dismissed EB-1A Case: Signal Processing Engineer

identifying data deleted to 
prevent clearly ~nwarrantee 
invasion of personal pnvac) 
U.S. Department uf Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
'PUBLIC COPY 
'9 
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. 9 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 further 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. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
,/lil,@r$d" Perrv Rhew 
r~hief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on March 12, 2009, and is now before the Administrative Appeals Office on appeal. 
The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(A), as 
an alien of extraordinary ability in the sciences. The director determined that the petitioner had not 
established that the beneficiary had 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 the beneficiary's receipt of a major, internationally recognized 
award, or that he meets at least three of the regulatory criteria at 8 C.F.R. 8 204.5(h)(3). 
At the onset, counsel argues that the director erred in his decision by not affording the petitioner an 
opportunity to respond to a request for evidence before denying the petition. Counsel fhther argues 
that "we are firmly convinced that an RFE was not only fklly justified (the record was not complete 
enough for the denial decision), but in this instance, the failure to seek additional evidence exceeded the 
discretionary authority of the deciding official, assuming you determine his decision was discretionary." 
Counsel also submitted a USCIS interoffice memorandum, dated May 4, 2004, regarding guidance for 
requests for evidence. 
The regulation at 8 C.F.R. 8 103.2(b)(8) provides in pertinent part: 
(ii) Initial evidence. If all required initial evidence is not submitted with the application or 
petition or does not demonstrate eligibility, USCIS in its discretion may deny the 
application or petition for lack of initial evidence or for ineligibility or request that the 
missing initial evidence be submitted within a specified period of time as determined by 
USCIS. 
(iii) Other evidence. If all required initial evidence has been submitted but the evidence 
submitted does not establish eligibility, USCIS may: deny the application or petition for 
ineligibility; request more information or evidence fiom the applicant or petitioner, to be 
submitted within a specified period of time as determined by USCIS; or notify the 
applicant or petitioner of its intent to deny the application or petition and the basis for the 
proposed denial, and require that the applicant or petitioner submit a response within a 
specified period of time as determined by USCIS. 
Further, the interoffice memorandum states: 
Under 8 CFR 103.2(b)(8), the CIS is only required to issue an RFE in one circumstance - 
when initial evidence is missing. Initial evidence is evidence specified in the regulations 
and on the application or petition and accompanying instructions. In all other instances, 
such as when the evidence raises underlying questions regarding eligibility or does not 
klly establish eligibility, issuance of an RFE is discretionaw. As provided above, the 
CIS adjudicator may deny the case if he or she determines that the applicant or petitioner 
has not met his or her burden to establish eligibility for the benefit, rather than exercise 
discretion and issue an RFE prior to final adjudication. If the case is denied, the applicant 
or petitioner may, in certain circumstances, file an appeal or a motion to reopen or 
reconsider in accordance with 8 CFR 103.3 and 103.5. 
A review ofthe record reflects that the director adjudicated the petition based on the evidence submitted 
at the time the petition was filed. The director did not deny the petition because initial evidence was 
missing; rather the submitted evidence failed to establish eligibility for the benefit. We find that in 
denying the petition, the director complied with 8 C.F.R. $$ 103.2(b)(8)(ii) and (iii) and USCIS policy 
guidance. Furthermore, 8 C.F.R. $5 103.2(b)(8)(ii) wd (iii) and USCIS policy guidance provides for 
discretionary authority to request additional evidence, provide notice of the director's intent to deny the 
application or petition, or deny the petition or application. In this case, the director exercised his 
discretionary authority and denied the petition based on the evidence submitted by the petitioner not 
establishing eligibility for the benefit. For these reasons, we are not persuaded by counsel's argument 
that the director abused his discretionary authority. 
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. 9 204.5(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. 5 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
the beneficiary has sustained national or international acclaim at the very top level. 
Page 4 
This petition, filed on April 10, 2008, seeks to classify the beneficiary as an alien with extraordinary 
ability as a signal processing engineer. 
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 the 
beneficiary for this classification merely by submitting evidence that simply relates to at least three 
criteria at 8 C.F.R. 8 204.5(h)(3). In determining whether the beneficiary 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. 8 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria 
under 8 C.F.R. 8 204.5(h)(3). 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the3eld for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
At time of original filing, counsel did not request eligibility for this criterion. However, on appeal, 
counsel specifically mentions this criterion and states: 
The initial petition provided extensive examples not only of the Beneficiary's own 
publications or articles and papers, both in national and international forums, but cited 
extensive examples of the citation to the Beneficiary's work by others who are published 
in the field. 
