sustained EB-1A Case: Health Science

(b)(6)
DATE: FEB 2 2 2013 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
J 
· Beneficiary: 
U.S. Department of Homeland Security. 
' U.S. Citizenship and Immigration Services 
Administraiive Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 . 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien ·of Extraordinary Ability Pursuant to. Section 
203(b)(l)(A) of the Immigration and Nationality Ad, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in yo'ur 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, 
-'4:- 25~ .. ·' ' c;y...o- ~- . 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)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. The appeal will be 
sustained. 
The petitioner seeks classification as an "alien of e'Straordinary ability" in the sciences, specifically as a 
researcher and statistician in the field of health science, pursuant to section 203(b )(1 )(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). Tpe director determined the 
petitioner had not established the sustained national or international acclaim necessary to qualify for 
classification as an alien of extraordinary ability. 
· . 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. § 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 of 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. § 204.5(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 submits a brief and additional evidence. Counsel asserts that the director failed to 
consider all the evidence of record in support of the visa petition and that the petitioner established 
eligibility by submitting sufficient qualifying evidence under five of the ten regulatory categories and 
demonstrated that he is an alien with extraordinary ability. Considering the evidence in the aggregate, 
including the evidence submitted on appeal, ·the petitioner has established eligibility for the benefit 
sought by a preponderance of the evidence. 
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 
fi,eld through extensive d.ocumentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(b)(6)
Page 3 
(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 Seryice 
(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
51 
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.; 
. I . 
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). 
·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 
evide.nce 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." /d. 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 evidenc.e 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)). 
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 this matter, the AAO will review the 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 requirement of three types of evidence. /d. 
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)
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria 
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. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director determined that the petitioner met this criterion. Upon review .of the evidence of the record 
and the director's decision, the AAO affirms the director's conclusion that the petitioner satisfied this 
criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The director determined that the petitioner failed to satisfy the plain language requirements of this 
critierion. After a thorough review 6f the evidence of record, including the testimonial letters submitted 
along with the response to the director's Request for Evidence (RFE), the AAO determines that the 
petitioner submitted sufficient documentation establishing his original contributions of major 
·significance in t~e field of health science. The documentation of record indicate sev.eral areas where his 
research and findings made an impact on. national or international health policy. For instance, his 
research has consistently garnered frequent citation. More specifically, his original work as presented in 
his article, ·ecei ved 
attention from the World Health Organization/Pan American Health Organization (WHO/PAHO) and 
the European Public Health Association (EUPHA); these international organizations either 
recommended or distributed the article to its member organizations. · Another ex<:tmple of the 
petitioner's original contributions is his report finding that the death rate for women in British Columbia . . . 
from heart disease is decreasing at a slower rate than for men. The Canadian Heart Health Strategy and 
Action Plan used the petitioner's findi.ngs as a starting point for solutions tci improve women's heart 
health and a popoular Canadian magazine on women's health interviewed the petitioner and included 
his fmdings as part of a feature article on women's heart disease. In addition, the record indicates that 
the Canadian government has used the petitioner's work on life expectancy as one of the major official 
references for research relating to that area.· IIi light of the above and evidence of other original work 
not discussed here, the petitioner has satisfied the requirements of this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The director also determined that the petitioner satisfiecl the requirements of this criterion. The AAO, 
upon review of the submitted evidence and. the director's decision concludes thatthe petitioner satisfied 
this criterion. 
(b)(6)
Page 5 
B. Final Merits Determination 
The petitioner has submitted relevant, probative evidence to satisfy the regulatory requirement of three 
types of evidence. Because the petitioner submitted the requisite evidence 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. 
The petitioner is a researcher and statistician whose work has impacted health oolicy and initiatives 
nationally and internationally. Specifically, the. and the recognized the 
importance of the petitioner's work arid some of his original findings have identified new areas of . . 
health concerns and follow-up research. The petitioner's findings relating to women's health and 
disparities in health outcomes resulted in interviews in a popular women's health magazine and a radio 
program. The petitioner also has been invited to be a judge of the work of others, including the 
preparation of a 1,000 to _1,500-word book review over a period of three mo.nths, ·in light of his 
reputation and his publications. Not only has the petitioner authored scholarly articles, those articles are 
consistently frequently cited. In his ~urrent position, his employer, the 
-l a national organization of health care professionals, hired him after a national and 
international search as a result of the petitioner's well-established international acclaim in the area of 
health science research. According to Dt. , Senior Vice President of the in light 
of the organization's rising profile within the U.S. health care system, specifically sought an individual 
with the extensive experience and pre-existing working relationships to create and implement the 
national strategic research direction on behalf of the organization. While USCIS will not infer national 
or international acclaim from affiliation with national organizations, Dr. claim is consistent 
with the remaining evidence. 
While not all of the petitioner's evidence carries the weight imputed to it by counsel, consistent with 
Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm 'r. 1994), the AAO finds the evidence of record 
sufficient to establish that the petitioner has demonstrated his eligibility for the classification sought. 
Specifically, upon careful review of the record, it is concluded that the petitioner has demonstrated by a 
preponderance of the evidenc~ that he is within the small percentage of individuals who have risen to 
the very top of the field of health science as a statistician and researcher. The evidence submitted 
indicates that the petition~r has sustained national or international acclaim and that his achievements 
have been recognized in the field of health science. As a result, the petitioner qualifies as an alien of 
extraordinary ability. · · . 
(b)(6)
Page 6 
III. CONCLUSION 
. The documentation submitted in support of a claim of extraordinary ability must 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. 
I 
The petitioner has established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may be approved. 
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.