dismissed EB-1A Case: Scientific Research

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
JAN 2 5 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1 )(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
/J II;;.':/r. t~ 
,- \,.- c·" -' 
I' 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, on August IS, 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, § llS3(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. 
At the time of the original filing of the petition and in response to the director's request for 
additional evidence, the petitioner claimed eligibility for six 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 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 failed to establish eligibility for any of the criteria. 
On Form I-290B, counsel only addressed three of the criteria - judging criterion, scholarly 
articles criterion, and leading or critical role criterion. While counsel also indicated that "the 
appellant reserves the right to set forth additional arguments in the brief that will follow in 30 days," 
as of this date, approximately IS months later, the AAO has received nothing further. Accordingly, 
the record is considered complete as it now stands. As counsel failed to contest the decision of the 
director or offer additional arguments for the awards criterion, original contributions criterion, 
and high salary criterion, we will not further discuss these criteria on appeal, Accordingly, we 
consider that issue to be abandoned. See Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
( 11th Cir.200S). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
-Page 3 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USerS) 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 Wist 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. [d. 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 
Page 4 
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 m the field, 10 
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. USC/S, 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.
l 
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 if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
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 
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 thelir] 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)(1)(A)(i). 
Id. at 1119. 
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. DO], 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 October 2, 2008, seeks to classify the petltlOner as an alien with 
extraordinary ability as a medical director. On appeal, counsel addressed the following criteria 
pursuant to the regulation at 8 c.F.R. § 204.5(h)(3). 
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. 
In the director's decision, he stated that "[t1o satisfy this element, a petitioner must have been 
selected to judge, critique, review or evaluate the work of others in hislher field as a result of 
recognition on at least a nationalleve! [emphasis added]." On appeal, counsel argues: 
The officer's decision with respect to this element relies on an ultra vires reading 
of this portion of the regulations. The regulation does not require that the judging 
activities take place as the result of having earned recognition on at least a 
national level, nor does the regulation disallow judging activities that are inherent 
to an applicant's position or employment. The office is therefore impermissibly 
adding to the eligibility requirements. 
Page 6 
We agree with the arguments of counsel. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv) requires "[eJvidence 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 F.3d at 1121-22, the petitioner is only required 
to demonstrate that he or she had judged the work of others, regardless of whether the judging 
occurred at the national or intemationallevel. We therefore withdraw the director's finding and will 
review the record of proceeding to determine if the petitioner meets the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
At the time of the original filing of the petition, counsel claimed the petitioner's eligibility for this 
criterion based on a letter who briefly stated: 
[The petitioner J initiated and oversaw Phase II and III international clinical trials, 
which were the stages of testing closest to the actual regulatory authority approval 
and commercial release of the drug; hence the most important. 
In response to the director's request for evidence, counsel stated: 
For 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 
classication is sought, we respectfully refer you to section 5 of the original 1-140 
cover letter and the supporting exhibits cited therein. In particular, _letter 
(Exhibit E of the original submission), notes that [the petitioner] coordinated 
international trials leading to breakthroughs with a synthetic surfacant for the 
treatment of respiratory diseases in newborns. This coordination involved judgment 
of the work of other scientists contributing to the trials. Due to the critical functions 
that r the petitioner] performs within the field he is additional I y 
responsible for judging the work of other scientists contributing to the international 
and scientific studies that he oversees. 
As indicated above, _merel y mentioned that the petitioner "initiated and oversaw Phase II 
and Pha~e III international clinical trials." However, the petitioner failed to establish that initiating 
and overseeing clinical trials equates to being a "judge of the work of others." Although counsel 
claimed that the coordination of the international trials "involved judgment of the work of other 
scientists contributing to the trials,"_ letter contains no such details. Counsel failed to 
submit any other documentary evidence supporting her assertions. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
The unsupported assertions of counsel do not constitute evidence. Matter (d' Obai[Jbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BrA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Unless specifically reflected by the 
documentary evidence, we will not assume or second-guess the implied meaning o~ 
letter. The burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U .S.C. § 1361. 
