sustained EB-1A Case: Sciences

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 20 2011 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeiand Security 
U.S. Citizenship and Immigration Services 
Administrative 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 )(1 )(A) of the Immigration and Nationality Act, 8 U.S.c. § IIS3(b)(1 )(A) 
ON BEHALF OF PETlTIONER: 
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. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 "alien of extraordinary ability" in the sciences, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(1)(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. 
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. § 204.5(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. In part, counsel asserts that the director 
erred by not issuing a request for additional evidence. The regulation at 8 C.F.R. § 103 .2(b )(8)(ii) gives 
the director the discretion to deny a petition without first issuing a request for additional evidence. This 
decision, however, will consider the new evidence submitted on appeal. In addition, counsel relies on a 
July 30, 1992 correspondence memorandum from Lawrence Assistant 
to the then Director of the Nebraska Service Center, discussing 
personal inclinations. Although the correspondence may as an aid in int1erpreting 
such letters are not binding on any USCIS officer as they merely indicate the writer's analysis of an 
issue. See Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, 
Significance of Letters Drafted by the Office of Adjudications (Dec. 7, 2000).1 Ultimately, the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3) does not support several of counsel's assertions. 
Despite the AAO's reservations regarding some of counsel's assertions, however, the AAO is 
satisfied that the evidence of record in the aggregate, including that submitted on appeal, adequately 
establishes the petitioner's eligibility for the classification. 
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): 
1 Although this memorandum principally addresses letters from the Office of Adjudications to the public, the 
memorandum specifies that letters written by anyUSCIS employee do not constitute official USCIS policy. 
Page 3 
(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" 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. § 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 following ten categories of 
evidence. 
(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; 
Page 4 
(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 20 I 0, 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 evidence submitted to meet a given evidentiary criterion.2 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." Jd. 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)." Jd. 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 1 field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
2 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 
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)(l)(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. 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 8 C.F.R. 103.3(a)(l)(iv); SO/lane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II, Analysis 
A. Evidentiary Criteria3 
As stated above, several of counsel's assertions are not persuasive. For example, the petitioner's past 
training fellowships and research grants support future work and, thus, are not recognition for past 
accomplishments. Moreover, student travel grants are financial assistance for attending a conference 
and are not nationally or internationally recognized prizes or awards for excellence. Thus, this evidence 
is not qualiJYing evidence of nationally or internationally recognized prizes or awards for excellence 
pursuant to 8 C.F.R. § 204.5(h)(3)(i). 
Similarly, the petitioner's professional memberships and competency certification are not memberships 
in associations that require outstanding achievements of their members pursuant to 8 C.F.R. 
§ 204.5(h)(3)(ii). 
Furthermore, contrary to counsel's assertion, __ never suggests under which criterion citations 
should be considered. As they are not "about" the petitioner relating to his work, they are not published 
material about the petitioner pursuant to 8 C.F.R. § 204.5(h)(3)(iii). 
On appeal, counsel advances a new claim that the petitioner has served as a judge of the work of others 
as a database editor. While it is generally understood that an editor for a journal reviews the work of 
contributors to that journal, the record does not include the duties of an editor of a database. Without 
such evidence, the petitioner cannot establish that this position involves serving as a judge of the work 
of others pursuant to 8 C.F.R. § 204.5(h)(3)(iv). 
3 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 6 
Finally, it is neither arbitrary, capnclOUS, nor an abuse of discretion to conclude that scientific 
presentations at scientific conferences do not qualifY as display of the petitioner's work at artistic 
exhibitions or showcases pursuant to 8 C.F.R. § 204.5(h)(3)(vii). Kazarian, 596 F. 3d at 1122. 
Despite the above concerns with some of counsel's assertions, the petitioner has submitted qualifYing 
evidence that meets the plain language requirements of the following criteria. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The petitioner's field, like most science, is research-driven, and there would be little point in 
publishing research that did not add to the general pool of knowledge in the field. According to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only original but of 
major significance. The phrase "major significance" is not superfluous and, thus, must have some 
meaning. To be considered a contribution of major significance in the field of science, it can be 
expected that the results would have already been reproduced and confinned by other experts and 
applied in their work. Otherwise, it is difficult to gauge the impact of the petitioner's work. 
