sustained EB-1A Case: Atomic Physics

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
20 ~assact,osctt;kve.. N.W.. MS 20!Jll 
. . 
 Wasliinaan. DC 20529-2090 
U.S. Citizenship 
and Immigration 
, .. 
 Services 
FILE: Office: TEXAS SERVICE CENTER Date: APR 0 1 20ff 
SRC 09 198 52069 
IN RE: 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find 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 advised that any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Perry Rhew 
'-Chlrf, Adrn~n~strat~ve Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Ofice (AAO) on appeal. The appeal 
will be sustained. 
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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the sciences. The director determined that the petitioner had not 
established the requisite extraordinary ability through extensive documentation and 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 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. 5 204.5(h)(3). The implementing regulation at 8 C.F.R. 5 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically 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. 
5 204.5(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. 
On appeal, counsel argues that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. 5 204.5(h)(3). For the reasons discussed below, we find that the petitioner 
meets the statutory and regulatory iequirements for classification as an alien of extraordinary 
ability. 
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. 
Page 3 
U.S. Citizenship and Immigration Services (USCIS) and legacy Jmmigration 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" 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. and 8 C.F.R. 5 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published 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. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) 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 specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 11 15 (9" 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.' With respect to the criteria 
at 8 C.F.R. 5 204.5(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." 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. 5 204,5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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. 5 204.5(h)(2), and "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. 5 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. 5 11 53(b)(l)(A)(i). 
Id. at 1119-1120. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 (9'h Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis) 
' 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. 5 204,5(h)(3)(iv) and 8 C.F.R. 5 204.5(h)(3)(vi). 
Page 5 
11. Analysis 
A. Evidentiary Criteria 
This petition, filed on June 19, 2009, seeks to classify the petitioner as an alien with 
extraordinary ability as an atomic physics researcher. We find that the petitioner's evidence 
meets at least three of the following categories of evidence under 8 C.F.R. 3 204.5(h)(3). 
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 petitioner submitted documentary evidence indicating that he peer reviewed more than fifty 
petitioner has established that he meets this criterion 
Evidence of the alien's original scientijic, scholarly, artistic, athletic, or business- 
related contributions of major signzficance in the field. 
The petitioner submitted letters of support from experts in the field discussing the significance of 
his original research contributions. The experts' statements do not merely reiterate the 
regulatory language of this criterion, they clearly describe how the petitioner's scientific 
contributions are both original and of major significance in the field. Several of the experts have 
explained how they have applied the petitioner's findings in their own work. Moreover, in 
support of the experts' statements, the petitioner submitted citation evidence showing more than 
350 cites to his published findings. These citations are solid evidence that other researchers have 
been influenced by his work and are familiar with it. This evidence corroborates the scientific 
experts' statements that the petitioner has made original contributions of major significance in 
his field. The record reflects that the petitioner's contributions are important not only to the 
institutions where he has worked, but throughout the greater field as well. Leading scientists 
from around the world have acknowledged the value of the petitioner's work and its major 
significance in the field of atomic physics. Accordingly, the petitioner has established that he 
meets this criterion. 
Evidence ojthe alien's authorship of scholarly articles in thefield, in professionul or 
major trade publications or other major media. 
The oetitioner submitted evidence of his authorship of numerous articles in scientific ioumals 
- 
Page 6 
In this case, the petitioner meets at least three of the ten categories of evidence that must be 
satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. 5 204.5(h)(3). 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we will next conduct 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," 8 C.F.R. 5 204.5(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." Section 203(b)(l)(A) of the Act; 8 C.F.R. 5 204.5(h)(3). See also Kazarian, 
596 F.3d at 1119-1120. 
In this case, the petitioner has submitted extensive documentation of his achievements in the 
field of atomic physics and has demonstrated a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence 
is sufficient to demonstrate the petitioner's sustained national or international acclaim as a 
researcher and that his achievements have been recognized in the field of expertise. The 
petitioner has peer reviewed more than fifty manuscripts for numerous reputable journals. 
Further, the petitioner submitted reference letters from experts in the field, detailing his specific 
contributions and explaining how those contributions have influenced the field. Moreover, the 
petitioner's publication record of more than thirty journal articles, two book chapters, and 
nineteen conference abstracts at the time of filing not only meets the criterion at 8 C.F.R. 
5 204,5(h)(3)(vi), his articles are consistently well cited, with well over three hundred 
independent cites to his body of work as of the petition's filing date. See Kazarian, 596 F.3d at 
1121 (citations may be relevant to the final merits determination of whether an alien is at the 
very top of his field). This citation record is also consistent with a determination that his original 
contributions of major significance, discussed in detail in the reference letters, are indicative 
national or international acclaim. Thus, the petitioner's achievements are commensurate with 
sustained national or international acclaim at the very top of his field. 
111. Conclusion 
In review, while not all of the petitioner's evidence canies the weight imputed to it by counsel, 
the petitioner has submitted evidence qualifying under at least three. of the ten categories of 
evidence and established 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 "sustained national or 
international acclaim." His achievements have been recognized in his field of expertise. The 
petitioner has established that he seeks to continue working in the same field in the United 
States. The petitioner has established that his entry into the United States will substantially 
benefit prospectively the United States. Therefore, the petitioner has established eligibility for 
the benefit sought under section 203 of the Act. 
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The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.