dismissed EB-1A Case: Scientific Research

.. 
'Identifying data deleted to 
prevent clearly unwarranted 
Invasion of personal privacy 
PUBLIC COpy 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Innnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
NEBRASKA SERVICE CENTER Date: 
MAR 1 1 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; 8 U.S.C. § I I 53(b)(I)(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. § \03.5. 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 $630. 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 you, 
co@',,, ~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The employment-based immigrant visa petItIOn was denied by the Director, 
Nebraska Service Center, on November 19, 2009, and is now before the Administrative Appeals 
Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IIS3(b)(l)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of his 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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act 
and 8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.S(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 claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.S(h)(3). We note that at the time of the original filing of the petition, the petitioner 
claimed eligibility for seven of the ten criteria pursuant to the regulation at 8 C.F .R. 
§ 204.S(h)(3). Specifically, the petitioner claimed eligibility for the awards criterion pursuant to 
the regulation at 8 C.F.R. § 204.S(h)(3)(i), the membership criterion pursuant to the regulation at 
8 C.F.R. § 204.S(h)(3)(ii), the judging criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(iv), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(v), the scholarly articles criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(vi), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(viii), and the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(ix). In his denial, the director addressed each of the petitioner's claimed criteria 
and found that the petitioner established eligibility only for the scholarly articles criterion. On 
appeal, counsel addressed only five of the criteria - the awards criterion, the membership 
criterion, the judging criterion, the original contributions criterion, and the scholarly articles 
criterion. As counsel failed to contest the decision of the director or offer additional arguments 
for the leading or critical role criterion and high salary criterion, we will not further discuss these 
criteria on appeal. Accordingly, we consider these issues to be abandoned. See Sepulveda v. 
us. Att'y Gen., 401 FJd 1226, 1228 n. 2 (11th Cir.200S). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
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(I) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
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 10 I 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 the petitioner demonstrate his or her 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 
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; 
Page 4 
(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 m the field, m 
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; 
(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. 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." Jd. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Jd. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 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 ofthe[ir] field of endeavor," 
I 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 
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)(I )(A)(i). 
Id.atI119. 
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 Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th 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). 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on April 23, 2009, seeks to classify the petitIOner as an alien with 
extraordinary ability as a researcher in optometry. The petitioner has submitted evidence 
pertaining to the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The director found that the petitioner failed to establish eligibility for this criterion. A review of 
the record of the petitioner claimed eligibility for this criterion based on 
his from the American Optometric Foundation (AOF) 
for acaLdelnic years. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation ofthe 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in 
the field of endeavor." Moreover, it is the petitioner's burden to establish eligibility for every 
element of this criterion. The burden is on the petitioner to establish that he or she is eligible for 
the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); section 291 of the Act, 8 
U.S.C. § 1361. Not only must the petitioner demonstrate his receipt of prizes or awards, he must 
also demonstrate that those prizes and awards are nationally or internationally recognized for 
excellence. In other words, the petitioner must establish his prizes or awards are recognized 
nationally or internationally beyond the awarding entities. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
The 
for 
Fellowships, " 
that indicated that the 
the AOF informing the petitioner that his applications 
the submitted an 
Arnel'ic~m Optometric Student Association, 
selected on the basis of excellence in 
scholarships, research and teaching" and were "established to provide opportunities to graduate 
students who wish to pursue careers in optometric research and education." Moreover, the 
submitted "American 
that indicated that the 
to provlde opportunities to graduate students who wish to pursue 
careers in optometric research and education." Finally, the petitioner submitted screenshots from 
www.medicalnewstoday.com and www.visioncrc.org that indicated that 
are awarded to encourage the most talented graduate students in physiological optics and vision 
science programs to pursue full-time careers in optometric research and education in schools and 
colleges of optometry" and they "support postgraduate research in the areas of physiological 
optics, vision science, and related fields." 
Although the documentary evidence submitted by the petitioner reflects that the 
selected based on and training, the 
to establish that the nationally or 
internationally recognized for excellence in Furthermore, academic study is not a field 
of endeavor, but training for a future field of endeavor. As such, academic scholarships, 
postdoctoral fellowships, student awards, and financial aid awards cannot be considered 
nationally or internationally recognized prizes or awards in the petitioner's field of endeavor. 
