dismissed EB-1A Case: Sciences

(b)(6)
DATE: 
SEP 0 5 2013 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigratio n Services 
Administr ative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-20 90 
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: 
SELF- REPRESENTED 
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 I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information 011 fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
#"if:--
Ron Rosenberg 
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.P.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 April 2, 2012. On July 19, 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 November 8, 2012. On appeal, the petitioner 
submits a statement with additional documentary evidence. For the reasons discussed below, 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 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 
(b)(6)
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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. Id.; 
8 C.P.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.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.P.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. I d. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6) NON-PRECEDENT DECISION 
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II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
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. Therefore, the petitioner has abandoned his claims under this 
criterion. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 
09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
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. Therefore, the petitioner has abandoned his claims under this 
criterion. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
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. 
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. Therefore, the petitioner has abandoned his claims under this 
criterion. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. 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 that the petitioner met the requirements of this criterion. The record supports 
the director's determination as it relates to 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) NON-PRECEDENT DECISION 
PageS 
Evidence of the alien's original . scientific, scholarly, artistic, athletic, or business-related 
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. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. Therefore, the petitioner has abandoned his claims under this 
criterion. Sepulveda 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director determined that the petitioner met the requirements of this criterion. The record supports 
the director's determination as it relates to this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation . 
. A leading role should be apparent by its position in the overall organizational hierarchy and the role's 
matching duties. The petitioner also has the responsibility to demonstrate that he actually performed the 
duties listed relating to the leading role. A critical role should be apparent from the petitioner's impact 
on the organization or the establishment's activities. The petitioner's performance in this role should 
establish whether the role was critical for the organization or establishment as a whole. The petitioner 
must demonstrate that the organizations or establishments (in the plural) have a distinguished 
reputation. While neither the regulation nor precedent speak to what constitutes a distinguished 
reputation, Merriam-Webster's online dictionary defines distinguished as, "marked by eminence, 
distinction, or excellence."3 Dictionaries are not of themselves evidence, but they may be referred to as 
aids to the memory and understanding of the court. Nix v. Hedden, 149 U.S. 304, 306 (1893). 
Therefore, it is the petitioner's burden to demonstrate that the organizations or establishments claimed 
under this criterion are marked by eminence, distinction, excellence, or an equivalent reputation. The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
Within the initial filing, counsel asserted that the petitioner played a leading and critical role "in 
research," but did not specifically assert any leading or critical role for any organization or 
establishment. The letters submitted with the initial petition generally discussed the petitioner's role in 
obtaining grant funding or his role on projects. In the RFE, the director stated that no evidence was 
submitted under this criterion. In response, the petitioner claimed eligibility based on three research 
grants reflecting that he was the · · in multiple projects at the 
3 See http://www.merriam-webste r.com/dictionarv/distinguish ed, accessed on August 19, 2013, a copy of which 
is incorporated into the record of proceeding. 
(b)(6) NON-PRECEDENT DECISION 
Page 6 
. Prior counsel specifically asserted 
that the petitioner played "a leading or critical role in organizations with distinguished reputations," 
clarifying that the petitioner "played a critical role in numerous private and federally funded research 
programs while working at" . Prior counsel' s assertions do not match the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii). That regulation requires evidence that the petitioner has 
performed in a leading or critical role for a qualifying organization or establishment. 
In response to the RFE, prior counsel referenced unpublished AAO decisions that purportedly 
supported the petitioner's eligibility claims. While the regulation at 8 C.F.R. § 103.3(c) provides that 
AAO precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
The director determined that the petitioner failed to submit any evidence relating to this criterion. On 
appeal the petitioner claims eligibility based on his roles for the same three research projects. The 
petitioner does not reference the AAO's unpublished decisions on appeal. The petitioner also submits 
some grants that postdate the filing of the petition. These grants do not relate to the petitioner's 
eligibility as of the date of filing. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). 
l, Professor of Pediatrics at the stated in his initial January 12, 2012 letter 
that the petitioner "has played a critical role of high value by performing government funded research 
projects in my laboratory" and "has taken a leadership role in key research projects related to 
glaucoma." further states that the petitioner was "playing an import ant role in the recent 
proposal submitted to • J to study the role of • • 
. _ " tlso indicated that the petitioner "is playing a leading role 
in this research and he is critical to our success and the continued success of this project." _ 
indicated that the petitioner made "contributions, both in the laboratory and in the scientific 
literature," and that without the petitioner, "this project would not have progressed." 
letter lacks any indication that the petitioner performed in a leading or critical role for either : or 
for the 
While the and may have a distinguished reputation , not every postdoctoral researcher 
who plays an important role in a distinguished laboratory or on projects plays a leading or 
critical role for the , or in this case for the organization as a whole. 
The petitioner was a postdoctoral researcher at the time of filing. failed to describe how 
such a position reflects a leading or critical role for or the The petitioner failed to 
submit, for example, any documentary evidence comparing his roles and responsibilities to other 
researchers and permanent faculty at these two institutions, so as to demonstrate that his role was 
leading or critical. 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
On appeal the petitioner provides an additional letter from . Within this letter, 
indicates that the petitioner is leading three referenced projects and that "he is playing a very important 
and critical role for our departments and institution." 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), ajfd, 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). L _ _ ______ _ 
did not describe the manner in which the petitioner's critical role for the laboratory reflects a role 
equally critical to the success of HHMI or the university as a whole. Evidence under this criterion must 
provide specifics relating to how the petitioner's role was critical to the organization as a whole. 
Noroozi v. Napolitano, 11 CIV. 8333 PAE, 2012 WL 5510934 *8 (S.D.N.Y. Nov. 14, 2012). 
The petitioner also provides an organizational chart on appeal. First, the organizational chart does not 
bear any indicia that or the prepared the chart. Second, the chart only reflects the 
hierarchy for a single project team demonstrating that the petitioner is at the top of the chart. The chart 
does not reflect at what leadership level the petitioner operates within or the , . Such 
evidence is not sufficient to establish the petitioner's position in the overall hierarchy of or the 
Finally, the petitioner only claimed to have performed in a qualifying role for one qualifying institution. 
The plain language of t}J.e regulation at 8 C.F.R. § 204.5(h)(3)(viii), however , requires the petitioner to 
have performed in a leading or critical role for "organizations or establishments" in the plural, which is 
consistent with the statutory requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. 
Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Thus, it is 
reasonable to infer that the plural in the remaining regulatory criteria has meaning. 
Based on the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
(b)(6)
r NON-PRECEDENT DECISION 
Page 8 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. !d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 
The 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. 
4 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination 
as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of 
the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(t)(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).