dismissed EB-2 Case: Sciences

(b)(6)
DATE: NOV 1 2 2013 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland 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 a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
· The petitioner seeks classification for the beneficiary as a member of the professions holding an 
advanced degree, pursuant to section 203(b )(2)(A) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b)(2)(A). The petitioner further asserts that the beneficiary qualifies for blanket labor 
certification pursuant to 20 C.P.R. § 656.5, Schedule A, Group II. 
The director found that "the beneficiary is a member of the professions holding an advanced degree" 
and the evidence in the record supports that finding. However, the director also found that the 
petitioner had not established that the beneficiary is "eligible for certification under Schedule A." 
On May 29, 2013, in accordance with the regulation at 8 C.P.R. § 103.2(b)(16)(i), the AAO issued a 
notice advising the petitioner of derogatory information indicating, in part, that although the 
petitioner indicated that the beneficiary did not have an ownership interest in the petitioning entity, 
the beneficiary appeared to be "an equal partner in the personal service corporation." The notice 
specifically stated that the petitioner 
"signed the Form I -140 petition under penalty of perjury that the 
petition and the evidence submitted with it ... are all true and correct." In response to the notice of 
derogatory findings, the petitioner submitted sufficient evidence to overcome this finding. The 
notice also informed the petitioner of deficiencies in the notice of filing which will be discussed in 
this decision. 
On appeal, counsel submits a brief and additional evidence. The AAO conducts appellate review on 
a de novo basis. The AAO's de novo authority is well recognized by the federal courts. See Soltane 
v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). For the reasons discussed below, upon review of the entire 
record, the petitioner has not established the beneficiary's eligibility for the classification sought. 
I. SCHEDULE A, GROUP II DESIGNATION 
(a) Law 
The regulation at 20 C.P.R.§ 656.15(d)(1) provides, in pertinent part: 
An employer seeking labor certification on behalf of an alien to be employed as an 
alien of exceptional ability in the sciences or arts (excluding those in the performing 
arts) must file documentary evidence showing the widespread acclaim and 
international recognition accorded the alien by recognized experts in the alien's field; 
and documentation showing the alien's work in that field during the past year did, 
and the alien's intended work in the United States will, require exceptional ability. In 
addition, the employer must file documentation about the alien from at least two of 
the following seven groups: 
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NON-PRECEDENT DECISION 
(i) Documentation of the alien's receipt of internationally recognized prizes or 
awards for excellence in the field for which certification is sought; 
(ii) Docrnnentation of the alien's membership in international associations, in 
the field for which certification is sought, which require outstanding 
achievement of their members, as judged by recognized international experts in 
their disciplines or fields; 
(iii) Published material in professional publications about the alien, about the 
alien's work in the field for which certification is sought, which shall include 
the title, date and author of such published material; 
(iv) Evidence of the alien's participation on a panel, or individually, as a judge 
of the work of others in the same or in an allied field of specialization to that for 
which certification is sought; 
(v) Evidence of the alien's original scientific or scholarly research contributions 
of major significance in the field for which certification is sought; 
(vi) Evidence of the alien's authorship of published scientific or scholarly 
articles in the field for which certification is sought, in international 
professional journals or professional journals with an international circulation; 
(vii) Evidence of the display of the alien's work, in the field for which 
certification is sought, at artistic exhibitions in more than one country. 
(Emphasis added.) 
