dismissed EB-1A Case: Scientific Research

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCcopy 
DATE: 
3 
9fE'ICE: TEXAS SERVICE CENTER 
NOV 0 ... lJ11 
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 
FILE: 
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)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 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, 
~
,OfJ1dndu 
erry Rhew 
. Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on March 12, 2009. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on January 13, 2010. The matter is now before the AAO on a 
motion to reopen and a motion to reconsider. The motions will be dismissed, the previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the 
motion must be "[a]ccompanied by a statement about whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, 
nature, date, and status or result of the proceeding." Purthermore, the regulation at 8 c'P.R. 
§ 103.5(a)(4) requires that "[a] motion that does not meet applicable requirements shall be 
dismissed. In this case, the respondent failed to submit a statement regarding if the validity of 
the decision of the AAO has been or is subject of any judicial proceeding. 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO found that the petitioner failed to establish that the beneficiary met at least three 
of the regulatory criteria pursuant to the regulation at 8 C.P.R. § 204.5(h)(3). In fact, the AAO 
found that the petitioner failed to establish the beneficiary's eligibility for any of the criteria 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and thoroughly 
discussed the petitioner's evidence and determined that the petitioner failed to establish the 
beneficiary's eligibility for the published material criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(iii), the original contributions criterion pursuant to the regulation at 8 c'P.R. 
§ 204.5(h)(3)(v), the authorship of scholarly articles criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(vi), and the leading or critical role criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(viii). 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.P.R. § 103.5(a)(2). Based on the plain meaning of "new," a new 
fact is found to be evidence that was not available and could not have been discovered or presented 
in the previous proceeding. I A review of the record of proceeding reflects that counsel indicated on 
Porm I-290B, Notice of Appeal or Motion, that she was "filing a motion to reopen a decision." 
Moreover, in counsel's cover letter and title of her brief, she indicated that it was a motion to 
reopen. However, counsel failed to state any new facts and failed to support the motion with any 
affidavits or other documentary evidence pursuant to the regulation at 8 C.P.R. § 103.5(a)(2). 
Instead, counsel restated the same arguments she made on appeal and claimed that "we have come 
to the reluctant, but clear, belief that the writer had first made a determination to reject the appeal 
and then proceeded to find reasons, including sometimes tortured misreading of clear evidence and 
gratuitous criticisms that were not germane to the core issues, to justify the decision to dismiss this 
appeal." Counsel submits on motion no fact that could be considered "new" under 8 C.P.R. 
I The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (l984)(emphasis in 
original). 
Page 3 
§ 103.5(a)(2) and failed to submit affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for 
rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 
502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a 
proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the 
petitioner has not met that burden. The motion to reopen will be dismissed. 
Notwithstanding the above, although counsel indicated on the Form I-290B, in her cover letter 
and in the title of her brief that she was filing a motion to reopen, she additionally argued for a 
motion to reconsider pursuant to the regulation at 8 C.F.R. § 103.5(a)(3) in the body of her brief. 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect application 
of law or U.S. Citizenship and Immigration (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to 
reconsider contests the correctness of the original decision based on the previous factual record, 
as opposed to a motion to reopen which seeks a new hearing based on new or previous I y 
unavailable evidence. See Matter of Cerna, 20 I&N Dec. 399,403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. Rather, the "additional legal arguments" that may be raised in a 
motion to reconsider should flow from new law or a de novo legal determination reached in its 
decision that may not have been addressed by the party. Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in 
the initial decision or must show how a change in law materially affects the prior decision. See 
Matter of Medrano, 20 I&N Dec. 216,219 (BIA 1990, 1991). 
On motion, counsel argues that the documentary evidence submitted at the time of the original 
filing of the petition and on appeal demonstrated the beneficiary's eligibility for the original 
contributions criterion, the scholarly articles criterion, and the leading or critical role criterion. 
In counsel's brief, she did not contest the decision of the AAO or offer additional arguments 
regarding the published material criterion. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30,2011) (the court 
found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). In 
addition, counsel again argues that the director erred in denying the petition without first issuing 
a request for additional evidence pursuant to the regulation at 8 c.F.R. § 103.2(b )(8), an issue 
addressed by the AAO in its prior decision. Counsel, however, failed to submit "any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
Service policy." Instead, counsel generally disagrees with the findings of the AAO. 
For instance, regarding the AAO's determination that 15 citations to the petitioner's work was 
insufficient to establish the beneficiary's contribution of major significance to the field, counsel 
argues that 15 citations "demonstrates a wide level of interest" in the petitioner's work. 
Page 4 
Regarding, the leading or critical role criterion, the AAO determined that the petitioner failed to 
submit sufficient evidence to distinguish the beneficiary's role from that of others within the 
company role. Counsel refers to the recommendation 
letters from claims that "[t]he national acclaim requirement 
is clearly met by these testimonials." Counsel further argues that the two self-serving letters by 
the petitioner demonstrated that the beneficiary performed in a leading or critical role. Counsel 
also states that the letter from the beneficiary's employer establishes both the leading and critical 
role of the beneficiary within. as well as_ distinguished reputation. 
