dismissed EB-1A Case: Urban Planning

(b)(6)
.I 
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 · 
DATE: OFFICE: TEXAS SERVICE CENTER FILE: 
APR 1 7 2013 . 
INRE: Petitioner: 
Beneficiary: 
PETITION: .. Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to · 
Section 203(p)(l)(A) ofthe Immigration and Nationality Act; 8 U._S.C. § 1153(b)(l)(A) 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 adv1sed that any further inquiry that you might have 
concerning' your case m\}st be made to that office. 
If you believe the AAO inappropriately applied the law in i"~aching its decision, or you have additional 
information that you wish to have considered, you may· file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I:290B, Notice of Appeal or Motion, with a fee of $630. The . 
specific requU:ements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen .. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The employment-based. immigrant visa petition was denied by the Director, Texas 
Service Center, on October 22, 20i2 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 as an urban planner. The direc(or determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
sustained national or international.acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present · 
"extensive documentation" ofhis or her achievements. See section 203(b)(l)(A)(i) ofthe 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, 
. spedfica~ly a major, internationally recognized award. . Absent the receipt of such an award, the 
regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) ·through (x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
, evidence to establish the basic eligibility requirements. 
. -
In the director's decision, he found that the petitioner established eligibility for the judging criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv) and the scholarly articles criterion pursuant · 
to the regulation at 8 C.F.R. § 204.5(h)(3)(vi). However, the director determined that the petitioner 
failed to establish eligibility for the published material criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(iii), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), the artistic display criterion' pursuant to the regulation· at 8 C.F.R. 
§ 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), and the high salary criterion ·pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). Moreover, the director indicated that the petitioner failed to claim eligibility or 
submit any evidence relating to the awards criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i), the membership Criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), 
and the commercial successes criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). In 
counsel's brief on appeal, counsel did not contest the findings of the director or offer additional 
arguments for the published material criterion and the artistic display criterion. The AAO, 
therefore, considers these issues to _be abandoned. See Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 
1228 n. 2 (11th Cir. 2005); Hristov v. Ro.ark, No. 09-CV-27312011, 2011 WL4711885 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 ~0).· 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
·-
( j 
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(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 recogruzed that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. !d.; 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 th·e 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 throtigh the submission o( 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 eourt concluded 'that while USCIS may have raised 
legitimate concerns about th,e significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." !d. at 1121-
22. 
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). 
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The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence ~ 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)." !d. 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 oontext of a final merits detennination. In this matter, the AAO will review the J 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not ' 
submit 
qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requiremenfofthree types of evideqce. !d. 
II. ANA.L YSIS 
A. Evidentiary Criteria 2 
Evidence of the alien 's participation, either lndividually 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 determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." Based upon a review of the record of . 
proceeding, the petitioner submitted sufficient doci.unentation ·to demonstrate that he minimally 
meets the plain language of this regulatory criterion. 
Accordingly, the petitioner established that he meets this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v).requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the fi~ld." . Here, the evidence must be reviewed to see whether it rises to the level of. 
original contributions "of major significance in the field." . The phrase "major significailce" is not 
superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 
F. 3d 28,31 (3rd Cir. 1995) quoted inAPWUv. Potier, 343F.3d 619,626 (2nd Cir. Sep 15, 2003). 
. . 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
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.The petitioner claimed eligibility for this criterion based on his work with . 
_ _,and 
Regarding the. petitioner submitted documentary evidence 
· reflecting that the is promoting the implementation of the approach in such countries as 
and Furthermore, the petitioner submitted evidence of some press and media 
. coverage in the focused countries, as well as evidence .of some presentations by the petitioner at 
conferences an'd workshops. In addition, the petitioner submitted a letter from who 
indicated that he assigned as a reading assfgnment at a course m 
2011, and the petitioner submitted a letter from·' who indicated that will 
be taught in . a course at The petitioner also submitted other 
recommendation ~d reference letters that highly praised the program. 
