dismissed EB-1A Case: Sciences

(b)(6)
DATE: 
JUL 1 9 2013 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
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 
FILE: 
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. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form 1-2908 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~tf 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
·www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska 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)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R.§ 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
The petitioner's priority date established by the petition filing date is January 19, 2012. On June 27, 
2012, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on October 29, 2012. On appeal, the 
petitioner submits a brief with no additional documentary evidence. For the reasons discussed below, 
the AAO upholds the director's ultimate determination that the petitioner has not established his 
eligibility for the classification sought. 
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 bas 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 
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NON-PRECEDENT DECISION 
(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 101st 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. ld.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.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. USCJS, 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." !d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. 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 field of endeavor," 8 C.F.R. 
§ 204.5(h)(2), and "that the alien has sustained national or international acclaim and that 
his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or 
international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. 
§ 1153(b)(1)(A)(i). 
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.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
(b)(6) NON-PRECEDENT DECISION 
Page4 
Kazarian v. USCIS, 596 F.3d at 1119-20. 
Thus, Kazarian acknowledges that the regulations set forth a two-part approach where the evidence is 
first counted and then considered in the context of a final merits determination. If the petitioner satisfies 
three or more criteria, then users will consider the evidence in the record in the context of a "final 
merits determination." Jd. at 1121. If the petitioner fails to satisfy the regulatory requirement by 
submitting three types of evidence, the petition may be denied for that reason alone. !d. at 1122. 
The court's multiple references to a final merits determination make clear that the court assumed that a 
fmal qualitative inquiry might occur later. The court's references to a final merits determination are a 
critical and integral part of the rationale for the court' s holding. See, e.g., Boumediene v. Bush, 553 U.S. 
723, 762-63 (2008) (evaluating whether a passage from a prior opinion constitutes dicta). 
Significantly, the Ninth Circuit has reaffirmed the two-step approach. See Rijal v. USCIS, 772 
F.Supp.2d 1339 (W.D. Wash. 2011), aff'd, 683 F.3d 1030 (9th Cir. 2012). The Court of Appeals for the 
Ninth Circuit adopted as its own the "well-reasoned" district court opinion. Id. Specifically, the district 
court stated: 
Although USCIS erred in some of its conclusions as to Mr. Rijal's showing on the 
threshold evidentiary criteria, it is apparent that it made those errors with an eye toward 
the ultimate merits determination. In each instance, USCIS sought evidence 
that 
demonstrated sustained acclaim. There is no threshold requirement that the evidence 
demonstrate that acclaim, but ultimately, users must determine whether the evidence 
demonstrates "sustained national or international acclaim." 
772 F.Supp.2d at 1347 (citations omitted). 
Thus, the two-step process is consistent with the statute, regulation and federal case law. See also 
Matt er of Price, 20 I&N Dec. 953 (Assoc. Comm'r 1994) (determined golfer established eligibility 
under section 203(b)(1)(A) of the Act by assessing the initial evidence under the statutory and 
regulatory standard). 
Counsel' s primary argument within the appellate brief is that the two-step adjudication process relating 
to extraordinary ability petitions is a violation of the statute and the regulation. He characterizes any 
final merits determination within the adjudication process as an "ad hoc change to the existing 
regulatory framework governing the matter, an exercise that is not legally permissible. " Specifically, 
counsel asserts that applying a two-part analysis is a violation of the Administrative Procedure Act 
(APA). 
The Kazarian court, however, interpreted the two-step process from the existing regulations. The 
regulation already contemplates a subsequent review of the evidence pursuant to the criteria at 8 C.F.R. 
§ 204.5(h)(3) by referencing that evidence as "initial" evidence. Any corrective "change" in 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
adjudication through the use of a final merits determination is purely procedural and in harmony with 
the controlling regulation. Specifically, the final merits determination simply explains when during the 
adjudicative process users will review the evidence under the regulatory standard. 
