remanded EB-1A Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 18, 2024 In Re: 35116908 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner seeks classification as an individual of extraordinary ability. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference 
classification makes immigrant visas available to noncitizens who can demonstrate extraordinary 
ability through national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish that the Petitioner's claimed extraordinary ability in "law and religion" falls within "the fields 
of sciences, arts, education, business, or athletics" as required by the statute. The Director further 
determined the Petitioner did not satisfy the initial evidentiary requirements for this classification, 
either through his receipt of a major, internationally recognized award, or, in the alternative, by 
meeting at least three of the ten evidentiary criteria set forth in the regulations. The matter is now 
before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To qualify as a noncitizen with extraordinary ability, a petitioner must demonstrate that they: 
• Have "extraordinary ability in the sciences, arts, education, business, or athletics;" 
• Seek to continue work in their field of expertise in the United States; and 
• Through their work, would substantially benefit the country. 
Section 203(b )(l)(A)(i)-(iii) of the Act. The term "extraordinary ability" means expertise 
commensurate with "one of that small percentage who have risen to the very top of the field of 
endeavor." 8 C.F.R. § 204.5(h)(2). 
Evidence of extraordinary ability must initially demonstrate a noncitizen's receipt of either "a major, 
international recognized award" or satisfaction of at least three of ten lesser evidentiary criteria. 
8 C.F.R. § 204.5(h)(3)(i)-(x). If a petitioner meets either standard, U.S. Citizenship and Immigration 
Services (USCIS) must then make a final merits determination as to whether the record, as a whole, 
establishes their sustained national or international acclaim and recognized achievements placing them 
among the small percentage at the very top of their field. See Kazarian v. USCIS, 596 F.3d 1115 (9th 
Cir.2010) ( discussing a two-part review where the documentation is first counted and then, if fulfilling 
the required number of criteria, considered in the context of a final merits determination); see also 
Amin v. Mayorkas, 24 F.4th 383, 391 (5th Cir. 2022) (finding USCIS' two-step analysis of 
extraordinary ability "consistent with the governing statute and regulation"). 
II. ANALYSIS 
The 
Petitioner's qualifications include a bachelor's degree in law from a Brazilian university and post­
graduate studies in international law, civil law, business administration, and theology. The Petitioner 
also received a Master of Law (LLM) in comparative law from and at the 
time of filing, was enrolled in a doctoral program in law and religion. The record demonstrates that 
his professional background includes management-level positions in law and public affairs within The 
I Iin Brazil, the private practice of corporate and business 
law, academic and scholarly activities in the fields oflaw, religion and human rights, and membership 
in a national-level government committee focused on public policies for the promotion of religious 
freedom in Brazil. 
A. Petitioner's Area of Extraordinary Ability 
The Director denied the petition, in part, based on a conclusion that the Petitioner "intends to work as 
a lawyer (records specialist) in the field of law and religion" and "submitted no evidence establishing 
that law and religion are in the fields of sciences, arts, education, business or athletics as required 
under Section 203(b)(l)(A) of [the Act]." We will withdraw the Director's determination that the 
Petitioner's area of extraordinary ability does not fall within the fields designated by the statute. 
On part 6 of the Form 1-140, Immigrant Petition for Alien Workers, where asked to provide 
information about his proposed employment in the United States, the Petitioner indicated he will focus 
on "promotion of religious freedom and diversity in the workplace, training, events, advocacy and 
more." 1 In an accompanying statement, the Petitioner provided an in-depth discussion of his 
background and stated his intent to continue his work "in the area of law and religion" in the United 
States, but did not elaborate on his specific plans. In a request for evidence (RFE), the Director 
requested clarification regarding his intended occupation and area of extraordinary ability. 
In response to the RFE, the Petitioner clarified his intent to work in the United States as a consultant 
and advisor in the field of business, indicating he would provide companies and organizations with 
training and other professional services designed to assist employers with protecting religious freedom 
and diversity in the workplace. The Director, citing Matter of Izummi, 22 I&N Dec. 169 (Comm'r 
1 At part 5 of the petition, the Petitioner stated his occupation as "confidential records specialist." The record reflects his 
employment in this position since 2024, but he did not indicate his proposed employment would be in this occupation. 
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1998), found that the Petitioner had made an impermissible material change to his pettt10n. 
Specifically, the Director determined that he sought to "redefine" his field of endeavor in order to 
claim extraordinary ability in the field of business. The Director did not discuss the evidence 
submitted in response to the RFE, which included a business plan, an expert opinion, and additional 
reference letters detailing the Petitioner's relevant professional experience in management and 
business consultancy. 
Given the Petitioner's initial statement regarding his intended employment at part 6 of the Form I-140, 
his more detailed plan to provide consulting and advisory services related to "religious freedom and 
diversity in the workplace" did not represent a material change to the petition or a departure from his 
previous experience. The information and evidence relating to the Petitioner's area of expertise and 
intended employment in the United States is sufficient to demonstrate that his occupation falls within 
the purview of the field "business" under section 203(b)(l)(A)(i) of the Act. We therefore withdraw 
the Director's determination that he is statutorily ineligible for this classification based on his claimed 
area of extraordinary ability. 
