dismissed EB-1A Case: Semiconductor Metrology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
data deleted to 
 Washington, DC 20529-2090 
U. S. Citizenship 
of personal privacy and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
c LIN 07 116 51907 
 APR 0 2 2009 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 3 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fiuther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, 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. § 1153(b)(l)(A), as an alien 
of extraordinary ability in the sciences. The director determined that the petitioner had not established 
the sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the regulatory 
criteria at 8 C.F.R. 204.5(h)(3). The director also determined the petitioner had not submitted clear 
evidence that he would continue to work in his area of expertise in the United States. 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
8 204.5@)(3) and that he will "continue work in his area of extraordinary ability." 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means 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. tj 204.5(h)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 8 204.5@)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
This petition, filed on March 12, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability in the field of semiconductor metrology. At the time of filing, the petitioner was employed as 
a Senior Director of Strategic Marketing, WIN Division, KLA-Tencor Corporation. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner, however, cannot establish eligibility for this 
classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R. 
5 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. 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. 
5 204.5@)(2). The petitioner has submitted evidence pertaining to the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a "Diana Nyyssonen Memorial Award for Metrology Best Paper of 2002" 
from the Metrology, Inspection, and Process Control program Conference Chair of SPIE, the 
International Society for Optical Engineering. The record does not include specific information 
about this award from SPIE (such as the official selection criteria). Rather, the petitioner submitted 
letters of support from his professional associates briefly mentioning his receipt of the award. 
Individual Contributor, LithographyIEtch Department, California 
Technology and Manufacturing, Intel Corporation, states: "The high caliber of [the petitioner's] 
work was . . . recognized by the Metrology Program Conference Committee who awarded him the 
prestigious Dianna N. Nyyssonen Memorial Award for the Best Paper of the year." 
Scanning Electron Microscope Project Leader, Nanometer- Scale Metrology 
Group, National Institute of Standards and Technology, states: 
[The petitioner] is one of the few experts who have been recognized by the scientific and 
technical community with the prestigious Diana Nyyssonen Memorial Award for Metrology 
Best Paper. He, for his unique and valuable contribution to the field of semiconductor 
metrology, was rewarded with this award for in [sic] 2001. 
Texas Insturnents, Inc., states: "[The petitioner's] presentation at 2001 SPIE meeting underlined his 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in hs decision. 
Page 4 
unique contribution to the field of AFM [Atomic Force Microscope] and CD [Critical Dimension] 
metrology and won the prestigious Diana Nyyssonen Memorial Award for Metrology Best Paper of 
2001 ." 
Program 
 Manager and Fellow 
 of the 
 Advanced Measurement 
Technology Group, Advanced Micro Devices, Inc., states: "[The petitioner's] presentation 
underlined his unique contribution to the field of AFM and Dual Beam metrology and won him the 
prestigious Dianna Nyyssonen Memorial Award for Metrology Best Paper of 2001 ." 
, President and Chief Executive Officer, Xidex Corporation, states: 
 "[The 
petitioner's] presentations display his unique contribution to the field of semiconductor metrology 
and have won him the prestigious Dianna Nyyssonen Memorial Award for Metrology Best Paper of 
2001 ." 
The above statements from the preceding individuals indicate that the petitioner received hs award 
for "Metrology Best Paper of 2001." However, the language on the petitioner's award certificate 
states that it was "for Metrology Best Paper of 2002." It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582,591 -92 (BIA 1988). 
The director found that the preceding evidence did not establish that the petitioner's award "enjoys 
significant national or international stature." The director further noted that the record lacked 
documentation from the awarding entity "confirming essential details such as the specific criteria 
applied and the scope of candidates considered." 
On appeal, counsel argues that "the importance and recognition of the award are well attested by 
independent experts in the field."2 The AAO may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. However, where an opinion is not in accord with other 
information or is in any way questionable, the AAO is not required to accept or may give less weight 
to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comrn. 1988). In this instance, 
the information provided by the petitioner's professional associates was limited and contradicted the 
date appearing on the petitioner's award certificate. All five of the preceding individuals state that 
the Diana Nyyssonen Memorial Award for Metrology Best Paper is b'prestigious," but their letters 
provide no substantive information regarding the award or its specific requirements. The plain 
language of the regulatory criterion at 8 C.F.R. 5 204.50(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and it is his burden to 
establish every element of this criterion. In this case, there is no independent and objective evidence 
showing that the petitioner's award had a significant level of recognition beyond the presenting SPIE 
2 
 Counsel refers to the preceding individuals as "independent" experts, but their letters all state that they first met the 
petitioner during the 1990s at meetings or through business relationships. 