Although the petitioner demonstrated that has begun to be Implemented in the field via 
his employer, the . the petitioner failed to establish that it has been of major 
. significance. Simply showing 
that an original contribution is being or has been applied in the field 
does not necessarily demonstrate eligibility for the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) unless the 
petitioner establish.es that it has been of major significance. In this case, the petitioner failed to 
· establish the impact that has had on the field, so as to reflect that it has been of major. 
significance. 
For example, indicated that he worked with the petitioner on that included 
the planning of a new city in the.suburbs of failed to elaborate on the 
. results of the project such as whether successfully affected the project. Moreover, while 
indicated that "is influencing the design and implementation of two large 
projects in the final results of application has not been established or even 
concluded. so as to reflect that is has been of major significance. Even described the 
projects as~"interesting" but since it was only released in April2012, three months prior 
to the filing of the petition, the outcome has yet to be determined:· Similarly, the petitioner 
submitted a proposed loan for $400 million to for a metropolitan and urban development 
project. Although the loan proposal indicates that : will be utilized in the development of 
the project, the actual project is still in_ the planning stages, and any measurable impact may or may 
not occur in the future. Eligibility must be established at the time of filing. 8 C.F .R. § 103 .2(b )(1 ), 
(12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). A petition cannot be approved 
at a future date after the petitioner becomes eligible under a new set of facts .. Matter ofJzummi, 22 
· I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, ·citing Matter of Bardouille, 18 
I&N Dec. l14 (BIA 1981 ), that USC IS cannot "consider facts that come into being only subsequent 
to the filing of a petition." ld. at 176 .. 
The AAO does not dispute that the has begun to utilize and promote 
Merely establishing that it has only been introduced in seiective programs by a single source, the 
without 
reflecting the full impact on the field is insufficient to demonstrate an original 
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contribution of major significance in the fieid consistent with the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(v). 
On appeal, counsel cl~s: 
[E]vidence was included that demonstrated that has been used as· one of 
the main focuses of a graduate course at 
... , and is also the subject of a course at 
(and is being adapted for urb~ planning curricula of a network of leading · 
universities in by 2013) .... See Kazarian v. USCIS, supra at 1118 (indicating 
that petitioner's textbook being required reading in many secondary schools, 
· colleges and universities througbout the country· could constitute an original 
contribution, however, petitioner presented ilo evidence that the book was actually 
· used.in any class.) 
The Ninth 
Circuitdid not find in its Kazarian decision that the appellant's textbook could constitute 
an original contribution of major significance in the field pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v). Rather, the Ninth Circuit was summarizing the factual and procedural background 
and indicated that the appellant had submitted a letter from a colleague that claimed that the 
appellant's textbook could be used as required reading. Kazarian v. USCIS, 596 F.3d at 1118. 
Nevertheless, as discussed earlier, the petitioner submitted a letter from who 
indicated that he assigned as a reading aSsignment in his·course at 
in 2011. The submission of evidence reflecting that the petitioner's work has been assigned for a 
course at one university is not persuasive evidence of an original contribution of major significance 
in the field as opposed to assigned reading or devoted courses at many-universities and colleges. 
Further, -although indicated that will be taught in a course at. 
eligibilicy must be established at the time of filing the petition. 8 C.F.R. 
§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of faCts. Matter of Izummi, 22 I&N 
Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N at 114, .that USC IS 
cannot "consider facts that ·come into being only subsequent to the filing, of a petition." !d. at 176. 
Regardless, whil,e may be taught at two universities, it does not rise to the level of major 
significance consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
Regarding the , the petitioner submitted a few reference letters that briefly 
discussed the petitioner's work on the project but failed to demonstrate that it has been of major 
significance in the field. The letters made general statements without providing specific information 
to reflect an original contribution of major significance in the field. For instance, 
indicated that it "inform[ ed] policy makers and practitioners throughout the world of the complex . 
nature of issues. and examples of practical, innovative options for addressing them." 
failed t~ provide any examples of the policy makers and practitioners and how they applied 
the sourcebook throughout the field, so· as to repect the significance of the sourcebook. Similarly, 
indicated .that the sourcebook was "interesting" and "important," he did not 
elaborate on the effect it has had on the field, so as to reflect that it has been of major significance. 
