dismissed EB-1A Case: Sciences

identifYing data deleted to 
prev~nt clearly unwarranted 
InvasIOn of personaj privac'l 
fl1BLIC COP} 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
OCT 25 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank YOuC/i r ~ 
tr- ~ -tif 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
" 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and 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 (the Act), 8 U.S.C. § 1 1 53(b)(l)(A). The 
director determined that the petitioner had not established the requisite extraordinary ability through 
extensive documentation and sustained national or international acclaim. 
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 evidence. 8 C.F.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. 
On appeal, counsel states: ''Note that no request for evidence had ever been made prior to this denial." 
Counsel's statement is incorrect. On August 25,2009, the director issued a request for evidence to the 
petitioner, which he subsequently responded to on September 2, 2009.1 The petitioner's response 
consisted of copies of the same documents that he initially submitted. 
Counsel argues that the petitioner meets at least three of the ten regulatory categories of evidence at 
8 C.F.R. § 204.5(h)(3). For the reasons discussed below, we uphold the director's decision. 
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, 
I According to the Form G-28, Notice of Entry of Appearance as Attorney or Representative, in the record counsel did 
not enter his appearance in this proceeding until October 2009. 
· -
Page 3 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st 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. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
,w _ 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification, See 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? With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. 
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 ifthe 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)). The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 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)(l)(A)(i). 
Id. at 1119-1120. 
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 reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See Spencer Enterfrises, Inc. v. United States, 229 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9t Cir. 2003); see also Soltane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis). 
2 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). 
·-Page 5 
II. Analysis 
A. Evidentiary Criteria 
According to the petitioner's initial statement, this petition, filed on August 16, 2009, seeks to 
classify the petitioner as an alien with "extraordinary ability in the field of Materials Science and 
Engineering, particularly research of magnetic tunnel junctions, dielectric and solar thin films." The 
. s field is materials science. At the time of filing, the . was working as a 
From October 2004 to 
submitted evidence pertaining to the following critena 
The petitioner has 
).3 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
award equates to local or regional recognition rather than a nationally or internationally recognized 
prize or award for excellence in the field of endeavor. The record does not include information from 
the presenting organization indicating the significance of this award or its evaluation criteria. 
Further, there is no documentary evidence demonstrating that the petitioner's award is recognized 
beyond the presenting organization and therefore commensurate with a nationally or internationally 
recognized prize or award for excellence in the field. 
The petitioner submitted documentation showing that his Master's degree thesis was incorporated 
into the ' " There is no evidence demonstrating that 
inclusion of one's master's thesis in this database equates to receipt of a nationally or internationally 
recognized prize or award for excellence in the field of materials science and engineering. 
In light of the above, the petitioner has not established that he meets 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. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
3 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
4 "The local regional branch of the is called the •••••• 
_' See accessed on August 2,2010, copy incorporated into 
the record of proceeding. 
Page 6 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted evidence showing that he is a "Full Member" of 
"membership of more than 60,000 active members." The submitted materials about 
that the society invites to full membership "those who have demonstrated noteworthy achievements in 
research." These achievements must be evidenced by "publications, patents, written reports or a thesis 
or dissertation, which must be available to the Committee on Admission if requested." A n~ 
achievement is not necessarily an outstanding achievement. In fact, the record reveals that _ 
does not take a particularly strict view of achievements. Specifically, the petitioner 
submitted an August 28, 2008 letter from Executive Director, stating that the 
"Committee on Qualifications and Membership interpreted this qualification to include primary 
authorship of two papers." In addition, an earned doctoral degree may be substituted for one paper. We 
cannot conclude that primary authorship of one or two papers equates to outstanding achievements. 
Even if we were to conclude that the petitioner's ~embership meets the elements of this 
criterion, which we do not, section 203(b)(1)(A)(i) of the Act requires the submission of extensive 
evidence. Consistent with that statutory requirement, the plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(ii) requires the submission of evidence of membership in more than one association 
requiring outstanding achievements. 
