dismissed EB-1A Case: Sciences

(b)(6)
DATE:JUL 0 9 2012 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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 AJien Worker as an AJien 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 in your case. · AJI 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 I-290B, 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. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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. § 1153(b)(l)(A). The 
director determined the petitioner had not established the sustained national or international a~laim 
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.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award; Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) thfough (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. In the brief and in response to the 
director's request for evidence, counsel concedes that the petitioner "does not satisfy the criteria found 
in 8 C.F.R. § 204.5(h)(3)(i)(ii)(iii)(iv)(vii)(ix) & (x)" and asserts that the petitioner "meets the criteria 
of 8 C.F.R. § 204.5(h)(3)(!)(!!) & (viii)." (Emphasis in original.) Although counsel claims that the 
director's request for evidence (RFE) forced the petitioner "to guess what the officer wanted rather than 
address specific issues" and that the denial was "no more than the suriunary, generic analysis railed 
against in [Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)] and prohibited by Agency guidance," 
the record does not support counsel's claims. Nevertheless, the remedy for such an alleged error is for 
the AAO to consider all the evidence on appeal. Upon review of the entire record, the AAO concurs 
with the director's conclusion th~t the petitioner submitted qualifying evidence under only two of the 
ten regulatory categories of evidence. Furthermore, as the petitioner did not submit qualifying evidence 
under at least three of the regulatory categories of evidence, even if the director had committed any 
errors, they would be considered harmless. For the reasons discussed below, the AAO upholds the 
director's ultimate conclusion that the petitioner has not established eligibility for the exclusive 
classification sought. . The AAO conducts appellate review on a de novo basis. AAO's de novo 
authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 
I. lAW 
Section 203(b) of the Act states, in pertinent part, that: 
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(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 su'stained 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 
seekitig immigrant visas as aliens of extraordinary ability. See H.R. 723 10151 Cong., 2d Sess. 59 
(199Q); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary abiiity" refers only to 
those~"jndividuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.P.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 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 
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). 
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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.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. A'S 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. /d. 
ll. ANALYSIS 
A. Evidentiary Criteria2 
The director concluded that the petitioner had made original contributions of major significance 
pursuant to 8 C.F.R. § 204.5(h)(3)(v) and had authored scholarly articles pursuant to 8 C.F.R. 
§ 204.5(h)(3)(vi), but had not submitted qualifying evidence under any other criterion. On appeal, 
counsel asserts only that the petitioner did submit qualifying evidence of a leading or critical role for 
orga[!izations or establishments with a distinguished reputation pursuant to 8 C.F.R. 
§ 20¥5(h)(3)(viii). As discussed below, the AAO concurs with the director's determination that the 
petitioner has not submitted qualifying evidence under that criterion. On that basis alone, the AAO 
upholds the director's decision. 
The AAO notes, however, that the evidence submitted pursuant to 8 C.F.R. § 204.5(h)(3)(v) is also 
insufficient. While the ·petitioner has authored several articles, the regulations contain a separate 
criterion regarding the authorship of published articles. 8 C.F.R. § 204.5(h)(3)(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 scholarly articles.3 While the AAO acknowledges that the 
petitioner submitted evidence of a significant level of citation in the aggregate, the expert letters in 
the record fail to put this evidence in the necessary context to reach a conclusion that the petitioner 
has made original contributions of major significance . · 
In general, the letters focus on the unique and complex skills the petitioner has attained in her 
education and training research positions and her potential to benefit the United States in the future. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this d~cision. 
3 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. USCIS, 580 F.3d i030, 1036 (91h Cir. 2009) aff'd in part 
596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian court reaffirmed its holding that the AAO did not abuse 
its discretion in finding that the alien had not demonstrated contributions of major significance. 596 F.3d at 
1122. 
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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. § 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, L.P., 51 F. 3d 28, 
31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). To be 
considered a contribution of major significance "in the field" of science (rather than to a specific 
project), 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. While some of the letters identify the petitioner's research results and conclude 
they are applicable to other work in the field or even constitute contributions to the field, no expert 
explains how other independent researchers are already using the petitioner's results. 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 (91h Cir. 2009) aff'd in part 596 F.3d 1115 ·(9th Cir. 2010).4 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
While the AAO notes that there are numerous reference letters in the record, all such letters were 
previously considered under the original contributions criterion at 8 C.F.R. § 204.5(h)(3)(v). The 
regulation at 8 C.F.R. § 204.5(g)( I) requires that evidence of experience . "shall" consist of letters 
from employers. Therefore, the AAO will not consider letters written by anyone other than the 
petitioner's current and former employers with regard to this criterion . 
