dismissed EB-1A Case: Sciences

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prevent dearly unw~ted 
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PUBLIC CoPy 
INItE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
CJ.Ild Immigration 
Services 
DafEB 16 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. § 1153(b)(l)(A)" 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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. § 1035. All motions must be 
submitted to the office· that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) reguires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
erry 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, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. The AAO will also enter a separate administrative finding of material 
misrepresentation. 
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 (the Act), 8 U.S.C. § 1153(b )(1 )(A).i 
The director determined 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)(1)(A)(i) of the 
Act and 8 c.P.R. § 204.5(h)(3). The implementing regulation at 8 c.P.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.P.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, the petitioner argues that she meets at least three of the ten regulatory categories of 
evidence at 8 C.P.R. § 204.5(h)(3). Por the reasons discussed below, we uphold the director's 
decision. 
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 
I According ~o infonnation on the Form 1-140, Immigrant Petition for Alien Worker, the petitioner was last admitted 
to the United States on February 28, 2009 as a B-2 nonimmigrant visitor. Her authorized period of stay expired on 
August 27,2009. 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Irrimigration Services (UscrS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The terrn"extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate. his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such accla4n 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 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 so~ght; 
(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 ill the field, ill 
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. 
II. Falsified documents pertaining to the category of evidence aJ8 C.F.R. § 204.S(h)(3)(vi) 
On December 28, 2010, in accordance with the regulation at 8 C.P.R. § 103.2(b)(16)(i), this office 
issued a notice advising the petitioner of derogatory information indicating that she 
misrepresented herself' as the author of scholarly articles written by others. The notice 
specifically observed that the petitioner signed the Porm 1-140, thereby certifying under penalty 
of perjury that "this petition and the evidence submitted with it are all true and correct." As the 
derogatory findings relate to the regulatory criterion at 8 c.P.R. § 204.5(h)(3)(vi), they are 
material to this proceeding. The AAO's notice of derogatory information stated: 
The regulation at 8 c.P.R. § 204.5(h)(3)(vi) calls for evidence of the alien's authorship of 
scholarly articles in the field, in professional or major trade publications or other major 
media. In support of your petition, you submitted what are alleged to be scholarly articles 
written by you: After further investigation, it has been determined that you 
misrepresented yourself as an author of the following articles: 
2. 
accessed on December 9, 2010, 
incorporated into the record of proceeding and attached to this notice. 
accessed on December 9, 2010, copy 
incorporated into the record of proceeding and attached to this notice. 
3. The article entitled 
4. 
copy corpo e 
accessed on December 9, 2010, 
e recor 0 procee ng and attached to this notice. • • • 
accessed J 
on December 9, 2010, copy incorporated into the record of proceeding and 
attached to this notice. 
II 
5. The article entitled 
••••• accessed on December ·9, 2010, copy incorporated into the record of 
proceeding ahd attached to this notice. 
6. 
7. 
9. 
accessed on December 10, 2010, copy incorporated into the 
record of proceeding and attached to this notice. 
(1~"",,;:';:'~,U on 9,2010, copy 
proceedmg and Cl:ttached to this notice. 
accessed on December 9, 2010, copy incorporated' into the record of 
pn)ceemng and attached to this notice. '. 
on December 9, 2010, 
attac4,ed t6 this notice. 
10. The artiCle entitled 
2010, copy incorporated into the record of proceeding and attached to this notice. 
ac(:es~;ea on December 9, 2010, copy incorporated 
pn)CeeOllng and attached to this notice. 
12. The article entitled 
actually authored 
Page 6 
accessed on December 9, 2010, 
copy incorporated into the record of proceeding and attached to this notice. 
accessed on December 10, 
incorporated into the record of proceeding and attached to this notice. 
accessed on December 10, 
copy incorporated into the record of proceeding and attached to this notice. 
on 
December 10,2010, copy incorporated into the record of proceeding and attached 
to this notice. 
by 
accessed on December 10, 2010, copy incorporated into the record of proceeding 
and attacned to this notice. 
By fraudulently substituting your name in place of the original authors and falsely 
claiming authorship of their work, it appears you have sought to obtain a visa by willful 
misrepresentation of a material fact. With regard to the above derogatory information, it 
is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies 
will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on 
~ . 
any aspect of the petitioner's proof may, of coUrse, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Id. at 
591. Because you have misrepresented articles authored by others as your own scholarly 
work~ we cannot accord any of your other claims any weight. 
