dismissed EB-1A Case: Sciences

identifying data deleted to 
prevent cleady unwarranted 
invasion of personal privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
U.S. Cilill~nship and Immigration Services 
Administralive Appeals Office (AA()) 
:W Massachusetts Ave., N.W .• MS 20l)() 
Washin!!lon. DC :20529-:2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: MAR 1 2 2012 Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a non-profit children's hospital. It seeks to classify the beneficiary 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 in the 
sciences. The director determined the petitioner had not established that the beneficiary has 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.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence for the alien under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel asserts that the beneficiary meets at least three of the ten regulatory categories 
of evidence at 8 C.F.R. § 204.5(h)(3) and that the petitioner submitted comparable evidence of 
the beneficiary's extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). For 
the reasons discussed below, the AAO will 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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
Page 3 
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 1015t 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. 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 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 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 articles 10 the field, in 
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 P.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria 
at 8 c.P.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 c.P.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 c.P.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.P.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or internqtional acclaim" are eligible for an "extraordinary 
ability" visa. 8 U .S.c. § 1153(b )(1 )(A)(i). 
Id. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 P. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 P.3d 683 (9th Cir. 2003); 
see also Soltane v. DOl, 381 P.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 July 31, 2009, seeks to classify the beneficiary as an alien with 
extraordinary ability as a Pediatric Neurologist. The petitioner has submitted documentation 
pertaining to the following categories of evidence under 8 c.F.R. § 204.5(h)(3).2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted an October 31, 2000 "Certificate of Merit" from the "Lagos Mainland 
Local Govt. Committee" of the National Youth Service Corps stating: "This certificate is 
awarded to [the beneficiary] ... by The Chairman, Lagos Mainland Local Government in 
recognition of his/her Outstanding contributions to the growth of Local Government Area during 
the 1998/99 Service Year." 
The petitioner also submitted a July 14, 2009 letter from 
Children's Hospital, stating: 
[The beneficiary] has received national or international awards including: 
• Certificate of merit awarded by the Chairman, Lagos Mainland Local Government, 
Nigeria, in recognition of outstanding contributions to the growth of the Local 
Government area during the 1998-1999 Service Year; 
• Leader for the Medical group, National Youth Service Corps, Lagos Mainland Local 
Government Nigeria from 1998-1999; 
• Editor-in-chief, yearbook committee of the 1997 graduation class, University of 
Lagos College of Medicine, Nigeria; and 
• Best Student in Basic Therapeutic Skills for 1992 from the University of Lagos 
College of Medicine. 
The Certificate of Merit from the Chairman, Lagos Mainland Local Government, reflects a 
regional honor for service to the local government in Lagos rather than a nationally or 
internationally recogni~ award for excellence in the beneficiary'S field of pediatric 
neurology. Regarding __ ' assertions that the beneficiary was "Leader for the Medical 
group, National Youth Service Corps, Lagos Mainland Local Government Nigeria from 1998-
1999;" "Editor-in-chief, yearbook committee of the 1997 graduation class, University of Lagos 
College of Medicine, Nigeria;" and "Best Student in Basic Therapeutic Skills for 1992 from the 
Universi~College of Medicine," the record does not include documentary evidence to 
support~' claims. Rather than submitting primary evidence of the beneficiary's 
Medical Group leadership position, his position as Editor-in-chief of his school yearbook, and his 
2 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
Page 6 
"Best Student" designation, the petitioner instead submitted a third-party letter from __ 
attesting to their existence. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). A petition must be filed with any initial evidence required by the 
regulation. 8 C.F.R. § 103.2(b)(I). The nonexistence or other unavailability of primary evidence 
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). According to the same 
regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not 
exist, the petitioner must submit an original written statement on letterhead from the relevant 
authority indicating the reason the record does not exist and whether similar records r the time 
and place are available. 8 C.F.R. § 103.2(b)(2)(ii). The July 14, 2009 letter from 
does not comply with the preceding regulatory requirements. 
Regardless, there is no documentary evidence showing that the beneficiary's student and youth 
honors are nationally or internationally recognized prizes or awards for excellence in the field of 
pediatric neurology. Significantly, this office has held, in a precedent decision involving a lesser 
classification than the one sought in this matter, that academic performance, measured by such 
criteria as grade point average, is not a specific prior achievement that establishes the alien's 
ability to benefit the national interest. Matter of New York State Dep't. of Transp. , 22 I&N Dec. 