A review of the record of proceeding reflects that the petitioner also submitted the following 
documentary evidence: 
I. 
2. 
3. 
4. 
~ 
Page 7 
5. 
6. 
7. A certificate for the petitioner from the University of Houston for the 
National Optometric Student Association Award; and 
8. Various certificates from the Elite School of Optometry in India for the 
petitioner's academic performances. 
Regarding items I - 6, the petitioner failed to submit primary evidence of his receipt of these 
prizes or awards or evidence that primary or secondary evidence does not exist pursuant to the 
regulation at 8 C.F.R. § l03.2(b)(2). The regulation at 8 C.F.R. § l03.2(b)(2) provides in pertinent 
part: 
(i) The non-existence or other unavailability or required evidence creates a 
presumption of ineligibility. If a required document, such as a birth or marriage 
certificate, does not exist or cannot be obtained, an applicant or petitioner must 
demonstrate this and submit secondary evidence, such as church or school records, 
pertinent to the fact at issue. If secondary evidence also does not exist or cannot be 
obtained, the applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit two or more 
affidavits, sworn to or affirmed by persons who are not parties to the petition who 
have direct personal knowledge of the event and circumstances. Secondary 
evidence must overcome the unavailability of primary evidence, and affidavits must 
overcome the unavailability of both primary and secondary evidence. 
(ii) Where a record does not exist, the applicant or petitioner must submit an original 
written statement on government letterhead establishing this from the relevant 
government or other authority. The statement must indicate the reason the record 
does not exist, and indicate whether similar records for the time and place are 
available. However, a certification from an appropriate foreign government that a 
document does not exist is not required where the Department of State's Foreign 
Affairs Manual indicates this type of document generally does not exist. An 
applicant or petitioner who has not been able to acquire the necessary document or 
statement from the relevant foreign authority may submit evidence that repeated 
good faith attempts were made to obtain the required document or statement. 
However, where USCIS finds that such documents or statements are generally 
available, it may require that the applicant or petitioner submit the required 
document or statement. 
As indicated above, the regulation at 8 C.F.R. § I03.2(b)(2)(i) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. According to the same 
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regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. In this case, the petitioner 
relies on the submission of emails, a photograph of a plaque, and excerpts of programs as evidence 
of his receipt of the claimed awards. The petitioner failed to submit any documentary evidence 
demonstrating that primary evidence and secondary evidence do not exist or cannot be obtained. As 
the petitioner failed to comply with the regulation at 8 C.F.R. §103.2(b)(2), the evidence is not 
probative and will not be accorded any weight in this proceeding. 
Nonetheless, the petitioner failed to submit any documentary evidence regarding any of the items 
listed above, so as to establish that they are nationally or internationally recognized prizes or 
awards for excellence in the field. Merely submitting documentary evidence reflecting receipts 
of prizes or awards is insufficient to establish that the prizes or awards are nationally or 
internationally recognized for excellence. We note that the petitioner's documentary evidence 
reflects fellowships and student awards. Again, academic study is not a field of endeavor, but 
training for a future field of endeavor. Therefore, the petitioner failed to demonstrate that he has 
received any nationally or internationally recognized prizes or awards for excellence in his field. 
As discussed, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically 
requires that the prizes or awards be nationally or internationally recognized in the field of 
endeavor, and it is the petitioner's burden to establish every element of this criterion. In this 
case, there is no evidence demonstrating that the prizes or awards are tantamount to nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. 
Accordingly, the petitioner failed to establish 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 the director's decision, he found that the petitioner failed to establish eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner claimed eligibility 
based on his election as a fellow of the American Academy of Optometry. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[dJocumentation of 
the alien's membership in associations in the field for which is 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 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 
Page 9 
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. 
A review of the record of proceeding reflects that the petitIOner submitted sufficient 
documentary evidence establishing that he is a fellow of the American Academy of Optometry. 