In response, the petitioner submits an affidavit stating: 
6. in his office, located a ••••••• 
March 2009, because I was seeking 
assistance with U.S. immigration and was seeking permission to live in the U.S. 
permanently. 
Page 7 
7. That 1 had been informed from friends that could help me get 
permission to live in the U.S. permanently and thought that he was an immigration 
lawyer. 
8. That when 1 met with 1 signed a contract for him to assist me with 
getting permission to live in the U.S. permanently. 1 was told that 1 only needed to 
sign the contract and pay a fee and that take care of everything. 
9. That 1 had no knowledge and was never would use fraud 
and/or misrepresentation to get me' permission to live in the U.S. permanently. 
Specifically, 1 was never told that 1 would be incorrectly identified as an author of 
scientific articles. 
10. That 1 thought that the application would be filed in accord~ce with the law. 
It ,important to note that the petitioner's response does not challenge the AAO's findings that the 
record contains falsified articles and material misrepresentations regarding her past 
accomplishments. ( 
The petitioner also submits a letter from counsel stating: 
[The petitioner] met with the individual, named_ in his office in Flushing, 
NY. He told her that he could make an applica~ent residence for her for 
fee and that he would take care of everything. She was not asked to provide any 
inforination. She had no information on the qualifying criteria for permanent residence 
and thought that the application would be filed in accordance with the law. 
* * * 
The first time that [the petitioner] got any information that something was wrong with her 
case, was the receipt of the correspondence from the AAO in December 2010. She was 
never informed that she has been identified incorrectly as the author of scientific articles 
or that she would be associated with any other fraudulent evidence. She has never seen 
her 1-140 petition. ' 
* * * 
[The petitioner] feels deceived and victimized 
information . . . to confirm his association with 
[The petitioner] is now working to try to correct her immigration situation and 
understands that her 1-140 petition and 1-485 application have both been denied and were 
based on untrue facts. However, she strongly asserts that she had no knowledge or 
understanding would file a fraudulent application for her. She did not 
willfully misrepresent any information to him or to the USCIS. She did not prepare or 
provide any false documents induded in her application. 
\ 
Page 8 
The petitioner's affidavit states that she was told that she "only needed to sign the contract and 
pay a fee and that ~ould take care of everything."~sel asserts that the 
beneficiary "was not asked to provide any information" to_ The unsupported 
assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). The preceding claims by the petitioner and counsel are not 
supported by the evidence ofrecord. The record reflects that the Form 1-140, Immigrant Petition 
for Alien Worker, was filed concurrently with petitioner's Form 1-485, Application to Register 
Permanent Residence or Adjust Status, on June 22, 2009. The submitted documentation 
indicates that the petitioner provided information such as her date of birth, her parents' names, 
her husband and daughter's names and dates of birth, her telephope number in Florida of (941) 
565-6609, and residence information from China .. The petitioner also submitted copies of pages 
from her Chinese passport; a copy of her Form 1-94, Arrival Departure Record; a "Notarial 
Certificate" regarding her date of birth; her marriage certificate; photographs of the petitioner 
and her child; and the petitioner's Form 1-693, Report of Medical Examination and Vaccination 
Record. The existence in the record of such personal information, forms, and records contradicts 
counsel's claim that the petitioner "was not asked to provide any information" and indicates that 
the petitioner cannot disavow her direct involvement with the filing of the petition. 
Only in response to the AAO's December 28, 2010 notice of derogatory information Has the 
petitioner acknowledged that the documents submitted with the petition contain material 
misrepresentations regarding her authorship of scientific articles. An alien's timely and 
voluntary retraCtion of her false. statement may serve to excuse the misrepresentation, but the 
retraction may not simply be in response to the actual or ,imminent exposure of her falsehood. 
See Rahman v. Mukasey, 272 Fed. Appx. 35, 39 (2nd Cir. 2008) (unpublished) (citing Matter of 
Namio, 14 I&N Dec. 412,414 (BIA 1973); Matter ofNgan, 10 I&N Dec. 725, ?27 (BIA 1964); 
Matter of M-, 9 I&N Dec. 118, 119 (BIA 1960». Until USCIS confronted the petitioner with the 
sixteen falsified articles, it appears that she would have been content to receive an approval of 
the Form 1-140 petition based on the misrepresentations. 
Counsel asserts that the petitioner "had no knowledge or unqerstanding that_would file 
a fraudulent application for her." The petition b' t Y of the March 31, 2009 contract 
in Chinese that the petitioner signed (with The contraCt, however, is not 
accompanied by a certified English transl . to the regulation at 8 C.F.R. 
