dismissed O-1A Case: Physics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-K-S-P-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administratin Appeals Office 
DATE: NOV.28,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a sole proprietorship, seeks to temporarily employ the Beneficiary as an executive 
assistant and a physics researcher. To do so. the Petitioner seeks 0-1 nonimmigrant visa classification. 
available to foreign nationals who can demonstrate their extraordinary ability through sustained 
national or international acclaim and whose achievements have been recognized in the field through 
extensive documentation. See Immigration and Nationality Act (the Act) section 101(a)(15)(0)(i). 
8 U.S.C. § 1101(a)(15)(0)(i). 
The Director of the Vermont Service Center denied the petition. concluding that the Petitioner did 
not satisfy the evidentiary criteria applicable to individuals of extraordinary ability in the sciences. 
either a major, internationally recognized award or at least three of eight possible forms of 
documentation. 8 C.F.R. § 214.2(o)(3)(iii)(A)-(B). 
On appeaL the Petitioner provides additional evidence and asserts that the Beneficiary meets the 
regulatory requirements for 0-1 classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
As relevant here, section 101(a)(15)(0)(i) ofthe Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education. business. or athletics that has been 
demonstrated by sustained national or intemationai acclaim. whose achievements have been recognized 
in the field through extensive documentation, and who seeks to enter the United States to continue work 
in the area of extraordinary ability. Department of Homeland Security (DHS) regulations define 
"extraordinary ability in the field of science, education, business, or athletics .. as ""a level of expertise 
indicating that the person is one of the small percentage who have arisen to the very top of the field of 
endeavor ... 8 C.F.R. § 214.2(o)(3)(ii). 
Next, DHS regulations set fmih alternative evidentiary criteria for establishing a beneficiary"s 
sustained acclaim and the recognition of achievements. A petitioner may submit evidence either of 
"a major, intemationally recognized award, such as a Nobel Prize:· or of at least three of eight listed 
categories of documents. 8 C.F.R. § 214.2(o)(3)(iii)(J\)-(B). And if the petitioner demonstrates that 
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Matter (?f M-K-S-P-
the listed criteria do not readily apply to the beneficiary's occupation, it may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 214.2( o )(iii)(C). 
The submission of documents satisfying the initial evidentiary criteria does not in and of itself: 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994 ). In 
Matter olChawathe. 25 I&N Dec. 369, 376 (AAO 201 0), we held that, "truth is to he determined not 
by the quantity of evidence alone but by its quality." That decision explains that pursuant to the 
preponderance of the evidence standard, we "must examine each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true." Id. Accordingly, where a 
petitioner provides qualifying evidence under 8 C.F.R. § 214.2(o)(3)(iii), we will determine \vhethcr 
the totality of the record shows eligibility under section 101(a)(l5)(o)(i) of the Act and 8 C.F.R. 
§ 214.2(o)(l)(ii). 1 
II. ANALYSIS 
Absent evidence of a major, internationally recognized award, the Petitioner seeks to demonstrate 
the Beneficiary's sustained acclaim and recognition of achievements through evidence 
corresponding to the eight regulatory criteria. The Director determined that the Beneficiary did not 
satisfy any of the evidentiary criteria described at 8 C.F.R § 214.2(o)(3)(iii)(B). The Petitioner 
maintains that the documentation satisfies at least three of those criteria. As discussed helm\. we 
find that the exhibits satisfy only one of the evidentiary categories described at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B). 
Documentation (~l the alien's receipt qf national(v or internationally recognized prizes 
or award\jhr excellence in the field l!{endeavor. 8 C.F.R. § 214.2(o )(3)(iii)(B)( 1 ). 