Page 5 
conference ~ornmittee.~ For example, there is no evidence demonstrating that recipients of this 
award were announced in professional journals or in some other manner consistent with sustained 
national or international acclaim. The documentation submitted by the petitioner does not establish 
that his award constitutes a nationally or internationally recognized prize or award for excellence in 
the field. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business- 
related contributions of major signiJicance in the$eld. 
The petitioner submitted several letters of recommendation praising his expertise and discussing his 
activities in the field. We cite representative examples here. Expertise and activity in the field, 
however, are not necessarily indicative of scientific contributions of major significance. The record 
lacks evidence showing that the petitioner has made original contributions that have significantly 
influenced or impacted hs field. 
As Veeco Technical Director or later as Zygo Atomic Force Microscopy (AFM) project 
director, [the petitioner] was an excellent contributor in solving the challenges integrated 
circuit technology is facing such as critical dimension metrology, three-dimensional imaging 
and AFM technology. I was impressed by [the petitioner's] outstanding knowledge of his 
field, which extends fi-om semiconductor process control to nano-metrology, and I am 
convinced, that he is one [sic] the best experts in the field. 
- former President and Chief Executive Officer of Advanced SAW Products, states 
that the petitioner worked for his former company as Research & Development and Manufacturing 
Director since its creation. 
 further states: 
Advanced SAW Products grew rapidly and developed leading edge products for supply to 
the mobile telephone industry. The components, developed and made under the control of 
[the petitioner] were the best cellular telephone frequency filters to be found on the 
worldwide market. This attracted the attention of the major players in the mobile industry 
and the company was bought by the Nokia Corporation in 1996 . . . . 
The technology developed under [the petitioner's] direction has subsequently spread to 
companies like Nokia Corporation, Micronas Inc., Motorola Corporation, CTS Corporation, 
The official internet site of SPIE provides a listing of thirteen of the Society's awards, but the "Diana Nyyssonen 
Memorial Award is not among those identified. See "SPIE Awards Program" at htt~://s~ie.orp;/x2958.xml, accessed on 
March 27,2009, copy incorporated into the record of proceeding. 
Page 6 
Temex SA and Telefilter GmbH all of which are fighting for leadership in the supply of 
components applied to the telecommunications industry. 
There is no evidence identifying the petitioner as an inventor of the aforementioned cellular 
telephone frequency filters or letters of support from top research and development executives from 
Nokia Corporation, Micronas Inc., Motorola Corporation, CTS Corporation, Temex SA, and 
Telefilter GmbH affirming that they adopted original technology that was specifically attributable to 
the petitioner. 
I worked closely with [the petitioner] when he was in Oregon in 2001. He was directing the 
semiconductor metrology of FEI Company, and more specifically all efforts driving the Dual 
Beam systems towards in-line metrology. 
My interaction with [the petitioner] allowed MetroBoost to develop and launch its flagship 
product, MetroCal reference wafers. These are substrates used for characterization and 
calibration of metrology tools in semiconductor industry. The launch of this product and its 
subsequent success are in no small measure due to his guidance and also his support as an 
early adopter. His unique contribution won MetroBoost a product that still thrives as 
advertised in our web site at www.metroboost.com. MetroCal wafers have had much success 
since introduction. It is public information that FEI Company has been a customer of ours to 
this date. Several other semiconductor metrology tool suppliers have also adopted MetroCal 
wafers for their systems. 
We acknowledge that the petitioner has contributed to the success of projects undertaken by his 
employers, but there is no evidence demonstrating that his work constitutes original scientific 
contributions of major significance in the field. While the petitioner's employer, FEI Company, may 
have relied on MetroBoost as its supplier of MetroCal wafers, there is no evidence showing that the 
success of this product was primarily attributable to the petitioner's work or that he invented the 
technology. 
Vice-President, WAFRJWIN, KLA-Tencor, states: 
Since joining the company, [the petitioner] directed multiple scientifically oriented projects. 
Main examples are: 
0712006 to 712007: "gap" project. The "gap" project is a project aimed at solving any 
unsolved defect detection out of the worldwide installed based [sic] of customers or 
application engineers. The intrinsic complication of the exercise is extreme, as most 
customers do not share all the technical details needed. Process variations and light 
propagation modes are intervened in thousands of possibilities from which one and only 
one is the best. And [the petitioner's] role was to close on the one of importance, or 
Page 7 
invent the missing one required to "close the gap" . . . . [The petitioner's] work during 
this period generated one patent in his sole name as inventor. 