§ 103.2(b)(3), any docUment containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation that the translator has certified as cOIpplete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English. Without a certified English language translation, it cannot be 
determined if the contract corroborates any of the petitioner's claims. the petitioner also 
submitted copies of the front of two checks she wrote out to the 
Both checks identify the petitioner's address as 
The petitioner's response also includes what counsel 
payment checks that [the beneficiary] received from 
check stubs bear the petitioner's name, are dated 11116110 and 
· . '. n. .. . . . 
Page 9 / 
12/01110, list "DEPARTMENT" as "Research," and indicate that the petitioner r~ 
"Salary" in the amount of$1250.00 from Further, the December 1,2010_ 
paystub lists the petitioner's "GROSS YTD EARNINGS" as $27,500.00. None of the preceding 
documents establish that the petitioner had no knowledge of the fraudulent scientific articles. 
Moreover, the Form 1-140 was signed on June 15,2009 under penalty of perjury. The regulation 
at 8 C.F.R. § 102.2(a)(2) provides that "[b]y signing the application or petition, the applicant or 
petitioner. .. certifies under penalty of perjury that the application or petition, and all evidence 
submitted with, either at the time offiling or thereafter, is true and correct." (Emphasis added). 
The actual signature portion of the Form 1-140 at part 8 requires the petitioner to make the 
following affirmation: "I certify, under penalty of perjury under the laws oftheUnited States of 
America, that this petition and the evidence submitted with it are all true and correct." On that 
basis alone, the petitioner must be held responsible for any material misrepresentations contained 
within the record of proceeding. 
Even if the petitioner was unaware of the documents and information submitted in support of her 
own petition, then this failure to apprise herself constitutes deliberate avoidance and does not 
absolve her of responsibility for the content of her petition or the materials submitted in support. 
See Hanna v. Gonzales, 128 Fed. Appx. 478, 480 (6th Cir. 2005) (unpublished) (an applicant who 
signed his application for adjustment of status but who disavowed knOWledge of the actual 
contents of the application because a friend filled out the application on his behalf was still 
charged with knowledge of the application's contents). The law generally does not recognize 
deliberate avoidance as a defense to misrepresentation. See Bautista v. Star Cruises, 396 F.3d 
1289,1301 (11th Cir. 2005); United States v. Puente, 982 F.2d 156,159 (5th Cir. 1993). To find 
otherwise would have serious negative consequences for USCIS and the administration of the 
nation's immigration laws. While potentially ineligible aliens might benefit from approval of an 
invalid petition or application in cases where USCIS fails to identify' fraud or material 
misrepresentations, once USCIS does identify the fraud or material misrepresentations, these 
same aliens would seek to avoid the negative consequences of the fraud, including denial of the 
petition or application, a finding of inadmissibility under section 212(a)(6)(C) of the Act, or even 
criminal prosecution. 
, -
In addition, the Department of Justice and USCIS frequently prosecute employment-based fraud 
based on a petitioner's forged signature on the employment-based petition. We note prior examples 
where attorneys have been convicted of various charges, including money laundering and 
immigration fraud, after signing immigration forms I for which the alien or employer had no 
knowledge. United States v. O'Connor, 158 F.Supp.2d 697, 710 (E.D. Va. 2001); United States v. 
Kooritzky, Case No.~.D. Va. December 11,2002). 
As immigration officers USCIS Citizenship and lnimigration Appeals Officers and Immigration 
_ Services Officers possess the full scope of authority accorded to officers by the relevant statutes, -', 
regulations, and the Secretary of Homeland Security's delegation of authority. See sections 
101 (a) (1 8), 103(a), and 287(b) oLthe Act; 8 C.F.R. §§ 103.1(b), 287.5(a); DHS Delegation 
Number 0150.1 (effective M~ch 1,2003). 
Page 10 
With regard to immigration fraud or material misrepresentation, the Act provides immigration 
officers with the authority to administer oaths, consider evidence, and further provides that any 
person who knowingly or willfully gives false evidence or swears to any false statement shall be 
guilty of perjury. Section 287(b) of the Act, 8 U.S.C. § 1357(b). Additionally, the Secretary of 
Homeland Security has delegated to USCIS the authority to investigate alleged civil and criminal 
violations of the immigration laws, including application fraud, make recommendations for 
, prosecution, and take other "appropriate action." DHS Delegation Number 0150.1 at para. (2)(I). 