The Petitioner's proprietor, contends that he ,,·as presented with a 
in 2008 by the and he states: "In accepting this 
award, I was clear in stating that [the Beneficiary] deserved equal credit since his work made 
everything possible, hut [the Beneficiary], as always, being modest. declined to have his name on the 
medal." The documentation offered does not include evidence from the reflecting the 
Beneficiary's receipt of this award, as required by the plain language of the regulations, or 
documentation showing that a medal constitutes a nationally or internationally recognized 
prize or award for excellence in the field.2 The Petitioner has not established therefore that the 
Beneficiary meets this criterion. 
1 
While not at issue here, there are other evidentiary requirements for 0 foreign nationals, including documentation 
relating to the terms ofthe proposed employment and the nature ofthe activities and events in which the beneficiary will 
participate. 8 C.F.R. § 214.2(o)(2)(ii). 
2 In addition, as the record indicates the Beneficiary was working in Japan in the years leading up to 2008. the speci tic 
nature of his claimed role in the award is not sufficiently documented. A summary of the Beneticiar.{s employment 
history states that he served as chairman of the Science Department at of Japan from 1997 until 
20 II, when he left this position to come to the United States to work with the Petitioner and accept "a temporary 
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Matter ofM-K-S-P-
DocumentaNon of the alien's memhership in as.wcwt1ons in the field for which 
class?fication is sought. ·which require outstanding achievements oft heir memhers. as 
judged by recognized national or international experts in their disdplines or fields. 
8 C.F.R. § 214.2(o)(3)(iii)(B)(2). 
The Petitioner asserts that the Beneficiary is a member of but 
does not provide evidence of his membership. 3 This unsupported testimonial evidence is insufficient 
to establish the Beneficiary's membership. In addition. while contends that he ··will 
be formally recommending [the Beneficiary] for membership as a Fellow" in the record does 
not show that he has attained this membership classification. With respect to the Beneficiary's 
potential election as an fellow in the future. we note that his eligibility under this criterion must 
be established at the time of tiling. See 8 C.F.R. § 103.2(b)(1). (12). Lastly. without documentation 
from the showing that it requires outstanding achievements of its members. as judged by 
recognized national or international experts. the Petitioner has not established that the Beneficiary's 
alleged membership in the society meets this regulatory criterion. 
Published material in prqfessional or major trade publications or major media ahout 
the alien. relating to the alien's work in the fieldfiJr 1vhich classification is sought, 
which shall include the title. date. and author of such puhlished material. and any 
necessary translation. 8 C.F.R. § 214.2(o)(3)(iii)(B)(3). 
The Petitioner contends that research publications authored by the Beneficiary which "analyzed the 
scattering of sub-atomic particles'' meet this regulatory criterion. For example. the record includes 
articles authored by the Beneficiary in the 1990s in journals such as and 
As these articles are not about the Beneficiary. they do not meet this regulatory 
criterion. The regulations contain a separate and distinct criterion relating to authorship of scholarly 
articles in professional journals at 8 C.F.R. § 214.2(o)(3)(iii)(B)(6). The Beneficiary's articles are 
further addressed in our discussion of that criterion. The plain language of the regulation requires 
"published material ... about the alien." Cf' Negro-Plumpe v. Okin. 2:07-CV -00820 at * 1. *7 (D. 
Nev. Sept. 2008) (upholding a finding that articles about a show are not about the actor). Without 
evidence that the Beneficiary has been the subject of published material in professional or major trade 
publications or major media, the Petitioner has not established that he satisfies this criterion. 
position at the ·· According to a letter tl·om professor of 
physics at the the Beneficiary ·'was a visiting professor of high energy at the 
from 20 I 0 to 2012, and then and adjunct professor of physics at 
from 2012 to 2016." 
3 
On appeal, the Petitioner states that "'all you have to do to see that [the Beneficiary] is a member is go to the 
website www. and look up the directory of members." The Petitioner does not, however, provide supporting 
evidence such as a screenshot of the relevant webpage, nor is the online member directory accessible without an 
account. See https://www 
(visited on November 20, 2017, and incorporated into the record). 
