 
consecutive months." 
In response to the director's request for evidence (RFE) dated December 2, 2008, the 
petitioner provided a document from the website of the JSPS describing the 
organization's history and purpose: 
The [JSPS I ... is an independent administrative institution, established by way of 
a national law for the purpose of contributing to the advancement of science in all 
fields of the natural and social sciences and the humanities. ~lays a pivotal 
role in the administration of a wide spectrum of Japan's scientific and academic 
programs. While working within the broad framework of government policies 
established to promote scientific advancement, _ carries out its programs in a 
manner flexible to the needs of the participating scientists. 
_ was founded in 1932 as a 
granted 
1967 
and international scientific programs. 
through an endowment 
Over this 70~year period. _ has 
a far~reaching array of domestic 
~ On motion. the petitioner does not claim to meet or submit evidence relating tu the categories of evidence not 
discussed in this decision. 
Page 6 
The petitioner also 
In a section entitled 
. from a 2008-2009 brochure from_ 
stated: 
_ administers the 
forging milestone advances in highly creative, cutting-edge rp,p"'Th ""r"" 
spectrum of the humanities, social sciences and natural sciences. 
serve to foster and secure a top world-class 
caliber of Japanese researchers, whereas our intemational exchange programs 
place strong emphasis on collaborations with partner countries that work to build 
research hubs of the highest world order. 
Page 19 of the brochure indicates that the "JSPS carries out programs to invite 
researchers for other countries to Japan" and that the programs "are open to all eligible 
researchers irrespective of their nationally or specialization." Page 28 of the brochure 
indicates that the program "allows 
researchers affiliated with Japanese universities or 
young researchers from overseas to Japan to participate in collaborative research 
activities at their institutions for 1-2 years. The fellowship includes a travel grant and 
monthly stipend." At the request of the dircctor, the petitioner also provided information 
regarding the selection process for applicants for the fellowship program, which he 
indicated was taken from the _ website. According to the petitioner, selection is done 
by committee comprised of 47 members and approximately 1,700 examiners and 
involves a document review followed by a panel review. The document review is based 
on a grading system of I to 5, with 5 being "superlative," and "takles I into account 
research achievements, the research plan, estimated research capacity, and future 
potential of the research." 
In denying the petition, the director stated: 
IT Ihe evidence submitted fails to establish that this fellowship satisfies this 
Most notably, the petition has failed to provide specific evidence to 
the actual to compete for the 
In any instance, the evidence submitted 
program was to assist promising and highly qualified 
young foreign researches r sic 1 wishing to conduct research in Japan. It is readily 
apparent that this award is designed for young postdoctoral researchers. The 
Service finds that this award is limited in scope as more established and 
experienced researchers do not compete for such awards. 
On appeal, counsel states that "nothing in criteria for Post-Doctoral Fellowship 
relates to age or youth." Referencing the counsel further states that 
applicants for the year 20 I 0 "must have . doctorate within the past six years" 
and that, based on a Canadian study, "all students from a doctorate program graduating 
from a Canadian university in 2004-2005, the average age was 36 years." Counsel thus 
opines that "a might be given to a scientist six years after their PhD is 
awarded might their 40s." The petitioner submits a February 26, 2009 letter 
Page 7 
from 
states, offers a fellowship program for foreign 
received a doctorate degree within the past 6 years." 
We note that while the _ does not 
brochure provides, at page 28, that 
in which he 
"allows researchers affiliated with Japanese universities or research institutes to invite 
promising young researchers from overseas to Japan to participate in collaborative 
research activities." [Emphasis added.] 
those who are eligible to apply for the _ 
to those who have obtained a doctorate 
degree within the six years prior to applying for the fellowship. Thus it excludes from 
consideration other experienced experts in the field. Honors limited by their terms to a 
specified group are not an indication that the recipient "is one of that small percentage 
who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
petitioner's receipt of the offers 
no meaningful comparison between him and more experienced professionals in the field 
who have long since completed their educational training. Thus, they cannot establish 
that the petitioner is one of the very few at the top of his field. 
