dismissed EB-1A Case: Sciences

DATE: 
NOV 0 3 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Securitl 
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)( I )(A) of the Immigration and Nationality Act. 8 U.s.c. § 1153(b)( 1 )(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-2908. Notice of Appeal or Motion. with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § I 03.5(a)( I )(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~Z-
~,­
Perry Rhew 
Chief: Administrative Appeals Office 
www.uscis.gov 
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 '-';c,tionality Act (the Act), 8 U .S.c. § 1153(b)(I )(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. § 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 evidewx:. ~ C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence tmder at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, the petitioner submits a statement. For the reasons discussed below, upon review of the 
entire record, including the evidence submitted on appeal, the AAO upholds the director's conclusion 
that the petitioner has not established eligibility for the exclusive classification sought. 
1. LAW 
Section 203(b) of the Act states, in pertinent p<lJ1, that: 
(I) 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. 723 101 sl 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. Jd.; 
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. USCIS, 596 FJd 1115 (9th Cif. 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. I 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 "tinal merits dcterr.lination." Jd. 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)." Jd. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3». 
Thus, Kazarian sets torth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifYing 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. Jd. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the ;'('~ulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in thefield of endeavor. 
Contrary to the petitioner's assertion on apf1eal 
contribution as a speaker at 
director simply stated that it "appears to quality," but as stated in his request "no 
background information has been submitted to support this award and no evidence has been submitted 
to document the national or international nature ;)f the award." In response to the director's request for 
evidence, the petitioner submitted what appears to be a press release regarding the event and the large 
number of international attendees. However, the press release does not include any information about 
the award or the selection criteria for the award. 
While the AAO disagrees with the director's statement that "[tJhe Best Paper Awards appear to have 
been won by multiple individuals," implying that the award must be won by the petitioner alone, the 
record lacks evidence that the awards were nationally or internationally recognized for excellence in the 
field. Although the petitioner submitted evidence that the conference had a large number of 
international attendees, international attendance is not evidence that the prize is internationally, or even 
nationally, recognized and is not evidence tpat thl'! prize was given for excellence in the field. The 
_ tition r also submitted what is purportedly a copy of the 
newsletter which mentions the receipt of the However, the excerpt, even were 
from the newsletter as claimed by the petitioner, only indicates that the award was recognized 
within the 
petitio,ner also asserts that his "award for ranking 8th in all of India in the_ 
not considered in the original application because it restricted 
The AAO is not persuaded that receiving an award as a student at the age of 
twelve or thirteen equates to receiving an award for excellence in field of endeavor. 
Unlike the "restricted" examples the petitioner provides, such as 
pre-college students in science is limited to a !)ix'! of candidates who are not working in the field. 
The AAO notes that the petitioner also initially submitted evidence of the TOCAB Institute award, but 
does not address it on appeal. Thus, the petitioner has abandoned any claim regarding this award. See 
Sepulveda v. Us. AII'y Gen" 401 FJd 1226, 1228 n. 2 (11th Cir.2005); Hristov v. Roark, No. 09-CV-
2731,2011 WL 4711885 at *9 (E.D. N.Y. Sept. 30, 2011). 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
In the director's request for evidence, he specifically requested, among other things, "documentary 
evidence of the criteria used to grant the prize or award, including evidence that a criterion for 
winning the award or prize was excellence in the field" and "the significance of the prizes or awards, 
to include the national or international reccgdion that the prizes or awards share." The petitioner 
failed to provide such evidence in response to the director's request for evidence and on appeal. 
In light of the above, the AAO affirms the director's decision that the petitioner has not satisfied the 
plain language requirements of the regulation at 8 C.F.R. § 204.S(h)(3)(i). 
Documentation olthe alien '.I' memhership in associations in the field filr which classification is 
sought. which require outstanding achievements ()l their members. asjudged by recognized national 
or international experts in their disciplines or/ields. 
The director concluded that the petitioner did not submit qualifying evidence under 8 C.F.R. 