In the course of performing their duties under the immigration laws and the Administrative 
Procedure Act (AP A), immigration officers are charged with reviewing evidence and making 
factual determinations or "findings" related to the adjudication of immigration benefits. Under 
section 557 of the APA, immigration officers are obligated to ensure that all decisions are a part 
of the administrative record and that the decisions include "a statement of . . . findings and 
conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion 
presented on the record ' .... " 5 U.S.C.§ 557(c)(3). 
As an issue of fact that is material to an alien's eligibility for the requested immigration benefit 
or that alien's subsequent admissibility to the United States, the administrative findings in an 
immigration proceeding must include specific findings of fraud or material misrepresentation. 
Within the adjudication of the visa petition, a finding of fraud or material misrepresentation will 
undermine the probative value of the evidence and lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence. Matter ofHo, 19 I&N Dec. at 59l. 
Outside of the basic adjudication of visa eligibility, there are many critical functions of the 
I 
Department of Homeland Security that hinge on a finding of fraud or material misrepresentation. 
For example, the Act provides that an alien is inadmissible to the United States if that alien seeks 
to procure, has sought to procure, or has procured a visa, admission, or other immigration 
benefits by fraud or willfully misrepresenting a material fact. Section 212(a)(6)(C) of the Act, 8 
U.S.C. § 1182. Additionally, the regulations state that the willful failure to provide full and 
truthful information requested by USCIS constitutes a failure to maintain nonimmigrant status. 8 
C.F.R. § 214.1(f). For these provisions to be effective, USCIS is required to enter a factual 
finding of fraud or material misrepresentation into the administrative record} 
With regard to the current proceeding, section 204(b) of the Act states, in pertinent part, that: 
After an investigation of the facts in each case ... the [Secretary of Homeland Security] 
shall, if he determines that the facts stated in the petition are true and that the alien ... in 
behalf of whom the petition is made is an immediate relative specified in section 201 (b) 
'v 
2 It is important to note that while it may present the opportunity to eriter an administrative fmding of fraud, the 
immigrant visa petition is not the appropriate forum for fmding an alien inadmissible. See Matter of 0, 8 I&N Dec. 
295 (BIA 1959). Instead, the alien may be found inadmissible at a later date when he or she subsequently applies 
for admission into the United States or applies for adjustment of status to permanent resident. status. See sections 
212(a) and 245(a) of the' Act, 8 u.s.c. §§ 1182(a) and 1255(a). 
or is eligible for preference under subsection (a) or (b) of section 203, approve the 
petition .... 
Pursuant to section 204(b) of the, Act, USCIS has the authority to issue a determination regarding 
whether theJacts stated in a petition filed pursuant to section 203(b) of the Act are true. In the 
present matter, we find that the record contains falsified articles and material misrepresentations, 
regarding the petitioner's past achievements, findings that the petitioner does not .challenge in her 
response to the AAO's December 28,2010 notice. . 
In this case, we find that there is substantial and probative evidence to establish that the 
petitioner submitted falsified documentation in support of her petition. The petitioner filed the 
instant petition supported by documentation containing material misrepresentations on June 22, 
2009, and continued to make material misrepresentations in response to the director's request for 
evidence in September 2009 and again on appeal. 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully misrepresenting a 
material fact, seeks to procure (o~ has sought to procure or has procured) a visa, other. 
documentation, or admission into the United States or other benefit provided under this Act 
is inadmissible. 
Under Board of Immignition Appeals (BIA) precedent, a material misrepresentation is one which 
"tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well 
have resulted in a proper determination that he be excluded." Matter of S- and B-C-, 9 I&N Dec. 
436,447 (BIA 1961). 
! 
By filing the instant petition and sUbmitting falsified scholarly articles, the petitioner has sought 
to procure a benefit provided under the Act through fraud and willful misrepresentation of a 
material fact. Because the petitioner has failed to provide independent and objective evidence to 
overcome, fully and persuasively, our finding that she submitted falsified documentation, we 
affirm our finding of fraud. This finding of fraud shall be considered in any future proceeding 
where admissibility is an issue. 
III. Analysis of the documentation submitted in support of the petition 
Regarding the instant petition, the petitioner's failure to submit independent and objective 
evidence to overcpme the preceding derogatory information seriously compromises the credibility 
of the petitioner and the remaining documentation. As stated above, doubt cast on any aspect of 
the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. at 
591. Moreover, the petitioner's specific acknowledgment that the record contains falsified articles 
and material misrepresentations regarding her past accomplishments provides a sound basis for 
upholding the director's denial of the petition and dismissing the appeal. Nevertheless, we will 
address the petitioner's failure to demonstrate her receipt of a major, internationally recognized 
Page 12 
award, or that she 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 extraorciinary 
ability. 8 C.F.R. § 204.5(h)(3). 