Furthermore, the petitioner has not established that for 
••••••••• is a nationally or internationally recognized award for excellence in 
the petitioner's field of endeavor. That the fellowship is sponsored in part by the Japanese 
government or that it selects from an international pool is not sufficient, by itself, to 
establish that the award is recognized as an award of excellence, either nationally or 
internationally. The plain language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) 
specifically requires that the petitioner's awards be nationally or internationally 
recognized in the field of endeavor and it is his burden to establish every element of this 
In this case there is no evidence showing that the 
commanded a significant level of recognition beyond 
the context of the process in which it was awarded. 
On motion, counsel repeats his earlier arguments made on appeal that "nothing in the _ 
criteria for explicitly is tied down to age or youth; instead it relates 
only to a scientist's progression and period of time after the receipt of a doctorate in their field of 
expertise. One must have received their doctorate within the past six years." We do not contest 
counsel's statements regarding this issue. It remains, however, that those who were eligible to 
apply for the were limited to those who 
had obtained a doctorate degree within the six~year period preceding their application for the 
fellowship. Thus, as noted in the AAO's appellate decision, the fellowship excluded from 
consideration experienced scientists in the field who had long since received their doctorates 
beyond imposed the six~year limitation. 
Counsel states that the March 3, 2009 
was not considered or AAO in its appellate decision. We 
Page 8 
note that the petitioner's appellate decision included two letters from _ dated 
26, 2009 and March 3, 2009, The AAO's appellate decision specifically quoted 
February 26, 2009 letter, which states: 
_budget for the 2008 fiscal year totals 240.6 billion yen .... IWle are the leading 
funding agency in Japan. 
_offers a fellowship program for foreign post-doc researchers who have received a 
doctorate degree within the past 6 years. We do not consider whether they have a full­
time position in their home country at the point of application. The applicants have to 
submit a proposal of their research. The selection is based on the applicant's academic 
record and the expected impact of the research proposal. IThe petitioner] was one of 
successful fellows selected for the FY2003 fellowship. The selection is highly 
competitive, e.g., the ratio of successful applicants for that time was 16.8%. He had 
conducted his research from April 2003 to March 2005 at the National Institute of 
Advanced Industrial Science and Technology (AIST) in Japan. His research subject was 
We cannot ignore comment that "selection is based on the applicant's academic 
record and the expected impact ()l the research proposal" r emphasis added I rather than 
demonstrated excellence in the field of endeavor. 
In his subsequent March 3, 2009 letter __ states: 
The is an internationally recognized award. It is not based 
on age and clearly, _ has granted this award to recipients who have excelled in their 
respective fields. In the scientific fields, experience is important, but longevity in a field 
does not qualify a person for this award. Past recipients actually include those who arc 
already assistant professors in major universities. _ does not discourage candidates 
who are at a certain age. The only limit in timing is that the candidate must have 
received their doctorate in their field within the past six years. This is not a question of 
their age at all. 
Further, it is not uncommon that one receives their doctorate in their field well into their 
30s. It is incorrect to assume that this award prefers those who are younger. In this case, 
I the petitioner I received the based on a convincing record 
of his academic and research and the project proposal he had submitted in 
the field of spintronics. Our selection of him in 2003 was based on the excellence and 
he had already achieved internationally at that time. His award of a. 
his achievements in the field. 
appellate submission also included a 
-Page 9 
[The petitioner] received an award from 
to carry out research in the area of spintronics in our institute. _ which was 
originally established in 1932 as a non-profit foundation through an endowment granted 
by Emperor Showa. has become an independent Japanese organization with an annual 
grant of several hundred billion yen and is highly esteemed world wide. The. award 
to carry out research is given only to a very small fraction of the scientists worldwide, 
and [the petitioner[ was selected because of his outstanding academic credentials and the 
research proposal that he submitted. 
According to his submitted curriculum vitae, the petitioner began working at_ in July 
2002. As discussed in the AAO's a=te decision, the petitioner initially submitted a copy of 
a December 20, 2002 letter from the_addressed to him stating: 
a lCllU\i\"'lllU 
to conduct research in 
Japan under the under the leadership of your host researcher for a period of 24 
consecutive months. 
