remanded EB-1A Case: Business

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin~on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
JUN 2 5 2014 
Office: TEXAS SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
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)(I)(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 . 
Thank you, 
tt;::(2fr:--
Ron Rosenberg tf--
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. We will withdraw 
the director's decision and remand it for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability" in business, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The 
director's decision concluded that the petitioner had met three of the ten criteria set forth at 8 C.F.R. 
§ 204.5(h)(3), but, as stated by the petitioner on appeal, failed to "proceed[] to a final merits 
determination." 
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 
(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 10151 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 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). 
(b)(6)
NON-PRECEDENT DECISION 
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 USCIS 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." Jd. 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. 
H. Analysis 
The director concluded that the petitioner "has not met at least two of the six criteria," and that 
"US CIS will not conduct a final merits determination to determine whether the [petitioner] is 
recognized internationally as outstanding in the academic field." The classification sought, however, 
requires that the petitioner meet three of ten criteria and demonstrate sustained national acclaim. 
8 C.F.R. § 204.5(h)(2), (3). Moreover, the director concluded that the petitioner meets the criteria at 
8 C.F.R. § 204.5(h)(3)((iii), (iv), and (vi). As the director found that the submitted evidence satisfied 
the regulatory requirement of three types of evidence, he should have conducted a final merits 
determination to determine whether the petitioner (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," 
8 C.F.R. § 204.5(h)(2); 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)(3). See 
Kazarian, 596 F.3d at 1119-20. As the director concluded that the petitioner meets three criteria but did 
not perform a final merits determination, the petitioner was unable to file a meaningful appeal. 
In his decision, the director should consider the following regarding the criteria at 8 C.F .R. 
§ 204.5(h)(iii) and (vi). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished material 
about the alien in professional or major trade publications or other major media, relating to the 
alien's work in the field for which classification is sought." In general, in order for published 
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 
rage 4 
material to meet this criterion, it must be about the petitioner and, as stated in the regulations, be 
printed in professional or major trade publications or other major media. To qualify as major media, 
the publication should have significant national or international distribution. Some newspapers, such 
as the New York Times, nominally serve a particular locality but would quality as major media 
because of significant national distribution, unlike small local community papers. 2 The petitioner 
must also submit independent, objective evidence establishing that websites constitute major media. 
In addition, press releases are not "published material" consistent with the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii) as they are not independent, journalistic coverage of the 
petitioner relating to her work. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[e]vidence ofthe alien's 
authorship of scholarly articles." The use of the plural is consistent with the statutory requirement 
for extensive evidence. Section 203(b)(l)(A)(i) ofthe Act. 
In light of the above, the matter is remanded to the director for a full adjudication of the petition on the 
merits. If, upon review, the director continues to find that the petitioner meets the criteria the 
director identified as met in the November 13, 2013 decision, the director, if issuing another adverse 
decision, must perform a final merits determination. Any adverse decision must address all of the 
evidence as it relates to all of the regulatory criteria claimed in order to afford the petitioner the 
opportunity to present a meaningful appeal. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision which, if adverse to 
the petitioner, is to be certified to the AAO for review. 
2 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county.