dismissed EB-1A Case: Sciences

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PUBLIC COpy 
DATEAPR 2 4 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: 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 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, . 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on October 27, 2010, 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(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)(1)(A)(i) of the Act and 8 
CF.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 CF.R. 
§ 204.5(h)(3). Furthermore, counsel claimed that the director erred in failing "to consider material 
dated after the filing date" and "[t]he [director] cited no legal basis for this." However, eligibility 
must be established at the time of filing on March 28, 2010. 8 CF.R. §§ 103.2(b)(1), (12); Matter 
of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). A petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardollille, 18 I&N Dec. 
114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id. at 176. To hold otherwise would allow an alien to secure a priority date in 
the hopes that subsequent achievements will demonstrate eligibility. Therefore, the AAO is not 
persuaded by counsel's claims on appeal, and the documentary evidence reflecting events that 
occurred after the filing of the petitioner will not be considered. 
1. 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 --
Page 3 
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 SI Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29,1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id.; 8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." 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 requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 CF.R. § 204.5(h)(3)). 
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 4 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. Id. 
II. ANALYSIS 
A. Evidentiary Criteria2 
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. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. Specifically, the director stated that "[t]he submitted material is not primarily about you 
and it does not discuss the merits of your work, your standing in the field, or any significant impact 
that your work had on the field." On appeal, counsel claims: 
[N]othing in the regulation requires that the material submitted, be "primarily about 
you," "discusses the merits of your work," or discusses "your standing in the field or 
any significant impact your work has had." It is crystal clear here that [the director] 
is "unilaterally impos(ing) novel substantive or evidentiary requirements beyond 
those set forth at 8 C.F.R. § 204.5[.]" 
Based on the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) that requires 
"[p ]ublished material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought," the AAO is not 
persuaded by counsel's argument that the director imposed an inappropriate restriction on his 
reference to "primarily about you." As the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires that the published material be "about" the petitioner relating to his work 
in the field for which classification is sought, the director's general statement that the material 
should be "primarily about you" is not beyond the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). Moreover, the submission of evidence that simply mentions the petitioner's 
name, quotes the petitioner, or is not otherwise about the petitioner fails to equate to published 
material about the alien relating to his work in the field. Furthermore, the AAO does not find that 
the director's use of "primarily" means that the material must be solely or exclusively about the 
alien relating to his work. For example, an article that discusses multiple individuals regarding their 
work, in which one of those individuals is the petitioner, would generally meet the elements of this 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
criterion. An article that is not about the petitioner does not meet this regulatory criterion. See, e.g., 
Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a 
finding that articles about a show are not about the actor). In the case here, which will be discussed 
in depth below, the petitioner submitted material that merely listed the petitioner as one of several 
scientists who worked on a research project but was not material about the petitioner relating to his 
work. It is insufficient to establish eligibility for this criterion based on any material that simply 
lists, mentions, or indicates the petitioner's name, such as the posting of a player's score from a golf 
tournament in a newspaper, without material that is about the petitioner relating to his work. The 
AAO is not persuaded that anytime an alien's name is mentioned in the media the alien would 
automatically qualify for the regulation at 8 CF.R. § 204.5(h)(3)(iii). However, the AAO concurs 
with counsel that the director's reference to "the merits of [the petitioner's] work, [the petitioner's] 
standing in the field, or any significant impact that [petitioner's] work had on the field" is beyond 
the plain language of the regulation. Compare 8 CF.R. § 204.5(h)(3)(v), which requires the 
petitioner's original contributions to be "of major significance in the field." While the director may 
have used this language as examples, the plain language of this regulatory criterion requires only 
published material about the petitioner relating to his work. Ultimately, the AAO concurs with the 
director that the documentary evidence submitted by the petitioner does not meet the plain language 
of the regulation at 8 CF.R. § 204.5(h)(3)(iii). 
The petitioner submitted an article entitled, "Scientists Guide Immune Cells With Light and 
Microparticles," dated November 16, 2009, by an unidentified author, in ScienceDaily. The plain 
language of the regulation at 8 CF.R. § 204.5(h)(3)(iii) requires "the title, date, and author of the 
material." Although the article indicates that the source is from Yale University, the petitioner 
failed to indicate the author of the material. Regardless, the article is not about the petitioner 
relating to his work. Rather, the article is about "a new approach to studying how immune cells 
chase down bacteria in our bodies." Although the petitioner is listed at the end of the article as one 
of 11 scientists, the fact remains that the article is not about the petitioner. An article that is not 
about the petitioner does not meet this regulatory criterion. Compare 8 CF.R. § 204.5(i)(3)(i)(C) 
relating to outstanding researchers or professors pursuant to section 203(b)(1)(B) of the Act, which 
only requires published material about the alien's work. See also, e.g., Negro-Plumpe v. Okin, 2:07-
CV-820-ECR-RJJ at *7 (upholding a finding that articles about a show are not about the actor). 