Counsel's appellate brief also cited to a district court case relating to the extraordinary ability 
classification, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994). In contrast to the broad 
precedential authority of the case law of a United States circuit court, the AAO is not bound to follow 
the published decision of a United States district court in cases arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision will 
be given due consideration when it is properly before the AAO; however, the analysis does not have to 
be followed as a matter of law. Id. at 719. Moreover, Buletini states: "Once it is established that the 
alien's evidence is sufficient to meet three of the criteria listed in [the regulation], the alien must be 
deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its 
finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability 
standard." 860 F. Supp. at 1234. Thus, the Buletini court did not reject the possibility of a final merits 
determination. Four months after Buletini, the agency issued a binding precedent decision that did not 
simply "count" the evidence, but rather assessed the evidence under the entire regulatory standard. 
Matter of Price, 20 I&N Dec. 953 (Assoc. Comm'r 1994). 
Here, the Kazarian court's two-step construction flowed not from any effort to resolve ambiguity in 
the statute, but from the AAO's "improper understanding" of the regulatory requirements to establish 
extraordinary ability. See 596 F.3d at 1119-21; see also Rijal, 772 F.Supp.2d at 1346 ("Both [the 
plaintiff] and the USCIS often seem to assume that satisfying three criteria is the end of the 
'extraordinary ability' inquiry. They are mistaken.") (citing Kazarian). Thus, Kazarian, a 
controlling precedent in the Ninth Circuit, leaves no room for an alternate interpretation as it found 
the AAO's construction of the regulations to be improper or erroneous. Accordingly, the AAO will 
conduct the two-step analysis set forth by the Kazarian court in the instant case. 
II. ANALYSIS 
A. Comparable Evidence 
Several of the criteria are written in terms broadly applicable. 56 Fed. Reg. 60897-01, 60898. The 
regulation at 8 C.F.R. § 204.5(h)(4) allows an alien to submit comparable evidence if the alien is able to 
demonstrate that he or she is unable to qualify for this classification because the regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to the alien's occupation. See also 56 Fed. Reg. at 
60898-99. It is the petitioner's burden to explain why the regulatory criteria do not readily apply to his 
occupation and how the evidence submitted is "comparable" to the objective evidence required at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The petitioner has not established that the regulatory criteria do not 
readily ·apply in his occupation as a software engineer. In fact, as indicated in this decision, counsel 
initially specifically addressed five of the ten criteria at 8 C.F.R. § 204.5(h)(3). Where an alien is 
simply unable to meet or submit sufficient documentary evidence under at least three of these criteria, 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of 
(b)(6)
NON-PRECEDENT DECISION 
Page6 
comparable evidence. As such, the petitioner has not met the requirements for submitting comparable 
evidence. 
B. 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. 
Counsel initially asserted that the commercial publication of the petitioner's articles satisfies this 
criterion because those articles have been "excerpted, cited and incorporated into the works of other 
scholars and all have been commercially published." The director discussed the evidence submitted for 
this criterion and found that the petitioner failed to establish his eligibility. On appeal, the petitioner 
does not contest the director's findings for this criterion or offer additional arguments. Consistent with 
the director's analysis, articles that cite the petitioner's work as one of several references are about the 
author's own work or, in the case of review articles, about recent work in the field in general. They are 
not about every author of every cited work. Accordingly, the petitioner has not submitted qualifying 
evidence under this criterion. 
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 specification for which classification is sought. 
The director determined the petitioner met the requirements of this criterion. The petitioner has 
submitted sufficient evidence 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. 
