sustained EB-1A Case: Semiconductor Optoelectronics Research

Identifying data deleted to 
prevent clearly unwa~nted 
invasion of personal pnvac) 
PUBLlCCOPY 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. CiLiLenship and Immigration Services 
Office ofAdminiSfnllive Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: DEC 16 2010 
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 USC. § I 153(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, 
~erry 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 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 in the sciences. The director determined that the petitioner had not established 
the requisite extraordinary ability through extensive documentation and sustained national or 
international acclaim. 
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, 
specifically 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 argues that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.S(h)(3). For the reasons discussed below, we find that the petitioner meets 
the statutory and regulatory requirements for classification as an alien of extraordinary ability. 
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. 
Page 3 
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 st 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. and 8 C.F.R. § 204.5(h)(2). 
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 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; 
(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. 
Page 4 
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/S, 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 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." 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)." [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)(l)(A)(i). 
Id. at 1119-1120. 
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 Spencer Enterprises, Inc. v. United States, 229 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see a/so So/tane v. 
DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis ). 
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.FR. * 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition. filed on August 4, 2008, seeks to classify the petitioner as an alien with extraordinary 
ability as a semiconductor optoelectronics researcher. We find that the petitioner's evidence meets 
at least three of the following categories of evidence under 8 C.F.R. § 204.5(h)(3). 
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 alliedfield of" specif"ication fc)r which clal'sification is 
sought. 
The petllloncr submitted documentation indicating that that he reviewed manuscripts for several 
journals including IEEE journal of Selected Topics in Quantum Electronics, Optics 
Communications, IEEE journal of Quantum Electronics, and IEEE Photonics Technology Letters. 
Accordingly, the petitioner has established that he meets this criterion. 
Evidence of" the alien's original scientif"ic, scholarly, artistic. athletic, or business­
related contributions ofmqjor significance in the/ield. 
The petitioner submitted letters of support from independent experts discussing the significance of 
his original research contributions. The experts' statements do not merely reiterate the regulatory 
language of this criterion, they clearly describe how the petitioner's scientific contributions are both 
original and of major significance in the field. Several of the experts have explained how they 
currently use the petitioner's devices or how his findings have impacted their own work. Moreover, 
in support of the experts' statements, the petitioner submitted documentation showing more than one 
hundred independent cites to his published findings. These citations are solid evidence that other 
researchers have been influenced by his work and are familiar with it. This evidence corroborates 
the independent experts' statements that the petitioner has made original contributions of major 
significance in his field. The record reflects that the petitioner's contributions are important not only 
to the institutions where he has worked, but throughout the greater field as well. Leading scientists 
from around the world have acknowledged the value of the petitioner's work and its major 
significance in the semiconductor optoelectronics research field. Accordingly, the petitioner has 
established that he meets this criterion. 
Evidence (!t'the alien's authorship (!t'scholarly articles in the field. in prof"essional or 
major trade publications or other major media. 
The petitioner submitted evidence of his authorship of numerous articles m scientific journals. 
Accordingly, the petitioner has established that he meets this criterion. 
In this case, the petitioner meets at least three of the ten categories of evidence that must be satisfied 
to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary 
ability. 8 C.F.R. § 204.5(h)(3). 
Page 6 
B. Final Merits Determination 
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: (I) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thelirl 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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.c. § 1153(b)(l)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-1120. 
In this case, the petitioner has submitted extensive documentation of his achievements in the 
semiconductor optoelectronics field. The submitted evidence is sufficient to demonstrate the 
petitioner's sustained national or international acclaim as a researcher and that his achievements 
have been recognized in the field of expertise. The petitioner has participated in the peer review 
process for several journals. Further, the petitioner submitted reference letters from independent 
experts in the field, detailing his specific contributions and explaining how those contributions have 
intluenced the field. Moreover, the petitioner's publication record of numerous journal articles at the 
time of filing not only meets the criterion at 8 C.F.R. § 204.5(h)(3)(vi), his articles are consistently 
well cited, with well over one hundred independent cites to his body of work as of the petition's 
filing date. See Kazarian, 596 F.3d at 1121 (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 original contributions of major significance, discussed in 
detail in the reference letters, are indicative national or international acclaim. Thus, the petitioner's 
achievements are commensurate with sustained national or international acclaim at 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 at least three of the ten categories of evidence 
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 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 decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.