, 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 11 15 (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.3 With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may, have raised, 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been'raised in a subsequent "final merits determination." Id. 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 requi{ement 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 "fmal merits determination" as 
the corollary to this procedure: 
If a petitiqner 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 ofthe[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 a<:;hievements have been recognized in the field of 
expertise." 8 C.F.R § 204.5(h)(3). Only aliens whpse achievements have garnered 
"sustained national or international acclaim'" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(1 )(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 fmal 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. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.p. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); . . 
see also Soltane v, DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the,' AAO conducts 
appellate review on a de novo basis) .. 
A. Evidentiary Criteria at 8 C.F.R. § 204.5(h)(3) 
. 3 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 13 
According to the petitioner's initial statement, this petition, filed on June 22, 2009, seeks to 
classify the petitioner, as an alien with extraordinary ability as "a researcher in sexology and 
clinical psychology fields." The petitioner has submitted documentation pertaining to the 
following categories of evidence under 8 C.F.R. § 204.5(h)(3).4 
\ 
Documentation of the alien's" receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The submitted certificates stating that she received the 
her as .............................. liiiiiiiiiiiiiiliiiiiiiiiiiiiiiiiiilii 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that 
petitioner's awards be nationally or'internationally recognized in the field of endeavor and it is her 
burden to establish every element of this criterion. In this case, there is no documentary evidence 
demonstrating, that the petitioner's awards are recognized beyond the presenting organizations 
and therefore corrimensurate' with nationally or internationally recognized prizes or awards for 
exce~lence in the field. Further, as the petitioner specifically acknowledge,d that she was falsely 
identified as an author of numerous scientific articles, we find that the authenticIty. of the 
preceding awards is unreliable. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. Accordingly, the petitioner 
has not established that she meets 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 fie Ids. . 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for 
admission to membership. Membership requirements based on employment or activity in a 
given field, minimum education or experience, standardized test scores, grade point averake, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. Further, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
) 
4 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
The petitioner submitted membership certificates for the 
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-- ... - - -. - -- ... -- --- - -
is no documentary evidence (such as bylaws or rules of admission) showing that the preceding 
organizations require outstanding achievements of their members, as judged by recognized 
national or international experts in the field. Further, as the petitioner specifically acknowledged 
that she was falsely identified as an author of numerous scientific articles, we find that the 
authenticity of the preceding memberships is unreliable. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Accordingly, the petitioner has not established that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic,. or business-:­
related contributions of major 'significance in the field. 
The petitioner submitted six reference letters discussing her authorship of research articles in the 
areas of sexology and clinical psychology. As the petitioner specifically acknowledged that she 
was falsely identified as an author of numerous scientific articles, we find that the authenticity of 
the preceding letters is unreliable. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. Further, the AAO may, in its 
discretion, use as advisory opinion statements submitted as expeh testimopy. However, where 
an opinion is not in accord with other information or is in any way questionable, the AAO.is not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 
I&N Dec. 791, 795 (Comm'r. 1988). Without reliable documentary evidence showing that the 
petitioner's work equates to original contributions of major significance in the field, we cannot 
conclude that she meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The .petitioner specifically acknowledged that she was falsely identified as an author of 
numerous scientific articles. Accordingly, the petitioner has established that she meets this 
criterion. 
Summary 
In this case, we concur with the director's determination that the petItIOner has failed to 
demonstrate her receipt of a major, internationally recognized award, or that she 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 
I 
,) 
Page 15 
In accordance with the Kazarian opinion, we will next conduct a,final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been recognized in 
the field of expertise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 
596 F.3d at 1119-1120. ' 
In this case, the deficiencies in the documentation submitted by the petitioner have already been 
addressed in our preceding discussion of the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i), 
(ii), (v), and (vi). The petitioner has not established that her achievements at the time of filing were 
commensurate with sustained national or international acclaim as a psychology researcher,-or being 
among that small percentage at the very top of the field of endeavor. 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top' of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1 )(A) ofthe 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, 
afJ'd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d-at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. 'In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: 
FURTHER ORDER: 
The appeal is dismissed' and the AAO will enter a separate finding' 
of misrepresentation of a material fact. 
The AAO finds that the petitioner submitted documents containing 
false claims in an effort to mislead USCIS on elements material to 
her eligibility for a benefit sought under the immigration laws of the 
United States. 
/