Where the petitioner fails to submit the requisite evidence, . the proper conclusion is that the 
petitioner failed to satisfy the regulatory requirement regarding evidence. See Kazarian v. USCIS, 
596 F.3d 1115, 1122 (9th Cir. March 4, 2010). While involving a different classification than the 
one at issue in this matter, the similarity of the two classifications makes the court's reasoning in 
Kazarian persuasive to the classification sought in this matter. Specifically, the regulations state a 
regulatory standard and provide a list of suggested types of evidence, of which the petitioner must 
submit a certain number. Significantly, USCIS may not unilaterally impose novel substantive or 
evidentiary requirements beyond those set forth at 8 C.P.R. § 204.5. Kazarian, 596 F.3d at 1221, 
citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008). Thus, if the regulatory 
standard is to have any meaning, USCIS must be able to evaluate the quality of the evidence in a 
final merits determination. If the petitioner has submitted the requisite evidence, USCIS makes a 
final merits determination as to whether the evidence demonstrates the "widespread acclaim and 
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Page4 
international recognition accorded the alien by recognized experts in the alien's field." 20 C.P.R. 
§ 656.15(d)(l); see also Kazarian, 596 P.3d at 1119-20. 
The Kazarian 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 ifthe 
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.P.R.§ 204.5(h)(3)). 
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. When the Department of Labor adjudicated Schedule A 
Group II filings, the Board of Alien Labor Certification Appeals (BALCA) concluded that the 
ultimate fact to be proven is that the alien has exceptional ability; and that the various kinds of 
documentation mentioned in the regulation are suggested as possible methods of proof. Matter of 
Allied Concert Services, Inc., 88-INA-14 (BALCA 1988). The AAO will first review the evidence 
under the plain language requirements of each criterion claimed. 
(b) Analysis 
While the use of comparable evidence is permitted under different classifications, there is no regulatory 
provision that would allow the use of comparable evidence to satisfy the evidentiary requirements for 
Schedule A, Group II. Therefore, the AAO will review the evidence under the plain language 
requirements of each criterion claimed. 
(i) Evidentiary Criteria1 
Documentation of the alien's receipt of internationally recognized prizes or awards for 
excellence in the field for which certification is sought 
The petitioner initially submitted evidence under this criterion, but does not address it on appeal. Thus, 
the petitioner has abandoned any claims regarding this criterion. Sepulveda v. US. Att'y Gen., 401 
P.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 P.3d 1343, 1344 
(11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to raise them on appeal to 
the AAO). 
1 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
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Documentation of the alien's membership in international associations .. in the field for 
which certification is sought, which require outstanding achievement of their members, 
as judged by recognized international experts in their disciplines or fields 
The petitioner initially submitted evidence under this criterion, but does not address it on appeal. Thus, 
the petitioner has abandoned any claims regarding this criterion. I d. 
Published material in professional publications about the alien, about the alien's work in 
the field for which certification is sought, which shall include the title, date and author of 
such published material 
The petitioner initially submitted evidence under this criterion, but does not address it on appeal. Thus, 
the petitioner has abandoned any claims regarding this criterion. !d. 
Evidence of the alien's participation on a panel, or individually. as a judge of the work of 
others in the same or in an allied field of specialization to that for which certification is 
sought 
While the directordetermined that the beneficiary did not meet this criterion, the record contains 
sufficient documentary evidence that the beneficiary meets this criterion as a manuscript reviewer. 
Evidence of the alien's original scientific or scholarly research contributions of major 
significance in the field for which certification is sought 
On appeal, counsel asserts that the beneficiary's original contributions are evidenced by his 
"publications in major scholarly journals and invitations to present his research findings at professional 
medical conferences throughout North America." While the beneficiary has co-authored several 
articles and co-presented at a number of conferences, the regulations contain a separate criterion 
regarding the authorship of scientific or scholarly articles. 20 C.F.R. § 656.15(d)(l)(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? Furthermore, contrary to 
counsel's assertions on appeal, the simple fact that the beneficiary's findings have been published and 
presented at conferences does not create a presumption that the findings, upon dissemination in the 
field, impacted the field at a level consistent with original contributions of major significance. 
2 
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 (91h Cir. 2009) aff'd in part 
596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian court reaffirmed 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. 