As evidence that membership with the American Academy of Optometry requires outstanding 
achievements of its members, as judged by recognized national or international experts in their 
disciplines or fields, the petitioner submitted the following documentation: 
1. A document entitled, "Candidacy for Fellowship in the American 
Academy of Optometry"; 
2. Screenshots from www.aaopt.org regarding the bylaws; 
3. A letter from of Education and Member 
Relations for the American Academy of Optometry; and 
4. A letter fro~ Southern College of Optometry. 
A review of the documentary evidence listed above reflects that membership with the American 
Academy of Optometry "requires demonstration of professional competence." In addition, 
according to item 2: 
Fellowship shall be open to all optometrists in professional practice according to 
Academy standards, and to scientists, educators, librarians, administrators, 
editors, and others who have accredited themselves and demonstrated a 
significant contribution to optometry and/or vision science by their service. 
Fellows have the right to vote and hold any elective or appointive position in the 
Academy. 
We are not persuaded that an association that is open to all optometrists in professional practice 
or other select individuals who have accredited themselves and demonstrated a significant 
contribution to optometry and/or vision science is reflective of an association that requires 
outstanding achievements of its members. Furthermore, a review of the documentary evidence 
submitted by the petitioner reflects that an applicant for fellowship must complete an application, 
submit written material, and take an oral exam during the annual meeting. Based on the 
documentary evidence submitted by the petitioner, we are not persuaded that merely submitting 
written material and taking an oral exam are indicative of outstanding achievements in the field. 
Moreover, although claimed that "[t]he term 'significant contribution' is 
synonymous with the term 'outstandmg achievement,'" a significant contribution is not necessarily 
an outstanding achievement. While the petitioner submitted screenshots of other unrelated awards 
that use the terms "outstanding achievement" and "significant contribution" interchangeably, the 
--Page 10 
petitioner must demonstrate that membership with the American Academy of Optometry requires 
outstanding achievements of its members, regardless of the requirements of unrelated 
associations in other fields, such as the submitted Michigan Council of Teachers of Mathematics 
Award and the American Institute of Fishery Research Biologists Award. In this case, the 
petitioner failed to establish that membership with the American Academy of Optometry requires 
outstanding achievements of its members. Merely submitting documentary evidence that 
generally refers to the tenns "significant contribution" or "outstanding achievement" is 
insufficient to demonstrate eligibility for this criterion without evidence that oUiilstandin 
achievements are required for membership with a particular association. For example, 
failed to specifically identify any outstanding achievements made by the petitioner that qualified 
him for membership as a fellow with the American Academy of Optometry. Rather,_ 
generally indicated that: "I can confidently state that Fellowship of the [American Academy of 
Optometry] demands outstanding contributions in vision research / optometry." Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof.3 The lack of specific infonnation gives the AAO no basis to accept the assertion that 
membership with the American Academy of Optometry requires outstanding achievements. In 
addition, the documentary evidence submitted by the petitioner fails to reflect that membership 
with the American Academy of Optometry is judged by recognized national or international 
experts in their disciplines or fields. 
Furthennore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires the 
petitioner to demonstrate membership in more than one association. Therefore, even if we were 
to find that the petitioner's membership with the American Academy of Optometry was a 
qualifying membership, which we do not, the petitioner established membership with only one 
organization. As such, the petitioner failed to meet the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as ajudge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
The director detennined that the petitioner's documentary evidence reflecting his peer reviews 
for professional journals failed to establish eligibility for this criterion. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." Pursuant to Kazarian, 596 FJd at 1121-22, the 
petitioner submitted sufficient documentation establishing that he meets the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). Therefore, we withdraw the findings of the director for this 
criterion. 
3 Fedin Bros. Co, Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N. Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 11 
The petitioner established that he meets the plain language of the regulation for this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
The director found that the petitioner failed to establish eligibility for this criterion. A review of 
the record of proceeding reflects that the petitioner submitted documentary evidence of the 
citation of his work by others, presentation of his work at conferences and meetings, and 
recommendation letters. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original scientific or scholarly-related contributions "of major 
significance in the field." 
Regarding the petitioner's work cited by others, the petitioner submitted documentary evidence 
from www.scopus.com, http://ceLisiknowledge.com, and www.googlescholar.com, as well as 
some of the articles that cited the petitioner's work. A review of the documentary evidence 
submitted by the petitioner reflects that the petitioner's work was cited approximately 92 times. 