Again, a motion to reconsider is not a process by which a party may submit, in essence, the same 
brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision. The AAO thoroughly addressed the petitioner's evidence, including the reference 
letters, in the decision and found that the petitioner failed to establish the beneficiary's eligibility 
for the original contributions criterion and the leading or critical role criterion. In addition, the 
AAO found that the director did not abuse his discretionary authority by denying the petition 
without first issuing a request for additional evidence. 2 The motion to reconsider does not allege 
that the issues, as raised on appeal, involved the application of precedent to a novel situation, or 
that there is new precedent or a change in law that affects the AAO's prior decision. As noted 
above, a motion to reconsider must include specific allegations as to how the AAO erred as a 
matter of fact or law in its prior decision, and it must be supported by pertinent legal authority. 
Because the respondent has failed to raise such allegations of error in her motion to reconsider, 
counsel's arguments are not sufficient to meet the requirements of a motion to reconsider. 
However, although not raised as an issue by counsel, the AAO fmds that it must reconsider its 
previous finding regarding the beneficiary's scholarly articles in light of the U.S. Court of Appeals 
for the Ninth Circuit (Ninth Circuit) review of 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.3 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 
2 It is unclear what remedy counsel sought in reference to her argument regarding the director's failure to issue an 
RFE. It would have served no useful purpose to remand the case for issuance of an RFE when counsel had the 
opportunity to submit additional documents on appeal, which, as she acknowledges on motion that she did. 
3 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 
(citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the 
corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary ability" 
visa. 8 U.S.c. § 1153(b)(1)(A)(i). 
[d. 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. 
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." In its prior decision, although acknowledging that the beneficiary had 
authored several scholarly articles, the AAO found the articles were not sufficient as they did not 
demonstrate that the beneficiary had "attracted a wide level of interest in his field commensurate 
with sustained national or international acclaim." Pursuant to Kazarian, 596 F.3d at 1122, the 
petitioner submitted sufficient documentation establishing that the beneficiary meets the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). Therefore, AAO withdraws its findings for 
this criterion. 
In accordance with the Kazarian opmlOn, the AAO must next conduct a final merits 
determination. The AAO will not limit its review to a comparison of the beneficiary with others 
of a similar age or with a similar length of time in his field; rather, the beneficiary must be 
considered with all in his field. In that context, the AAO must consider 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)(I)(A)(i) 
of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d 
at 1115. The petitioner established that the beneficiary met one of the criteria, in which at least 
three are required under the regulation at 8 C.F.R. § 204.5(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to determine the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. 
In this case, the beneficiary has conducted routine research, has authored some scholarly articles, 
and serves as a project lead for the petitioner. However, the accomplishments of the beneficiary 
Page 6 
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 recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), 
section 203(b)(I)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 c.F.R. § 204.5(h)(3) provides that "[a] 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 
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). 
A review of the documentary evidence reflects that the petitioner submitted 10 scholarly articles 
that were published in professional or major trade publications or other major media. However, 
when compared to the authorship of_ (94 articles and 4 books), it appears that _ 
_ is far above the accomplishments of the beneficiary. Although the beneficiary met the 
scholarly articles criterion through his co-authorship and authorship of scholarly articles, he has 
not established that the minimal publication of such articles 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). 
Further, as authoring scholarly articles is inherent to scholars, the AAO will also evaluate a 
citation history or other evidence of the impact of the beneficiary'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 
beneficiary would provide solid evidence that his work has been recognized and that other 
researchers have been influenced by his work. Such an an~s at the final merits determination 
stage is appropriate pursuant to Kazarian, 596 F. 3d at _ On the other hand, few or no 
citations of an article authored by the beneficiary may indicate that his work has gone largely 
unnoticed by his field. The petitioner submitted documentary evidence reflecting that the 
beneficiary's work has been cited 15 times. While these citations demonstrate a little 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. 
Although the petitioner failed to demonstrate that the beneficiary met the original contributions 
criterion and the leading or critical role criterion, the petitioner based the beneficiary's eligibility 
on recommendation letters. 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 
(Comm'r 1988). However, USCIS is ultimately responsible for making the final determination 
Page 7 
regarding an alien's eligibility for the benefit sought. [d. 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; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008). Furthermore, the petitioner 
claimed the beneficiary's eligibility for the leading or critical role criterion based on one 
organization, in which the plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(viii) 
requires a leading or critical role with more than one organization or establishment. 
The AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary'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 provides 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). The petitioner's submission of two recommendation letters for the original 
contribution criterion and two self-serving letters for the leading or critical role criterion is 
insufficient to establish the beneficiary's sustained national or international acclaim required for 
this highly restrictive classification. 
Review of the record does not establish that the beneficiary 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 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. 
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. The 
petitioner has not sustained that burden. 
ORDER: The motion to reopen and the motion to reconsider are dismissed, the decision of the 
AAO dated January 13,2010, is affirmed, and the petition remains denied.