Initially, counsel asserted that the petitioner's contributions to his employer constitute original 
contributions of major significance in the field. In response to the director's RFE, cormsel asserted that 
the petitioner's pending patents and the incorporation of his work into two course curricula demonstrate 
that the petitioner has made contributions of major significance in the field. The director discussed the 
evidence submitted for this criterion and found that the petitioner failed to establish his 
eligibility. Specifically, the director concluded that patents, while indicative of originality, do not 
demonstrate the impact of the innovations and that inclusion in the curricula at two universities is not 
evidence of a sufficient impact to constitute a contribution of major significance in the field. On appeal, 
the petitioner does not contest the director's findings for this criterion or offer additional 
arguments. The AAO affirms the director's analysis and conclusion. Accordingly, the petitioner has 
not submitted qualifying evidence under this criterion. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
(b)(6)
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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 the petitioner met the requirements of this criterion. The petitioner has 
submitted sufficient evidence to establish that he meets this 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 plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of a "high salary or other significantly high remuneration for services, in relation to others in 
the field." Average salary information for those performing work in a related but distinct occupation 
with different responsibilities is not a proper basis for comparison. The petitioner must submit 
documentary evidence of the earnings of those in his occupation performing similar work at the top 
level of the field? The petitioner must present evidence of objective earnings data showing that he has 
earned a "high salary" or "significantly high remuneration " in comparison with those performing 
similar work during the same time period. 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. TIL 1995) (comparing salary of NHL defensive 
player to salary of other NHL defensemen). 
The petitioner provided website printouts from the following sources: the Foreign Labor Certification 
(FLC) Data Center 's Online Wage Library, salary.com, www.indeed.com , www.glassdoor.com , and 
monster.com. The petitioner also submitted an employment offer dated November 24, 2011. The 
director determined that the petitioner met the requirements of this criterion. The AAO withdraws the 
director's favorable determination as it relates to this criterion for the reasons discussed below. 
The November 24, 2011 employment offer was from ShareThis reflecting the company offered the 
petitioner an annual salary of $145,000 for the position of Senior Research Software Engineer. The 
letter also identified other forms of remuneration such as a bonus upon the completion of the 
petitioner 's first year with the company, stock options , and a health plan among other incentives. 
The FLC Data Center's Online Wage Library website printouts provided wage information for 
Application Software Engineers in the "Oakland-Freemont-Hayward , CA Metropolitan Division." The 
FLC Data Center's Online Wage Library relies on the Bureau of Labor Statistics (BlS) Occupational 
3 While the AAO acknowledges that a district court's decision is not binding precedent, the AAO notes that in 
Racine v. INS, 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 ... 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." 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
Employment Statistics (OES) wage estimates. 4 The employment data are benchrnarked to average 
employment levels. 5 
The evidence from salary.com provided salary information relating to software engineers in the 
California area rather than the industry or the field as a whole. The plain language of 
the regulation requires the petitioner to establish that the petitioner's salary is high when compared to 
others in his field and average statistics limited to one particular geographic area of California do not 
meet this requirement. Furthermore, the salary.com website states: "The data is intended to provide a 
reasonable range for typical cash compensation earned by the typical person working in that job." 6 
Comparisons to "typical cash compensation earned by the typical person" is not an appropriate 
comparison for the petitioner to demonstrate his compensation is high relative to others in the field. 
The remaining evidence of website printouts from www.indeed.com, www.glassdoor.com, and 
monster.com also focuses only on one geographic location within California. 
All of the above salary information for comparison purposes relates to average salaries within one 
particular geographic area of California. This criterion requires the petitioner to establish that his salary 
is high when compared to others in his field rather than providing average statistics limited to one 
particular geographic area of California. 
Based on the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion and the AAO withdraws the director's favorable determination as it relates 
to this criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
D. Final Merits Determination 
Although the petitioner failed to satisfy at least three of the evidentiary criteria and a final merits 
determination is not required within the present proceedings, the director performed this analysis as the 
sole basis of the denial. Thus, the AAO will review the director's determination. 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 have risen 
to the very top of the field of endeavor. In accordance with the Kazarian opinion, the AAO will 
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 
4 
See http:/!wv.rw.flcdatacenter.com/faq_j!§px. 
