sustained EB-1A Case: Cancer Research

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
AdminiSlrative Appeals Office (AAO) 
20 Mas<;achu.<.ctts Ave .. KW .. MS 2090 
Washinuton. DC 20529-2090 
DATE: JUL 30 2012 Office: TEXAS SERVICE CENTER FILE: 
INRE: 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. § IIS3(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. Please note that all documents 
have been returned to the office that originally decided your case. Please also note that any further 
inquiry must be made to that office. 
Thank you, 
Perry Rhew 
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, and is now before the Administrative Appeals Office (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. § l1S3(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)(1)(A)(i) of the 
Act and 8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(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. 
§ 204.S(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 asserts that the petitioner meets at least three of the categories of evidence at 
8 C.F.R. §§ 204.S(h)(3). For the reasons discussed below, the AAO finds that the petitioner meets 
the statutory and regulatory requirements 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. 
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 10 I 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. Id and 8 C.F.R. § 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 ajudge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence ofthe 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 III the field, III 
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 
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(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. USc/S, 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.' 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." 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)." !d. at 
1122 (citing to 8 C.F.R. § 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 ofthe[ir] field of endeavor," 
8 C.F.R. § 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. § 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. § 1153(b)(I )(A)(i). 
Id. at 1119-20. 
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. 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on August 16, 2010, seeks to classify the petitioner as an alien with 
extraordinary ability as a research scientist. Upon review of the petitioner's appeal and the 
documentation of record, the AAO finds that the petitioner's evidence meets the categories of 
evidence at 8 C.F.R. §§ 204.5(h)(3)(iv), (v), and (vi). Accordingly, the petitioner meets at least 
I 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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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. § 204.5(h)(3). 
B. Final Merits Determination 
The AAO 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 1 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." Section 
203(b )(1 )(A) ofthe Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. 
In the present matter, the petitioner has submitted extensive documentation of her achievements 
as a cancer researcher 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 acclaim and that her achievements 
have been recognized in the field of expertise. Moreover, the submitted documentation shows 
that the petitioner is among that small percentage who have risen to the very top of the field of 
endeavor. 
III. Conclusion 
In review, while not all of the petitioner's evidence carries 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 1 field of endeavor" and "sustained national or 
international acclaim." Her achievements have been recognized in her field of expertise. The 
petitioner has established that she seeks to continue working in the same field in the United 
States. The petitioner has established that her 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 ofthe Act. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.