B. Evidentiary Criteria 
The Petitioner did not claim or document his receipt of a major internationally recognized award. See 
8 C.F .R. § 204.5(h)(3). Thus, to establish extraordinary ability, he must meet at least three of the ten 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Director concluded that the Petitioner met one criterion, relating to his performance in leading or 
critical roles for organizations or establishments that have a distinguished reputation, under 8 C.F.R. 
§ 204.5(h)(3)(viii). The record supports the Director's determination. On appeal, the Petitioner asserts 
that he submitted sufficient evidence to meet up to six additional criteria based on his receipt of 
nationally recognized awards, memberships in associations, published materials about him, 
participation as a judge of the work of others, authorship of scholarly articles, and high salary. See 
8 C.F.R. § 204.5(h)(3)(i)-(iv), (vi) and (ix). As discussed below, we conclude the Petitioner has 
satisfied the requirements of at least two additional criteria. 
1. Participation as a Judge 
This criterion requires "evidence of the [noncitizen's] participation, either individually or on a panel, 
as a judge of the work of others in the same or an allied field of specialization for which classification 
is sought." 8 C.F.R. § 204.5(h)(3)(iv). Examples ofjudging the work of others may include activities 
such as peer reviewing papers submitted for publication in a scholarly journal or for presentation at a 
scholarly conference. See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policy­
manual. 
________ 
The Petitioner claimed eli eer review activities he performed as 
a fellow of based at the I 
The Petitioner provided a letter from lead researcher confirming 
his affiliation with the Center and his participation in the peer review process for scholarly articles 
published by I I He also provided copies of email communications from I !organizing 
committee requesting that he review several articles, along with confirmation that he completed his 
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review of at least two of those articles. The Director, noting that it appeared the Petitioner had only 
"proofread" the articles, concluded that his review activities did not satisfy this criterion. 
The Director's conclusion that the Petitioner did not engage in qualifying peer review activities is not 
supported by the record and is therefore withdrawn. While the evidence indicates that the Petitioner 
corrected typographical and grammatical errors as part of his review, the record demonstrates that 
gave the Petitioner license to edit and revise the content of articles he reviewed based on his 
subject matter expertise in his field; he was not engaged by I I editorial staff to act as a 
proofreader. The Petitioner's documented peer review activities are consistent with the examples 
provided in the USCIS Policy Manual and demonstrate, by a preponderance of the evidence, that he 
meets the criterion at 8 C.F.R. § 204.5(h)(3)(iv). 
2. Authorship of Scholarly Articles 
This criterion requires submission of"[ e ]vidence of the [ noncitizen' s] authorship of scholarly articles 
in the field, in professional or major trade publications or other major media." See 8 C.F.R. 
§ 204.5(h)(3)(vi). In the academic arena, a scholarly article reports on original research, 
experimentation or philosophical discourse, is written by a researcher or expert in the field who is 
often affiliated with a research institution, and will generally have footnotes, endnotes or a 
bibliography. See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). For other fields a scholarly 
article should be written for learned persons in the field. Id. In evaluating whether a submitted 
publication is a professional publication, we consider the intended audience of the publication. 
On appeal, the Petitioner maintains that his co-authored article titled 
which was published by Consulex Legal Review in 2014, satisfies this criterion. 
We agree. The record supports the Petitioner's claim that the article, which contains references and 
endnotes, was written for learned persons in the legal profession and published in a professional 
publication. Therefore, we withdraw the Director's determination that the Petitioner did not satisfy 
this criterion. 
B. Basis for Remand 
As discussed above, the Petitioner has overcome the Director's determination that he is statutorily 
ineligible for this classification based on his claimed field of extraordinary ability. Further, the 
Petitioner has submitted the required initial evidence by satisfying at least three of the ten criteria at 8 
C.F.R. § 204.5(h)(3), which is sufficient for the case to proceed to a final merits determination. We 
therefore need not discuss the other claimed criteria and reserve discussion of them. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (per curium) (holding that agencies are not required to make 
"purely advisory findings" on issues that are unnecessary to the ultimate decision). 
The next step is to determine whether the Petitioner has demonstrated, by a preponderance of the 
evidence, his sustained national or international acclaim; that he is one of the small percentage at the 
very top of the field of endeavor; and that his achievements have been recognized in the field through 
extensive documentation. A final merits determination involves analyzing an individual's 
accomplishments and weighing the totality of the evidence to determine if their achievements are 
sufficient to demonstrate extraordinary ability in the field of endeavor. See section 203(b )(l)(A)(i) of 
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the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20, and see generally 6 
USCIS Policy Manual, supra, at F.2(8)(2). 
The Director did not make a final merits determination. Rather than make such a determination in the 
first instance, we will remand the matter. The Director should consider any potentially relevant 
evidence of record, even it does not fit one of the regulatory criteria or is not comparable evidence. 
See generally 6 USCIS Policy Manual, supra, at F.2(B)(2). The Petitioner bears the burden of 
explaining the evidence's significance, and how it demonstrates his possession of sustained national 
or international acclaim and recognition in his field. Id. 
III. CONCLUSION 
The Petitioner demonstrated that he seeks classification as an individual of extraordinary ability in 
business under section 203(b)(l)(A) of the Act and that he has satisfied the initial evidence 
requirements for this classification. Accordingly, we will remand the matter to the Director for a final 
merits determination. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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