5 See http://wv..w.bls.gov/oes/oes emp.htm#estimates. 
6 
See http://swz.salary.com/docs/salwizhtmls/methodology.html#Methodology, accessed July 2, 2013, a copy of 
which is incorporated into the record of proceeding. By submitting evidence from this website, the petitioner has 
introduced the information on that website into the record of proceeding. 
(b)(6)
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Page 9 
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." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 
1119-20. For the reasons discussed below, the petitioner has not made such a showing. Accordingly, 
the appeal must be dismissed. 
With regard to the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii), as discussed above, the 
petitioner does not contest the director's adverse finding under the antecedent procedural step. Claims 
under this criterion supported solely with a nominal number of citations to his own work falls 
substantially short of being indicative of "that small percentage who have risen to the very top of the 
field" of software engineering, or that he has sustained national or international acclaim. See section 
203(b)(1)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. 
With regard to the petitioner's judging experience, the AAO affirms the director's fmdings that 
although the petitioner meets the plain language requirements of this criterion, the evidence does not 
demonstrate that he is eligible for the employment based classification sought. See section 203(b )(l)(A) 
of the Act; 8 C.P.R. §§ 204.5(h)(2), (3). While the petitioner asserts on appeal that the director's 
reasoning relating to the petitioner's judging experience was circular, the nature of the beneficiary's 
judging experience is a relevant consideration as to whether the evidence is indicative of the 
beneficiary's national or international acclaim. See Kazarian, 596 F.3d at 1122. Counsel's reliance on 
the Buletini district court decision which predates the Ninth Circuit decision in Kazarian is not 
persuasive. See Matter of K-S-, 20 I&N Dec. at 715. Moreover, the court in Buletini was concerned 
with an interpretation that required an alien to first demonstrate "extraordinary ability" in order to 
satisfy the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv). The director did not follow this "circular 
exercise" that troubled the court. Rather, within the final merit~ determination, the director looked at 
the type of review responsibilities inherent to the field and what review responsibilities might be 
indicative of or at least consistent with national acclaim. 
The petitioner's judging experience consists of an invitation to referee papers submitted for publication 
during his time as a Ph.D. candidate in 2007, in addition to serving as a program committee member at 
·conference in 2009. The AAO notes that peer review is a routine element of the 
process by which articles are selected for publication in literary or scholarly journals or for presentation 
at literary conferences. Occasional participation in the peer review process is not indicative of or 
consistent with sustained national or international acclaim at the very top of his field. 
Without evidence that sets the petitioner apart from others in his field, such as evidence that he has 
received and completed independent requests for review from a substantial number of journals or 
conferences or served in an editorial position for a distinguished journal, the petitioner has not 
established that he is among that small percentage who has risen to the very top of the field of endeavor. 
See 8 C.F.R. § 204.5(h)(2). Furthermore, some of the petitioner's references have refereed more than 
30 conferences, held a seat on the editorial board of at least one scientific journal, have served as a 
program committee member for 11 conferences, and list numerous instances as a 
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Page 10 
reviewer or panelist. Thus, their level of judging suggests that the petitioner's peer review 
experience does not place him within the small percentage at the top of his field. 
With regard to the original contributions of major significance criterion under 8 C.F.R. § 204.5(h)(3)(v), 
the petitioner does not contest the director's adverse finding under the antecedent procedural step. See 
section 203(b )(1)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2), (3); see also Kazarian, 596 P.3d at 1119-20. 