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Moreover, simply mentioned that the petitioner co-authored the sourcebook 
without providing any impact or influence it has had on the field. Furthermore, _ 
indicated that .the so\lrcebook ''was developed in a user friendly multi-media format" and "[t]his was 
a first for the I ' Although this demonstrates, the originality of the petitioner's · 
contribution, it is limited to the · and is not reflective of an original contribution of major 
significance to the field as a whole. 
Regarding in the petitioner's statement in response to the director's request for additional · 
evidence pursuant to the regulation at 8 C.P.R. § 103.2(b)(8), the petitioner claimed that he was 
currently developing , a riew software platform. The petitioner discussed his plans for 
and the potential impact it will have such as "[it] will include o1:1tputs in the form of graphs, 
maps, tables, and global comparisons [emphasis added]," "[it] will be systematically incorporated 
into a larger body of information [emphasis added]," and "it will not cost anything, an& it will be 
easily accessible [emphasis added]." Further, the petitioner submitted a letter from 
who claimed that "will use customized functions [emphasis added]," "will produce 
standard city profiles [emphasis added]," and "will draw on the various layers of data [emphasis 
added]." 
A peti.tioner cannot file a petition under this classification based on the expectation of future 
eligibility. Given the descriptions in terms of future applicability and determinations that may occur 
at a later date, it appears that while original, is still in development and is not currently 
)'eing implemented in his field. Eligibility must be established at the time of filing the petition. 8 
C.P.R.§ 103.2(b)(1), (12); Matter ofKatigbak, 1'4 I&N Dec. at 49. A petition cannot be approved 
at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, 
that we cannot "consider facts that come into being only subsequent to the filing of a petition." /d. 
at 176. The assertions that is likely to be influential is not adequate to establish that his 
work is already recognized as a '.tnajor contribution in the field. The fact remains that any 
measurable impact that results from • wiil likely occur in the future. · 
Moreover, in the director's decision, he stated that "a printout from the search engine Google 
Scholar establishes your Sourcebook was. cited on only two occasions." On appeal, cbunsel claims 
that "[s]uch printout was not submitted by [the petitioner] and was apparently obtained by the 
District Director [sic] on his own accord." On the contrary, a review of the record of proceeding 
reflects that the petitioner submitted the printout in support of the published material criterion 
pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iii), and counsel listed the printout as Exhibit 
"q" at the initial filing of the petition. Moreover, the AAO finds that the citations to the petitioner's 
work are both relevant and appropriate to be considered under the original contributions criterion. 
Generally, the number of citations is reflective of the petitioner's original findings and that the field 
has taken some interest to the petitioner's work. However, it is not an automatic indicator that the 
petitioner's ~o.rk. has been of major significance in the field. In this case, according to the 
screenshot from Google Scholar, the was cited 2 times, w~ cited 21 
times, and the petitioner's total work was cited 30 times. ,_The AAO is not persuaded' that such 
(b)(6)Page 8 
citations ·are reflective that the petitioner's work has been of major significance in the field. 
Furthermore, ·the petitioner failed to submit any documentary evidence demonstrating that his work 
has been unusually influential, that discuss in-depth the petitioner's findings, or that credit the 
petitioner with influencmg or impacting the field. In this case, the petitioner's documentary 
·evidence is not reflective of having a significant impact on the field. Merely submitting 
documentation reflecting that the petitioner's work has been cited by others in their published 
material is insufficient to establish eligibility for this criterion without documentary evidence 
reflecting that the petitioner's work has been of major significance in the field. The AAO is not 
persuaded that the moderate citations of the petitioner's work are reflective of the significance ofhis 
work in the field. 