The 2008-200~ brochure submitted in respOllse 
that a total of "1,818 fellows" recei 
in FY2007. 
includes information about 
According to the submitted documentation, the Fields Medal is 
awarded every four years to a candidate under age forty "to recognize outstanding mathematic 
achievement for existing work." The John Bates Clark medal is awarded biennially to an 
American economist under the age of forty who is judged to have made "the most significant 
contribution to economic thought and knowledge." The AAO agrees with counsel that these two 
medals restricted to scholars under age forty equate to internationally awards for 
excellence in mathematics and economics. However, unlike the petitioner' 
which is awarded to hundreds of researchers on an annual 
basis, the Fields Medal is awarded to only a single recipient every four years and the John Bates 
Clark medal is awarded to only a single recipient every two years. Moreover, in contrast to the 
petitioner's the preceding medals recognize "achievement for existing work" 
significant contribution" in their respective fields. The petitioner's. 
however, is based on the "expected impact of the research proposal" rather an 
proven excellence in the field of endeavor. 
The petitioner'. his selection to participate in advanced 
research training under the guidance of an experienced researcher rather than his receipt of a 
nationally or internationally recognized prize or award for excellence in the field. Selection for 
this subordinate research position is based on the applicant's academic record and the "expected 
impact" of his research proposal and is not indicative of past excellence in the field of endeavor. 
The pctitioner's two-year reflects a temporary training opportunity at_ 
Page 1 () 
designed to facilitate collaborative research activities, not a nation~ internationally recognized 
prize or award in the . . the _ approved the application 
submitted by Director and funded the petitioner's postdoctoral 
appointment at that institution. Every successful scientist engaged in research, of which there are 
hundreds of thousands, receives funding from somewhere. Obviously, the academic qualifications 
of the petitioner were a factor in the funding of his The _ has to be assured 
that the hundreds of researchers who receive its annual are capable of performing the 
proposed research. Nevertheless, the . principally designed to fund 
his future participation in collaborative research activities at and not to recognize his past 
excellence in the research field. Moreover, as noted in the AAO's appellate decision, the plain 
language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that the 
petitioner'S awards be nationally or internationally recognized in the field of endeavor and it is 
his burden to establish element of this criterion. In this case, there is no evidence showing 
that the had a significant level 
of recognition beyond the context of the in which it was awarded. Finally, even if the 
petitioner were to establish that his equates to a nationally or internationally 
recognized prize or award for excellence in the field, which he has not, the statute requires the 
submission of "extensive documentation." Section 203(b)(l)(A)(i) of the Act; 8 U.S.c. 
* 1153(b)( I )(A)(i). Consistent with that statutory requirement, the plain language of the regulation 
at 8 c.F.R. § 204.5(h)(3)(i) specifically requires the alien's receipt of "nationally or internationally 
recognized prizes or awards" in the plural. [Emphasis added. I One such award does not meet the 
plain language requirements of this criterion. 
In I ight of the above, we reaffirm our appellate finding that the petitioner docs not meet this 
criterion. 
Published material about the alien in prcJ/essiol1al or major trade publications or 
other major media, relating to the alien's work in thefleldfor which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
Llny necessary translation. 
On motion, counsel does not challenge the AAO's detetmination that the petitioner has not 
established that he meets this criterion and we reaffirm our appellate findings. 
Evidence o( the alien '.I' original scientific, scholarly, artistic. athletic, or business­
related contributions o(major significance in the field. 
The petitioner submitted documentation indicating that, with co-inventors, he has ",""}lIeu 
patents, one internationally and one in the United States, for an invention entitled 
Although counsel initially alleged that the 
international patent had been approved, in response to the RFE, he acknowledged that both 
patents are still pending. Even if the petitioner were to establish that his devices received a 
patent, the grant of a patent demonstrates only that an invention is original. This office has 
previously stated that a patent is not necessarily evidence of a track record of success with some 
degree of influence over the field as a whole. See Matter o(New York State Dep't. o/,Transp., 22 
Page 11 
I&N Dec. 215, 221 n. 7, (Commr. 1998). Rather, the significance of the innovation must be 
determined on a case-by-case basis. ld. In this instance, there is no documentary evidence of 
specific examples where these devices have been licensed, commercialized, or successfully 
marketed in the data storage industry as of the petition's filing date. Thus, the impact of the 
petitioner's invention is not documented in the record. Accordingly, the petitioner has not 
established that the preceding invention equates to an original scientific contribution of major 
significance in the field. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate 
decision stated: 
The petitioner ... submitted several letters of reference commenting on the significance 
of his work in spintronics. 