We note here that some of the citations from the websites reflect instances where the petitioner's 
work was cited after the filing of the petition. Eligibility must be established at the time of filing. 
8 C.F.R. §§ I03.2(b)(l), (12); Matter ofKatigbak, 141&N Dec. 45, 49 (Reg!. Commr. 1971). A 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set 
of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BrA 1981), that we cannot "consider 
facts that come into being only subsequent to the filing of a petition." Id at 176. Therefore, we 
will not consider the citations of the petitioner's work that occurred after the filing of the petition. 
Page 12 
While the nwnber of total citations is a factor, it is not the only factor to be considered in 
detennining the petitioner's eligibility for this criterion. Generally, the number of citations is 
reflective of the petitioner's original findings and that the field has taken some interest in the 
petitioner's work. However, it is not an automatic indicator that the petitioner's work has been of 
major significance in the field In this case, we are not persuaded that the total nwnber of 92 
citations is reflective that the petitioner's work has been of major significance in the field. 
Furthennore, a review of the articles that cited the petitioner's work fail to reflect that the petitioner's 
work has been unusually influential, such as articles that discuss in-depth the petitioner's findings or 
credit the petitioner with influencing or impacting the field. In this case, the petitioner's 
docwnentary evidence is not reflective of having a significant impact on the field. Merely 
submitting docwnentation reflecting that the petitioner's work has been cited by others in their 
published material is insufficient to establish eligibility for this criterion without docwnentary 
evidence reflecting that the petitioner's work has been of major significance in the field. We are not 
persuaded that the moderate citations of the petitioner's articles are reflective of the significance 
of his work in the field. The petitioner failed to establish how he has significantly contributed to 
his field as a whole. 
Regarding the petitioner's presentations, the petitioner submitted docwnentary evidence that he 
presented his work at conferences and meetings, such as the New Jersey Academy of Optometry 
and 200 I - 2003 American Academy of Optometry. We note here that the petitioner submitted 
docwnentary evidence reflecting presentations that the petitioner was scheduled to deliver after the 
filing of the petition, such as the 12th International Ocular Surface Society Meeting on May 2, 2009, 
and the American Academy of Optometry Meeting on November 13, 2009. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Jzummi, 22 I&N Dec. at 175. That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that come into being 
only subsequent to the filing of a petition." Jd at 176. 
Again, while the presentations of the petitioner's work demonstrate that the petitioner's work was 
shared with others and may be acknowledged as original contributions based on the selection of 
them to be presented, we are not persuaded that presentations of the petitioner's work at various 
venues are sufficient evidence establishing that the petitioner's work is of major significance to the 
field as a whole and not limited to the engagements in which they were presented. The petitioner 
failed to establish, for example, that the presentations were of major significance, so as to establish 
their impact or influence beyond the audience at the conferences. 
Finally, the petitioner submitted recommendation letters from five individuals. While the 
recommendation letters praise the petitioner for his work as an optometry researcher and indicate 
his original findings, they fail to indicate that his contributions are of major significance to the 
field. The letters provide only general statements without offering any specific infonnation to 
establish how the petitioner's work has been of major significance. For example: 
Page 13 
Dr. __ Professor at the Department of Ophthalmology at Harvard Medical School, 
stated: 
[The petitioner's] research into dry eye disease focuses on identifying specific 
genes or proteins that are involved in causing the damage to the front surface of 
the eye. His research has already been helpful in developing better treatment 
methodologies for dry eye disease as well as better diagnostic testing. 
* * * 
The goal of [the petitioner's] research is to determine which specific molecules 
cause this constant state of inflammation of the eye. There are very few 
researchers in the United States or in the world that perform this type of research 
into dry eye disease. These experiments are difficult to perform from the stage of 
collecting samples (tear fluid or cells) up to the stage of actually testing for genes 
or proteins. Discovering the specific molecules that cause inflammation in the 
eye will help identify better treatment and testing options. 