The petitioner submitted a letter from the stating that he is an "Associate 
Member." The letter further states that an Associate Member "must have completed a degree in the 
physical sciences or engineering or its equivalent or are alternatively able to demonstrate an 
equivalent level of attainment through a combination of education, training and experience." The 
petitioner also submitted a letter from 
stating that he "holds the grade of Graduate Student Member" and that "[ m ]embership grade in the 
_ is determined by education and professional experience." The petitioner's evidence also 
included a letter from the stating that he is a member in good standing 
and that "[t]o become a member of the Society, an individual must be actively engaged in work 
relating to the research and development of advanced materials or material s." Finally, the 
petitioner submitted a letter stating that he is a member but there is 
no information regarding its specific uirements. With to the 
~nstitute of 
. _ and there is no evidence showing that they require outstanding 
achievements of their members, as judged by recognized national or international experts in the 
petitioner's field or an allied one. 
In light of above, the petitioner has not established that he meets this criterion. 
Page 7 
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. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. Some newspapers, such as the New York Times, nominally serve a particular locality but 
would qualify as major media because of significant national distribution, unlike small local community 
papers.s 
The petitioner submitted citation evidence from showing an aggregate of 27 
cites to his body of published work. The petitioner's evidence also included copies of some of the 
articles citing to his work. Regarding the citing articles that merely reference the petitioner's 
published work, we note that the plain language of this regulatory criterion requires that the published 
material be "about the alien." In this case, the articles citing to the petitioner's work are primarily about 
the authors' work, not the footnoted material identifying the petitioner. With regard to this criterion, a 
footnoted reference to the alien's work without evaluation is of minimal probative value. Further, we 
note that the articles citing to the petitioner's work similarly referenced numerous other authors. The 
submitted citations to the petitioner's work do not discuss the merits of his work, his standing in the 
field, any significant impact that his work has had on the field, or any other aspects of his work so as 
to be considered published material about the petitioner as required by this criterion. Instead, these 
citations are more relevant to the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(v) and will be 
addressed there. Accordingly, the petitioner has not established that he meets 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. 
• • • • •.• II ••. < 
•
"Im rovement 
s October 1, 2008 total number of manuscript reviews 
comp ete by the petitioner for identify any other manuscript titles. 
The petitioner's supporting evidence included December 15, 2006 and December 16, 2006 e-mail 
messages from Professor_inviting the petitioner to review the aforementioned manuscript 
5 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. 
an article that appears in the but in a section that is distributed only in 
instance, cannot serve to spread an individual's reputation outside of that county. 
Page 8 
entitled 
and thanking the petitioner "for agreeing to review the HU_LHU_"'" 
The record contains evidence specifically identifying only one manuscript review completed by the 
petitioner as of the petition's filing date. Nevertheless, this evidence meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). However, certain deficiencies pertaining 
to this evidence will be addressed below in our final merits determination regarding whether the 
submitted evidence is commensurate with sustained national or international acclaim, or being among 
that small percentage at the very top of the field of endeavor. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted several letters of support discussing his work. 
During first years 
problems in the 
[the petitioner] is resolving cutting edge 
manufacturing in general and, 
- one of the most challenging steps in 
is important to his 
present employer there IS no his work regarding 
this technology is recognized beyond his company such that it equates to an original contribution of 
major significance in the field. 
[The petitioner's] work on structural characterization of magnetic tunnel junctions has earned 
him a reputation of a first-rate researcher. The importance of his accomplishments is, in 
particular, evident from his work on the characterization of the interface structure of high­
quality Fe/MgO/Fe magnetic tunnel junctions on atomic scale. Using sophisticated 
techniques, e.g. high-resolution transmission electron microscopy, [the petitioner] was able to 
determine atomic positions and separations between atoms at the interface with an accuracy 
exceeding a fraction of an Angstrom. These data provided invaluable information and 
allowed him to correlate the experimental data to available theoretical calculations. Thus, 
[the petitioner's] work offered a methodology to characterize the interface structure of 
magnetic tunnel junctions, which is critical to advance the magnetic storage industry. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
Page 9 
graduation, publication, presentation, or funding, must offer new and useful information to the pool 
of knowledge. It does not follow that every research engineer who performs original research that 
adds to the general pool of knowledge has inherently made a contribution of major significance to 
the field as a whole. 