Page 7 
For the reasons set forth above, the petitioner failed to establish eligibility for the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
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, although he found that the petitioner published articles in scientific 
journals, he found that the petitioner failed to establish eligibility for this criterion as the 
petitioner failed to demonstrate that "others in the field have cited the published works." The 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[ejvidence 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 withdraw the findings of the director for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
In the director's decision, he stated: 
[The petitionerj has not explicitly asserted that he meets this criterion; the 
[petitioner] did submit evidence relating to this criterion. [Several] of the 
[petitioner's] references [assert] that the invitations to present his work at 
different locations demonstrate his widespread notoriety. However, the record 
lacks any evidence that other clinicians have cited or otherwise relied on his 
research. Therefore, the evidence does not satisfy this element. 
On appeal, counsel argues: 
The officer claims that the applicant did not assert that he meets the element set 
forth at 8 CFR Section 204.5(h)(3)(viii) (critical role) and that the applicant did 
not submit evidence relating to this criterion. In fact, the applicant did assert this 
criterion both in the initial submission as well as in the response to the request for 
evidence. It should be noted that in the denial the officer refers to these relevant 
sections of the submissions at length. 
A review of the record of proceeding reflects that the petitioner did, in fact, claim eligibility for 
this criterion at the time of the initial filing of the petition and in response to the director's 
request for additional evidence. Moreover, the plain language of the regulation at 8 C.F.R. 
Page 8 
§ 204.5(h)(3)(viii) requires "[e]vidence that the alien has performed in a leading or critical role 
for organizations or establishments that have a distinguished reputation." As such, the 
director's reference to the petitioner's lack of "evidence that other clinicians have cited or 
otherwise relied on his research" is not consistent witb the plain language of tbe regulation. 
We will, therefore, witbdraw tbe director's decision on this issue and review tbe record of 
proceeding to determine if the petitioner has performed in a leading or critical role pursuant to the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). The petitioner claimed eligibility 
for this criterion based on four reference letters. We cite representative examples here: 
of Illinois at Chicago, stated: 
[The petitioner] was a from 1995 to 
1997. . .. Later upon returning country he lead an 
international cooperative effort, to carry out a multicenter multinational studies of 
neonatal surfactant treatment. 
[The petitioner] also participated in a number of international research studies that 
have provided crucial new information that will benefit many pre-term infants in 
the U.S. and abroad. He has been designated as a Consultant 
Health Organization [ ] Office in _ project focused on i~ 
prenatal care in _ Then he became a regional coordinator of _ 
[ project, focused on monitoring 
care of the newborns below 32 weeks of gestational age in 10 _ 
regIOns .... 
* * * 
Thanks to his international exposure [the petitioner] has also played a key role in 
tbe planning, coordination and performance of several multi-national 
collaborative trials evaluating tbe safety and efficacy of surfaxin, the new peptide­
containing synthetic surfactant .... 
and Hospital, stated: 
[The petitioner] has spent considerable time in very useful research ranging from 
basic science and molecular biology to clinical aspects of neonatal-perinatal care. 
He was consultant for _ [_1 Office where he worked on two projects; 
_ and ~ was the subject of his PhD Thesis. Both these 
research topics were aimed at developing tools allowing for continuous 
monitoring of perinatal and neonatal care outcomes. In 2003, he received a joint 
_ Union grant within fifth framework programme called [ ], and 
worked on this project as a regional coordinator. This project led to the first 
neonatal database covering ten different i perinatal centres including my 
own region in north of _ This has led to many high quality scientific 
~ 
Page 9 
presentations at international level and he was awarded for the best oral 
presentation during the in 200 I. 
of_stated: 
[The petitioner] has been appointed to a consulting position at the _, where 
he was involved in the development of an instrument, which allowed for 
monitoring of the quality of perinatal care, Later, he was a Regional Coordinator 
for [ ] project in 10_ Regions, 
For the last three years, ~ioner] has successfully coordinated multicenter 
clinical trials in eight __ countries proving his professionalism and 
dedication, He was responsible for training clinical teams in order to use both 
new therapeutic agents and protocols, where he was able to achieve a very high 
quality level. 