The petitioner has an extensive publication record. The regulations, however, contain a separate 
criterion regarding the authorship of published articles. 8 C.F.R. § 204.5(h)(3)(vi). If the regulations 
are to be interpreted with any logic, it must be presumed that the regulation views contributions as a 
separate evidentiary requirement from scholarly articles.4 Initially and again on appeal, the petitioner 
submitted evidence that researchers have cited his work. The petitioner must establish his eligibility as 
of the date of filing. See 8 C.F.R. §§ 1 03.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. at 49. In this 
matter, however, the citations on appeal merely demonstrate that the petitioner continues to sustain an 
already notable pattern of citation. 
retierel1ce letters also confinn a pattern 
an associate professor at the 
research while a Ph.D. student at 
The primary focus of the petitioner' 
of retinoblastoma. Specifically, 
do(,tm'al research was on the cytogenetics and mc)ie(;ul.ar 
explains: 
In the first place, [the petitioner 1 studied the constitutional chromosomal abnonnalities 
in patients with retinoblastoma and identified a few interesting abnonnalities in some of 
them. The second phase of his thesis involved the identification of RB I gene mutations 
in those patients, who did not show chromosomal abnonnalities in RB21 locus. He 
4 Publication and presentations are not sufficient evidence under 8 C.F.R. § 204.5(h)(3)(v) absent evidence 
that they were of "major significance." Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 
596 F.3d IllS (9th Cir. 2010). In 2010, the Kazarian court reaffinned its holding that the AAO did not abuse 
its discretion in finding that the alien had not demonstrated contributions of major significance. 596 F.3d at 
1122. 
Page 7 
scanned four exons that were most commonly shown in literature to have mutations in 
patients with retinoblastoma. His research findings were contemporary and of extreme 
relevance to the field which was the reason for it to receive much attention. He 
presented his findings in national and international conferences and published them in 
international journals too. He was the first one to establish molecular techniques used 
to scan gene mutations, such as Single Strand Confirmation Polymorphism. 
_then notes that the petitioner received a VICC fellowship which he completed at_. 
According to_ during this fellowship the petitioner learned the Denaturing High Performance 
Liquid Chromatography (DHPLC) technique. _continues: 
The fellowship also supported him to carry out a project on identifYing the sequence 
variations in the RB I gene. He screened all the exons as well as the entire promoter 
region of RB I gene for causative mutations in the bilateral retinoblastoma patients using 
DHPLC and automated DNA sequencing. In addition, he also screened these regions in 
controls from worldwide populations to identifY the sequence variations in RB I gene. 
By finding these sequence variations in a wide range of population, he could classifY a 
novel missense mutation that he found in one of the bilateral retinoblastoma patients as 
potential causative mutation. Also, the DNA sequence variations in the RB I gene he 
observed in his study can be used as markers to identifY the affected children in families 
with retinoblastoma at the early stage of disease, which is very important to save the 
vision as well as life. 
_ notes that the petitioner presented this work at a forum as a 
workshops discusses the petitioner's 
conducted in 1999 and 2000. 
manuals for one workshop in 
that the petitioner was in charge of preparing the 
assl~rts that the participants "appreciated" the manuals. 
an associate professor at the 
served as a postdoctoral fellow in her laboratory for three years. 
petitioner's work there, during which time he "developed a new area 
sequence variations in the WFS I gene," the gene responsible for DFNA deafuess. 
explains that the gene also contains "a large number of biologically insignificant benign DNA sequence 
variations," making it difficult t~new sequence change as a potential disease causing change 
or a benign polymorphism. __ continues that the petitioner identified variations in people 
with different ethnic backgrounds and 20 different primates, using a statistical tool to test whether the 
variations are disease causing or benign. She notes that the petitioner collaborated with a population 
geneticist and evolutionary biologist on a project for which he is listed as co-investigator. 
continues that, based on the results from the above study, the petitioner "created a web­
based database cataloging all probable disease causing mutations that are identified in patients with low 
frequency hearing loss, Wolfram syndrome, and Psychiatric disorders by this group as well as other 
Page 8 
groups all over the world." According to "the database also c~quence 
variations/polymorphisms identified by him as well as by various other groups." __ asserts 
that other researchers appreciated the database, which serves as a "valuable resource for clinicians and 
researchers alike in the diagnosis and management of patients with these conditions." 