I became well acquainted of [the petitioner's] work through our discussion of his initial 
design of a for thin film growth. His ability to develop robust and unique 
is extraordinary. Based on the sputtering system he designed, [the 
petitioner] successfully fabricated high quality tantalum oxide high-k materials on an 
innovative glass substrate. The transistor device that was based on this advancement 
achieved high performance. He frequently discussed the problems during his research until 
his work was published in an internationally recognized journal _ et ai., _ 
-. 458, 246(2004)), which attracts great interests in this field. More importantly, his 
work demonstrated how advanced materials can be integrated with cheap substrates, which 
makes future applications widely available. This innovation inspired other scientists to 
extend the research of high-k materials on flexible substrates and even further progress [the 
petitioner's] success. 
The petitioner submitted an citation index for his article in 
indicating that it has been cited to only seven times since its publication. 
[The petitioner's] more recent research accomplishments with 
••••••••• continue to demonstrate his very high level of outstanding ability. His 
work on proposing a novel method to remove sacrificial via fill materials in the ashing 
process is of great significance to the international integrated circuit back end community. 
This significant research work has been made into a U.S. patent. The potential of this novel 
research and its findings will immensely increase the efficiency and quality of ashing process 
to save tremendous cost in mass semiconductor manufacturing. 
_ does not provide specific examples of industry applications where petitioner's findings 
actually increased "the efficiency and quality of ashing process to save tremendous cost." The 
petitioner submitted evidence showing that the petitioner and two others coauthored a "United States 
Patent Publication" [emphasis added] entitled 
"but there is no evidence showing that a U.S. patent was ~ 
invention. The petitioner also submitted what he claims is documentation of three _ 
that he coauthored, but the English language translations accompanying this documentation were 
incomplete and were not certified by the translator. Pursuant to the regulation at 8 c.P.R. 
§ 103.2(b)(3), any document containing foreign language submitted to USeIS shall be accompanied 
by a full English language translation that the translator has certified as complete and accurate, and 
.. 
Page 10 
by the translator's certification that he or she is competent to translate from the foreign language into 
English. Moreover, according to the deficient English language translations accompanying the 
documentation submitted from the State Intellectua~ Office of _the documentation 
relates to patent "applications" rather th~ved ~atents. Even if the petitioner were to 
establish that his innovations received a .-patent, the grant of a patent demonstrates only that 
an invention is original. This office has previously stated that a patent is not necessarily evidence of 
a track record of success with some degree of influence over the field as a whole. See Matter of New 
York State Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Commr. 1998). Rather, the significance of 
the innovation must be determined on a case-by-case basis. Id. The petitioner's patent applications 
are assigned to Semiconductor Manufacturing International Corporation and Tsinghua University. 
There is no evidence from the petitioner's superiors at these institutions indicating the extent to 
which these devices or innovations have been licensed or successfully marketed in the industry. 
Thus, the impact of the petitioner's inventions is not documented in the record. 
states: 
I have known [the petitioner's] work since he started his Ph.D. in 2004. The project he was 
working on is one of the most important topics in magnetic recording industries: based 
magnetic tunnel junctions. His work involves the newly emerging _ magnetic 
tunnel junctions that have been recognized as high performance in hard disk sensor and 
memory devices. As the inventor of the first commercialized hard disk sensors using" 
and more than 15 years in semiconductor industries, I can objectively attest to his 
contribution to the magnetic record industry. 
[The petitioner] not only designed high performance magnetic devices, but also conducted 
remarkable structural characterization of the device. In order to resolve a controversial 
problem involving the interface, [the petitioner] innovatively investigated the structure using 
different advanced transmission electron microscopy. He identified the existence of a non-
oxidized interface, which is crucial for device and performance. This work has been 
published in a leading semiconductor journal, . .. His 
other work including structural studies in exchange , made him 
an influential expert in structural characterization of magnetic materials. [The petitioner's] 
work bridges the experimental data and theory calculations. The results will have extensive 
effects on device growth and fabrications. 
_ opines that the petitioner research "results will have extensive effects on device growth and 
fabrications." A petitioner, however, cannot file a petition under this classification based solely on 
the expectation of future eligibility. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 
1971). The burden is on the petitioner to establish that his work has already significantly impacted the 
field as of the petition's filing date. To satisfy the criterion relating to original contributions of major 
significance, the petitioner must demonstrate not only that his work is novel and useful, but also that it 
had a demonstrable impact on his field. The petitioner has not shown, for instance, how the field has 
-Page 11 
significantly changed as a result of the petitioner's work, beyond the incremental improvements in 
knowledge and understanding that are expected from valid original engineering research. 