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The record also contains letters of recommendation from the beneficiary's colleagues. In general, the 
letters praise the beneficiary's skills, research findings and surgical techniques. According to the 
regulation at 20 C.F.R. § 656.15(d)(l)(v) , an alien's contributions must be not only original but of 
major significance. The AAO must presume that the phrase "major significance" is not superfluous 
and, thus, that it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 
31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). To be 
considered a contribution of major significance "in the field" of orthopedic medicine, it can be 
expected that the results would have already been reproduced and confirmed by other experts and 
applied in their work. Otherwise, it is difficult to gauge the impact of the beneficiary's work. 
Dr. the beneficiary's mentor at states that beneficiary's work is 
novel and shows that sports medicine needs "to make changes to our surgical techniques." He also 
states that the beneficiary's "research identiflied] the alternative of medial opening wedge high tibial 
osteotomy as a viable alternative to a total knee replacement in elderly patients with isolated medial 
compartment osteoarthritis." 
Dr. the beneficiary's mentor during his residency at the 
states that the beneficiary 's "investigations are novel and have brought insight to the field for all 
Orthopedic Surgeons." 
Dr. the beneficiary's mentor at _ states that the 
beneficiary "has made contributions" to the "three basic facets to a surgeon scientist: clinical patient 
care, education of other surgeons, and clinical and basic science research." He also states that one 
of the beneficiary's techniques "will allow future research to be published in a shorter time period." 
In response to the director 's request for evidence, Dr. a partner at 
where the beneficiary was a visiting fellow, also states that the beneficiary "has made 
contributions" to the "three basic facets to a surgeon scientist; clinical patient care, education of 
other surgeons, and clinical and basic science research." In fact, except for the information about the 
author, the letter is identical to the letter written by Dr. suggesting the language in the letters is 
not the authors' own. Cf Surinder Singh v. Board of Immigration App eals, 438 F.3d 145, 148 (2d 
Cir. 2006) (upholding an immigration judge's adverse credibility determination in asylum 
proceedings based in part 
on the similarity of some of the affidavits); Mei Chai Ye v. U.S. Dept. of 
Justic e, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably 
infer that when an asylum applicant submits strikingly similar affidavits, the applicant is the common 
source). 
While some of the letters identify the beneficiary's research results and conclude they are applicable 
to other work in the field or even constitute contributions to the field, the record lacks corroborating 
evidence, such as citations of the beneficiary's articles or letters from independent surgeons who are 
already employing the beneficiary's techniques or using the beneficiary's research as a basis for their 
own. Vague, solicited letters from local colleagues that do not specifically identify contributions or 
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provide specific examples of how those contributions influenced the field are insufficient. Kazarian 
v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010)_3 
In light of the above, the petitioner has not submitted qualifying evidence that the beneficiary meets 
the plain language requirements of the criterion. 
Evidence of the alien's authorship of published scientific or scholarly articles in the field 
for which certification is sought, in international professional journals or professional 
journals with an international circulation 
The director found that the petitioner established that the beneficiary satisfies the plain language 
requirements of this criterion and the record supports that finding. 
(ii) Final Merits Determination 
The regulation at 20 C.P.R. § 656.15(d)(1) provides that "[a]n employer. .. must file documentary 
evidence showing the widespread acclaim and international recognition accorded the alien by 
recognized experts." The petitioner's evidence must be evaluated in terms ofthese requirements. The 
weight given to evidence submitted to fulfill the criteria at 20 C.P.R. § 656.15(d)(1)(i)-(vii), therefore, 
depends on the extent to which such evidence demonstrates, reflects, or is consistent with widespread 
acclaim and international recognition. 
The beneficiary has peer-reviewed one manuscript. The four submitted reference letters were limited to 
the beneficiary's prior mentors/colleagues and two of the letters used identical language, which raises a 
question as to the authorship of the similar language. Furthermore, according to the letters, "[t]here are 
three basic facets to a surgeon scientist: clinical patient care, education of other surgeons, and clinical 
and basic science research." The evidence submitted demonstrates that the beneficiary is performing 
all three, but none of his accomplishments rise to the level of widespread acclaim and international 
recognition. 