Likewise, the petitioner submitted an article entitled, "Scientists Guide Immune Cells With Light," 
dated November 17, 2009, by an unidentified author, in medGadget. Again, the petitioner failed to 
include the author of the article. Nonetheless, the article cites some of the article from 
ScienceDaily. The article is not about the petitioner relating to his work in the field. In fact, the 
article never even mentions the petitioner. Clearly, the article does not meet the plain language of 
the regulation at 8 CF.R. § 204.5(h)(3)(iii). 
IJv .... ~ .. v. submitted two articles that were published after the 
and 
Eligibility 
must be established at the time of filing on March 28, 2010. 8 CF.R. §§ 103.2(b)(1), (12); Matter 
of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner 
Page 6 
becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. at 175. That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that USCIS cannot "consider 
facts that come into being only subsequent to the filing of a petition." Id. at 176. Notwithstanding, 
neither article mentions the petitioner and is clearly not published material about the petitioner 
relating to his work consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
As discussed above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
"[p ]ublished material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought." It is the 
petitioner's burden to establish that he meets every element of this criterion. In this case, the 
petitioner's documentary evidence fails to reflect published material about him relating to his work 
in professional or major trade publications or other major media. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner established eligibility for this criterion. Specifically, the 
director stated: 
You have submitted evidence that your work is considered a breakthrough by 
experts in your field. You also submitted evidence that you developed a new 
compound that was patented. The patent was sold to a biomedical company in 
China and is being produced. The evidence demonstrates the major significance of 
your original contributions. 
Based on a review of the record of proceeding, the AAO must withdraw the findings of the director 
for this criterion. 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." Here, the evidence must be reviewed to see 
whether it rises to the level of original scientific or scholarly-related contributions "of major 
significance in the field." The phrase "major significance" is not superfluous and, thus, it has some 
meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28,31 (3fd Cir. 1995) quoted 
in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
Regarding the petitioner's patent, the petitioner submitted documentary evidence reflecting that he 
received a from the State Intellectual Property Office of China on October 
26,2005, for "[t]he drug combmatlOn containing the treatment 
and prevention of fatty liver disease." The petitioner also submitted a reference letter from_ 
IIwho stated: 
Page 7 
The results of the _ project and the related patent were sold to 
_ Biochemical [Engineering] Co. Ltd [CMBEC] for the [sic] further 
commercial purposes. [The petitioner's] discovery of the drug combination 
containing _ for treatment of lead toxicosis and fat[ty] liver disease has wide 
ranging therapeutic implications for treatment of these two diseases. His 
achievements on _ will undoubtedly help patients in the United States and 
internationally [emphasis added]. 
The petitioner also submitted a reference letter 
stated: 
In 2007, CMBEC, together with Fudan University, tried to commercialize [the 
petitioner's] patent. . .. [I]n 2001, [the petitioner] observed that" has a 
significant effect on lead excretion, but not zinc and copper excretion in the lead­
poisoned animal model, indicating that" may also be used for the treatment of 
lead toxicity [emphasis added]. In 2003, a Nature paper done by another group 
demonstrated that _is an essential vitamin of vitamin B group and a new co­
factor for reduction-oxidation (redox) reaction. Based on these evidences, CMBEC 
concluded that_ has a significant potential as a vitamin for diet supplements and 
pharmaceutical drugs, which will be greatly beneficial to human health [emphasis 
added]. 
Another reason to choose [the petitioner's] patent is that his patent may lay a solid 
foundation for the manufacture of" [emphasis added]. ... With the help of [the 
petitioner's] patent, CMBEC has made a major breakthrough in_project. We 
have successfully finished a pilot-scale production at a production scale of 800 liters. 
Currently, we are in the stage of a trial manufacture at output of 10,000 liters. 
Meanwhile, we are planning to file the application of. as State Category One 
New Drug (i.e. drugs that have not been launched in China or overseas markets) for 
treating fatty liver and lead toxicity in the State Food and Drug Administration of 
China [emphasis added]. Moreover, we will file the application of _ as a novel 
and natural food additive in China [emphasis added]. 
Moreover, d: 
There is currently no medical treatment that reverses fatty liver disease and causes 
fat within the liver to resolve. However,_ which is successfully developed and 
patented by [the petitioner], may be new hope for patients with fatty liver disease 
[emphasis added]. Using alcohol-fed mouse as a model for fat liver disease, [the 
petitioner] found accumulation of lipid droplets in the liver of ethanol-fed animals. 
However, lipid droplets were rare in livers of ethanol-fed animals treated with_ 
suggesting a protective effect of_ against alcoholic fatty liver diseases in mice. 