As [the petitioner's] direct supervisor and frequent contact for nearly 10 years, I am III 
worthy a position to adjudge his research work .... 
* * * 
[The petitioner] assembled a sputtering system when he was completing his master's degree 
in the He independently 
components, as and vacuum 
valve. His ability for troubleshooting is extraordinary - such that the system was finished two 
months ahead of schedule. The equipment has been proved to be a state-of-the-art facility 
through which more than 40 publications including international scientific papers and degree 
thesis have been made. 
Based on this sputtering system, he creatively fabricated the metal-insulator-metal (MIM) 
transistor on the glass substrate, which no one had ever done before. As the fabrication is 
extremely difficult, the high performance he achieved made his work at a world class 
achievement. His work has been cited many times since its publication in several 
international and~omestic well recognized magazines. [The petitioner's] extraordinary 
contributions to the thin film deposition field is not only limited to high-k materials. He has 
been enthusiastic seeking new emerging environmental and energy-saving multilayered thin 
films with high efficiency in infrared light anti-reflection. Later on, the project has been 
successfully applied to glass windows of buildings and transportation tools. 
~oes not specify the extent to which the petitioner's work "has been successfully applied 
to glass windows of buildings and transportation tools" or identify the companies utilizing his 
innovations. _ asserts that the petitioner's work "has been cited many times," but the 
citation indices submitted by the petitioner from indicate that his most 
frequently cited article, published in Journal of Magnetism and Magnetic Materials, was cited to 
only eight times. We agree cites to a journal article are a reliable measure of 
the level of significance attributable to a researcher's findings. For example, a large number of 
independent cites to an article authored by the petitioner would provide solid evidence that other 
researchers have been influenced by his work and are familiar with it. In this case, the limited 
number of independent cites to the petitioner's body of work as of the petition's filing date is not an 
indication that his research findings equate to original contributions of major significance in the 
field. While the ·tioner's· designs may have contributed to the Mechanical Engineering 
the petitioner must demonstrate a contribution of major 
significance in the field as a whole. 
v 
Page 12 
I have followed closely [the petitioner's] progress as a graduate student here from 2004 to 
2008 .... 
* * * 
[The petitioner's] research work has focused on fabricating innovative epitaxial magnetic 
tunnel junctions with MgO barriers, which is a promising structure for use in future memory 
devices. The particular structure on which he worked has achieved one of the best 
performances yet reported, and [the petitioner] carried out structural characterization to 
resolve the interface problem, which was a controversial . in the field. These results have 
been published by a leading journal, 
[The petitioner's] work has provided him with a growing reputation in the characterization of 
magnetic materials. Por example, he is the first researcher to apply chemical analysis to the 
challenging Laves phase structure using transmission electron microscopy. This phase is 
another potential material for use in information recording, but suffers from issues related to 
the roughness and interlayer diffusion. [The petitioner] successfully studied these issues with 
various transmission electron microscopy techniques. 
I would judge that [the petitioner's] research achievements demonstrate a high level of 
experimental ability, and he has an excellent understanding of the materials issues III 
spintronic devices which may be a future important technology for the computer industry. 
~iscusses the petitioner's research experience and experimental abilities, but his letter 
does not provide specific examples indicating how the petitioner's work has .. impacted 
the field. A number of the petitioner's references such as and 
Grovenor mention the petitioner's publication record. The regulations contain a separate criterion 
regarding the authorship of scholarly articles. 8 c.P.R. § 204.5(h)(3)(vi). We will not presume that 
evidence relating to or even meeting the scholarly articles criterion is presumptive evidence that the 
petitioner also meets this criterion. Here it should be emphasized that the regulatory criteria are 
separate and distinct from one another. Because separate criteria exist for authorship of scholarly 
articles and original contributions of major significance, USCIS clearly does not view the two as 
being interchangeable. To hold otherwise would render meaningless the statutory requirement for 
extensive evidence or the regulatory requirement that a petitioner meet at least three separate criteria. 
We will fully address the petitioner's scholarly articles under the next criterion. 
