The Petitioner, an elementary school mathematics teacher, seeks classification under the employmentbased, first-preference (EB-1) immigrant visa category as a noncitizen with "extraordinary ability." See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(b)(l)(A). This category provides immigrant visas to noncitizens who demonstrate "sustained national or international acclaim" and submit "extensive documentation" of recognition of their achievements in their fields . Section 203(b )( 1)(A)(i) of the Act.
The Director ofthe Nebraska Service Center denied the petition. The Director found that the Petitioner met initial evidentiary requirements. In a final merits determination, however, the Director concluded that the Petitioner did not demonstrate sustained national or international acclaim. On appeal, the Petitioner contends that the Director "imposed novel requirements" by placing a "time constraint" on much of her evidence.
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).
Exercising de novo appellate jurisdiction, see Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015), we conclude that, because the record lacks evidence of the Petitioner's receipt of sufficient praise within the past 10 years or so, she has not established sustained national or international acclaim. We will therefore dismiss the appeal.
Law
To qualify as a noncitizen with extraordinary ability, a petitioner must demonstrate that:
- They have "extraordinary ability in the sciences, arts, education, business, or athletics;"
- They seek to continue work in their field of expertise in the United States; and
- Their work would substantially benefit the country.
Section 203(b )(1 )(A)(i)-(iii) of the Act.
The term "extraordinary ability" means a level of expertise commensurate with "one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). Evidence of extraordinary ability must demonstrate a noncitizen's receipt of either "a major, international recognized award" or satisfaction of at least three of ten lesser evidentiary standards. 8 C.F.R. § 204.5(h)(3)(i-x). 1
If a petitioner meets either of the evidentiary requirements discussed above, U.S. Citizenship and Immigration Services (USCIS) must then make a final merits determination as to whether the record, as a whole, establishes sustained national or international acclaim and recognized achievements placing the noncitizen among the small percentage at their field's very top. See Kazarian v. USCIS, 596 F.3d 1115, 1119-20 (9th Cir. 2010) (requiring a two-part analysis of extraordinary ability).
Analysis
A. The Petitioner
The record shows that the Petitioner, a Chinese native and citizen, earned a bachelor of law degree in her home country. She worked as a math teacher at a Chinese elementary school for about 16 years. She has authored scholarly articles about math education and received numerous awards for her articles, lesson planning, and teaching methodologies.
The Petitioner is now in the United States. She states her intent to teach math to children in this country.
The Petitioner does not claim - nor does the record show - her receipt of a major, international award. Thus, she must meet at least three of the ten initial evidentiary requirements. See 8 C.F.R. § 204.5(h)(3)(i-x).
The record supports the Director's findings that the Petitioner meets the following four evidentiary criteria:
- Documentation of her receipt of lesser nationally and internationally recognized prizes for excellence in her field;
- Evidence of her authorship of scholarly articles in the field in professional publications;
- Evidence of her performance in a leading or critical role for organizations with distinguished reputations; and
- Evidence of her commandment of a high salary in relation to others in her field.
See 8 C.F.R. § 204.5(h)(3)(i), (vi), (viii), (ix).
On appeal, the Petitioner contends that the Director erred in finding that she does not meet two other evidentiary criteria: documentation of membership in associations in her field requiring outstanding 1 If the standards do not readily apply to a petitioner's occupation, the noncitizen may submit comparable evidence to establish eligibility. 8 C.F.R. § 204.5(h)(4). p. 3 achievements oftheir members as judged by recognized national or international experts; and evidence of original scholarly contributions of major significance in her field. See 8 C.F.R. § 204.5(h)(3)(ii), (v). Because the Petitioner already meets the requisite three evidentiary criteria, however, we need not determine her qualifications for the other two. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies need not make "purely advisory findings" on issues unnecessary to their ultimate decisions); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal where an applicant did not otherwise qualify for relief). We will therefore next review the Director's final merits determination.