215, 219, n.6 (Comm'r 1998). Thus, academic performance is certainly not comparable to the 
awards criterion set forth at 8 C.F.R. § 204.5(h)(3)(i), designed to demonstrate an alien's 
eligibility for this more exclusive classification. 
Moreover, the record does not include evidence of the national or international recognition of the 
beneficiary's particular awards, such as national or widespread local coverage of his awards in 
professional publications or the general media. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) specifically requires that the beneficiary'S awards be nationally or internationally 
recognized in the field of endeavor and it is his burden to establish every element of this criterion. 
In this case, there is no documentary evidence demonstrating that the awards received by the 
beneficiary were recognized beyond the presenting organizations and therefore commensurate 
with nationally or internationally recognized prizes or awards for excellence in the field. 
Furthermore, even if the petitioner were to establish that the beneficiary's "Certificate of Merit" 
from the "Lagos Mainland Local Govt. Committee" meets the elements of this regulatory 
criterion, which it does not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires the beneficiary's receipt of qualifYing "prizes or awards" in the plural. The use of the 
plural is consistent with the statutory requirement for extensive evidence. Section 
203(b)(I)(A)(i) of the Act. 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 C.F.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 
Page 7 
context, federal courts have upheld USCIS' 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 C.F.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials). Therefore, the beneficiary's receipt 
of a single nationally recognized award does not meet the plain language requirements of the 
regulation at 8 C.F.R. § 204.5(h)(3)(i). 
In light of above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
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 average, 
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. 
The petitioner submitted an October 24, 2006 certificate indicating that the beneficiary "is certified 
as a Diplomate of the American Board of Pe~d 2006 - 2013." The petitioner 
also submitted a July 14, 2009 letter from _stating that the beneficiary is a 
member of the American Academy of Neurology, the American Academy of Pediatrics, and the 
American College of Sports Medicine, but there is no documentary evidence to support his 
assertion. As previously discussed, going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. at 165. A petition must be filed with any initial evidence required by the 
regulation. 8 C.F.R. § 103.2(b )(1). The nonexistence or other unavailability of primary evidence 
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). According to the same 
regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not 
exist, the petitioner must submit an original written statement on letterhead from the relevant 
authority indicating the reason the record does not exist and whether similar records for the time 
and place are available. 8 C.F.R. § 103.2(b)(2)(ii). The July 14, 2009 letter from 
does not comply with the preceding regulatory requirements. Regardless, there is no documentary 
evidence of the membership requirements (such as bylaws or rules of admission) for the 
American Board of Pediatrics, the American Academy of Neurology, the American Academy of 
Page 8 
Pediatrics, and the American College of Sports Medicine showing that they require outstanding 
achievements of their members, as judged by recognized national or international experts in the 
beneficiary's field. 
In light of above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Evidence of the alien IS authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner submitted copies of two scholarly articles coauthored by the beneficiary in Indian 
Journal of Pediatrics and Clinical Pediatrics, and a letter of support from listing the 
preceding articles. The petitioner has documented the beneficiary's authorship of scholarly articles 
and, thus, has submitted qualifying evidence pursuant to 8 C.F.R. § 204.5(h)(3)(vi). Accordingly, 
the petitioner has established that the beneficiary meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The AAO withdraws the director's finding that the beneficiary meets this regulatory criterion. 
The . r submitted a July 18, 2008 letter from the Vice President of Operations at the 
Children's Hospital offering the beneficiary a yearly salary of $202,800. The 
record, however, does not include documentary evidence (such as payroll records or income tax 
forms) showing the beneficiary's actual earnings for any specific time period. As previously 
discussed, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires the 
petitioner to submit evidence demonstrating that the beneficiary "has commanded a high salary or 
other significantly high remuneration for services, in relation to others in the field." [Emphasis 
added.] The petitioner offers no basis for comparison showing that the beneficiary's salary was 
high in relation to that of other pediatric neurologists. The record is void of information regarding 
salaries for physicians who perform similar work. See Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994) (considering professional golfer's earnings versus other PGA Tour 
golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL 
enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 
1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). The 
evidence submitted by the petitioner does not establish that the beneficiary has received a high 
salary or other significantly high remuneration for services in relation to others in the field as of the 
petition's filing date. Accordingly, the petitioner has not established that the beneficiary meets this 
regulatory criterion. 