Counsel submitted 10 articles, which the beneficiary co-authored with other research scientists, and 15 
articles, in which the beneficiary's work was cited in those articles. The plain language of the 
regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires that the published material be "about" the beneficiary 
relating to his work. Compare 8 C.F.R. 8 204.5(i)(3)(i)(C) which only requires published material 
about the alien's work. The articles which cite the beneficiary's work are not articles about the 
beneficiary relating to his work. Thus, while his publications and citations therein are not relevant to 
this criterion, they will be considered below as they relate to the significance of the beneficiary's 
contributions and scholarly articles. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's original scientijk, scholarly, artistic, athletic, or business- 
related contributions of major signficance in the$eld. 
At the time of original filing, counsel claimed the beneficiary's eligibility based on the beneficiary's 
"novel method to detect and evaluate, in real-time, the effect of environment variations on radar 
operations" while working at Duke University. In addition, counsel claimed that the beneficiary 
developed "advances in the interpretation of sensor array signal processing the significantly 
improves the operation of radar in uncertain or 'cluttered' environments such as forests" while 
working at Duke University. 
In support of these claims, the petitioner submitted a letter fi-om who is the Chief 
Financial Oficer (CFO) for the petitioner of Sensor Research and Development Corporation (SRD). 
states "[the beneficiary] is a leader in recursive non-linear detection and estimation 
techniques, sensor array processing methods, statistical classification techniques, and adaptive signal 
processing techniques." also discussed the beneficiary's contribution of "providing 
recursive estimates fiom non-linear systems in real-time" and development of "innovative and 
unique chemometrics algorithms to maximize the chemical information that can be extracted fiom 
SRD's chemical sensor array." In addition, counsel referred USCIS to several articles in which the 
beneficiary co-authored with several research scientists. 
On appeal, the petitioner also submitted letters fi-om rofessor in clinical research at 
University of Texas M.D. Anderson Cancer Center, s and professor of statistics at 
Stanford University. Both letters indicate that these individuals do not personally know the 
beneficiary but are familiar with the beneficiary's work. Further, states: 
In the area of time-series analysis and solutions to non-linear dynamic state-space 
estimation, [the beneficiary] has developed impressive and innovative statistical 
modeling methodologies and applications of recursive solutions to dynamic state-space 
methodologies for parameter estimation problems. His work on hybrid importance 
sampling methodologies for generating a parameter search grid along with traditional 
Viterbi and Forward-Backward algorithm solutions for parameter estimation points is 
highly innovative and technically challenging. 
In my professional opinion, [the beneficiary] has performed outstanding research on 
sequential importance sampling methods. His research work has dealt with the use of 
importance sampling methods methods [sic] in electrical engineering applications for 
purposes of detection, estimation and classification. A key feature of [the 
beneficiary's] work has been in the use of these methods to provide key information for 
use as a tactical aid in the operation of radar and communication systems. One of his 
most noteworthy accomplishments was the innovative approach of modeling 
electromagnetic wave propagation as a statistical dynamic state-space problem. When 
coupled with the recursive nature of sequential importance sampling methods 
(recursive Bayesian methods as titled in [the beneficiary's] paper, the end result was an 
approach which provided quick updates on key environmental parameters that would 
Page 6 
normally have taken several hours if not days. Seeing as how most of his research was 
funded by government agencies, I believe that low computational time was a key 
necessity for a majority of the applications. 
In this case, the reference letters submitted by the petitioner are not sufficient to meet this regulatory 
criterion. While such letters can provide important details about the beneficiary's role in various 
projects, they cannot form the cornerstone of a successful extraordinary ability claim. The statutory 
requirement that an alien have "sustained national or international acclaim" necessitates evidence of 
recognition beyond the alien's immediate acquaintances. See 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). Further, USCIS may, in its discretion, use as 
advisory opinion statements as expert testimony. See Matter of Caron International, 19 I&N Dec. 
791, 795 (Cornmr. 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 fi-om the beneficiary's personal contacts in not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 
795. Thus, the content of the writers' statements and how they became aware of the beneficiary's 
important considerations. Even when written by purportedly independent experts like 
and letters solicited by an alien in support of any immigration petition are of 
less weight than preexisting, independent evidence or original contributions of major significance 
that one would expect of an individual who has sustained national or international acclaim at the 
very top of the field. 