* * * 
While the pctitioner's research is no doubt of value, it can be argued that any research 
must be shown to be original and present some benefit if it is to receive funding and 
attention from the scientific community. It does not follow that every researcher who 
performs original research that adds to the general pool of knowledge has inherently 
made a contribution of major significance to the field as a whole. The petitioner's 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.S(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. 
While it is clear from the petitioner's references that he has been involved in novel 
research and is one of the pioneers in spintronics, they do not indicate that the petitioner's 
advances in this area constitute a contribution of major significance to his field. 
* * * 
The ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) reflect the statutory demand for 
"extensive documentation" in section 203(b)(1 )(A)(i) of the Act. Opinions from witnesses 
whom the petitioner has selected do not represent extensive documentation. Independent 
evidence that already existed prior to the preparation of the visa petition package carries 
greater weight than new materials prepared especially for submission with the petition. The 
petitioner's references indicate that his work has been significant. However, the regulation 
requires the petitioner to establish that his work has been of major significance to his field of 
endeavor. 
On motion, submits additional reference letters discuss' 
Page 12 
In 2005, !the petitioner! discovered a novel effect called the spin-torque diode effect, 
which was published in Nature magazine. The contents and discovery behind a Nature 
publication typically constitute a major scientific breakthrough. The Nature scientific 
board reviews all major discoveries among all science fields, including physics. 
chemistry, biology etc., and chooses only the most important ones for a given issue. 
Of all science journals, Nature has the highest impact factor, meaning that work 
published there is highly cited by other researchers. !The petitioner's! paper in Nature has 
received more than 100 citations, attesting to the powerful impact of his work. As an 
expert in the field of spintronics, I fully endorse [the petitioner's! work as a major, 
original achievement in this field. 
The petitioner's motion includes 
his research the 
showing that 
published in 
[The petitioner's] work in spintronics [s quite well known. His papers on_ 
•~~~~~:~~~~I======~~~~~~:limaging of magnetization switching" published in I etters have significantly impacted our field. 
His pioneering work on the spin-torque diode effect has proven to be an extremely useful 
technique for understanding the nature of the spin torque phenomenon, and has been 
followed up by many groups worldwide. 
The petitioner's research magnetization switching" was not 
published in Thus, the article post-dates the 
petition's February 19, 2008 filing date. A petitioner, however, must establish eligibility at the 
time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katighak, 14 I&N Dec. 45, 49 (Reg!. 
Commr. 1971). Accordingly, the AAO will not consider the petitioner's June 2008 article 
published in this proceeding. All of the case law on the issue of when 
eligibility must be established 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 
Wing"s Tea House, 16 I&N Dec. 158, 160 (Reg'!. Comm'r. 1977); Matter of Katighak, 14 I&N 
Dec. at 49; see also Matter oj"lzummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) (citing Matter 
of" Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot "consider facts 
that come into being only subsequent to the filing of a petition.") 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. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Nevertheless, there is no citation evidence showing that the petitioner's article in Physical 
Review Letters is frequently cited by independent researchers in the same manner as his Nature 
article. 
; See hltp:llprl.aps.org/abstraclfP]{Llv I OOli24/e24 720 I, accessed on December 15, 20 I O. copy incorporated into the 
record of proceeding. 
-Page 13 
incler,endent citations (107) to the petitioner's research in Natllre regarding. 
in magnetic tunnel junctions" and the statements from the preceding 
experts are sufficient to demonstrate that his discovery of this novel effect constitutes an original 
scientific contribution of major significance in the field. However, there is no documentary 
evidence demonstrating that any of the petitioner's other scientific discoveries qualified as 
contributions of major significance in the field at the time of filing. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "contrihutions of major significance" in the plural. 
I Emphasis added]. Qualifying evidence limited to a single original contribution of major 
significance in the field as of the petition's filing date does not satisfy the plain language 
requirements of the regulation. Without documentary evidence of more than one qualifying 
contribution of major significance in the field as of the filing date of the petition, the petitioner has 
not established that he meets the requirements of this criterion. 
The preceding reference letters are not without weight and have been considered above. 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 (ComIlli. 1988). uscrs 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; US CIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795-796; see also Matter ofV-K-, 241&N Dec. 500, n.2 
(BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
Thus, the content of the experts' 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 that one would expect of a research physicist who has made original 
contributions of "major significance." Without supporting evidence showing that any of the 
petitioner's other research advancements in qualified as 
original contributions of major significance in his field as of the filing date of the petition, we 
cannot conclude that he meets the plain language requirements of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v). 