Although_ stated that the petitioner's "research has already been helpful in developing 
better treatment methodologies,"'-failed to identify any "treatment methodologies" that 
have been utilized or applied in the field, so as to~hat the petitioner's contributions have 
been of major significance in the field. In fact, _letter fails to provide specific details 
to explain how the petitioner's research has curren~ed his field, so as to be considered 
contributions of major significance. For example,_ stated that the petitioner's research 
"will help identify better treatment and testing options [emphasis added]." Eligibility must be 
established at the time of filing the petition. 8 C.F.R. §§ I03.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter oflzummi, 22 I&N Dec. at 175. That decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that 
come into being only subsequent to the filing ofa petition." Id. at 176. 
Pn)fess()r at the University of California at Berkeley, stated: 
[The petitioner] is an expert at the forefront of dry eye disease research. He has 
used innovative techniques in his research that have provided us a greater 
understanding of the biological effects of dry eye disease. More specifically, [the 
petitioner] has been credited with the discovery that human beta-defensin-2 (hBD-
2) in involved in surface eye diseases. His discovery is remarkable because it 
gives us a greater understanding [of] surface eye diseases and this could lead to 
new approaches for treatment. Because of the aging population in the USA, 
researching dry eye disease is of the utmost importance. 
* * * 
-Page 14 
Based on his previous discovery related to human beta-defensin-2 (hBD-2), [the 
petitioner] developed a second study in order to identify which genes or proteins 
should be studied in patients with inflammatory surface diseases of the eye. In his 
groundbreaking research, [the petitioner] used a unique technique called gene 
array to study multiple genes simultaneously. The results of this influential study 
not only guide researchers in identifying target genes and proteins, but also 
provide more information into the occurrence of Interleukin-l (IL-l) in dry eye 
disease. As inflammatory agents, such as IL-l, are identified, better treatments 
and possibly a cure for dry eye disease can be developed. 
Similar t~letter,_ failed to indicate that the current impact or influence of 
the petitioner's work in the~s to establish that his contributions are of major 
significance. For example, _ stated that the petitioner's "discovery is remarkable 
because it gives us a greater understanding surface eye diseases and this could lead to new 
approaches for treatm~ added]." Again, while we acknowledge the originality of the 
petitioner's findings, _ does not indicate that anyone is currently applying the 
petitioner's research findings and only indicates that it could lead to treatment. Eligibility must 
be established at the time of filing. 8 C.F.R. §§ I03.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, 
citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts 
being only subsequent to the filing of a petition." Id. at 176. Moreover, although 
indicated that the results of the petitioner's "study not only guide researchers in idemtiifyin 
genes and proteins" and "possibly a cure for dry eye disease can be developed," 
failed to indicate any genes or proteins that have been identified as a result of the petitioner's 
research, so as to establish that it has been of major significance in the field. 
Dr. The Ohio State University College of Optometry, stated: 
Dry eye disease is a disease of the tear fluid in the eyes, thus current dry eye 
disease therapy consists mainly of artificial tear drops. There artificial tear drops 
do not cure the disease but rather suppress the symptoms of the disease and allow 
patients to feel relief for short periods of time. The symptoms of eye irritation are 
a product of the damage this disease causes to the front surface of the eyes. [The 
petitioner's] innovative research has begun to identify the specific genes and 
proteins that are involved in causing the damage to the front surface of the eye. 
As a result, his research has already begun to help develop better treatment 
methodologies for dry eye disease. 
While_indicated that the petitioner's "research has begun to identify the specific 
and proteins that are involved in causing the damage to the front surface of the eye, 
failed to explain or identify any specific genes or proteins. Moreover, while 
indicated that the petitioner's "research has already begun to help develop better treatment 
-Page 15 
methodologies for dry eye disease," __ failed to specify any treatment that was 
developed, so as to establish the significance of the petitioner's work in the field. 
stated: 
Professor at the Department of Ophthalmology at Harvard Medical School, 
Current eye therapy consists largely of artificial tear drops. These drops do not 
cure the disease, but rather mask the painful symptoms for a short period of time. 
At the forefront of [the petitioner's] research is the goal to develop better 
treatment methodologies, or a cure, for dry eye disease. Thus, [the petitioner] 
studies what kinds of genes or protein changes occur in dry eye patients. This 
type of research involves complex molecular biological experiments, including 
collecting tear samples of cells from the front surface of the eye. These 
experiments are difficult, from collecting the necessary samples to the stage of 
testing for genes or proteins. In his discovery of the presence of the human B­
defensin-2 (hBD-2) molecule, [the petitioner] demonstrated his extraordinary 
ability in vision research. 
