dismissed EB-1A Case: Surgery

(b)(6)
DATE: JAN 1 3 2014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizens hip a nd Immigra tion Serv ices 
Administrative Appeals Office (AAO) 
20 Massac husett s Ave., N. W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
I 
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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:/ /www.uscis.gov/forms for the latest information on fee, filing location, and other t·equirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;;rP~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" as a surgeon, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(A). The director determined the petitioner had not established the sustained national or 
international acclaim on behalf of the beneficiary necessary to qualify for classification as an alien of 
extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence on behalf of the alien under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a completed Form I-290B, Notice of Appeal or Motion. On the Form I-
290B, Part 2, counsel indicated that a brief and/or evidence would be submitted to the AAO within 30 
days. The appeal was filed on March 28, 2013. As of this date, more than nine months later, the AAO 
has received nothing further. For the reasons discussed below, upon review of the entire record, the 
AAO upholds the director's conclusion that the petitioner has not established the eligibility of the 
beneficiary for the exclusive classification sought. 
I. LAW 
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 · 
(b)(6)
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NON-PRECEDENT DECISION 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien' s 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 ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while users 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. at 1121-22. 
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)). 
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 this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. I d. 
1 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
ll. ANALYSIS 
A. Evidentiary Criteria2 
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. 
The director found that the petitioner established that the beneficiary satisfies the plain language 
requirements of the regulation at§ 204.5(h)(3)(iv) and the record supports the director's finding. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. 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), citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see alsoHristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed 
to raise them on appeal to the AAO). 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The director found that the petitioner established that the beneficiary satisfies the plain language 
requirements of the regulation at§ 204.5(h)(3)(vi) and the record supports the director's finding. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
On appeal , counsel asserts that the beneficiary's presentations at conferences should be considered as 
evidence for this regulatory criterion. The petitioner's field, however, is in the sciences, rather than 
the arts. The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is 
longstanding and has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV -820-
ECR-RJJ at * 1, *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a 
performing artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist 
and has not created tangible pieces of art that were on display at exhibitions or showcases, he has not 
submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). The ten criteria in the regulations are designed to cover different areas; 
not every criterion will apply to every occupation. Moreover, it is neither arbitrary, capricious, nor 
an abuse of discretion to conclude that presentations at scientific conferences do not qualify as 
2 The petitioner does not claim to meet 'or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
display of the petitioner's work at artistic exhibitions or showcases pursuant to 8 C.F.R. 
§ 204.5(h)(3)(vii). Kazarian, 596 F. 3d at 1122. 
While the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]fthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility," it is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that the 
rule, not the exception, is that the petitioner must submit evidence to meet at least three of the regulatory 
criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not readily applicable 
to the beneficiary's occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The regulatory language 
precludes the consideration of comparable evidence in this case, as there is no 
indication that the standards at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the beneficiary's 
occupation. Where an alien is simply unable to meet the plain language requirements of or submit 
documentary evidence under three of these criteria , the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(4) does not allow for the submission of comparable evidence. Notably, the director did 
consider the beneficiary's presentations under the contributions criterion at 8 C.F.R. § 204.5(h)(3)(v) 
and concluded that the petitioner had not demonstrated that the beneficiary's presentations had been 
influential at a level consistent with contributions of major significance as required by that provision. 
As the beneficiary is not a visual artist and has not created tangible pieces of art that were on display at 
exhibitions or showcases, the petitioner has not submitted qualifying evidence that the beneficiary meets 
the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director 's findings for this 
criterion or offer additional arguments. The petitioner, therefore, has abandoned this issue. Sepulveda, 
401 F.3d at 1228 n. 2, Hristov v. Roark, 2011 WL 4711885 at *9 (finding that plaintiff's claims were 
abandoned as he failed to raise them on appeal to the AAO). 
C. Summary 
As the petitioner did not submit qualifying evidence on behalf of the beneficiary under at least three 
criteria, the proper ,conclusion is that the petitioner has failed to demonstrate that the beneficiary 
satisfies the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary under at least three 
evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" 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." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO 
concludes that the evidence is not indicative of a level of expertise consistent with the small percentage 
at the very top of the field or sustained national or international acclaim, the AAO need not explain that 
conclusion in a final merits determination? Rather, the proper conclusion is that the petitioner failed to 
demonstrate that the beneficiary has satisfied the antecedent regulatory requirement of three types of 
evidence. !d. at 1122. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the 
Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 
C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) 
(holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).