In this case, the petitioner failed to submit preexisting, independent evidence of original 
contributions of major significance. While the letters fi-om and highly praise the 
beneficiary for his work, they fail to establish that he has of major significance in 
his field. In evaluating the reference letters, they do not specifically identify -contributions and 
provide specific examples of how those contributions have influenced the field; rather, the letters 
discuss the beneficiary's innovative methodologies. Letters fi-om independent references who were 
previously aware of the beneficiary through his reputation and who have applied his work are far 
more persuasive than letters fi-om independent references who were not previously aware of the 
beneficiary and are merely responding to a solicitation to review the beneficiary's curriculum vitae 
and work and provide an opinion based solely on this review. Ultimately, evidence in existence 
prior to the preparation of the petition carries greater weight than new materials prepared especially 
for submission with the petition. An individual with sustained national or international acclaim 
should be able to produce unsolicited materials reflecting that acclaim. Vague, solicited letters fi-om 
local colleagues or letters that do not specifically identify contributions or how those contributions 
have influenced the field are insufficient. Kazan'an v. USCIS, 580 F.3d 1030, 1036 (9' Cir. 2009). 
Regarding the beneficiary's authorship and citations of his published articles, the beneficiary's field, 
like most science, is research-driven, and there would be little point in publishing research that did 
not add to the general pool of knowledge in the field. The record also contains evidence of 15 
articles that cite to the beneficiary's work. A review of these articles reflects that they do not 
concentrate around, discuss in-depth, or debate the beneficiary's research. While these articles 
briefly refer to the beneficiary's work in the form of citations, they do not reflect that the 
Page 7 
beneficiary's work was of major significance to his field. According to the regulation at 8 C.F.R. 
5 204.5(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. To be considered a contribution of major significance in the field of science, it can be 
expected that the results would have already been reproduced and confirmed by other experts and 
applied in their work. Otherwise, it is difficult to gauge the impact of the beneficiary's work. 
The regulations contain a separate criterion regarding the authorship of published articles. 8 C.F.R. 
5 204.5(h)(3)(vi). We will not presume that evidence relating to or even meeting the scholarly articles 
criterion is presumptive evidence that the beneficiary also meets ths criterion. Thus, the mere 
authorship of scholarly articles cannot serve as presumptive evidence to meet this criterion. To hold 
otherwise would render meaningless the statutory requirement for extensive evidence or the regulatory 
requirement that a petitioner meet at least three separate criteria. See also Kazarian v. USCIS, 580 F.3d 
at 1036 (publications and presentations are insufficient absent evidence that they constitute 
contributions of major significance). 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive hnding and attention fiom the 
scientific community. It does not follow that every researcher who performs original research that 
adds to the general pool of knowledge has inherently made a contribution of major significance to 
the field as a whole. 
While the record includes numerous attestations of the potential impact of the beneficiary's work, 
none of the beneficiary's references provide examples of how the beneficiary's work is already 
influencing the field beyond the limited projects on which he has worked. While the evidence 
demonstrates that the beneficiary is a talented researcher with potential, it falls short of establishing 
that the beneficiary had already made contributions of major significance. 
Accordingly, the petitioner has not established that the beneficiary 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. 
At the time of the original filing, counsel claimed the beneficiary's eligibility based on his co- 
authorship of 11 articles: 
1. Mixture Gaussain Approximation in Sequential Importance Sampling and Its 
Applications in CDMA Mobility Tracking and Estimating Refractivity From 
Clutter; 
2. Electromagnetic Time-Reversal Imaging in Changing Media: Experiment and 
Analysis; 
3. Electromagnetic Time-Reversal Imaging of a Target in a Cluttered 
Environment; 
4. MAP Sequence Estimation of Microwave Refractivity fiom Radar Clutter Via a 
Particle Filtering Implementation of the Viterbi Algorithm, 
5. Refiactivit y Estimation fiom Radar Clutter by Sequential Importance Sampling 
with a Markov Model for Microwave Propagation; 
6. Maximum A Posteriori Refi-activity Estimation from Radar Clutter Using a 
Markov for Microwave Propagation; 
7. Passive Differential Matched-Field Depth Estimation of Moving Acoustic 
Sources; 
8. The Performance of Surface Duct Parameter Estimation fi-om Radar Sea Clutter; 
9. Using Radar Sea Clutter to Estimate Refi-activity Profiles Associated with the 
Crapping Inversion of the Marine Atmospheric Boundary Layer; 
10. Estimating Tropospheric Refi-activity Parameters fiom Radar Sea Clutter; and 
11. Recursive Bayesian Electromagnetic Refi-activity Estimation fi-om Radar Sea 
Clutter. 
