dismissed EB-1A Case: Sciences

identifjring data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 08 195 52291 MAY 2 1 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(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. 3 103.5. 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 $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
w Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 1 53(b)(l)(A). The 
director determined the petitioner had not established the sustained national or international acclaim 
necessary to qualify for classification as an alien of extraordinary ability. 
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)(l)(A)(i) of the Act and 
8 C.F.R. 5 204.5(h)(3). The implementing regulation at 8 C.F.R. 5 204.5(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. 5 204.5(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 submits a brief and additional evidence, some of which was already part of the 
record. For the reasons discussed below, we uphold the director's ultimate conclusion that the 
petitioner has not established his eligibility for the exclusive classification sought. 
Specifically, when we simply "count" the evidence submitted, the petitioner has submitted qualifying 
evidence under three of the regulatory criteria as required, judging the work of others, contributions of 
major significance and scholarly articles pursuant to 8 C.F.R. $5 204.5(h)(3)(iv), (v) and (vi). As 
explained in our final merits determination,' however, much of the evidence that technically qualifies 
under two of these criteria reflects routine duties or accomplishments in the field that do not compare 
with the accomplishments of the most experienced and renowned members of the field. Thus, such 
evidence is not consistent with a finding that the petitioner, a postdoctoral re~earcher,~ enjoys sustained 
national or international acclaim. As will be further discussed in our final merits determination, the 
accomplishments of the petitioner's references (thousands of citations, director of major institutions, 
election as a fellow of the American Physical Society, chair of major government working groups and 
recipients of several awards not limited to students) only reinforce our conclusion that the top of the 
petitioner's field is far higher than the level he has achieved. Ultimately, while the petitioner has 
authored one significant article that has garnered some attention in the field, he has not demonstrated a 
"career of acclaimed work in the field" as contemplated by Congress in the absence of a one-time 
achievement such as a Nobel Prize. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). 
Finally, at the outset it is worth noting that in response to the director's notice of intent to deny the 
petition, counsel stated: "Without recognizing the extraordinary ability of researchers, like [the 
1 
The legal authority for this two-step analysis will be discussed at length below. 
2 The petitioner's references list their own postdoctoral experience as part of their earliest employment 
experience in the field. 
petitioner], and by relying on individuals hired through the labor certification process, [Los Alarnos 
National Laboratory] would be forced to put the national security of the [United States] in the hands of 
individuals who are only minimally qualified for the job - a result no one would like to see." Other 
references affirm that the petitioner would be an asset to the United States. As will be discussed below, 
however, the petitioner has sought benefits under an exclusive classification expressly reserved for 
those who have achieved sustained national or international acclaim. Our decision for the classification 
sought in this matter is without prejudice to eligibility under a lesser classification and, thus, policy- 
based assertions on the importance of retaining scientists like the petitioner in the United States need 
not be considered. 
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. 
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 10ISt 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 C.F.R. 5 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(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, internationally recognized award) 
or through the submission of qualifying evidence under at least three of the following ten categories of 
evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as 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 in 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 
(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. Kuzuriun v. USCIS, 2010 WL 7253 17 (9th Cir. March 4, 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 criteri0n.j 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. 
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. 5 204.5(h)(3)(iv) and 8 C.F.R. 
5 204.5(h)(3)(vi). 
Page 5 
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 *6 (citing to 8 C.F.R. 
5 204.5(h)(3)). The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. 5 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. 5 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. 5 1153(b)(l)(A)(i). 
Id. at "3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if 
qualifying under three criteria, 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 Soltane 
v. DOJ, 38 1 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
11. Analysis 
A. Evidentiary criteria4 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor. 
The director concluded that the petitioner's scholarships and best student poster award were academic 
awards rather than awards in the petitioner's field of endeavor under 8 C.F.R. 5 204.5(h)(3)(i). Counsel 
does not challenge this conclusion on appeal. While the petitioner's student poster award is arguably an 
award in the petitioner's field of endeavor, the petitioner submitted no evidence that this award, which 
by its name appears to exclude the most experienced and renowned members of the field from 
consideration, is nationally or internationally recognized. For example, the record contains no evidence 
that the awardees receive notable coverage in the general or trade media. Thus, the petitioner has not 
submitted qualifying evidence under 8 C.F.R. $204.5(h)(3)(i). 