The petitioner's evidence mcludes documentation that he haS presented his work at various 
conferences supported or sponsored by the along with numerous other participants. 
Participation in such events, however,. does not equate to an original contribution of major 
significance in the field. There is no evidence showing that the petitioner's conference 
presentations have been frequently cited by others or have otherwise significantly impacted the 
field. While the presentation of the petitioner's work demonstrates that the petitioner's work was 
shared with others and may be acknow~~ged as original contributions based on the' selection of it to 
be presented, the AAO is not persuaded that presentations of the petitioner's work as part of the 
petitioner's job at the is sufficient evidence establishing ·that the petitioner's work is of 
major significance to the field as a whole and not limited to the engagements in which they were 
presented. The petitioner failed to .. establish, for example, that thtr presentations were of major 
significance so as to establish their impact or influence beyond the audience at the conferences. 
There is insufficient documentary evidence demonstrating that the petitioner's work is of major 
significance. This regulatory criterion, not only requires the petitioner to make original 
contributions, the regulatory criterion also requires those contributions ,to be of major significance. 
The AAO is not persuaded by soli~ited letters that simply repeat the regulatory language but do not 
explain how the petitioner's contributions have ~lready.,influenced the field. Letters from colleagues 
that do not specifically identify contributions or provide specific examples of how those 
contributions influenced the field are not persuasive evidence that the petitioner has made original 
contributions of major significance in the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir . 
. 2009) alfd in part 596 F.3d lll5 (9th Cir. 2010). In 2010, the Kazarian court 'reiterated that the 
AAO's conclusion that the "letters from physics professors attesting to [the petitioner's] 
contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. Moreover, the letters considered above primarily contain bare assertions of the 
petitioner's status in the field without providing specific examples ofhow those contributions rise to 
a level consistent with major significance in the field.· Merely repeating the language of the statute 
or regulations does not satisfy the petitioner~s burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), alfd, 905 F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5.(S.D.N.Y.). The lack of supporting evidence gives the AAO rio 
. basis to gauge the significance of the peti~ioner's contributions. 
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USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
M.atter of Caron International, 19 I&N Dec. 791, 795· (Comm'r 1988). USCIS is, however, 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters of support from the petitioner'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). Thus, the content of the writers' statements and how they became aware of 
the petitioner's reputation are important considerations. Even when written by independent experts, 
· ~etters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidenc~ of original contributions of major significance. . 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance·in the .field [emphasis added]." Without additional, specific evidence showing that the 
petitioner's work has been unusually influential, widely applied throughout his field, or has 
otherwise risen to the level of contributions of major significance, the AAO cannot conclude that he 
meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's authorship of ~cholarly articles in the field, in professional or 
major trade publications or other major media. 
The· director deteimined in his .decision that the petitioner "authored or co-authored at least four 
professjonal publications that have been officially published and cited by others in their[] articles." 
As such, the director found that the petitioner established eligibility for this criterion. Based upon a 
review of the record of proceeding, the AAO must withdraw the decision of the director for this 
criterion. 
At the initial filing of the petition, counsel claimed in. her cover letter: 
[The petitioner] has published over four highly regarded books . ... Allofhis work 
has been published by the and has been distributed widely to high-level 
government officials, donor agencies, investment firms and academics. 
(Emphasis added.) 
~ounsel claimed the petitioner's eligibility for thi~ criterion based on the following books: 
1. 
2. 
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3. and 
4. 
As 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 [emphasis added]," the submission of books do not equate to articles. An .article 
is "a nonfictional prose composition usually forming an independent part of a publication (as a 
magazine)." 3 'On the other hand, a book is "a long written or printed literary composition.',4 
Furthermore, the regulation requires that the articles be "in professional or major trade publications 
. or other major media.'' Mere publication does not establish that a book or manual is ·a professional 
or major trade publication or other. major media. Furthermore, while counsel emphasized in her 
cover letter that the books were published by. the _) one of the determining factors to 
meet the eligibility requirements for this criterion is whethe.r the scholarly articles were published in 
professional or major trade publications or other major media. As the is an 
organization, as opposed to a pro(essional or major publication or other major medium, documents 
published by the do not meet the plain langu~ge of this regulatory criterion. 