Although_indicated that the petitioner discovered the presence ofthe human B-defensin-
2 (hBD-2) molecule, _failed to indicate the significance of this discovery beyond the 
petitioner's own work. Furthermore, while _described the petitioner's research as 
difficult and complex, assuming the petitioner's skills are unique, the classification sought was 
not designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls 
under the jurisdiction of the Department of Labor through the alien employment certification 
process. See Matter of New York State Dep't. o[Transp, 22 I&N Dec. 215, 221 (Commr. 1998). 
the Department of Ophthalmology at the University 
SOllth'we"tel11 Medical Center, stated: 
[The petitioner] has made significant developments in identifying the biological 
causes and effects of dry eye disease. . .. [The petitioner] showed that the gene 
interleukin-I receptor-I (IL-I-Rl) caused unique changes in the gene expression 
of inflammatory molecules. These results are significant because they have 
implications for developing anti-inflammatory therapy for dry eye disease that 
targets IL-l receptors. Current dry eye therapy consists of eye drops which do 
nothing to cure the disease, but instead mask the disease's symptoms for a few 
short hours. Identifying anti-inflammatory agents in the eye, therefore, will help 
researchers develop better treatments for dry eye disease. 
~riefly described the petitioner's original findings and research, but failed to 
indicate that the petitioner'S work has been of major significance in the field. __ 
generally indicated that "they have implications for developing anti-inflammatory ~ 
eye disease" without indicating if anti-inflammatory therapy has been developed as a result of 
Page 16 
the petitioner's work, so as to establish that the petitioner has made original contributions of 
major significance in the field. 
While those familiar with the petitioner's work generally describe it as "significant," 
"pioneering," and "groundbreaking," the letters contain general statements that lack specific 
details to demonstrate that the petitioner's work is of major significance. This regulatory 
criterion not only requires the petitioner to make original contributions, but also requires those 
contributions to be significant. We are not persuaded by vague, solicited letters that simply 
repeat the regulatory language but do not explain how the petitioner's contributions have already 
influenced the field. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
lack of supporting documentary evidence gives the AAO no basis to gauge the significance of 
the petitioner's present contributions. 
Given the descriptions in terms of future applicability and determinations that may occur at a 
later date, it appears that the petitioner's research, while original, is still ongoing and that the 
findings he has made are not currently being implemented in his field. Again, while we 
acknowledge the originality of the petitioner's findings, the letters do not indicate that anyone is 
currently applying the petitioner's research findings, so as to establish that these findings have 
already impacted the field in a significant manner. Accordingly, while we do not dispute the 
originality of the petitioner's research and findings, as well as the fact that the field has taken 
some notice of his work, the actual present impact of the petitioner's work has not been 
established. Rather, the petitioner's references appear to speculate about how the petitioner's 
findings may affect the field at some point in the future. Eligibility must be established at the 
time of filing the petition. 8 C.F.R. §§ I 03.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
A petition cannot be approved at a future date after the petitioner becomes eligible under a new 
set of facts. Matter of Izummi. 22 I&N Dec. at 175. That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that come into being 
only subsequent to the filing of a petition." Id. at 176. Many of the letters proffered do in fact 
discuss far more persuasively the future promise of the petitioner's research and the impact that 
may result from his work, rather than how his past research already qualifies as contributions of 
major significance in the field. A petitioner cannot file a petition under this classification based 
on the expectation of future eligibility. The assertion that the petitioner's research results are 
likely to be influential is not adequate to establish that his findings are already recognized as 
major contributions in the field. While the letters praise the petitioner's research and work as 
both novel and of great potential interest, the fact remains that any measurable impact that results 
from the petitioner's research will likely occur in the future. 
USCIS may, in its discretion, use as advisory opinion 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 of support from the petitioner's personal contacts 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. Thus, the content of the writers' 
-Page 17 
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 of 
original contributions of major significance. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the petitioner's work has 
been original, unusually influential, or has otherwise risen to the level of contributions of major 
significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish 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. 