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Maller of M-K-S-P-
Evidence l~lthe alien's participation on a panel. or individually as ajud~e o/fhe work ol 
others in the same or in an alliedfield q{.,pecialization to thatfhr 1rhich classification is 
sought. 8 C.F.R. § 214.2(o)(3)(iii)(B)(4). 
initially stated: "[The Beneficiary] has been invaluable in helping to proof read. research. 
and edit my articles and books." In response to the Director's request for evidence. 
indicated that he "regularly gets articles from other physics journals to judge and review f()r 
publication " and that " [h]e quickly hands them over to [the Beneficiaryr for joint discussion and 
review. In addition. asserts that they have jointly reviewed articles for 
and but does not otTer documentary evidence from these journals to 
support the claim. 4 This unsupported testimonial evidence is not sufficient to establish the 
Beneficiary's participation as a peer reviewer of scientific manuscripts . 
This regulatory criterion requires evidence that the Beneficiary has served as "a judge .. of the work 
of others. The phrase "a judge'' implies a formal designation in a judging capacity. either on a panel 
or individually as specified at 8 C.F.R. § 214 .2(o)(3)(iii)(B)(-I). We do not tind this to encompass 
informal instances of requesting input on his own drafts. or of the Beneficiary helping 
review journal manuscripts specifically sent to for peer review. As the record does not 
contain evidence demonstrating that the Beneficiary has served as part of a formal judging process 
as peer reviewer for the aforementioned journals, the Petitioner has not submitted qualifying 
evidence that 
meets the plain language requirements of this regulatory criterion. 
Evidence ofthe alien "s original scientific. scholar(y . or husiness-re/ated contrihutions 
olmajor sign~/icance in the.field. 8 C.F.R. § 214.2(o)(3)(iii)(8)(5). 
asserts that journal articles authored by the Beneficiary in the 1990s and an unpublished 
research paper that they have prepared for submission "to either magazine , or 
meet this regulatory criterion . Regarding their unpublished gravity theory paper 
and its implications in the field, eligibility must be established at the time of filing. See 8 C.F.R. 
§ 103.2(b)(l) , (12). According to this paper has not yet been subjected to the intended 
journal's peer review process or disseminated in the field. The record therefiJre does not show that 
their proposed theory has influenced the field or has otherwise risen to the level of an original 
scientific contribution of major significance in the tiel d. 
With respect to the research articles from the 1990s, the Petitioner must establish not only that the 
Beneficiary made original contributions but that they have been of major signi1icance in the field. 
There is no presumption that every published article is a contribution of major significance in the 
4 
For example, the Petitioner has not provided letters from the journals ' editorial staff listing the papers the Beneficiary 
reviewed, emails from the editors thanking the Beneticiary for reviewing specitic manuscripts. online peer review 
system confirmations identifying the articles he reviewed, or other supporting evidence of his actual selection and formal 
participation as a peer reviewer. 
4 
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Matter of M-K-S-P-
field; rather, a petitioner must document its actual impact. In this case, the Petitioner has not offered 
evidence demonstrating that the Beneficiary's journal articles are cited at a level commensurate with 
contributions "of major significance in the field." nor does the record include other documentation 
showing the articles' influence or importance. 
As another form of evidence under this criterion, the record includes a letter from stating 
that and the Beneficiary have been working together on string field theory. 
explains that the Beneficiary "has been doing the complex tensor algebra of !!-dimensional 
supersymmetry, which is necessary to create a non-polynomial expression of strings and membranes. 
The goal is to use supersymmetry of the non-polynomial series to create a unified description of 
strings and membranes .... " The record, however, does not show the Beneficiary's work on this 
project has substantially aflected the high energy physics field. that his research has been widely 
utilized or heavily cited, or that it otherwise constitutes a contribution of major signi ticancc in the 
field. Accordingly , the Petitioner has not established that the Beneficiary meets this regulatory 
criterion. 
Evidence ol the alien's authorship o( scholarly articles in the field in professional 
journals. or other major media. 8 C.F.R. ~ 214.2(o)(J)(iii)(B)(6). 