In addition, -counsel claimed in her cover letter that the petitioner "has two more books set for 
publication that are currently in draft form.'' Eligibility must be estab'tished at the time of filing the 
petition. Therefore, the AAO will not consider these items as evidence to establish the petitioner's 
eligibility. 18 C.F.R. § '103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. at 175. That decisi.on further provides, citing Matter of Bardouil/e, 18 I&N 
Dec. at 114, that USCIS cannot "consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. Regardless, for the reasons discussed above, the publication of books or 
manuals by the do not meet. the plain language of the r~gulation at 8 C.F.R. 
§ 204.5(h)(3)(vi). 
As such, the AAO withdraws the decision of the director for this criterion. The petitioner failed to 
' ' \ 
establish that he meets the plain language of the regulation for this criterion. 
I 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. ' 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence 
that the alien has performed ·in a leading or critical role for organizations or establishments that 
have a distinguished reputation [emphasis added]." In general, a leading role is evidenced from the 
3 See http://www.merriam-webster.com/dictionary/article, accessed on April 16, 2013, and incorporated into the 
record of proceeding. 
4 See http://www.merriam-webster.com/dictionary/book?show=O&t=13ll785044, accessed on April 16, 2013, and 
' ' incorporated into the record of proceeding. 
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role itself, and a critical role is one in which the alien was responsible for 'the success or standing of 
_the organization or establishment. 
The record of proceeding contams several reference and recommendation l~tters that claim that the 
petitioner performed in a leading and/or critical role for the However, merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof . 
. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, ajj'd, 905 F.-2d at 41; Aryr Associates, Inc. v. 
Meissner, i997 WL 188942 at *5. A review of the letters do not contain sufficient e~dence to 
· demonstrate that the petitioner's role was leading or critical consistent with the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii). For example, stated that the petitioner ''took 
a leading role in helping to conceptualize-· and prepare a key piece of analytical work in on 
urbanization." Compared to the as a whole, simply indicated the 
petitioner's role on a specific but limited project. Similarly, and 
discussed the petitioner's work with and the East Asia region but failed 
to establish the petition~'s role was leading or critical. Again, mentioned that ~e 
appointed the petitioner as a co-team leader ofthe project but failed to demonstrate how 
the petitioner's role impacted or influenced the. as whole, so as to reflect a leading or 
critical role. Furthermore, although the petitioner's· contributions to the project is 
relevant to the original contributions criterion that has already been discussed, the plain language of 
this criterion requires the petitiol}er to establish that his role was leading or critical to a distinguished 
organization or establishment nither than the contributions he has made !o the field. On appeal, the 
petitioner submitted a letter from that discussed the petitioner's recruitment and 
qualifications for his eventual job at the rather than the role the petitioner had after he 
was employed there and whether it was leading or critical. 
The petitioner failed to submit, for example, documentary evidence' .comparing his role to other ' 
employees at the that would indicate that his role was leading or critical. According to 
the organizational chart of the . i~ appears that the petitioner is in a far subordinate role 
than President of the as well as any of the other numerous employees 
listed on the organizational chart.5 Although the petitioner's reference letters praised him for his 
personal and professional traits, they do n:ot reflect that .the petitioner has performed in a leading or 
critical role for the pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
The petitioner also claims eligibility for this criterion based on his role with Cities Alliance. The 
petitioner submitted a letter from who generally claimed that the petitioner 
performed in a critical or leading role. letter focused on the 
rather .than the 
petitioner's role with In fact, did not even indicate the petitioner's 
position rather than indicating that the petitioner worked on a joint and 
initiative and reported directly to him as hjs supervisor. The petitioner failed to submit any 
.s See http://siteresources.worldbank.org/EXT ABOUTUS/ilesources/bank:pdf. Accessed on April 16, 2013, and 
incorporated into the record of proceeding. 