In the director's decision, he concluded that the petitioner established eligibility for this criterion. 
The plain language of the regulation at 8 C.F .R. § 204.5(h)(3)(vi) requires "[ e ]vidence of the 
alien's authorship of scholarly articles in the field, in professional or major trade publications or 
other major media." Pursuant to Kazarian, 596 F.3d at 1122, the petitioner submitted sufficient 
documentation establishing that he meets the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv). Therefore, we agree with the findings of the director for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
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: (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," 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." See section 203(b)(l)(A)(i) of the Act, 8 V.S.c. 
§ 1 1 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner established that he met the plain language of the regulation for two of the criteria, in 
which at least three are required under the regulation at 8 C.F .R. § 204.5(h)(3). In this case, 
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). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In this case, the 
petitioner has garnered some student awards, authored a few scholarly articles, has served as a 
peer reviewer for a professional journal, and has had some of his work cited by others in the 
field. However, the accomplishments of the petitioner fall far short of establishing that he "is one 
--Page 18 
of that small percentage who have risen to the very top of the field of endeavor" and that he "has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(l)(A)(i) of the 
Act, 8 U.S.C. § I I 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[aj petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
Although the petitioner failed to meet the awards criterion pursuant to the regulation at 8 C.F .R. 
§ 204.5(h)(3 lei), the petitioner claimed eligibility based on awards won at the academic level. 
Academic study is not a field of endeavor, but training for a future field of endeavor. As such, 
academic scholarships, student awards, and fellowships cannot be considered prizes or awards in 
the petitioner's field of endeavor. Moreover, competition for fellowships is limited to other 
graduate or postgraduate students. Experienced experts do not compete for fellowships and 
competitive postdoctoral appointments. Therefore, awards that are limited to students, like those 
claimed by the petitioner, are not indicative of someone who is at the top of his or her field. 
Moreover, awards derived from student competitions do not reflect that "small percentage who 
have risen to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). There is no 
indication that the petitioner faced significant competition from throughout his field, rather than 
mostly limited to a few individuals in student status or other similarly limited competition. 
USCIS has long held that even athletes performing at the major league level do not automatically 
meet the "extraordinary ability" standard. Maller of Price, 20 I&N Dec. 953, 954 (Assoc. 
Commr. 1994); 56 Fed. Reg. at 60899.4 Likewise, it does not follow that an optometry 
4 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not 
a comparison of Racine's ability with that of all the hockey players at all levels of play; 
but rather, Racine's ability as a professional hockey player within the NHL. This 
interpretation is consistent with at least one other court in this district, Grimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Page 19 
researcher, like the petitIOner, who has had success at student level competitions, should 
necessarily qualify for an extraordinary ability employment-based immigrant visa. To find 
otherwise would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa 
category be reserved for "that small percentage of individuals that have risen to the very top of 
their field of endeavor." 
While we determined that the petitioner met the judging criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(iv), we note that the petitioner minimally met the requirement based on the 
petitioner's submission of documentary evidence from Optometry that indicated that the 
petitioner served as a referee during 2007 - 2008. Although the petitioner submitted other 
documentary evidence for the judging criterion, a review of the documentary evidence fails to 
reflect that he served as a judge of the work of others. For example, the petitioner submitted 
several emails that merely thanked the petitioner for agreeing to review articles. 
Notwithstanding that the petitioner failed to submit primary evidence pursuant to the regulation 
at 8 C.F.R. § 103.2(b)(2), emails that merely request or thank the petitioner for agreeing to 
review manuscripts is not sufficient evidence establishing that he actually participated in the 
review or judging process. In addition, in response to the director's request for additional 
evidence to the at 8 C.F.R. § 103.2(b)(8), the petitioner submitted a letter 
from Dr. Optometry and Vision Science, and_ 
Investigative Ophthalmology & Visual Science, who merely indicated that the 
served as a reviewer. Neither letter indicated what the petitioner reviewed, how many 
manuscripts were reviewed, or when the reviews took place. 