I know [the petitioner] from his work in this Department as a _tudent, and from 
discussing with him his research in the field of nano-scale materials characterization of 
advanced semiconductor materials. [The petitioner] was one of the first researchers to apply 
advanced studies to 
magnetic tunnel junctions. Using this dedicated technique, [the petitioner] studied the 
interface oxidization of real devices instead of real time growth as used by other researchers. 
Page 13 
This work provides some of the first experimental values for interplanar distances between 
Fe and MgO layers, which is crucial in adjusting the magnetic performance of the devices. 
* * * 
During [the petitioner's] .. study, the work he has completed has been published in 6 
papers and I expect his further results obtained from spherical aberration-corrected 
microscopy will be published in high ranking journals. He has the potential to make a 
significant contribution to the field and to benefit the U.S. and global research. 
v'U'''"u .. ~. to make a significant contribution to the 
field." In the same manner as noted that the petitioner "has an 
excellent understanding of the materials issues in spintronic devices which may be a future important 
technology for the computer industry." [Emphasis added.] With regard to the witnesses of record, 
many of them discuss what may, might, or could one day result from the petitioner's work, rather 
than how his past research achievements already qualify as original contributions of major 
significance in the field. As discussed previously, a petitioner cannot file a petition under this 
classification based solely on the expectation of future eligibility. Matter of Katigbak, 14 I&N Dec. 
at 49. 
a postdoctoral research associate at the Applied Research Center, Old Dominion 
University, states: 
I know about [the petitioner] through his work on electrical properties of Tantalum Oxide in 
publication "/- V characteristics of tantalum oxide film and the effect of defects on its 
electrical properties," published [i]n 458 (2004) 246-250. 
* * * 
[The petitioner's] pioneering experiment on low cost glass substrates was innovative in the 
application of tantalum oxide thin films. The results showing that the nanostructure affects 
the electronic properties like leak-current-voltage, and oxide breakdown characteristics. 
Without [the petitioner's] pioneering work, the structural work in my publication could not 
have been completed. 
While_indicates that he cited to the petitioner's article in and found that the 
petitioner's research was useful in his work, the limited number of submitted cites to the petitioner's 
article (7) does not establish that his findings equate to an original contribution of major significance 
in the field. A review of the article by _ citing the petitioner, submitted by the petitioner, 
reveals that ~erely cites the petitioner's article as one of two articles for the general 
proposition that Ta20s has attracted attention as a storage capacitator due to its attributes. 
" 
-Page 14 
The research [the petitioner] conducted on metal-isolator-metal (MIM) capacitors using 
Ta/TaOx/Ta structure is a great interest to me. The findings from his work, especially 
information on defect analysis, surface roughness, electrical properties, were beneficial to my 
own research. 
* * * 
Another innovative accomplishment made by [the petitioner] was his attempt to try to use 
low cost glass as substrate to replace traditionally used high quality high cost Si substrate. By 
improving surface roughness and adhesion, devices performance can be improved on glass 
substrates. This original contribution to the field of MIM capacitors is significant. 
The record, however, does not include evidence showing that the petitioner's MIM research is 
widely cited by independent researchers or otherwise equates to an original contribution of major 
significance 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. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. While the evidence 
indicates that the petitioner performed admirably on the research projects to which he was assigned, 
the submitted documentation does not establish that his work equates to original contributions of 
"major significance" in his field. For example, the record does not indicate the extent to which his 
findings have impacted others in the field of materials science and engineering at a level consistent 
with contributions of major significance in the field, nor does it show that the field has significantly 
changed as a result of his work. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
regulatory criterion. USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. Id. The submission of letters from experts supporting the petition 
is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796. Thus, the content of the experts' 
statements and how they became aware of the petitioner's reputation are important considerations. 
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 that one would expect of a 
research engineer who has made original contributions of major significance. Without supporting 
evidence showing that the petitioner's work equates to original contributions of major significance in 
his field, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
" 
Page 15 
The petitioner has documented his authorship of eleven scholarly articles in professional journals 
and, thus, has submitted qualifying evidence pursuant to 8 C.F.R. § 204.5(h)(3)(vi). Accordingly, 
the petitioner has established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
While the petitioner has performed admirably on the engineering research projects to 
which he was assigned, there is no evidence showing that his roles as engineer and research assistant 
were leading or critical for the preceding institutions. For example, there is no organizational chart or 
other evidence documenting how the petitioner's positions fell within the ge~ 
educational institutions and employers. We note that the petitioner's role at the _____ 
that of a student. The petitioner's evidence does not demonstrate how 
his positions differentiated him from the other research engineers employed by the preceding 
institutions, let alone their tenured faculty, principal investigators, department heads, and directors. The 
documentation submitted by the petitioner does not establish that he 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 he meets this criterion. 