The record assertions. Specifically, the record contains a printout from the 
database listing the . The record also contains highly favorable citations to the 
database. For states: "A number of mutation detection strategies can be 
used to screen WFSI for nucleotide changes, although DHPLC and direct sequencing are used 
clinically." _ then recommends the' database as a source to track the latest 
information on WFS 1. In an article in the authors affirm that in their own study, 
they compared each mutation they found with those on the petitioner's database. The petitioner also 
submitted two other citations to this database. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
Vague, solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the field are insufficient. 5 The 
opinions of experts in the field are not without weight and have been considered above. USCIS may, 
in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of 
Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). USCIS, however, is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as this decision has done above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158,165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972)). 
5 Kazarian v. USCIS, 580 F.3d 1030, 1036 (91h Cir. 2009) aff'd in part 596 FJd 1115 (9th Cir. 2010). In 
2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting to 
[the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 FJd at 1122. 
Page 9 
Merely repeating the language of the statute or regulations does not satisfY the petitioner's burden of 
proof.6 The letters considered above, however, provide specific examples of contributions and how 
those contributions rise to a level consistent with major significance in the field. The petitioner also 
submitted sufficient corroborating evidence in existence prior to the preparation of the petition, 
which bolsters the weight of the reference letters. 
In light of the above, the petitioner's work on WFS I, including a well-cited article and a well­
received database, constitutes qualifYing evidence that meets the plain language requirements of the 
regulation at 8 C.F.R. § 204.S(h)(3)(v). 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The petitioner submitted two book chapters "in press." As these chapters had yet to appear in a 
published format as of the date of filing, they cannot constitute qualifYing evidence under 8 C.F.R. 
§ 204.5(h)(3)(vi). See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. The 
petitioner did, however, also submit published articles in conference proceedings and 20 published 
journal articles. Thus, the petitioner submitted qualifYing evidence that meets the plain language 
requirements ofthe regulation at 8 C.F.R. § 204.S(h)(3)(vi). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
establishes that the petitioner has performed in a critical role for 
in part as designer and editor of the institute's WFSI database. 
also ade~ distinguished reputation of the institute individually and separately 
fromthe __ 
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 qualifY as an alien of extraordinary ability. Next, the AAO will review the 
evidence in the aggregate as part of the final merits determination. 
6 Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conc1usory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, IS 
(D.C. Dis!. 1990). 
Page 10 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the next step is 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[irJ 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." 
8 C.F.R. § 204.5(h)(3). See Kazarian, 596 FJd at 1119-20. 
As stated above, the petitioner had authored 20 scholarly articles as of the date of filing. Pursuant to 
the reasoning in Kazarian, 596 FJd at 1122, the field's response to these articles may be considered 
in the final merits determination. The petitioner has demonstrated an impressive record of citation as 
of the date of filing that has increased substantially since that time. The petitioner has also designed 
a database that is cited as a useful tool, has been applied in research and is referenced favorably by a 
research team outside the United States. As it is self-evident from the citations that clinicians are 
likely to use this diagnostic tool without citing it in published research, this citation record 
recommending the site for clinical use is notable. While USCIS does not determine acclaim by 
association, it is worth noting that the petitioner has extensive experience working in highly 
competitive positions for highly distinguished entities. Given this evidence, and other evidence of 
record submitted both initially and on appeal, the petitioner has demonstrated that he is one of that 
small percentage who has risen to the very top of his field. . 
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 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[irJ 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 (b)(1 )(A) 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. § 1361. The petitioner has sustained that burden. 
ORDER: The appeal is sustained and the petition is approved.