In light of thc abovc, we reaffirm our appellate finding that the petitioner has not met all of the 
clements of this criterion as of the filing date of the petition. 
EvidcllCc ()fthc alien's authorship ()fscho/arly articles in thetield, in professional or 
major trade !,uhlicatiOils or other m'(jor media. 
The petitioner has documented his authorship of scholarly articles in professional journals and, 
thus, has submitted qualifying evidence pursuant to 8 C.F.R. § 204.5(h)(3)(vi). Accordingly, the 
petitioner has established that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhihitions or showC(lses. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's appellate 
decision stated: 
-Page 14 
The petitioner initially claimed to meet this criterion based on his presentations "at 
international conferences." In his RFE, the director advised the petitioner that this criterion 
pertained to the visual arts. The petitioner did not challenge this finding either in response 
to the RFE or on appeal. 
In this case, the petitioner's field is not in the arts. The plain language of this criterion 
indicates that it applies to visual artists (such as sculptors and painters) rather than to 
scientists such as the petitioner. The ten criteria in the regulations are designed to cover 
different areas and not every criterion will apply to every occupation. 
On motion, counsel does not challenge the AAO's determination that the petitioner has not 
established that he meets this criterion and we reaffirm our appellate findings. 
SUl1lmary 
In this case, we affirm our prior decision that the petitioner has failed to demonstrate his receipt 
of a major, internationally recognized award, or that he meets at least three of the ten categories 
of evidence that must be satisfied to establish the minimum eligibility requirements necessary to 
qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A final merits determination 
that considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
"level of expeI1ise indicating that the individual is one of that small percentage who have risen to 
the very top of thelirl 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." Section 203(b)(l)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Ka~arial1. 
596 F.3d at 1119-1120. In the present matter, several 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)(i), (v), and (vii). 
With regard to the petitioner's submitted for 8 C.F.R. § 204.5(h)(3)(i), we note 
that this fellowship is annually received by hundreds of applicants. For 
8 fellows" received 
. Further, 
lctter stated that the ratio of successful applicants for the FY2003 
Moreover, page 28 of the 2008-2009 indicates that the program 
is intended for "promising young researchers." Page 28 also 
slence which is far above the 
petitioner's level of achievement. does not estahlish 
that the petitioner'. for "promising young researchers" is an indication that he 
"is one of that small percentage who have risen to the very top of the field of endeavor." See 
8 C.F.R. § 204.5(h)(2). USCIS has long held that even athletes perfonning at the major league 
--Page 15 
level do not automatically meet the "extraordinary ability" standard. Matter !It' Price, 20 I&N Dec. 
953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 608994 Likewise, it does not follow that 
selection for limited to recent doctoral graduates in the early stage of 
their career who submit promising research proposals should necessarily qualify for an 
extraordinary ability employment-based immigrant visa. To find otherwise would contravene the 
regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small 
percentage of individuals that have risen to the very top of their field of endeavor." 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. The petitioner, a research 
associate, relies on his selection for his co-discovery of 
his superiors at his publication record, and the praise 
of his colleagues. While the petitioner need not demonstrate that there is no one more accomplished 
than himself to qualify for the classification sought, it appears that the very top of his field of 
endeavor is above the level he has attained. In this case, the petitioner has not established that his 
achievements at the time of filing were commensurate with sustained national or intemational 
acclaim as a research physicist, or being among that small percentage at the very top of the field of 
endeavor. 
III. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or intemational 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 
intemational level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)( I )(A) of the Act and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
qffd, 345 F.3d at 683; see also Sollane v. DO}, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis) . 
..j While we acknowledge that a district court's decision is not binding precedent, we note that in Matter (d'Racine, 
1995 WL 153319 at *4 (N.D. III. Feb. 16, 1995). the court stated: 
ITlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in 
this distric!' Grimson I'. INS, No. 93 C 3354, (N.D. III. September 9, 1993), and the definition of the term 
X C.F.R. $i 204.5(h)(2). and the discussion sct I(wth in the preamhle at 5(, Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation or the regulation at 8 C.F.R. * 204.5(h)(2) is reasonable. 
Page 16 
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 AAO's November 4, 2009 decision dismissing the appeal IS affinned, The 
petition will remain denied.