Regarding Item 1, counsel failed to submit evidence that this article was authored by the beneficiary 
or ever published. In fact, counsel claimed that the publication was "pending" at the time of filing. 
Articles which have yet to be published at the time of filing are not sufficient to establish that the 
beneficiary meets this criterion. 
Regarding Item 11, the article reflects that it was published in Radio Science. However, the 
petitioner failed to submit evidence demonstrating that Radio Science is a professional or major trade 
publication or other major media. 8 C.F.R. 9 204.5(h)(3)(vi). 
Regarding Items 2 - 10, these articles were co-authored by the beneficiary while he was employed at 
Duke University as a research associate and research assistant. As publishing research is inherent in 
the job duties of a research associate and research assistant at a university, published research alone 
cannot serve to set the beneficiary apart fi-om others in his field. While we acknowledge that we must 
avoid requiring acclaim within a given criterion, it is not a circular approach to require some evidence 
of the community's reaction to the beneficiary's published articles in a field where publication is 
expected ofthose merely completing training in the field. Kazarian v. USCZS, 580 F.3d at 1036. 
Regarding the 15 articles that cite to the beneficiary's work, while these citations demonstrate some 
mild interest in his published articles, they are not sufficient to demonstrate that his articles have 
attracted a wide level of interest in his field commensurate with sustained national or international 
acclaim. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has pet$,nned in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At the time of original filing, counsel claimed the beneficiary's eligibility based on his position as 
"Project Lead" fo; the etitioner SRD Counsel refers to the pr&iously mentioned letter, dated 
January 4,2008, fiom stating: 
He is currently the Project Lead in 3 of SRD's major research ventures aimed at 
developing a portable handheld chemical detection unit. The three projects bring in an 
estimated $5 million in funding to SRD. SRD is dependent upon his expertise in both 
current and fbture projects. Without his service, SRD would be at a critical 
disadvantage, as few other potential applicants exist with his level of experience and 
qualification. His continued support provides SRD with a clearly superior ability to 
resolve critical science related research issues and will substantially benefit the United 
States. 
On appeal, counsel submitted another letter, dated April 1, 2009, fiom stating that the 
beneficiary "is one of the absolutely critical research scientists working on these programs." 
Besides the two self-serving letters, the petitioner failed to submit documentation demonstrating that 
SRD has a distinguished documentation. We simply can not rely on self-serving statements to 
establish the petitioner's reputation. Going on record without supporting documentary evidence is 
not suficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). A petition must be filed with any initial evidence required by the regulation. 
8 C.F.R. 9 103.2(b)(l). The nonexistence or other unavailability of primary evidence creates a 
presumption of ineligibility. 8 C.F.R. 9 103.2(b)(2)(i). 
Moreover, even though the petitioner describes the beneficiary's position as "critical," the petitioner 
failed to establish that the beneficiary's position is leading or critical to his corporation as a whole. 
For example, the record does not include detailed job responsibilities discussing the nature of the 
beneficiary's duties and significant accomplishments and the importance of his role to the 
corporation's operations. Further, the petitioner has not submitted an organizational chart or other 
similar evidence showing the beneficiary's position in relation to that of the other project leads, 
much less higher level executives of SRD. There is no evidence demonstrating how the beneficiary's 
roles differentiated him fiom the other project leads who oversaw other projects. 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate the 
beneficiary's receipt of a major, internationally recognized award, or that the beneficiary meets at 
least three of the criteria that must be satisfied to establish the national or international acclaim 
necessary to qualify as an alien of extraordinary ability. 8 C.F.R. 8 204.5(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 beneficiary 
ercentage who has risen to the very top of the field of endeavor compared tom 
whose research "overlaps" that of the beneficiary, both of whom are fellows of 
Page 10 
associations pertinent to the field. In addition, according to curriculum vitae, the 
beneficiary's experience, impact to his field, and influence does not compare to For 
example, published 94 papers with 1 1 more under review) compared to the beneficiary's 
publication of 10 papers. We also note ( extensive work of 6 discussions, 4 books, 6 - - 
software productions, 21 major and minor grants, 66 delivered talks and seminars, and editorial 
service for several journals. Furthermore, according to curriculum vitae, he has extensive 
professional experience, served on the editorial board of 6 journals and publications, and received 12 
honors and awards. The beneficiary has failed to submit documentary evidence establishing that his 
abilities are equivalent to individuals in his field such as and-~ 
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 or 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 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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.