4 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Documentation of the alien's membership in associations in the field for which classiJication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The director concluded that the petitioner had not demonstrated that the associations of which he is a 
member, Phi Kappa Phi and Sigma Pi Sigma, require outstanding achievements of their general 
members. Counsel does not challenge this conclusion on appeal. Nevertheless, we will review the 
evidence. 
Initially, counsel asserted that Phi Kappa Phi admits the top 10 percent of graduate students and that 
Sigma Phi Sigma admits the top third of undergraduate students who have completed three semester 
courses in physics that could lead to a physics major. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 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 
Internet materials do not support these assertions. Moreover, they reveal that Phi Kappa Phi is not an 
association in the petitioner's field as required under 8 C.F.R. 5 204.5(h)(3)(ii). Regardless, academic 
standing is not an outstanding achievement. 
Moreover, the membership certificates reflect that the petitioner is a member of the Clemson University 
chapters of these associations. The record does not reflect that national or international experts in 
physics judge membership candidates for chapter membership as required under 8 C.F.R. 
tj 204.5(h)(3)(ii). In light of the above, the petitioner has not submitted qualifying evidence under 
8 C.F.R. tj 204.5(h)(3)(ii). 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classiJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner has never claimed to have submitted evidence that qualifies under 8 C.F.R. 
5 204.5(h)(3)(iii). Nevertheless, the record contains press releases posted on websites, including the 
website of the institute sponsoring the petitioner's research, and an identically worded article posted at 
www.spacedaily.com and credited to "staff writers." While these press releases are about the 
petitioner's work, they are not about the petitioner relating to his work as required by the regulation at 
8 C.F.R. tj 204.5(h)(3)(iii). Compare 8 C.F.R. 5 204.5(i)(3)(i)(C) (requiring evidence of published 
material about the alien's work). Moreover, the petitioner did not submit any evidence that these 
websites constitute professional or major trade publications or other major media as required under 
8 C.F.R. tj 204.5(h)(3)(iii). Thus, the petitioner has not submitted qualifying evidence under this 
regulation. 
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 alliedfield of speciJication for which classiJication is sought. 
Page 7 
The record reflects that the petitioner has refereed a single article for Astronomy and Astrophysics and, 
thus, as noted by counsel on appeal, meets the plain language requirements of the criterion at 8 C.F.R. 
5 204.5(h)(3)(iv). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
The petitioner's field, like most science, is research-driven, and there would be little point in 
publishing research that did not add to the general pool of knowledge in the field. According to the 
regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only original but of 
major significance. We must presume that the phrase "major significance" is not superfluous and, 
thus, that it has some meaning. To be considered a contribution of major significance in the field of 
science, it can be expected that the results would have already been reproduced and confirmed by 
other experts and applied in their work. Otherwise, it is difficult to gauge the impact of the 
petitioner's work. 
The petitioner submitted eight articles and evidence of conference presentations. The regulations 
contain a separate criterion regarding the authorship of published articles. 8 C.F.R. 5 204.5(h)(3)(vi). 
We 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 statutory requirement for extensive evidence or the regulatory requirement that a 
petitioner meet at least three separate criteria. The petitioner also initially submitted citations of his 
2007 article on the thermal structure in the crust of a superbursting neutron star, some of which are 
from independent research teams. 
article reconsidering his previous paper by "taking into account suppression of neutrino losses" as 
demonstrated by the petitioner. This information is provided upfront in the abstract of the paper. 
also issued a second article using his previous 1990 model "updated by switching-off neutrino 
losses in the crust" pursuant to the petitioner's work. In a letter submitted with the petition, - 
explains that he knows of the petitioner's work from his publications. continues that he 
uses the petitioner's research and cites his articles. asserts that the petitioner's 2007 article 
is "impressive," "widely known and appreciated," "very important for the understanding of the nature of 
thermonuclear explosions" on neutron stars and "is and will remain 'influential' in the domain of 
nuclear astrophysics." 