Summary 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
his receipt of a major, internationally recognized award, or that he meets at least three of the ten 
categories of evidence that must be satisfied to establish the minimum eligibility requirements 
necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A final merits 
determination that considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (l) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) ''that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field of 
expertise." Section 203(b)(l)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1119-1120. In the present matter, many of the deficiencies in the documentation submitted by the 
petitioner have already been addressed in our preceding discussion of the regulatory criteria at 
8 C.F.R. §§ 204.5(h)(3)(i), (ii), (iii), (iv), (v), and (viii). 
Regarding the documentation submitted for 8 C.F.R. § 204.5(h)(iv), we cannot conclude that the 
petitioner's review of one or more papers for a single professional journal, IEEE Transactions on 
Magnetics, demonstrates sustained national or international acclaim or a level of expertise indicating 
, " 
that he is among that small percentage who have risen to the very top of the field of endeavor. See 
section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. §§ 204.5(h)(2) and (3). 
In discussing the peer review process for IEEE publications, Professor Ackerman, editor for the journal 
IEEE Transactions on Magnetics, states: 
Peer-review is an integral part of the publication process. 
* * * 
Consistent with and procedures, all scientific papers and communications 
published in regular periodicals shall be reviewed by at least two referees who are 
competent and have experience in the area of the subject matter of the paper. Referees are 
formal reviewers whose comments and opinions will form the basis upon which the Editor will 
decide whether or not to publish the paper, and with what changes .... The Editor's decision is 
always based on all the reviews received, but mixed reviews present the need for the exercise of 
editorial judgment. Thus, the final decision for acceptance or rejection lies with the Editor. 
[Emphasis added.] We cannot ignore that the journal's editor (rather than individual reviewers such as 
. determines which papers will be accepted for publication in _ 
Moreover, we note that peer review is a routine element of the process by 
which articles are selected for publication in scientific journals or for presentation at scientific 
conferences. Occasional participation in the peer review process does not automatically demonstrate 
that an individual has sustained national or international acclaim at the very top of his field. For 
example, according to the _ seeks referees "who are competent and 
have experience in the area of the subject matter of the paper." Competency and experience are not 
necessarily commensurate with sustained national or international acclaim at the very top of the field. 
Reviewing manuscripts is recognized as a professional obligation of researchers who publish 
themselves in scientific journals. Normally a journal's editorial staff will enlist the assistance of 
numerous professionals in the field who agree to review submitted papers. It is common for a 
publication to ask multiple reviewers to review a manuscript and to offer comments. The 
publication's editorial staff may accept or reject any reviewer's comments in determining whether to 
publish or reject submitted papers. 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 served in an editorial position for a distinguished journal, we 
cannot conclude that his level of peer review is commensurate with sustained national or 
international acclaim at the very top of the field of endeavor. For example, the curriculum vitae 
submitted for_indicates that he has served on the editorial board of 
_since 1995. 
With regard to the documentation submitted for 8 C.F.R. § 204.5(h)(vi), the petItIOner has not 
established that his co-authorship of research articles with his superiors demonstrates a level of 
expertise indicating that he is among that small percentage who have risen to the very top of the field 
of endeavor. See 8 C.F.R. § 204.5(h)(2). As authoring scholarly articles is inherent to science and 
Page 17 
engineering research, we will evaluate a citation history or other evidence of the impact of the 
petitioner's articles to determine the impact and recognition the petitioner's work has had on the 
field and whether such influence has been sustained.6 For example, numerous independent citations 
for an article authored by the petitioner would provide solid evidence that his work has been 
recognized and that other researchers have been influenced by his work. On the other hand, few or 
no citations of an article authored by the petitioner may indicate that his work has gone largely 
unnoticed by his field. As previously discussed, the petitioner submitted evidence showing that his 
body of published work has been independently cited to only 27 times. Moreover, there is no 
indication that any of the petitioner's individual journal articles have been cited to more than eight 
times. While this number of citations demonstrates some interest in his published work, it is not 
sufficient to demonstrate that his articles have attracted a level of interest in his field commensurate 
with sustained national or international acclaim at the very top of his field. 