Since 0712007, [the petitioner] is in charge of developing what we foresee as one of our 
most promising new inspection techniques. In this function, [the petitioner] is leading a 
team of Ph.D. [sic] in mathematics, physics, electronics and computer sciences. This new 
development is in the process of generating four new patents (to be disclosed), in addition 
to a deeper and more systematic understanding of the behavior of the light used for our 
inspection in different mediums used during semiconductor processing. The personal 
involvement of [the petitioner] ranges from hands on work on various specialized 
equipments to building hypothesis and experiments allowing further development and 
progress of a new product that will modify and improve the way semiconductor 
manufacturing is performed. 
states that the petitioner's work for KLA-Tencor's "gap" project fiom June 2006 to 
one patent in his sole name as inventor," but the record does not include a copy 
of this patent. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 
165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Further, there is no supporting evidence demonstrating that the technology specified in the 
patent constitutes a contribution of major significance in the field. 
The petitioner submitted a September 11, 2003 United States Patent Application Publication listing 
him as inventor of an "Integrated Measuring Instrument." On appeal, the petitioner submits an 
August 24,2006 patent application filed as a continuation of the preceding patent application. There 
is no evidence from the United States Patent and Trademark Office showing that the petitioner has 
been granted a patent for this invention. Even if the petitioner were to submit such evidence, the 
grant of a patent demonstrates only that an invention is original. Regarding any patents attributable 
to the petitioner, this office has previously stated that a patent is not necessarily evidence of a track 
record of success with some degree of influence over the field as a whole. See Matter of New York 
State Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Commr. 1998). Rather, the significance of the 
innovation must be determined on a case-by-case basis. Id. In this case, there is no evidence 
showing substantial commercial interest in the petitioner's original inventions, the widespread 
marketing and licensing of his patented technologies, or that they have otherwise risen to the level of 
contributions of major significance in the field. 
With regard to- discussion of the "promising new inspection technique" that the 
petitioner has been working on since July 2007, this work for KLA-Tencor post-dates the filing of 
the petition. A petitioner, however, must establish eligibility at the time of filing. 
 8 C.F.R. 
$0 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Accordingly, 
the AAO is not required to consider the petitioner's work for the latter project in this proceeding. 
We acknowledge that the petitioner has performed admirably for KLA-Tencor and his other 
employers, but the evidence of record does not establish that he has made original scientific 
contributions of major significance in his field. 
Page 8 
According to the regulation at 8 C.F.R. 
 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. While the petitioner has earned the admiration of 
those offering letters of support, the record lacks evidence showing that his work constitutes original 
contributions of major significance in his field consistent with sustained national or international 
acclaim. For example, the record does not indicate the extent to which his work has impacted others 
in his field nationally or internationally, nor does it show that the field of semiconductor metrology 
has significantly changed as a result of his work. 
In this case, the letters of support submitted by the petitioner's professional associates are not 
sufficient to meet this criterion. The opinions of experts in the field, while not without weight, 
cannot form the cornerstone of a successful extraordinary ability claim. USCIS may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. at 791, 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 experts supporting the petition is not presumptive evidence of eligibility; USCIS may 
evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795- 
796. Thus, the content of the experts' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters solicited 
by an alien in support of an immigration petition are of less weight than preexisting, independent 
evidence of original contributions of major significance that one would expect of an individual who 
has sustained national or international acclaim. Without evidence showing that the petitioner's work 
has been unusually influential, highly acclaimed throughout his field, or has otherwise risen to the 
level of contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in profesional or 
major trade publications or other major media. 
The petitioner submitted evidence showing that he coauthored articles published in various SPIE 
conference proceedings. We take administrative notice of the fact that authoring scholarly articles is 
inherent to scientific research. For this reason, we will evaluate a citation history or other evidence 
of the impact of the petitioner's articles when determining their significance to the field. For 
example, numerous independent citations would provide solid evidence that other researchers have 
been influenced by the petitioner's work and are familiar with it. On the other hand, few or no 
citations of an alien's work may indicate that his work has gone largely unnoticed by his field. On 
appeal, the petitioner submits evidence of six articles that cite to his published work. While these 
citations demonstrate a small degree of interest in his published articles, they are not sufficient to 
demonstrate that his articles have attracted a level of interest in his field consistent with sustained 
national or international acclaim. 
In light of the above, the petitioner has not established that he meets this criterion. 
Page 9 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
We withdraw the director's finding that the petitioner meets this regulatory criterion. At issue for this 
criterion are the position the petitioner was selected to fill and the reputation of the entity that selected 
him. In other words, the position must be of such significance that the alien's selection to fill the 
position, in and of itself, is indicative of or consistent with national or international acclaim. 
In response to the director's request for evidence, counsel argues that the petitioner "has a leading role 
of Senior Director at KLA-Tencor." The record adequately demonstrates that KLA-Tencor Corporation 
has a distinguished reputation. With regard to the petitioner's role for the company,- 
states: 
This is to confirm that [the petitioner] is employed at KLA-Tencor as Senior Director 
Strategic Marketing. 