In response to the director's notice of intent to deny the petition, the petitioner submitted evidence that, 
as of the date of filing, his articles had been moderately cited. While the evidence reflects additional 
citations that postdate the date of filing, such evidence cannot be considered. More specifically, we 
cannot "consider facts that come into being only subsequent to the filing of a petition." See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Comm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 
1981)). Rather, the petitioner must establish his acclaim as of the date of filing the petition. See 
8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comm'r. 1971). 
Counsel previously asserted that the citations provided do not constitute the "actual number of 
citations" because they do not include "citations in lectures andlor invited talks" and do not take into 
account multiple citations in a single article. Counsel concluded that the petitioner's "actual citation 
count" is in the "hundreds." The unsupported assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 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). Moreover, counsel does not 
explain why the same factors would not apply to the other references who claim thousands of citations. 
As stated above, the petitioner submitted press releases about the petitioner's 2007 article. The 
petitioner has not established the significance of an institution issuing a press release about recent 
developments at the institution. The petitioner also failed to submit evidence of the significance of the 
website carrying the press releases. For example, it is undocumented whether these sites post any 
science press release forwarded to them from a reputable institution or post only those determined to be 
contributions of major significance. While these press releases are not particularly persuasive on their 
own, we acknowledge the submission of this evidence as part of the support for this criterion. 
Finally, the petitioner submitted several letters from colleagues at Clemson University where he 
received his Ph.D., the Joint Institute for Nuclear Astrophysics at Michigan State University where he 
worked, Los Alamos National Laboratory where he currently works and more independent members of 
the field. On appeal, counsel asserts that the director took sentences from these letters out of context. 
The letter purportedly from, a professor at Clemson University, is unsigned and, thus, 
has no evidentiary value. We will consider the remaining letters in depth below. 
the petitioner's Ph.D. advisor at Clemson State University, characterizes the 
petitioner as a "rising star with great promise for future achievements." The record contains no 
evidence that Congress intended this exclusive classification for a "rising star" rather than an individual 
with "sustained national or international acclaim" and a "career of acclaimed work in the field." Section 
203(b)(l)(A)(i) of the Act; H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). More specifically,- 
discusses the petitioner's work with long-lived isomeric states. Specifically, explains that 
gamma-ray telescopes observe gamma rays emitted by aluminum-26 (26~1) isotopes following beta 
decay, providing insights into massive star activity in our galaxy. The same isotopes also provide 
chronometric information about the earl solar system through isotopic excesses of a daughter isotope, 
26~g, in primitive meteorites. & further explains that there is no direct transition from the 
lengthy ground state to the extremely short lowest-lying excited meta-stable state for 26~1. Rather, 
because of the large spin difference, the transition takes place through other, higher-lying levels. 
According to, the petitioner "developed a novel technique for computing the effective 
transition rate between these levels," leading to the idea of "two ensembles of states in the nucleus - 
one tied to the ground state and one tied to the meta-stable state." Once he had developed this 
technique, explains, he was able to "split the nucleus into two separate species, which can 
now be treated appropriately in a nuclear reaction network." concludes that this work 
"elegantly solved a problem that plagued nuclear reaction network calculations for years." 
supervisor at Michigan State University, briefly discusses the 
petitioner's work i group with the Joint Institute for Nuclear Astrophysics (JINA). 
Page 9 
Specifically, concludes that the petitioner's "publication on heating in the crust of 
accreting neutron stars is a seminal paper that will provide a baseline for crustal heating calculations 
for many years. " cited six times in less than one year, including by 
"leaders in the and, who met the petitioner while 
visiting Michigan State University. 
, a technical staff member at Los Alamos National Laboratory, explains that he has 
collaborated with since 1995 and after visiting Michigan State University and viewing the 
petitioner's progress on calculating nuclear properties on neutron star behavior there, he recommended 
the petitioner for a postdoctoral fellowship at Los Alamos. explains that previous junior 
staff and students under supervision had made minimal progress. praises the 
petitioner's depth and breadth of knowledge and concludes that the petitioner is among the top four of 
the "young" scientists with whom he has worked. concludes that the petitioner focuses on 
challenging problems and does not publish until he has solved all relevant issues. While- 
one of the petitioner's coauthors, does not compare his work with the petitioner to the work reported in 
10 articles cited between 200 and 1,229 times, other letters explain the reliance of 
independent astrophysicists on the petitioner's work. 