The record includes articles authored by the Beneficiary in professional journals such as 
and Therefore , the Petitioner has established that the Beneficiary 
meets this regulatory criterion. 
Evidence that the alien has heen employed in a critical or essential capacity fiw 
organizations and establishments that have a distinxuished reputation. 
8 C.F.R. ~ 214.2(o)(3)(iii)(B)( 7). 
In his letter, 
physics at 
states that the Beneficiary has served as a visiting professor of high energy 
and as an adjunct professor of physics at 
notes that the Beneficiary is conducting high energy physics 
research and assisting the Petitioner, but his statements do not demonstrate that the Beneticiary has 
been employed in a critical or essential capacity for the aforementioned colleges. In addition, vvhile the 
Petitioner indicates that the Beneficiary taught general physics laboratory, astronomy , general 
physics , and college physics to undergraduate students at and the record does not 
include adequate documentation to show that the Beneficiary's duties and responsibilities were 
critical or essential for these organizations as a whole. On appeaL the Petitioner emphasizes the 
highly competitive hiring process for professors generally, and states that a university will only hire 
a professor if it believes that individual will improve the institution's reputation. The evidence. 
however, does not differentiate the Beneficiary from the colleges' other professors, and is insuflicient to 
establish that his specific role has contributed to those organizations in a way that was of substantial 
importance to their success or standing. Furthermore, although the Petitioner asserts that 
"has a reputation for being among the elite schools ," the record does not include supporting evidence 
demonstrating its distinguished reputation in the field. 
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Matter of M-K-S-P-
In addition, the Petitioner asserts that the Beneficiary satisfies this criterion through his work as a 
Ph.D. student at , as a researcher with and 
as chairman of the Science Department at of Japan. The record. however. 
does not include reference letters or other documentation from these organizations describing the 
capacity in which they employed the Beneficiary. Nor is there supporting evidence demonstrating 
their distinguished reputations. The Petitioner's unsupported claims are insufficient to establish that 
the Beneficiary was employed in a critical or essential capacity for the aforementioned organizations or 
that they have distinguished reputations. As a result. the Petitioner has not provided sutlicient material 
to meet this criterion. 
Evidence that the alien has either commanded a high salary or will command a high 
salary or other remuneration for services. evidenced hy contracts or other reliahle 
evidence. 8 C.F.R. § 214.2(o)(3)(iii)(B)(R). 
The Petitioner asserts it will pay the Beneficiary $90,000 per year and that ··[a]ccording to 
government guidelines, a Ph.D. research physicist should command about $90.000 per year in 
income." The Petitioner, however, does not specifically identify the source of this information or 
provide a copy of the aforementioned income guidelines. Furthermore. the Petitioner docs not offer 
a basis for comparison showing that the Beneficiary has commanded or will command a high salary 
relative to others in his field. The Petitioner must present evidence demonstrating a high salary or 
significantly high remuneration in comparison with those performing similar services in the field. 
Cf Matter ol Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional 
golfer's earnings versus other PGA Tour golfers); see also Skokos v. U.S'. Dept. of Homeland Sec .. 
420 F. App'x 712, 713-14 (9th Cir. 2011) (finding average salary information for those performing 
lesser duties is not a comparison to others in the field); Grimson v. INS. 934 F. Supp. 965. 968 (N.D. 
Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni r. INS'. 891 F. 
Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to salary of other 
NHL defensemen). We find that the Petitioner has not ofTered sufficient evidence to establish that the 
Beneficiary meets this regulatory criterion. 
III. CONCLUSION 
The record does not satisfy at least three of the eight evidentiary criteria at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B). Consequently. the Petitioner has not established that the Beneficiary is eligible fnr 
the 0-1 visa classification as a fnreign national with extraordinary ability in the sciences. 
ORDER: The appeal is dismissed. 
Cite as Matter olM-K-S-P-. ID# 704818 (AAO Nov. 28, 20 17)