L 
(b)(6)
Page 12 
evidence distinguishing his role from the other employees at so as to demonstrate 
that his role was leading or critical. Indeed, it appears that the petitioner performed in a far lesser 
role than , Manager of The petitioner failed to demonstrate that he 
performed in a leading or critical role for. Cities Alliance consistent with the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[ e]vidence that 
the alien has performed in a leading or critical role for organizations or establ~shments that have a 
dis~guished reputation." The burden is on the petitioner to establish that he meets every element. 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in 
a leading or critical role for organizations or establishments that have ~ distinguished reputation, the 
AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion .. 
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 determined that the petitioner failed to· establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that the alien has 
commanded a high salary or other significantly 'high remuneration for services, in relation to others 
in the field." As evidence of the petitioner's salary, the petitioner submitted a "Verification of 
Employment" from Sector Manager of the who 
indicated that the petitioner's estiffiated annual gross income was $134,740. In addition, the 
petitioner submitted an unidenti,fied document regarding an additional mobility premium of 
$15,532 . 
. The petitioner failed to submit primary evidence, such ID!,paystubs or income tax documentation, of 
his salary at the The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non­
existence or unavailability ofrequired evidence creates a presumption of ineligibility. According to 
the same regulation, only where the petitioner demonstrates that primary evidence does not exist or 
·cannot be obtained may the petitioner rely on secondary evidence and only where secondary 
evidence is demonstrated to be unavailable may the petitioner rely on affidavits. In this case, while 
the petitioner submitted .. an employment verification letter, the petitioner failed to submit any 
. documentary evidence demonstrating that primary evidence and secondary evidence do not exist or 
cannot be obtained. Regardless, · letter is not an affidavit as it was 
not sworn to or affirmed by the declarant before an officer authorized to . administer oaths or 
affirmations who has, having confirmed the declarant's identity, administered the requisite oath or 
affirmation. See Black's Law Dictionary 58· (9th Ed., West 2009). Nor, in lieu of having been 
signed before an officer authorized to administer oaths or affirmations, does it contain the requisite 
statement, permitted by Federal law, that the signer, in signing the statement, certifies the truth of 
the statement, under penalty of perjury. 28 U.S.C. § 1746. Moreover, the regulation at 8 C.F.R. § 
i 03 .2(b )(2)(i) requires more than one affidavit, and the petitioner submitted only one letter; 
(b)(6)
Page 13 
The plain language 'of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requiies the petitioner to establish 
that he "has commanded a high salary." In other words, the petitioner must _demonstrate that he has 
earned a high salary rather than speculating on his potential earnings. In this case, the employment 
verification letter indicates only an estimated annual gross salary without reflecting his actual 
earnings. Therefore, the petitioner failed to establish his actual salary at the 
Again, the plain language of the regulation at 8 C.F.R. § 204.5{h)(3)(ix) requires "[ e ]vidence that 
the alien has commanded a high salary or other significantly high remuneration for services, in 
relation to others in the· field." For the reasons discussed, the petitioner failed to submit sufficient 
documentary evidence establishing the amount of. his salary, so as to establish that he has 
commanded a high salary consistent with the plain language of this regulatory cri~erion. 
Accordingly, the petitioner 'failed to establish that he meets this criterion . 
. B.Summary 
The petition~ has failed to satisfy. the antecedent regulatory requirenient of three types of evidence. 
III. CONCLUSION 
The documentation submitted in . support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
· Even . if the petitioner had submitted the requisite ~vidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
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. 6 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. /d. 
at 1122. -
6 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004 ). In any fu~e 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). " 
(b)(6)
.. 
Page 14 
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 entil·ely 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.