of the Nuclear Science Laboratory at the University of Notre Dame and 
JINA, explains that he became aware of the petitioner's work when he came to work for at 
Michigan State University. states: 
[The petitioner] has distinguished himself by making original contributions to the field 
of Nuclear Astrophysics. I want to draw attention to [the petitioner's] work on neutron 
star crust heating that has created much excitement and stimulated further research 
activity in the field by helping to unravel the complexities of X-ray superbursts which 
are ignited deep in the crusts of neutron stars - these are among the most recently 
discovered ast~ophysical explosions. [The petitioner's] model of neutron star crust 
who use his heating models to probe the interiors of neutron stars. 
As stated above, the record contains the noting the use of the petitioner's 
discoveries in the abstract and a letter from reliance on the petitioner's work. 
The petitioner also submitted a letter from , who acknowledges meeting the petitioner 
during a visit to Michigan State University. confirms that the petitioner's 2007 article in 
the Astrophysical Journal "drastically changed our understanding of the physics of nuclear 
transformitions in the crust of accreting neutron stars." The record also contains articles by I 
favorably citing the petitioner's work. One of those articles is coauthored with- 
and not only cites the petitioner's work but utilizes model of deep crust heating "updated 
by switching-off neutrino losses in the crust" as reported by the petitioner. similarly, cites 
the petitioner in his abstract, acknowledging that the petitioner's work "helps bring the superburst 
ignition depth into better agreement with values inferred from observations." 
Given the detailed letters explaining how the petitioner's work is impacting the field, supported by 
articles from independent researchers relying heavily on the petitioner's work, we are satisfied that the 
petitioner has submitted qualifying evidence under 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The petitioner has authored scholarly articles and, thus, has submitted qualifying evidence pursuant to 
8 C.F.R. 5 204.5(h)(3)(vi). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Counsel asserts that the petitioner has performed a leading or critical role for Los Alamos National 
Laboratory where he works as a postdoctoral researcher. asserts that the petitioner is "a 
key scientist in projects that have made significant contributions to neutron star crust physics," an active 
research area supported by the Department of Energy and the National Science Foundation. 
further states that the petitioner established "an inter-disciplinary collaboration with diverse 
scientific groups (plasma physics, nuclear the0 applied nuclear physics, astrophysical 
hydrodynamics, computational sciences)." concludes that cross-fertilizing these fields 
has given nuclear astrophysics at Los Alamos National Laboratory "an impetus that would not be 
possible without his energy and expertise." 
, a technical staff member at Los Alamos National Laboratory, also affirms that 
the petitioner organized a "new group" and that his "strong leadership made this kind of collaboration 
possible." speculates that "this interdisciplinary project will be very important for 
scientific discovery in the United States. - the Nuclear Physics Group Leader at Los 
Alamos National Laboratory, however, notes that the principal investigator of this group is Sanjay 
Reddy. ~oth and state that the petitioner officially occupies a postdoctoral 
position. 
the Theoretical Division at Los Alamos National Laboratory, summarizes his own career at the 
institution, which began with a postdoctoral fellowship in 1970. asserts that the petitioner 
"participated" in writing a multi-disciplinary grant proposal and that his initiation of "laboratory-wide 
collaborations" between diverse researchers was instrumental to the successful implementation of the 
proposal. fwther asserts that external reviewers "made special mention of [the petitioner's] 
work as critical to the success of the [Laboratory Directed Research and Development (LDRD)] 
proposal. concludes: "By distinguishing himself with his leadership and original scientific 
contributions to the LDRD program, [the petitioner] has rendered an invaluable service that only 
someone with his specific talents and accomplishments could provide." 
Page 11 
We have already considered the petitioner's contributions above pursuant to 8 C.F.R. 5 204.5(h)(3)(v). 
At issue for this unrelated separate criterion set forth at 8 C.F.R. § 204.5(h)(3)(viii) is the nature of the 
role the petitioner was hired to fill and the reputation that hired him. This interpretation follows 
logically from the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
While the petitioner may have initiated the creation of an interdisciplinary collaboration, he is not the 
group leader or principal investigator of this collaboration. He remains in a postdoctoral position, a 
position some of his references list as their entry-level position with Los Alamos National Laboratory. 