§ 204.S(h)(3)(ii). On appeal, the petitioner asserts that "users did not consider" additional 
information submitted in to the director's his membership in 
the and 
admission to membership." 
cl;r.p~t,,, in his denial, the "evidence must 
achievement as an essential condition for 
reCluesl for evidence, the petitioner submitted a portion 
OVlaws, along with a letter from the Chair of each committee. 
to the bylaws, .'[ m ]embers of a Committee shall be 
qualitications and their ability to contribute to (he Committee's work." 
of the __ and a fonner professor of the petitioner, states that is only open to 
accomplished researchers whose work is well documented with many publications in peer-reviewed 
journals, recognition in their area of expertise, awards and [aJ track record of original research." The 
~ylaws state that the "[ c ]ommittee is composed of persons actively conducting research in 
Design Automation" and "membership .. .is attained by active participation at the conference and at the 
~. By those who actively participate become members of the committee." 
~ Chair of ,tates that "[m]embers of the committee are typically 
distinguished researchers in their fields." It is clear from the bylaws and from the letters that 
outstanding achievement is not required to be a member of either of these committees. The AAO also 
notes that the plain language of the regulation requires evidence that membership in the association, 
and not a subsequent selection to a committe,:, lqliires outstanding achievement. 
The AAO notes that the petitioner also submitted evidence of membership in Who's Who in America 
2012, but does not address it on appeal. Thus, the petitioner has abandoned any claim regarding this 
membership. ld 
Page 6 
In light of the above, the AAO affinns the director's decision that the petitioner has not satisfied the 
plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Evidence of the alien '.I' participation, either individually or on a panel, as a judge of the work 0/ 
others in the same or an alliedfield oflpecificationfor which classification is sought. 
The director found that the petitioner satisfies the plain language requirements of the regulation at 
§ 204.5(h)(3)(iv) and the AAO affinns the director's finding. 
Evidence of the alien's original scientific. scholarly, artistic, athletic, or business-related 
contributions olmajor significance in the.field 
On appeal, the petitioner asserts that, in addition to letters of reference, the petitioner's original 
contributions are evidenced by his publications, textbook, awards, memberships, mentions in 
newsletters and invitations to I) submit papers, 2) serve on panels and 3) present his work. While the 
petitioner has received a few awards, co-authored several articles which have been cited, presented 
his work at a number of conferences and is a member of a few associations, the regulations contain 
separate criteria regarding awards, membership and the authorship of scholarly articles. 8 C.F.R. 
§ 204.5(h)(3)(i), (ii) and (vi). If the regulations are to be interpreted with any logic, it must be 
presumed that the regulation views contributions as a separate evidentiary requirement from awards, 
memberships and scholarly articles3 The simple fact that the petitioner's findings have been published 
in journals and a textbook and presented at conferences does not create a preswnption that the findings, 
upon dissemination in the field, impacted the field, or are otherwise original contributions of major 
significance. Furthennore, as has previously been established, the petitioner did not meet the awards or 
the membership criterion. 
As stated by the director in his denial, "[y lou should be able to show" .how the field has changed as 
a result of your work beyond the increrne'~ta I improvements in knowledge and understanding 
expected from valid original research. You should show that your work has been adopted by many 
or that your work has led to company investment in new products or processes, not that there is 
potential to do so at some time in the future." 
On appeal, the petitioner asserts that although "uscrs acknowledged" most of the above-mentioned 
evidence, USCIS failed to consider four of ten submitted reference letters, three of which were 
submitted in response to the director's request for evidence. In general, the letters praise the 
petitioner's skills and research findings. 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 
) Publication and presentations are not sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence 
that they were of "major significance." Kazarian v. USC]S, 580 FJd 1030, 1036 (9th Cir. 2009) qIJ'd in part 
596 FJd 1115 (9th Cir. 20 I 0). In 20 I 0, the Kazarian court reaffinned its holding that the AAO did not abuse 
its discretion in finding that the alien had not demonstrated contributions of major significance. 596 FJd at 
/122. 
Page 7 
knowledge in the field. According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. The AAO must presume that the 
phrase "major significance" is not superfluous and, thus, that it has some meaning. Silverman v. 
Eastrich Multiple Investor Fund. [P., 51 F. 3d 28, 31 (3,d Cir. 1995) quoted in APWU v. Potter, 343 
F.3d 619, 626 (2nd Cir. Sep 15,2003). 