Furthermore, the regulation requires "documentation showing the alien's work in that field during the 
past year did, and the alien's intended work in the United States will, require exceptional ability." 
As evidence, the petitioner submitted a letter from Chief Executive Officer of the 
petitioning company and evidence of the beneficiary's speaking and educational activities. Dr. 
letter only addresses his belief that the beneficiary is an alien of exceptional ability, not 
that the alien's work in the past year, or in the future, will require exceptional ability. As for the 
beneficiary's educational and speaking activities, there is no evidence that any of these activities 
require an alien of exceptional ability, rather than a competent professional. 
3 
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 F.3d at 1122. 
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The conclusion the AAO reaches by considering the evidence to meet each category of evidence at 20 
C.F.R. § 656.15(d)(1) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not demonstrate the widespread acclaim and 
international recognition of the beneficiary. 
The truth is to be determined not by the quantity of evidence alone, but by its quality. Matter of 
Chawathe, 25 I&N Dec. 369 (AAO 2010) citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r 1989). 
II. NOTICE OF FILING 
The regulation at 20 C.F.R. § 656.15 provides, in pertinent part: 
(b) General documentation requirements. A Schedule A application must include: 
(1) An Application for Permanent Employment Certification form, which includes a 
prevailing wage 
determination in accordance with§ 656.40 and§ 656.41. 
(2) Evidence that notice of filing the Application for Permanent Employment 
Certification was provided to the bargaining representative or the employer's 
employees as prescribed in§ 656.10(d). 
The regulation at 20 C.F.R. § 656.10(d)(l) states that notice of the filing must be provided: 
(i) To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought in 
the employer's location(s) in the area of intended employment. Documentation may 
consist of a copy of the letter and a copy of the Application for Permanent 
Employment Certification form that was sent to the bargaining representative. 
(ii) If there is no such bargaining representative, by posted notice to the employer's 
employees at the facility or location of the employment. The notice must be posted 
for at least 10 consecutive business days. The notice must be clearly visible and 
unobstructed while posted and must be posted in conspicuous places where the 
employer's U.S. workers can readily read the posted notice on their way to or from 
their place of employment ... In addition, the employer must publish the notice in 
any and all in-house media, whether electronic or printed, in accordance with the 
normal procedures used for the recruitment of similar positions in the employer's 
organization. 
The methods vary by which a petitioner can be notified of evidentiary requirements. For example, a 
petitioner is considered to be on notice through the specific requirements outlined within the 
regulations, or through various forms of communication from USCIS to a petitioner or applicant 
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Page9 
noting an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988). The regulations at 20 C.P.R. §§ 656.10(d) notified the petitioner of the 
specific requirements regarding the notice of filing. 
As previously mentioned, the May 29, 2013 notice informed the petitioner of deficiencies in the 
notice of filing. Specifically, the notice stated: 
The notice of filing submitted with the petition contains fields for "Date Posted," 
Date Removed," Locations Where the Notice Was Posted," "Means of In-House 
Notice, If applicable" and "Explanation of Any Lack of In-House Notice." None of 
the fields were completed and no evidence regarding in-house media was provided. 
The record does contain a printout from the employer's website which lists the job 
opportunity, but does not comply with the in-house media requirements. 
Furthermore, the regulation at 20 C.P.R. § 656.10(d)(3)(iii) requires that the notice 
"[p]rovide the address of the appropriate Certifying Officer." Finally, based upon the 
information in the record, the beneficiary will be performing part of his duties at 
The record does not contain evidence that 
the notice of filing was posted at this location. 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 Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 
F.3d 143, at 145 (de novo authority of AAO well recognized by federal courts). 
In response to the notice, counsel submitted a signed declaration from the Chief Executive Officer of 
the petitioning company stating that he had posted the notice, but failed to complete it and a newly 
completed notice of filing indicating that the notice had been posted at the petitioner's address. 