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 is presently a 
Mechanical Engineer III at who submitted evidence of achievements . 
~k as a graduate student and research assistant at the 
______ He relies primarily on a 3 rd Place award in a' ••••••••• 
_ organized by a local society at his alma mater; memberships requiring education, 
experience, or primary authorship; an unspecified number of manuscript reviews for a single journal as 
part of the widespread review process; his patent applications and publications with his research 
supervisors; citation indices showing that his research articles have been minimally cited; and the praise 
of members of his field. 
We note that many of the petitioner's references' credentials are impressive. For example, _ 
states: 
6 For instance, we note that all of the scholarly articles submitted by the petitioner were authored in a university setting 
while he was working as a Research Assistant at the . With regard to 
research in a university setting, the Department of Labor's Occupational Outlook Handbook, 2010-11 Edition (accessed at 
http://www.bls.gov/ocoD, provides infonnation about the nature of employment as a postsecondary teacher (professor) and 
the requirements for such a position. See http://data.bls.gov/cgi-bin/print.pl/oco/ocos066.htm, accessed on August 5, 20 I 0, 
copy incorporated into the record of proceeding. The handbook expressly states that faculty members are pressured to 
perfonn research and publish their work and that the professor's research record is a consideration for tenure. Moreover, the 
doctoral programs training students for faculty positions require a dissertation, or written report on original research. Id This 
infonnation reinforces USCIS' position that publication of scholarly articles is not automatically evidence of sustained 
national or international acclaim; we must consider the field's reaction to those articles. 
ultra-fast computer chips. I am the recipient of the 2005 
am the co-recipient of the 2004 
the 
and 
••••••. I have published over 400 papers, 10 patents, and have graduated 33 Ph.D. 
students. . .. I am also one of the founding members of the 
and assumed the position of Associate Director for _ in 1997. I am 
involved in the strategic planning/execution of ($9 M operation at the present time) 
directionlbusiness. My research focuses on advanced microelectronic technologies and is one 
of the world's leading groups in this field. 
I am serving 
u ~ 
includes about twenty faculty members from different departments of College of Art and 
Sciences and College of Engineering and approximately the same number of graduate 
students and postdoctoral researchers. My research is focused on electronic, magnetic and 
transport properties of magnetic and ferroelectric nanostructures. I have published more than 
120 papers and presented more than 50 invited talks at national and international 
conferences, seminars and colloquia on this subject. I have been the Principal Investigator of 
research projects funded by the , the ••••••• 
an company m 
industry. . .. Being a productive researcher, I have filed over 50 U.S. and international 
patents for the past two decades. In addition, I have published over 170 papers related to the 
hard drive technology on prestigious journals. . .. In addition, I am a member of_ 
and serve on the organizing committee for various professional 
organizations such as _, _ and . Meanwhile, I am a Guest Professor at 
the and a Distinguished Researcher of 
environmental materials, I serve as the director of the 
_ which includes more than fifty faculties of the department. My research work 
has been published in over 130 papers in international and Chinese journals. I also hold 
" .. 
Page 19 
more than ten patents in various countries. I have been in charge of several national projects 
including the China (863 
program) and the of China. 
While the petitioner need not demonstrate that there is no one more accomplished than himself to 
qualify for the classification sought, it appears that the very top of his field of endeavor is far above the 
level he has attained. In this case, the petitioner has not established that his achievements at the time of 
filing were commensurate with sustained national or international acclaim in materials science and 
engineering, or being among that small percentage at the very top of the field of endeavor. 
C. Prior 0-1 Nonimmigrant Visa Status 
While USC1S has approved a prior 0-1 nonimmigrant visa petition filed on behalf of the petitioner, this 
prior approval does not preclude USC1S from denying an immigrant visa petition based on a different, 
if similarly phrased standard. Each case must decided on a case-by-case basis upon review of the 
evidence of record. It must be noted that many 1-140 immigrant petitions are denied after USC1S 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USC1S spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals 
do not preclude USC1S from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petillons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 1&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest 
that USC1S or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. Conclusion 
Review of the record 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 and to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
, 
Page 20 
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. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 
F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts appellate 
review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.