The level at which the petitioner's contributions have impacted his field, as a whole, is the determining 
factor as to whether the petitioner is among that small percentage who has risen to the very top of the 
field of endeavor and has sustained national or international acclaim at such an elevated level. See 
8 C.P.R.§ 204.5(h)(2). The petitioner's claimed contributions relate to work performed for his previous 
employer, his pending patent applications, and the inclusion of two of his research papers in 
the curricula at two universities. Benefits to the petitioner's previous employer that are not shown to 
have spread sufficiently to have a broad impact within the industry as a whole is not work 
commensurate with one who has risen to the very top of the field of endeavor. Although the petitioner's 
current employer expressed an interest in filing two patent applications for the petitioner's innovations, 
the record lacks evidence either that the employer filed the applications or that the U.S. Patent and 
Trade Office granted the patents. While the petitioner provided evidence that a professor at the 
incorporated the petitioner's work into one 
course and a Ph.D. student at the 
in the United Kingdom "included [the petitioner's published paper] as 
reading/presentation material in my talk in our group seminar," the petitioner has not established that 
these two events reflect the broader impact in the field necessary to demonstrate the petitioner's work is 
recognized as being at the level of one of that small percentage who have risen to the very top of their 
field. 
With regard to the authorship of scholarly articles criterion under 8 C.P.R. § 204.5(h)(3)(vi), the AAO 
affirms the director's conclusion that although the petitioner met the plain language requirements of this 
criterion, the evidence is not indicative of sustained national or international acclaim. See section 
203(b)(1)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2), (3); see also Kazarian, 596 P.3d at 1119-20. At the 
time he filed the petition, the petitioner provided evidence of six articles or conference papers. In 
concluding that the petitioner's publication record was not indicative of or consistent with national or 
international acclaim, the director noted that the petitioner had not demonstrated that the petitioner's 
articles had garnered more than a few citations. On appeal, counsel relies on two district court decisions 
for the proposition that requiring citations goes beyond the regulatory requirements. The Kazarian 
court, however, expressly stated that citations, or a lack thereof, may be relevant to the final merits 
determination of whether a petitioner is at the very top of his field. 596 F.3d at 1122. As such, the 
petitioner's publication record is not indicative of or consistent with sustained national or international 
acclaim or status among the small percentage at the top of the field. 
As discussed above, the petitioner has not established that he meets the high salary or significantly high 
remuneration criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(ix). Specifically, the 
petitioner submitted documentary evidence of his recent earnings without providing sufficient 
documentary evidence comparing his salary to others in his field as a whole rather than limited to a 
particular geographic area. Although the petitioner's salary sits above the average in his geographic 
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Page 11 
location, he has not provided information that would enable the AAO to provide a proper determination 
of whether his salary is reflective "of that small percentage who have risen to the very top of the field of 
endeavor." See Matter of Price, 20 I&N Dec. at 954. 
The record contains several letters, some of which generally attest to the petitioner's extraordinary 
ability or ranking at the top of his field. Vague, solicited letters from local colleagues do not establish 
eligibility for the classification sought. Kazarian v. USCIS, 580 F.3d 1030, 1036 (91h Cir. 2009) 
ajf'd in part 596 F.3d 1115 (9th Cir. 2010).7 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.). Similarly, USCIS need not accept primarily conclusory assertions. 1756. Inc. 
v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). , a 
software engineer at indicates that he supervised the petitioner's internship at 
characterizes the petitioner only as having shown "great potential as a researcher 
and an engineer," speculating that the petitioner "will be an invaluable asset to any community he 
joins." Similarly, while , an associate professor at broadly asserts 
that the petitioner as at the top of the field, in support of that conclusion he only rates the petitioner 
"highly exceptional in this peer group" of the students he mentored. a professor at 
, describes the petitioner as "knowledgeable in the area of distributed computing" and 
an "excellent collaborator." concludes: "I feel confident that he is by now a top notch 
software engineer." 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. The petitioner, a software engineer, 
relies on his minimal publication and citation record, pending patents, the praise of his immediate circle 
of peers, and an above-average salary. Based on the accomplishments of his references, discussed 
above, it appears that the highest level of the petitioner's field is far above the level he has attained. 
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. 
A review of the evidence in the aggregate, however, does not establish that the petitioner has 
distinguished himself to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field of software 
engineering. The evidence is not persuasive that the petitioner's achievements set his significantly 
above almost all others in his field at a national or international level. Therefore, the petitioner has not 
established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition may not be approved. 
7 
In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.