The Department of Labor's PERM Frequently Asked Questions at 
http://www .foreignlaborcert.doleta.gov/faqsanswers.cfm#notefile6 under Notice of Filing state in 
pertinent part: 
Question 6: What address must the employer provide on the posted notice of filing? 
The employer must provide the address of the appropriate Certifying Officer for the 
area of intended employment. Addresses for the National Processing Centers and 
Certifying Officers, including a chart of the states and territories within their 
jurisdiction, can be found under the section, How to File, above. 
Question 7: For how long must the employer publish a notice of filing m the 
employer's in-house media? 
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NON-PRECEDENT DECISION 
If the employer normally recruits for similar positions in the employer's organization 
through in-house media, then the employer must publish the notice of filing in its in­
house media in accordance with the employer's normal procedures for recruitment of 
similar positions or for 10 consecutive business days, whichever is of longer duration. 
Question 12: Where must I post a Notice of Filing for a permanent labor certification 
for roving employees? 
If the employer knows where the Schedule A employee will be placed, the employer 
must post the notice at that work-site(s) where the employee will perform the work 
and publish the notice internally using in-house media--whether electronic or print--in 
accordance with the normal internal procedures used by the employer to notify its 
employees of employment opportunities in the occupation in question. The prevailing 
wage indicated in the notice will be the wage applicable to the area of intended 
employment where the worksite is located. 
Question 13: Does the language on the electronic in-house media Notice of Filing 
need to be exactly the same as the language on the physical in-house Notice of Filing? 
The regulations require that the employer publish the notice internally using in-house 
media--whether electronic or print--in accordance with the normal internal procedures 
used by the employer to notify its employees of employment opportunities in the 
occupation in question. The language should give sufficient notice to interested 
persons of the employer's having filed an application for permanent employment labor 
certification for the relevant job opportunity. It is not required to mirror, word for 
word, the physical posting. In most cases, the physical posting language will be the 
most efficient way to electronically post the Notice of Filing; in others, the software 
program used to create the electronic in-house posting may be unable to accept all of 
the language used in the physical Notice of Filing. In every case, the Notice of Filing 
that is posted to the employer's in-house media must state the rate of pay and apprise 
the reader that any person may provide documentary evidence bearing on the 
application to the Certifying Officer. If there is insufficient space to include the 
Certifying Officer's address, then information as to where the address can be found 
must be provided. 
In response to the notice, counsel asserts that the petitioner complied with the notice of filing 
requirements because the notice was posted "at the principal place of employment" and "post[ ed] on 
their website which is their 'normal procedure used for recruitment.'" 
On the ETA Form 9141, Application for Prevailing Wage Determination, under Place of 
Employment, the question "Will work be performed in multiple worksites within an area of intended 
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Page 11 
employment or a location(s) other than the address listed above?" was marked "yes." Counsel does 
not address the issue of the beneficiary performing some of his duties at 
in response to the notice. In addition to failing to post the notice at the additional 
worksite, the in-house media posting did not include any information notifying "the reader that any 
person may provide documentary evidence bearing on the application to the Certifying Officer. If 
there is insufficient space to include the Certifying Officer
1
S address, then information as to where 
the address can be found must be provided" and the record does not indicate how long the notice 
remained on the website. Finally, the notice of filing did not include "the address ofthe appropriate 
Certifying Officer," as required by 20 C.F.R. § 656.10(d)(3)(iii). For these reasons alone, the 
petition must be denied. 
IV. CONCLUSION 
The documentation submitted has not established that the alien's work in that field during the past 
year did, and the alien's intended work in the United States will, require exceptional ability, nor the 
widespread acclaim and international recognition accorded the alien by recognized experts in the 
alien's field. As a result, the alien cannot be found to qualify for exceptional ability under Schedule 
A, Group II designation. In addition, the notice of filing did not comply with the regulations. Thus, 
the petitioner has not established that the beneficiary is qualified for the benefit sought. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.