sustained EB-1A Case: Polymer Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Selvices 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
SRC 08 097 53305 
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. fj 11 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
W@CI~*- 
7 Perry Rhew 
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. 5 1153(b)(l)(A), as an alien 
of extraordinary ability. While the director accepted the significance of the petitioner's contributions 
and scholarly articles, he ultimately determined that the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, our 
merits evaluation of the evidence submitted, which addresses the significance of the evidence 
submitted under the necessary three criteria, leads us to conclude that the petitioner has 
demonstrated the necessary national or international acclaim. 
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 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 
1991). 
The regulation at 8 C.F.R. fj 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines the following 
Page 3 
ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim 
necessary to qualify as an alien of extraordinary ability. 
(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 
(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, 2010 WL 725317 (9th Cir. March 4, 2010). 
Although the court upheld the AA07s decision to deny the petition, the court took issue with the AA07s 
procedure for evaluating evidence submitted to meet a given evidentiary criterion.' With respect to the 
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. 5 204.5(h)(3)(iv) and 8 C.F.R. 
5 204.5(h)(3)(vi). 
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. 
The court stated that the AAO's approach 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 *6 (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 1153(b)(l)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying 
under three criteria, 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 Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). 
11. Analysis 
A. Evidentiary Criteria 
The director in this matter concluded that the petitioner has made contributions of major significance 
and has authored scholarly articles pursuant to the criteria set forth at 8 C.F.R. $5 204.5(h)(3)(v) and 
(vi). The record also contains evidence that the petitioner served as a peer reviewer and, more 
significantly, on the editorial board of Express Polymer Letters. The petitioner has submitted 
sufficient evidence to establish that the petitioner served as the judge of the work of others pursuant to 
the criterion set forth at 8 C.F.R. fj 204.5(h)(3)(iv). 
In light of the above, the petitioner has submitted evidence that qualifies under three of the evidentiary 
criteria. 
B. Final Merits Determination 
Thus, in accordance with the Kazarian 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. fj 204.5(h)(3). See Kazarian, 2010 WL 725317 at "3. 
The petitioner received his Ph.D. in 1999 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). His previous 
employers include the renowned Max-Planck Institute for Polymer Research in Germany. He currently 
works for the Sandia National Laboratory at the University of New Mexico. His publication record 
not only meets the criterion at 8 C.F.R. 5 204.5(h)(3)(vi), his articles are consistently well cited, with 
one article having been cited over 100 times as of the date of filing. See Kazarian, 2010 WL 7253 17 
at *5 (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 contributions of 
major significance, discussed in detail in the reference letters, are consistent with national or 
international acclaim. 
The petitioner submitted reference letters from experts in the field, detailing the petitioner's specific 
contributions and explaining how those contributions have influenced the field. For example, = 
a senior specialist in the Central Research and Development Department of Dupont, 
asserts that the petitioner's discoveries in conductive polymers, polymer nanocomposites and 
electrospinning of polymer materials provided a possible route to produce polyaniline on a large 
scale. More significantly, then states: "Based on [the petitioner's results], a company 
invested in his home institute and built a line to produce tons of polyaniline annually." - 
confirms that this company has been providing polyaniline to Dupont. 
Finally, while we withdraw the direc,tor's concern that the petitioner did not submit evidence of 
judging the work of others, we must now review that judging experience in the context of our final 
merits determination. Analysis of this evidence is relevant to a final merits determination. Id. 
We cannot ignore that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Thus, peer review is routine in the field and, by itself, is not indicative of or 
consistent with sustained national or international acclaim. Without evidence that sets the petitioner 
apart from others in his field, such as evidence that he has reviewed manuscripts for a journal that 
credits a small, elite group of referees, received independent requests from a substantial number of 
journals, or served in an editorial position for a distinguished journal, we cannot conclude that the 
evidence is consistent with either 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," or "sustained national or 
international acclaim." As stated above, not only has the petitioner participated in the widespread peer- 
review process, he has also served on the editorial board of an international journal based in Budapest, 
contributing to the journal's editorial corner. Thus, we are satisfied that this experience as a judge is 
consistent with the relevant regulatory and statutory definitions of extraordinary ability. 
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 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. 
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.