Therefore, .. may serve as a promising agent for preventing or treating human 
fatty liver disease [emphasis added]. 
who 
Page 8 
The AAO stated that a patent is not necessarily evidence of a track record of success with some 
degree of influence over the field as a whole. See Matter of New York State Department of 
Transportation, 22 I&N Dec. 215, 221 n. 7, (Comm'r 1998). Rather, the significance of the 
innovation must be determined on a case-by-case basis. Id. A patent recognizes the originality of 
the idea, but it does not demonstrate that the petitioner made a contribution of major significance in 
the field through his development of this idea. In the case here, the petitioner submitted sufficient 
documentary evidence demonstrating his original research regarding _ However, the petitioner 
failed to establish that his research has been of major significance in the field. Instead, as 
emphasized above, the petitioner's reference letters appear to speculate on the potential impact that 
his patent and_may have for patients with fatty liver disease. Moreover, a petitioner cannot file 
a petition under this classification based on the expectation of future eligibility. Given the 
descriptions in terms of future applicability and determinations that may occur at a later date, it 
appears that the petitioner's research regarding" while original, is still ongoing. Accordingly, 
while the AAO does not dispute the originality of the petitioner's research and findings, as well as 
the fact that the field has taken some notice of his work, the actual present impact of the petitioner's 
work has not been established. Rather, the petitioner's references appear to speculate about how the 
petitioner's findings may affect the field at some point in the future. Eligibility must be established 
at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. at 49. A 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. at 114, that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. The letters proffered do in fact discuss far more 
persuasively the future promise of the petitioner's research and the impact that may result from his 
work, rather than how his past research already qualifies as a contribution of major significance in 
the field. The assertion that the petitioner's research results are likely to be influential is not 
adequate to establish that his findings are already recognized as major contributions in the field. 
While CMBEC is trying to manufacture a _ product, _ letter clearly reflects that 
CMBEC is still in the trial stage. Furthermore, there is no evidence that the petitioner's research has 
impacted or influenced the field beyond CMBEC, so as to demonstrate that he has made original 
contributions of major significance in the field as a whole. The fact remains that any measurable 
impact that results from the petitioner's research will likely occur in the future. 
In addition, the petitioner submitted documentary evidence from lSI Web of Knowledge and Google 
Scholar reflecting that his published articles have been independently cited 50 times. While the 
number of total citations is a factor, it is not the only factor to be considered in determining the 
petitioner's eligibility for this criterion. Generally, the number of citations is reflective of the 
petitioner's original findings and that the field has taken some interest to the petitioner's work. 
However, it is not an automatic indicator that the petitioner's work has been of major significance in 
the field. In this case, the petitioner's highest cited article has been cited approximately 18 times, 
and the majority of the petitioner's articles cited less than eight times, including two articles that 
were cited one time. The AAO is not persuaded that such citations are reflective that the 
petitioner's work has been of major significance in the field. Furthermore, the petitioner failed to 
submit any documentary evidence demonstrating that his articles have been unusually influential, 
such as articles that discuss in-depth the petitioner's findings or credit the petitioner with 
Page 9 
influencing or impacting the field. In this case, the petitioner's documentary evidence is not 
reflective of having a significant impact on the field. Merely submitting documentation reflecting 
that the petitioner's work has been cited by others in their published material is insufficient to 
establish eligibility for this criterion without documentary evidence reflecting that the petitioner's 
work has been of a major significance in the field. The AAO is not persuaded that the moderate 
citations of the petitioner's articles are reflective of the significance of his work in the field. The 
petitioner failed to establish how those findings or citations of his work by others have significantly 
contributed to his field as a whole. 
Finally, a review of the record of proceeding reflects that the petItIOner submitted several 
recommendation letters. In this case, while the recommendation letters praise the petitioner for his 
work, they fail to indicate that his contributions are of major significance in the field. The letters 
provide only general statements without offering any specific information to establish how the 
petitioner's work has been of major significance. For example, while 
stated that the petitioner made "breakthrough discoveries" that "have vitally important 
implications," she failed to provide specific information to establish that they have been of major 
significance in the field. Instead, indicated that the petitioner's work has been 
published in scientific journals. Similarly, for example, the letters from 
1J1H,.,1·L ",",u the publication of the petitioner's 
work without demonstrating or of his work on the field. Furthermore, the 
regulations contain a separate criterion regarding the authorship of scholarly articles. 8 C.F.R. 
§ 204.5(h)(3)(vi). The AAO will not presume that evidence relating to or even meeting the 
scholarly articles criterion is presumptive evidence that the petitioner also meets this criterion. To 
hold otherwise would render meaningless the regulatory requirement that a petitioner meet at least 
three separate criteria. Therefore, while the petitioner's scholarly articles will not be considered 
under this criterion, they will be addressed under the next criterion. 
