sustained EB-1A Case: Research Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
I'VBUCCOpy 
IN RE: Petitioner: 
Beneficiary: 
U.S. I)cpartm('nt of Homeland SCl'urit) 
U.S, Cili/.cnship <lnu Immigration SCI\'il:c:-' 
Office of Adrninislrati\(; Appeals (AAO) 
20 Massachusetts Ave .. N.W .. NtS 20l)O 
V,,'ashinglon. DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
Off,ce: TEXAS SERVICE CENTER Date: MAR 2 1 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)( I )(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. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Thank you . 
. ' tlikrZei) dc 
I,' Perry Rhew 
\v Chief: Administrative Appeals Office 
• , 
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 extraordinary ability" in the sciences, pursuant to 
section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I I 53(b)(l)(A). 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. Specifically, the director 
concluded that the petitioner did not meet any of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
On appeal, counsel argues that the beneiiciary meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, we are satisfied that the 
petitioner meets the statutory and regulatory requirements for classification as an alien of extraordinary 
ability. 
L Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 723 101 sl 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. and 8 C.F.R. § 204.5(h)(2). 
Page 3 
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 criteria. 
(i) Documentation of the alien's receipt oflesser 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. USC/51, 596 F.3d 1115 (9th Cir. March 4, 2010). 
Although the court upheld the AAO's decision to deny the petition, the court took issue with the 
Page 4 
AAO's procedure for evaluating evidence submitted to meet a given evidentiary criterion.l 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 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)." [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 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. § 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)(1 )(A)(i). 
Id. at 1119 - 1120. 
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. An 
application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterrrises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9' Cir. 2003); see also Soltane v. DO), 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO conducts appellate review on a de novo basis). 
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). 
Page 5 
II. Analysis and Conclusion 
This petition, filed on June 23, 2009, seeks to classifY the petitioner as an alien with extraordinary 
ability as a research scientist. 
In his decision, the director concluded that the petitioner did not meet the participation as a judge of the 
work of others criterion because "peer review is an integral part of the scientific publication process."' 
The director stated that the petitioner did not establish that he had been "invited on a regular basis to 
judge the work of others." Such a determination goes beyond the plain language of the regulation. 
The record of proceeding contains evidence that the petitioner has reviewed 24 articles for journals 
in his field. There is also evidence in the record of proceeding that the has been asked to 
review additional articles. Further, the record contains letter from 
~ ~~ 
that the petitioner was asked to review articles due to his expertise in the field, his publication 
record, and the frequent citation of his work. Therefore, we withdraw the findings of the director for 
this criterion. 
Similarly, as it relates to the authorship of scholarly articles criterion, the director concluded that the 
petitioner did not meet this criterion because "the evidence has not established [that the citations to the 
petitioner's work] are beyond the expectation of a researcher in the petitioner's field." Such a 
determination goes beyond the plain language of the regulation. The record of proceeding contains 
evidence that the petitioner has authored 9 articles which have been published in professional 
journals. Such evidence satisfies the plain language of this criterion. We, therefore, also withdraw 
the findings of the director for this criterion. 
Finally, regarding the original contributions of major significance criterion, the petitioner has submitted 
detailed letters from others in his field describing his original scientific contributions to 
superconductivity and the field of ultra-cold physics and discussing how the contributions are of major 
significance in the field. The letters provide specific examples of those contributions and how they 
have already significantly contributed to the field. 
Not all of the petitioner's evidence carries the weight imputed to it by counsel. Nevertheless, 
consistent with Maller ojPrice, 20 I&N Dec. 953 (Act. Assoc. Comm'r. 1994), we find the evidence of 
record, including evidence not discussed above, 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 evidence that he 
is within the small percentage of individuals who have risen to the very top of his field. The evidence 
submitted establishes that the petitioner has sustained national or international acclaim and that his 
achievements have been recognized in his field. As a result. the petitioner qualifies as an alien of 
extraordinary ability. 
Page 6 
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.