Summary 
The AAO concurs with the director's determination that the petitioner has failed to demonstrate 
the beneficiary's receipt of a major, internationally recognized award, or that he meets at least 
Page 9 
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). 
B. Comparable Evidence Under 8 C.P.R. § 204.5(h)(4) 
On appeal, counsel asserts that the July 14, 2009 letter from is comparable 
evidence of the beneficiary's extraordinary ability. The regulation at 8 C.F.R. § 204.5(h)(4) 
allows for the submission of "comparable evidence" only if the ten categories of evidence "do 
not readily apply to the beneficiary's occupation." Thus, it is the petitioner's burden to 
demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the 
alien's occupation and how the evidence submitted is "comparable" to the specific objective 
evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The regulatory language precludes the 
consideration of comparable evidence in this case, as there is no indication that eligibility for 
visa preference in the beneficiary's occupation cannot be established by the ten criteria specified 
by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, the petitioner 
submitted evidence that specifically addresses four of the ten categories of evidence set forth in 
the regulation at 8 c.F.R. § 204.5(h)(3). Where an alien is simply unable to satisfy the plain 
language requirements of at least three categories of evidence at 8 C.F.R. § 204.5(h)(3), the 
regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. 
Counsel does not explain why the regulatory criteria are not readily applicable to the beneficiary's 
occupation and how the preceding letter from Dr. DeRoos is "comparable" to any specific 
objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). 
Regardless, much of the content of _, letter has already been considered under the 
categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i), (ii), and (vi). letter further 
states: 
I have been involved from the beginning of the hospital's recruiting efforts to obtain [the 
beneficiary's] services and strongly endorse the grant of U.S. permanent resident status 
for him. 
* * * 
I emphasize that [the beneficiary] will be providing specialized pediatric neurology care 
for infants and children, including the treatment of seizure disorders, neuromuscular 
disease, and movement disorders. Performing these highly specialized medical services 
requires a medical degree, plus prior related experience and training in the field of 
pediatric neurology through a combination of residency and fellowship. [The 
beneficiary] has obtained such experience and training with special qualification in child 
neurology. 
Following receipt of his medical degree from the College of Medicine, University of 
Lagos, Lagos State, Nigeria, [the beneficiary's] training had included: 
Page 10 
• Pediatric Residency from July 2003 to June 2006 at Michigan State University, 
Kalamazoo Center for Medical Studies; and 
• Child Neurology fellowship from July 2006 to July 2009 at the University of 
Washington, Seattle, Washington. 
* * * 
[The beneficiary] is an alien of extraordinary ability and an individual who will make a 
valuable contribution to a critical healthcare need for U.S. children and their families. 
Assuming the beneficiary'S skills, training qualifications, and experience are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Dep't. of Transp. , 22 I&N Dec. 
215,221 (Comm'r 1998). It is not enough to be skillful and qualified and to have others attest to 
those talents. The petitioner must submit documentary evidence of the beneficiary'S "sustained 
national or international acclaim" and "extensive documentation" showing that his achievements 
have been recognized in the field. See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The statutory requirement that the beneficiary 
have achieved "sustained national or international acclaim" necessitates evidence of recognition 
beyond his employer. 
While reference letters can provide useful information about an alien's qualifications or help in 
assigning weight to certain evidence, such letters are not comparable to extensive evidence of the 
alien's achievements and recognition as required by the statute and regulations. The nonexistence 
of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). The 
classification sought requires "extensive documentation" of sustained national or international 
acclaim. See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). The commentary for the proposed regulations implementing the statute provide that 
the "intent of Congress that a very high standard be set for aliens of extraordinary ability is reflected 
in this regulation by requiring the petitioner to present more extensive documentation than that 
required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of 
achievements and recognition is of far greater probative value than opinion statements from 
references selected by the petitioner. 
The opinion of _ is not without weight and has 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 (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 from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&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 beneficiary's 
reputation are important considerations. Even when written by independent experts, letters 
Page 11 
solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence that one would expect of a pediatric neurologist who has sustained 
national or international acclaim. 
C. Final Merits Determination 
The AAO 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 1119-20. In the 
present matter, many of the deficiencies in the documentation submitted by the petitioner have 
already been addressed in the AAO's discussion of the categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i), (ii), and (ix). 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(i), this decision has already addressed why the submitted evidence does not rise to 
the level of nationally or internationally recognized prizes or awards for excellence in the field. 
The AAO notes that the majority of the beneficiary's honors were limited to students. Thus, they 
cannot establish that he is one of the very few at the top of his field. See 8 C.F.R. § 204.5(h)(2). 