Strategic Marketing covers multiple side of the components required to envision, evaluate, 
develop and realize a new product. KLA-Tencor line of product encompasses inspection and 
metrology equipment used in the field of high technology to manufacture chips, displays and 
various components of the electronic industry. 
Requirements for an individual to be employed in strategic marketing are high. Within the 
WIN division of KLA-Tencor, only two highly-skilled employees (over 185 employees in 
the division) are entrusted to this position. 
While the petitioner has performed admirably as a division manager, the documentation submitted 
by him does not establish that his position is leading or critical to the company as a whole. There is 
no evidence demonstrating how the petitioner's role differentiated him fiom the seven other directors in 
the WIN division, let alone the co&pany's top executives (such as 
 Chairman of the Board, 
, Chef Executive Officer, or , Chef Operating Officer). With regard to 
the positions held by the petitioner prior to his employment with kL~-~Lncor, there is no evidence 
showing that that these roles were leading or critical and that his past employers had a distinguished 
reputation. The documentation submitted by the petitioner does not establish that he was responsible 
for his companies' success or standing to a degree consistent with the meaning of "leading or critical 
role" and indicative of sustained national or international acclaim. Accordingly, the petitioner has not 
established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high 
remuneration for services, in relation to others in thejeld. 
The petitioner initially submitted a January 18, 2007 letter fiom 
 Senior Global 
Mobility Specialist, KLA-Tencor Corporation, stating that the petitioner earns a salary of $160,000 
Page 10 
as a Senior Director in the WIN Division. On appeal, the petitioner submits his Form W-2, Wage 
and Tax Statement, reflecting earnings of $245,602.95 in 2007. The petitioner also submits 
information from "0-Net OnLine" indicating that the national "median" wage for "Material 
Scientists" in 2006 was $74,610. The petitioner's reliance on "median" salary statistics for Material 
Scientists is not an appropriate basis for comparison for two reasons. First, the petitioner must 
submit evidence showing that his salary is significantly high in relation to that of other Senior 
Strategic Marketing Directors or Technology Directors rather than in relation to that of material 
scientists.' Second, the petitioner must submit evidence showing his salary places him among that 
small percentage at the very top of the field rather than in the top half of his field. See 8 C.F.R. 
$ 204.5(h)(2). Accordingly, the petitioner has not established that his salary is significantly high in 
relation to others in the field. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate receipt 
of a major, internationally recognized award, or that he meets at least three of the criteria at 8 C.F.R. 
$ 204.5(h)(3). 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. 8 C.F.R. 8 204.5(h)(2). 
The director also found that the petitioner had not submitted clear evidence that he would continue to 
work in his area of expertise in the United States. The director's decision stated: 
The regulations clearly indicate that the alien must be seeking to enter the United States to 
continue work in the area of extraordinary ability. Counsel asserts that the alien petitioner is a 
scientist of extraordinary ability. The record does not establish that the alien seeks to enter the 
United States to continue work as a scientist. It appears the alien will be employed as a Senior 
Director of strategic marketing for KLA-Tencor. The duties associated with a Senior Director 
of strategic marketing may include research, but the record fails to establish the majority of the 
alien's time will not be spent as a manager or in business development. 
We withdraw the director's finding regarding this issue. The regulation at 8 C.F.R. 
 204.5(h)(5) 
requires "clear evidence that the alien is coming to the United States to continue work in the area of 
expertise. Such evidence may include letter(s) from prospective employer(s), evidence of 
prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on 
how he or she intends to continue his or her work in the United States." In response to the director's 
request for evidence, the petitioner submitted a January 16,2008 letter fkom Brenda Brown outlining 
the scientific and technical nature of the petitioner's position as Senior Director of Strategic 
Marketing. We note here that KLA-Tencor's line of products include inspection and metrology 
equipment used to manufacture semiconductors. On appeal, the petitioner submits a March 27,2008 
4 
 The petitioner's curriculum vitae states that he has "10 years in senior executive positions in the field of semiconductor 
metrology." 
letter from providing further clarification of the scientific expertise and the research 
and development activities required of the petitioner's position. For example, 
 states that 
the petitioner worked in research and development and generated a patent "as sole inventor." The 
petitioner also submits a company cost center management survey showing that the petitioner spent 
70 percent of his time on technological development activities in 2007 for the "gap" project. 
Accordingly, the preceding evidence establishes that the petitioner intends to continue working in his 
area of expertise in the United States. 
While USCIS has approved an 0-1 nonimmigrant visa petition filed on behalf of the petitioner, that 
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. USDept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 
1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS 
spends less time reviewing I- 129 nonimmigrant petitions than I- 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 USCIS fiom denying an extension of the 
original visa based on a reassessment of the beneficiary'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. 593,597 (Comm. 1988). 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 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the 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.), afd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct 51 (2001). 
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 or 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 the national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.