I have also had the opportunity to work with [the petitioner] at a ••••• 
Continuing _ Education course in which he coo­
organized, The program and content were cohesive, up to date, and clinically 
relevant The course was well attended and well received by the physician 
attendees, 
_tated: 
In his previous role at [the petitioner] initiated and oversaw 
Phase II and II international clinical trials, which were the stages of testing closest 
to the actual regulatory authority approval and commercial release of the drug; 
hence the most important Currently, [the petitioner] fulfills a number of other 
important leading roles in his position, including drug and device development, 
liais~governing medical steering committees and advisory boards in 
the _ and _, as well as writing manuscripts for peer-reviewed 
scientific journals, 
In this capacity, [the petitioner] was charged by _Labs with leadership 
of the clinical development of a new device designed for surfactant aerosolization. 
This new form of drug delivery will allow for a non-invasive route of 
administration avoiding such harmful procedure as intubation. Surfactant 
aerosolization can lead to significant reductions in complications related to 
prematurity and to lung immaturity and the use of mechanical ventilation such as: 
Respiratory Distress Syndrome, pneumonia, or chronic lung disease. [The 
petitioner] has filed two patent applications related to the aerosol delivery systems 
used for premature children as well as for adult patients requiring ventilator 
support. This invention might expand the use of aerosolized surfactants for other 
indications such as cystic fibrosis or acute lung injury. Recently, he has been 
-Page 10 
working on the submission of the clinical protocol to the U.S. Food & Drug 
Administration (FDA) for the Investigational New Drug (IND) application. This 
successful submission will initiate the Phase II clinical studies on aerosolized 
lucinactant. 
Again, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[elvidence 
that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation [emphasis added]." In general, a leading role is evidenced from 
the role itself, and a critical role is one in which the alien was responsible for the success or 
standing of the organization or establishment. Based on the reference letters cited above, we are 
not persuaded that the petitioner has performed in a . or critical consistent with the plain 
language of the regulation. For example, indicated that the petitioner "lead 
an international cooperative effort," "participated in a number of international research studies," 
was "designated as a Consultant," and "became a regional coordinator failed to 
indicate how the petitioner's positions were leading or critical. petitioner's 
position and claiming that his role was leading or critical is insufficient to demonstrate eligibility 
for this criterion. Similarly, while_and indicated that the petitioner consulted 
with the and was a regional coordinator with • we are not persuaded 
that being "responsible for training clinical teams" establishes a leading or critical role without 
further documentary evidence. Finally,_tates that the petitioner develops drugs and 
devices, liaisons with government committees, and writes manuscripts for journals. However, 
simply performing one's job is not evidence of a leading or critical role. failed to 
compare the responsibilities of the petitioner to the other employees Lab, so as to 
establish that his role is leading or critical. The petitioner failed to submit an organizational 
chart for the or 11 Labs, Inc. to from other 
consultants, coordinators, or researchers. Even when compared to who is the 
Director of the Division of in the Department of of 
a .... _ 
the petitioner wn"h·.n 
obtaining his Ph.D. 
who is of Medical Scientific Affairs 
is_of Service in the 
it appears that the petitioner's roles as 
those of his references. We note that 
at the while 
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; uscrs may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. We are not persuaded by vague, 
solicited letters that simply repeat the regulatory language but do not explain how the petitioner's 
roles are leading or critical to organizations or establishments. Merely repeating the language of 
Page 11 
the statute or regulations does not satisfy the petitioner's burden of proof 2 The lack of 
supporting documentary evidence gives the AAO no basis to gauge the leading or critical role of 
the petitioner. 
We note here that at the time of the original filing of the petition, counsel also claimed the 
petitioner's eligibility for this criterion based on the petitioner's participation and attendance at 
various conferences. We are not persuaded that attending and participating at conferences are 
reflective of a leading or critical role for an organization or establishment. The petitioner failed 
to demonstrate his responsibilities and accomplishments during the conferences so as to establish 
that he performed in a leading or critical role. 
While the petitioner performed his routine duties, the record falls far short in establishing that the 
roles were leading or critical consistent with the meaning of the plain language of the regulation 
at 8 C.F.R. § 204.5(h)(3)(viii). Moreover, the regulation requires that the leading or critical roles 
be "for organizations or establishments that have a " The petitioner failed 
to submit any documentary evidence establishing that and _ 
Labs Inc. have a distinguished reputation. 