Engineer at the 
states that the petItIOner, "in 
conjunction with his research groupL] ... has heen contributing to the state of the art in reliability 
engineering on a consistent basis." 'I he letter also states that the petitioner "has developed a 
simulation code that assists in making reliability-cost tradeoff decisions in an optimal way." Writing 
code is a function of an engineer's job. The letter fails to demonstrate that the code is a contribution 
of major significance to the field of 
notes that to a letter 
Jni'"ep,itv, where petitioner is a Postdoctoral 
snolwn that he is an integral part of the research team that will 
directly affect this U[.]S[.] Army project. He helped our research on reliability estimation and 
component reliability allocation, He also proposed a design decision maki~ for 
making decisions using uncertain designer preferences." (Emphasis added.) __ the 
recipient of funding from _ also s(aL:s that the petitioner's "research" . can prove to be the 
right step in the right direction." However, the letter fails to demonstrate that the petitioner has 
already made an original contribution of major significance, rather than the potential for a future 
contribution. Eligibility must be established at the time of filing. 8 C.F,R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
tOlmdatHm has reached "an understanding" 
''''OI'UV'"' to optimally utilize [J waste heat in greenhouses," based on the petitioner's 
research. Again, the letter fails to demonstrate that the petitioner has already made an original 
contribution of major significance, rather trw'! 'he potential for a future contribution. Id. 
a faculty member at the states that the petitioner's 
research on "formal decision based design methods ... fills th[e] gap" and that his "current research 
directions are also promising." The petitioner has also "recently proposed a way to infer system 
topology from tests." As with all of the submitted letters, the letter fails to demonstrate that the 
petitioner has already made an original contribution of major significance, rather than the potential 
for a future contribution. Id. 
an Assistant Professor at the University of 
states that "[i]t is an excellent honor to receive the best paper award" for the paper he co··aulthored 
with the petitioner and that the petitioner's '~;("J1t!j published [] book...is a timely contribution to the 
engineering design community and [the 1 American Society for Mechanical Engineers." The award 
Page 8 
was contemporaneous with the actual presentation and does not establish the ultimate impact of the 
work upon dissemination. The letter fails to identifY a single original contribution, let alone one that 
could be considered of major significance. 
Vague, solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the field are insufficient. Kazarian 
v. USCIS. 580 F.3d 1030, 1036 (9th Cir. 2009) afJ'd in part 596 F.3d IllS (9th Cir. 2010).4 
Similarly, USCIS need not accept primarily conc1usory assertions. 1756. Inc. v. The Attorney 
General of the United Stales. 745 F. Supp. 9,15 (D.C. Dist. 1990). 
The ten regulatory criteria at 8 C.P.R. § 204.5(h)(3) reflect the statutory demand for "extensive I 
documentation" in section 203(b)(l)(A)(i) of the Act. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence of original contributions of major significance. 
The petitioner also asserts on appeal that "[c]itmions are only one criterion for judging the quality of 
research, and in light of universal recognition of my work, should have played a minor part in the 
decision." While the AAO may agree that citations are not the only type of evidence that can show the 
impact of a published article, it is clear from the director's decision that the petitioner did not meet this 
criterion based on the evidence submitted, not simply because of "a very small number of citations by 
other researchers." 
In light of the above, the AAO affirms the director's decision that the petitioner has not satisfied the 
plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the alien 's authorship of scholar~v articles in the field, in professional or major trade 
publications or other major media. 
The director found that the petitioner satisfies the plain language requirements of the regulation at 
§ 204.5(h)(3)(vi) and the AAO atlirms the director's finding. 
C. Summary 
As the petitioner did not submit qualifYing evidence under at least three criteria, the proper conclusion is 
that the petitioner has failed to satisfy the ante,cedent regulatory requirement of three types of evidence. 
4 In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the flcW' were insufficient was "consistent with the relevant regulatory 
language." 596 FJd at 1122. 
Page 9 
III. CONCLUSION 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, th" next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (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] tield of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise," 8 CYR. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 FJd at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination 5 Rather, the proper conclusion is that the petitioner failed to demonstrate 
that he has satisfied the antecedent regulatory requirement of three types of evidence. [d. at 1122. 
The petitioner has not established eligibility p:trsuant 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. 
5 The AAO maintains de novo review of all questions offact and law. See Soltane v. DO.!, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § \03.5(a)(IXii). See also section 
103(a)(l) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 
8 C.F.R. § 2.1 (2003); 8 C.F.R. § \03.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 
1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).