sustained EB-1A Case: Medicine

identifying data deleted 'o 
prevent clearly unwm.~ ~d 
invasion of personal privacy 
U.S. I)epsrtment olHomeland Security 
IJ. S. Citi,.msbip and Immigration Srrviccs 
OJfice u/,ld,rrini.so.~,trrc .lppeol.~ MS 2090 
Washington. L)C 20529-2090 - 
U.S. Citizenship 
and Immigration 
FILE: - Office: TEXAS SERVICE CENTER Date: SEP 0 3 2010 
SRC 07 272 52573 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordirlary Ability Pursuant to Section 
203(b)(l)(A) ofthe Immigration and Nationality Act, 8 U.S.C. $ 1 I53(b)(I)(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, 
p!$edL 
Chief, Administrative Appeals Office 
Page 2 
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. $ 1153(b)(l)(A), as an alien 
of extraordinary ability. The 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. 5 204,5(h)(3). The implementing regulation at 8 C.F.R. 9: 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. 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 submits a brief and additional evidence. Not all of counsel's assertions are 
persuasive. Moreover, the reference letters in the record provide mostly general accolades and rely 
heavily on the claim that there exists a shortage in the petitioner's medical specialty, an issue under the 
jurisdiction of the Department of Labor. New York State Dep't of Trunsp., 22 I&N Dec. 215, 221 
(Comm'r. 1998). Nevertheless, we are persuaded that the record of proceeding, including the 
documentation submitted on appeal, establishes the petitioner's eligibility for the classification sought. 
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 
Page 3 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and lmmigration Services (USCIS) and legacy Immigration and Naturalization Service 
(NS) 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; 
8 C.F.R. 5 204.5(h)(2). 
'The regulation at 8 C.F.R. 5 204.5(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, intemational recognized award) or 
through the submission of qualifying evidence under 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; 
Page 4 
(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 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 201 0, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazurian v. USCIS'. 596 F.3d 11 15 (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. 
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)). The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, USClS 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. $ 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. $ 1153(b)(l)(A)(i). 
Id. at 1119 
Thus. Kuzuriun 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 Kuzuriun. 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 Kuzurian court. See 8 C.F.R. 103,3(a)(l)(iv); Soltune v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004) Spencer Enterprises, Inc. v. United Stares, 229 F. Supp. 2d 1025. 
1043 (E.D. Cal. 2001), gfd, 345 F.3d 683 (9'h Cir. 2003) (recognizing the AAO's de novo 
authority). 
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. 5 204.5(h)(3)(iv) and 8 C.F.R. 
6 204.5(h)(3)(vi). 
Page 5 
11. Analysis 
A. Evideniiary Criteria 
The petitioner has submitted qualifying evidence that meets the plain language requirements of the 
regulatory categories of evidence discussed below. 
Evidence qf the alien 1s participafiotz, either individually or on a panel, a.s a,judge ofthe work of 
others in /he same or an allied,field ofspecifica~ion,fi~r which cla.ssificurion is sought. 
The record reflects that the petitioner has refereed articles for the New England .Journal qf'Medicine, 
Tran.splun~afion and Alirnenlary Pharmucolo~ and Therapeutics. This evidence qualifies under the 
plain language requirements in the regulation at 8 C.F.R. 5 204.5(h)(3)(iv). 
Evidence qflhe alien's authorship cfscholarly articles in /hc,field, in prqfessional or mujor trade 
publications or orher mujor media. 
The petitioner submitted evidence that he has authored several published articles. Thus, he has 
submitted qualifying evidence that meets the plain language requirements set forth in the regulation at 8 
C.F.R. $204.5(h)(3)(vi). 
Evidence thul /he alien has perfi~rmed in a leading or crilical role fbr orgunizations or 
e.stah1i.shmmf.s that have a dislinguished reputation. 
Medical Center, explains that the petitioner has served as the Medical Director of Liver Transplantation 
at the center since 2003. The record contains a letter from the United Network for Organ Sharing 
(UNOS) advising that UNOS' Membership and Professional 
Standards Committee approved the center's proposal to make the petitioner the primary transplant 
ohvsician for their liver transwlant vroeram: thus. the center remained in comoliance with UNOS . , . - 
Thus, the petitioner's appointment to his position at 
had to be approved by this national network in order for t e center to remaln in 
compliance. 
On appeal, the petitioner submits a letter from of UNOS, asserting 
that there are only 131 primary liver transplant physicians in the United States currently listed with 
UNOS. As such, we are persuaded that the petitioner serves a critical role for 
Medical Center. The petitioner submitted evidence that the center is ranked 18th in the nation for 
digestive disorders by US News and World Report. On appeal,- 
Department of Surgery at the University of California, San Francisco. asserts that- 
Medical Center "provides the highest level of clinical care to patients referred for liver transplantation" 
as evidenced by publicly available data for one and three year survival statistics on the Scientific 
Page 6 
Registry of Transplant Recipients' website, ~.~~stransl~lalt.org. 'Thus, we are satisfied that the 
center. which is affiliated with the Harvard Medical School. enjoys a distinguished reputation. 
Less significant but still notable, the petitioner has also served as a member of the Medical Advisory 
~teerinh Committee for the New ~ngland Division of the American Liver Foundation since 2002. = 
states that the etitioner has helped 
direct the division's staff to create an effective advocacy program. donciudes that the .~ - 
petitioner has "provided immeasurable benefit to this organization and to the patients who contact us." 
The petitioner submitted official materials for the division establishing that the petitioner is one of 12 
members of the division's steering committee. We are satisfied that the petitioner's critical role for the 
division by serving on this committee constitutes relevant evidence under 8 C.F.R. Ej 204,5(h)(3)(viii). 
In light of the above, the petitioner has submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. S; 204.5(h)(3)(viii). 
Summary 
In light of the above, the petitioner has submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to quali~ as an alien of extraordinary ability. Next, we will review the 
evidence in the aggregate as part of our final merits determination. 
B. Final Merits Determination 
In accordance with the Kuzuriun opinion, we must 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." 8 C.F.R. 5 204.5(h)(3). See Kuzuriun, 596 F.3d at 1 1 15. 
that the petitioner is one of 20 leading experts worldwide who reviews papers dealing with cirrhosis, 
liver failure and liver transplant. Thus, the petitioner has established that thejournal relies on a small, 
scientific papers submitted to our journal." placing him in the top five percent of reviewing ability for 
the journal. In addition, the petitioner's publication record is supported by evidence that. as of the date 
of filing, he had been consistently well cited, with a large number of total citations. Finally, regarding 
the petitioner's critical roles, while the petitioner did not submit evidence that the New England 
Division of the American Liver Foundation en.joys a nationally distinguished reputation. the petitioner 
did establish that does enjoy a distinguished reputation at the 
national level. In light of the above, the evidence submitted under 8 C.F.R. $ 204.5(h)(3)(iv), (vi) and 
Page 7 
(viii) is consistent with national or international acclaim, the statutory standard in this matter. Section 
203(b)(l)(A) of the Act. 
111. 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 three of the evidentiary criteria and established a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thc[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. 
The burden of proof in visa petition proceedings re~nains 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.