The AAO finds that the petitioner has submitted sufficient evidence to establish her appointments by 
organizations that have . a distinguished reputation, s ecifically 
and and 
At issue is whether or not the petitioner performed in a leading or critical role 
for these distinguished organizations. 
Any organization or establishment that retains the · services of an individual requires someone 
competent to provide those services. Thus, the fact that organizations or establishments h~ve 
retained the petitioner is insufficient. In the case of a leading role, the petitioner must demonstrate 
how the role fits within the overall hierarchy of the organization or establishment. In the case of a 
critical role, the petitioner must have contributed to the success of the estaplishment or organization 
beyond merely providing necessary services; 
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 field" were insufficient was "consistent with the relevant regulatory 
language." 596 F.3d at 1122. 
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( 
of states that "at the end of her current postdoc, she will 
have acquired a diverse range of technical skills combined with excellent exposure to the exciting 
field of Alzheimer Disease etiology, prevention and treatment." also of 
states that "[ s ]he has achieved a great deal in the short time she has been here, and I am 
.confident about her future accomplishments in this critical field." None of these letters demonstrate 
how the petitioner performed in a critical role for the establishment, but rather only refer to the · 
petitioner's acquisition of unique skills in a training position. 
the petitioner's research co-advisor at . states in his 
letter submitted with the original filing that the petitioner "has made "critical contributions to the 
stu,dy of a protein structure and function central to gene regulation, and she is now poised to leverage 
this rare and critical: expertise." In response to the director's request for evidence, wrote a 
second letter which states that "To my knowledge, my lab is the only lab in the world ·and [the 
petitioner] is the only scientist in the world to currently study the structure of human Presenilin." 
of the 
states that "As a postdoctoral fellow at the [the petitioner] is playing an 
essential role in the she is currently working to solve the structure of the human protein 
complex called 'gamma-secretase." goes on to state that the petitioner "is playing a 
leading role in the structural biology of Alzheimer's disease-at the ' and that "her rare training 
and skills are essential to our work on Alzheimer's disease towards deteimining the structure of 
gamma-secretase." These letters fail to demonstrate how the petitioner performed in a critical or 
leading role for the establishment, beyond her research efforts which are part of the duties that would 
normally be perfotined by someone in her position. 
The record does not contain persuasive evidence that serving as a Postdoctoral Research Fellow or 
Postdoctoral Associate, even for organizations with a distinguished reputation, is performing in. a 
leading or critical role. For example, the record does not establish the number of postdoctoral 
fellows for any ofthe petitioner's employers nor provide an organizational chart or other evidence of 
the hierarchy of any of these institutions. These institutions routinely rely on postdoctoral fellows to 
further their research. 
Moreover, the petitioner's appointments are designed to provide specialized research experience and 
training 'in her field of endeavor.5 For example, a professor at the 
asserts that while at the the petitioner "deepened her 
expertise in X-ray crystallography and mastered skills in basic science research while studying the 
genetic machinery." , a group leader at asserts 
that the petitioner's opportunities at "ha[ve] provided her with the tools. to 
transition to the position of a research group head in either academia or industry.'~ The petitioner's 
evidence does not demonstrate how her temporary appointments differentiated her from the other 
5 "Biological scientists with a Ph.D. often take temporary postdoctoral research positions that provide 
specialized research experience." See http://www.bls.gov/ocolpdf/ocos047.pdf, accessed on June 19, 2012, 
copy incorporated into the record of proceedings. 
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research scientists employed by the preceding institutions, let alone their tenured faculty and principal 
investigators. The documentation submitted by the petitioner does not establish that she held a position 
within the organizational hierarchy or was responsible for the preceding institutions' success or 
standing to a degree consistent with the meaning of "leading or critical role." Accordingly, the 
petitioner has not established that she meets this criterion. 
The AAO notes that in response to the director's request for evidence under this criterion, counsel 
asserts that "contributions made by the beneficiary" are not required to be "original" or "of major 
significance." While the AAO concurs 
with counsel, it is clear that the director inadvertently included 
language from the original contributions criterion. 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion . . 
B. Summary 
The petitioner has 'tailed to satisfy the antecedent regulatory requirement of three types of evidence. 
ill. 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. 
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 
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.~ The AAO notes, however, that the AAO's conclusion is consistent with 
the expert letters, ·which conclude only that the petitioner is within the top of Ph.D. students or 
postdoctoral researchers. Rather than explain how the petitioner has reached the top of her field or 
6 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. 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(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). 
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-garnered acclaim, the letters focus on the national interest in retaining researchers with the petitioner's 
unique skills and enthusiasm. While .the AAO does not question these opinions, it is not the correct 
standard for the benefit sought. Ultimately, 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 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 dismis~ed.