Nonetheless, an evaluation of the significance of the petitioner's judging experience is sanctioned 
under Kazarian, 596 F. 3d at 112l-11. We note that peer review is a routine element of the 
process by which articles are selected for publication in literary or scholarly journals or for 
presentation at 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. Reviewing manuscripts is recognized as a professional obligation of 
scientists or scholars who publish themselves in journals or who present their work at professional 
conferences. Normally a journal's editorial staff or a conference technical committee will enlist 
the assistance of numerous professionals in the field who agree to review submitted papers. It is 
common for a publication or technical committee to ask multiple reviewers to review a 
manuscript and to offer comments. The publication's editorial staff or the technical committee 
may accept or reject any reviewer's comments in determining whether to publish, present, or 
reject submitted papers. Without evidence pre-dating the filing of the petition that sets the 
petitioner apart from others in his field, such as evidence that he has received and completed 
independent requests for review from a substantial number of journals or conferences, served in 
an editorial position for a distinguished joumal, or chaired a technical committee for a reputable 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.S(h)(2) is 
reasonable. 
conference, we cannot conclude that the petitioner 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). 
Moreover, while the record of proceeding contains documentary evidence reflecting that the 
petitioner served as a reviewer for Optometry, there is no evidence reflecting that the petitioner 
reviewed manuscripts of acclaimed optometry researchers who are at the top of the field. C/. 
Matter of Price, 20 I&N Dec. at 954; 56 Fed. Reg. at 60899 (USCIS has long held that even 
athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard). We cannot conclude that the petitioner's claimed occasional and minimal 
participation as a manuscript reviewer demonstrates a level of expertise indicating that he is 
among that small percentage who have ri of endeavor. See 
8 C.F.R. § 204.5(h)(2). For example, Dr. of Optometry and 
Vision Sciences, has clearly distinguished himself from the petitioner based on his editorial 
position and experience. 
We also determined that the petitioner met the authorship of scholarly articles criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(vi). A review of the record of proceeding reflects that 
the petitioner submitted documentary evidence reflecting that he authored nine articles, including 
seven presentation abstracts. We note that the petitioner submitted four articles and four 
abstracts that were authored after the filing of the petition. Eligibility must be established at the 
time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter ofKatigbak, 14 I&N Dec. at 49. A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi. 22 I&N Dec. at 175. That decision further provides, citing Matter of 
Bardouille. 18 I&N Dec. at 114, that we cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. The petitioner has not established that the 
petitioner's minimal authorship of such articles and abstracts 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 researchers, 
we will evaluate a citation history or other evidence of the impact of the petitioner's articles to 
determine the impact and recognition his work has had on the field and whether such influence 
has been sustained. 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 
optometry researchers have been influenced by his work. Such an analysis at the final merits 
determination stage is appropriate pursuant to Kazarian. 596 F. 3d at 1122. 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 documentary 
evidence reflecting that his work was cited approximately 92 times, and his most cited article 
was cited 29 times. While the citations demonstrate some interest in his published work, they are 
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. 
Further, although the petitioner failed to meet the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), the petitioner submitted recommendation letters that 
Page 21 
praised the petitioner for his work. However, such letters cannot fonn the cornerstone of a 
successful extraordinary ability claim. Further, USCIS may, in its discretion, use as advisory 
opinion statements submitted as expert testimony. See Matter of Caron International, 19 I&N 
Dec. at 795. USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. The submission of letters of support from the 
beneficiary's personal contacts 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. The 
submission of letters from individuals, especially when they are colleagues of the petitioner, 
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; see 
also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008). 
Finally, we cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the petitioner's sustained national or international acclaim. See section 
203(b)(l)(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(1 )(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). We note that even though we found that the petitioner failed to meet the 
membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the petitioner only 
claimed eligibility based on membership with one association, of which at least two are required. 
The petitioner failed to submit evidence demonstrating that he "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated his "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). The truth is to be detennined not by the quantity of evidence alone but by its quality. 
Matter of Chaw at he. 25 I&N Dec. at 376 citing Matter ofE-M- 20 I&N Dec. 77,80 (Comm'r. 
1989). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who have risen to the very top of the field 
of endeavor. 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. 
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 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. 
Page 22 
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. Uniled States, 229 F. Supp. 2d at \043, 
ajJ'd, 345 FJd at 683; see also Sollane v. DOJ, 381 FJd 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.