USCIS has long held that even athletes performing at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinary ability." 
Matter of Price, 20 I&N Dec. at 953, 954; 56 Fed. Reg. at 60899. Likewise, it does not follow that 
the beneficiary's receipt of student and youth awards which exclude veteran physicians in the field 
from consideration should necessarily qualify him for approval of an extraordinary ability 
employment-based immigrant visa petition. While the AAO acknowledges that a district court's 
decision is not binding precedent, the AAO notes that in Matter of Racine, 1995 WL 153319 at 
*4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he 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 district, Grimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district, the 
court's reasoning indicates that USeIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) 
is reasonable. 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." Moreover, there is no evidence showing 
that the beneficiary has received any prizes or awards subsequent to 2000. The statute and 
regulations require the petitioner to demonstrate that the beneficiary'S national or international 
acclaim has been sustained. See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. § 1153(b)(1)(A)(i), 
Page 12 
and 8 C.F.R. § 204.5(h)(3). The documentation submitted for the category of evidence at 
8 C.F.R. § 204.5(h)(3)(i) is not commensurate with sustained national or international acclaim in 
pediatric neurology as of the July 31,2009 filing date of the petition. 
Regarding the documentation submitted for the category of evidence at 8 C.F.R. § 204.5(h)(3)(ii), 
as previously discussed, there is no evidence showing that the beneficiary'S associations require 
outstanding achievements of their members, as judged by recognized national or international 
experts in his field. The petitioner has not established that the beneficiary's memberships are 
indicative of or consistent with sustained national acclaim or a level of expertise indicating that 
he is one of that small percentage who have risen to the very top of his field. 
In regard to the documentation submitted for the category of evidence at 8 C.F.R. § 204.5(h)(3)(vi), 
the beneficiary'S citation history is a relevant consideration as to whether the evidence is 
indicative of the beneficiary'S recognition beyond his own circle of collaborators. See Kazarian, 
596 F. 3d at 1122. In response to the director's request for evidence, the petitioner submitted 
citation results from Google Scholar indicating that the beneficiary's article in Indian Journal of 
Pediatrics has been only moderately cited (14 times). The petitioner also submitted copies of 
eight articles citing to the beneficiary's work. This moderate level of citation is not sufficient to 
demonstrate that the beneficiary's articles have attracted a level of interest in his field 
commensurate with sustained national or international acclaim at the very top of the field. 
Further, there is no evidence showing that the beneficiary has published any scholarly articles 
subsequent to 2005. The statute and regulations require the petitioner to demonstrate that the 
beneficiary'S national or international acclaim has been sustained. See section 203(b)(1)(A)(i) of 
the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The documentation submitted 
for the category of evidence at 8 C.F.R. § 204.5(h)(3)(vi) is not commensurate with sllstained 
national or international acclaim as of the July 31, 2009 filing date of the petition. 
With regard to the documentation submitted for the category of evidence at 8 C.F.R. 
§ 204.5(h)(3)(ix), there evidence showing that the beneficiary has received a high salary or other 
significantly high remuneration for services in relation to others in the field or that his level of 
compensation places him among that small percentage who have risen to the very top of the 
field. The documentation submitted by the petitioner is not indicative of or consistent with 
sustained national acclaim or a level of expertise indicating that the beneficiary is one of that 
small percentage who have risen to the very top of his field. 
In this matter, the petitioner has not established that the beneficiary'S achievements at the time of 
filing were commensurate with sustained national or international acclaim as a pediatric 
neurologist, or being among that small percentage at the very top of the field of endeavor. The 
submitted evidence is not indicative of a "career of acclaimed work in the field" as contemplated 
by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). The conclusion the AAO reaches by 
considering the evidence to meet each category of evidence at 8 C.F.R. § 204.S(h)(3) separately 
is consistent with a review of the evidence in the aggregate. Ultimately, the evidence in the 
aggregate does not distinguish the beneficiary as one of the small percentage who has risen to the 
very top of the field of endeavor. 8 c.F.R. § 204.5(h)(2). While the petitioner need not 
demonstrate that there is no one more accomplished than the beneficiary for him to qualify for 
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the classification sought, it appears that the very top of his field of endeavor is above the level 
the beneficiary has attained. 
III. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary'S achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established the beneficiary's eligibility 
pursuant to section 203(b )(l)(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, 
affd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.