Accordingly, the petitioner failed to establish that he meets 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: (I) 
a "level of expertise indicating that the individual is one of that small percentage who have risen 
to the very top of thelirl 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)(J)(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). See also Kazarian, 596 F.3d at 1115. The 
petitioner established eligibility for only one 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)(l)(A) of the Act. In this case, the 
petitioner has authored some scholarly articles and has performed routine duties in his field of 
endeavor. However, the accomplishments of the petitioner fall far short of establishing that he "is 
one 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 
2 Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.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 12 
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. § 1153(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 criterion 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). 
We determined that the petitioner failed to establish eligibility for the judging criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(iv). A review of the credentials of the individuals who 
submitted reference letters on the petitioner's behalf confirms our findings and demonstrates that 
there is stark contrast between their experiences and the claimed experience of the petitioner. 
Specifically, the references have the following experiences as judges: 
1. Served on an editorial board for at least 25 publications; 
2. _-Served on an editorial board for at least eight puIJlic;ation:s, as 
well as serving as the for Seminars in and 
the 
3. 
-Research 
Foundation, and 
least 28 publications including the 
4. • - Served as a reviewer for the 
from 1998 - 2002 and serves on the editorial board for 
1999 to the present. 
When compared to the petitioner, who has not demonstrated that he has participated as a judge of 
the work of others, the petitioner's references have considerably distinguished themselves based 
on their editorial experience. Similarly, our finding that the petitioner failed to establish his 
leading or critical role for distinguished organizations IS supported by a comparIson of the 
petJtHme:r's roles with those of his references. For as stated IS 
and 
Inc. Clearly, the petitioner was in a subordinate role as was as a for 
__ We note that none of the petitioner's references appear to have been aware of 
~ or his work prior to working with him. Moreover, while the petitioner 
Page 13 
demonstrated that he meets the plain language of the scholarly articles criterion pursuant to the 
regulation at 8 C.P.R. § 204.5(h)(3)(vi), the record reflects that the petitioner submitted evidence 
of having authored nine articles. Again, however, when compared to the authorship of those in 
his field, the record reflects: 
I. Authored 192 abstracts, 196 articles, 31 book chapters, 
2. _ Authored 71 articles and 14 chapters; 
3. Authored 129 articles, 564 abstracts, 174 book chapters, and 
15 books; and 
4. _-Authored 12 articles and 34 abstracts. 
Additionally, we note that the petitioner failed to submit any documentary evidence reflecting 
the citation of his scholarly articles by others. As authoring scholarly articles is inherent to 
scientific research, we evaluate a citation history or other evidence of the impact of the 
petitioner's articles when determining their significance to the field. Por example, numerous 
independent citations for an article authored by the petitioner would provide solid evidence that 
other researchers have been influenced by his work and are familiar with it. Such an analysis at 
the final merits determination stage is appropriate pursuant to Kazarian, 596 P. 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 the petitioner failed to submit any documentary 
evidence of his citation rate, the petitioner failed to demonstrate that his articles have attracted a 
level of interest in his field commensurate with sustained national or international acclaim. 
While we also determined that the petitioner failed to establish eligibility for the leading or 
critical role criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(xiii), his claim of 
eligibility for the criterion is based primarily on reference letters. It must be emphasized that the 
favorable opinions of experts in the field, while not without evidentiary weight, are not a solid 
basis for a successful extraordinary ability claim. Again, USCIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 
19 I&N Dec. at 795. 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 individuals, especially when they are colleagues of the petitioner without any prior 
knowledge of the petitioner's work, 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 of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008). 
Pinally, 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)(I )(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(l)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
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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). 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." As demonstrated by the 
accomplishments of those who submitted letters on his behalf, it appears that the highest level of 
the petitioner's field is far above the level he has attained. 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 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 has 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 has risen to the very top of the field of endeavor. 
III. 0-1 Nonimmigrant Admission 
We note that the petitioner submitted documentary evidence reflecting that he was last admitted 
to the United States as an 0-1 nonimmigrant on April 13, 2008. However, while USCIS has 
approved at least one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior 
approval does not preclude USCIS from denying an immigrant visa petition based on a different, 
if similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are denied 
after USCIS 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 (ED.N.Y. 1989). Because USCIS 
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 uscrs from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions 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 I&N Dec. at 597. It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d at 1090. 
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 had approved 
the nonimmigrant petitions on behalf of the beneficiary, 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.C!. 51 (2001). 
. , 
Page 15 
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. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
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. 
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.