The record does not contain an organizational chart or other similar evidence demonstrating that a 
postdoctoral position is leading or critical to Los Alamos National Laboratory or even any division 
within Los Alamos National Laboratory beyond the institution's need to hire talented researchers at any 
level. 
In light of the above, the petitioner has not submitted qualifying evidence under 8 C.F.R. 
§204.5(h)(3)(viii). 
For the reasons discussed above, the petitioner has submitted the requisite evidence under at least three 
of the evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. A final merits determination that 
considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
"level of 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. 5 204.5(h)(2); and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field of 
expertise." Section 203(b)(l)(A) of the Act; 8 C.F.R. 5 204.5(h)(3). See also Kazarian, 2010 WL 
725317 at "3. 
As stated above, the record reflects that the petitioner has refereed a single article for Astronomy and 
Astrophysics. The nature of the petitioner's judging experience is a relevant consideration as to 
whether the evidence is indicative of the petitioner's national or international acclaim pursuant to a 
final merits determination. See Kazarian, 201 0 WL 7253 17 at *5. Counsel asserts that the petitioner 
was selected to review this article because it was a response to his own work. One of the petitioner's 
references, , at Los Alamos National 
Laboratory, asserts that the invitation "to judge a paper submitted by the world's leading experts was a 
great honor in itself, and a recognition of the significance of [the petitioner's] original contribution to 
the field." Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof.5   he record contains no evidence that Astronomy and Astrophysics uses a small, 
5 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), agd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). 
Page 12 
elite group of credited reviewers or other comparable evidence of the significance of the journal's 
request. 
We cannot ignore that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Thus, peer review is routine in the field; not every peer reviewer enjoys 
international recognition. Without evidence that sets the petitioner apart from others in his field, 
such as evidence that he has reviewed manuscripts for a journal that credits a small, elite group of 
referees, received independent requests from a substantial number of journals, or served in an 
editorial position for a distinguished journal, we cannot conclude that the petitioner's judging 
experience is indicative of or consistent with national or international acclaim. 
As stated above, the petitioner has authored scholarly articles. Pursuant to the reasoning in Kazarian, 
2010 WL 7253 17 at *5, however, the field's response to these articles may be and will be considered 
in our final merits determination. As of the date of filing, the petitioner had only been moderately 
cited although we acknowledge that the citations themselves are notable. The petitioner's articles, 
the citing articles that incorporate the petitioner's models and the letters all support a conclusion that 
the petitioner is a highly successful researcher that is producing significant results. 
Ultimately, however, the evidence in the aggregate does not distinguish the petitioner as one of the 
small percentage who has risen to the very top of the field of endeavor. The petitioner, a postdoctoral 
researcher, relies on his participation in the widespread review processi his record 
(including one article that has garnered some notable attention in the field), his initiation of an 
interdisciplinary collaboration for which someone else serves as principal investigator and the praise of 
his peers. While these accomplishments likely distinguish him from other postdoctoral researchers, we 
will not narrow his field to others with his level of training and experience. boasts 3,000 
citations in the aggregate, with more than 200 citations each for three of his articles. boasts 
1.229 citations for one of his articles, with nine other articles having garnered more than 200 citations. w L, 
is Director of the JINL and lists several awards that do not appear to be limited to 
students. and are fellows of the American Physical ~ociety.~ Thus, it appears 
that the very top if the petitioner's field of endeavor is far above the level he has attained. The evidence 
is far more consistent with conclusion that the petitioner is a "rising star" than a conclusion 
that he is already within the small percentage at the very top of his field. 
111. 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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as an 
astrophysicist to such an extent that he may be said to have achieved sustained national or international 
6 While we do not reach the question of whether this level of membership requires outstanding achievements, 
it is a professional membership in the petitioner's field rather than an academic honor society and the 
fellowship level appears to be a higher level of membership than general membership. 
Page 13 
acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the 
petitioner shows talent as a postdoctoral researcher who has performed research that is beginning to 
gamer attention in the field, but is not persuasive that the petitioner's achievements set him significantly 
above almost all others in his field. Therefore, the petitioner has not established eligibility pursuant to 
section 203(b)(l)(A) of the Act and the petition may not be approved. 
The 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.