The petitioner's recommendation letters also discussed the petitioner's research regarding a "short 
hairpin RNA-based method." For instance, stated: 
This new method will generate inflammation animal models to study neutrophils in a 
short time period (about 2 months) and provides an alternative to the time­
consuming gene knock-out animal models (more than 2 years), which had been the 
only way for loss of function of primary neutrophils to be studied [emphasis added]. 
These results are a significant contribution to this field. Indeed, we have already 
received some emails from other labs to request the nts UU'V11'C,l 
prepared after he presented this research in 
The related work has been submitted into Journal of Biological Chemistry and the 
manuscript is currently under the revision. His work has already and will 
continuously contribute to our battle against chronic inflammation. 
Although demonstrated the petitioner's original contribution regarding this method, there is 
insufficient evidence to show that it has been of major significance in the field. In fact, as indicated 
by _he petitioner's research has yet to be published rather than it is in the process of being 
Page 10 
published in the Journal of Biological Chemistry. Further, _ failed to indicate if any 
inflammation animal models have been generated as a result of the petitioner's work, so as to reflect 
that the petitioner's work is currently being applied in the field. Instead, speculated that the 
method "will" generate inflammation animal models. Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N 
Dec. at 114, that USCIS cannot "consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. While the petitioner's method has received some interest in the form of 
emails, the AAO is not persuaded that receiving a few email requests demonstrates that it has been 
of major significance in the field. 
While those familiar with the petitioner's work generally describe it as "important," "vital," and 
"significant," there is insufficient documentary evidence demonstrating that the petitioner's work is 
of major significance. This regulatory criterion not only requires the petitioner to make original 
contributions, the regulatory criterion also requires those contributions to be of major significance. 
The AAO is 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 proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The lack of 
supporting evidence gives the AAO no basis to gauge the significance of the petitioner's present 
contributions. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters of support from the petitioner's personal 
contacts is not presumptive evidence of eligibility; USeIS may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008). 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. 
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]." Without additional, specific evidence showing that the 
petitioner's work has been unusually influential, widely applied throughout his field, or has 
otherwise risen to the level of contributions of major significance, the AAO cannot conclude that he 
meets this criterion. As such, the AAO withdraws the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Page 11 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[e]vidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other 
major media." Based ona review of the record of proceeding, the petitioner submitted sufficient 
documentary evidence establishing that he minimally meets the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(vi). 
Accordingly, the petitioner established 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. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. A review of the record of proceeding reflects that the claims for this 
criterion based on his role as a postdoctoral associate at the 
The petitioner submitted the 
who stated that the petitioner "plays a critical role in the 
leukocyte research in and "he is leading a group of six scientists in search of 
in leukocyte." The petitioner submitted no other documentation regarding his role at 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." In general, a leading role is evidenced from the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of the 
organization or establishment. Although _ stated that the petitioner's role is critical.; ••• 
offered no further information to establish that the petitioner's leading of six scientists is reflective 
of a leading or critical role at as a whole. There is no evidence, for example, that 
distinguishes that petitioner from the other scientists at rather than limited to a 
research project within the Department of Pharmacology. The petitioner failed to submit any 
documentary evidence that compared his roles with the other postdoctoral associates within the 
department, let alone with the roles of the other scientists. In fact, when compared to the role of_ 
• who is the research supervisor of the petitioner, it that the petitioner's role falls far 
short in demonstrating a leading or critical role for 
Moreover, even if the petitioner were to submit supporting documentary evidence showing that his 
role at meets the elements of this criterion, which he has not, section 
203(b)(1)(A)(i) of the Act requires the submission of extensive evidence. Consistent with that 
statutory requirement, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires a 
leading or critical role for more than one organization or establishment. Significantly, not all of the 
criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.R. 
§§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high salary. 
When a regulatory criterion wishes to include the singular within the plural, it expressly does so as 
when it states at 8 CF.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has 
meaning. In a different context, federal courts have upheld USeIS' ability to interpret significance 
from whether the singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 
06-2158 (RCL) at 12 (D.C Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 
3491005 at *10 (D. Or. Nov. 30,2006) (upholding an interpretation that the regulatory requirement 
for "a" bachelor's degree or "a" foreign equivalent degree at 8 CF.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials). In the case here, the petitioner claimed 
eligibility for this criterion based on only one establishment-
Again, the plain language of the regulation at 8 CF.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that he meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in 
a leading or critical role for organizations or establishments that have a distinguished reputation, the 
AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 CF.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination? Rather, the proper conclusion is that the 
:1 The AAO maintains de novo review of all questions of fact and law. See Solfane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
Page 13 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. [d. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
that made the last decision in this matter. 8 CF.R. § l03.5(a)(l)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 CF.R. § 2.1 (2003); 8 CF.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).