B. Final Merits Determination
To establish final eligibility for this EB-1 category, a petitioner must demonstrate that: they have sustained national or international acclaim; and their achievements have been recognized in their field, placing them among the small percentage who have risen to the field 's very top. See generally 6 USCIS Policy Manual F.(2)(B)(2), www.uscis.gov/policy-manual. A petitioner must explain their evidence's significance, and how it demonstrates their sustained national or international acclaim and recognition in their field. Id. USCIS considers any potentially relevant evidence of record, even if it does not fit one of the evidentiary criteria or constitute comparable evidence. Id.
The Director acknowledged the Petitioner's receipt of numerous awards and certificates in her field. But the Director noted that these honors bear dates from 2003 through 2012. The Director stated: "There is nothing to show that since 2012 the petitioner has maintained this recognition and enjoys a level of sustained national or international acclaim." See Kazarian, 596 F.3d at 1120 ("Only aliens whose achievements have garnered 'sustained national or international acclaim' are eligible for an 'extraordinary ability ' visa.") (citing section 203(b)(2)(A)(i) of the Act).
On appeal, the Petitioner argues that regulations "do[] not include a time constraint on the foreign national." By expecting more recent evidence of acclaim, she contends that the Director imposed a novel requirement absent from the regulations. See Kazarian, 596 F.3d at 1121 ("[N]either USCIS nor [the] AAO [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.") (citation omitted). In this regard, however, the facts in Kazarian distinguish it from the Petitioner's case. In Kazarian, we found that a physicist did not demonstrate bis authorship of scholarly articles in his field because the record lacked evidence that others cited his articles. Kazarian, 596 F.3d at 1121. The evidentiary criterion at issue there required"[ e ]vidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media." 8 C.F.R. § 204.5(h)(3)(vi). The U.S. Court of Appeals for the Ninth Circuit noted that the regulation's plain language does not require the petitioner to demonstrate researchers' reactions to his published articles. Id.
Here, unlike in Kazarian, the plain language of the Act and regulations require the Petitioner to demonstrate that she has "sustained national or international acclaim." See section 203(b )(1 )(A)(i) of the Act (emphasis added); see also 8 C.F.R. § 204.5(h)(3) (emphasis added). The word "sustained" ordinarily means "maintained at length without interruption or weakening." Merriam-Webster Online Dictionary, www.merriam-webster.com/dictionary. As USCIS policy states:
If a person was recognized for a particular achievement, the officer should determine whether the person continues to maintain a comparable level of acclaim in the field of expertise since the person was originally afforded that recognition. A person may, for example, have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.
6 USCIS Policy Manual F.(2)(A)(l); see also 72andSunny Partners LLC v. Mayorkas, No. 2:22-cv-04465-GJSx, 2023 WL 5661527, *10 (C.D. Cal. Aug. 28, 2023) ("[W]hile plaintiffs characterize USCIS' [] focus on 'temporality of some of the achievements' as improper, the grant of an EB-1 visa explicitly requires the successful showing of 'sustained' international or national acclaim.") Thus, consistent with the Act, regulations, USCIS policy, and case law, the Petitioner had to submit evidence that she sustained national or international acclaim in her field since 2012. The Director therefore did not impose a novel requirement on the Petitioner.
The Petitioner also states:
Given the prestige, national and international recognition of the [Petitioner's] awards, each one is a lifetime achievement. Earning one ofthese awards is sufficient to having sustained acclaim for this criterion. Throughout her career, [the Petitioner] has earned not one but eight nationally or internationally recognized awards.
( emphasis in original).
We disagree that the Petitioner's nationally or internationally recognized awards demonstrate "sustained" acclaim. She received the awards in 2012 or earlier and has not submitted evidence of national or international acclaim since. As previously discussed, the Act, regulations, USCIS policy, and case law require the Petitioner to demonstrate "sustained" national or international acclaim. See 72andSunny Partners LLC, 2023 WL 5661527 at *10; see also Donskoy v. USCIS, No. 21-cv-04757-CRB, 2021 WL 5240224, *6 n.7 (N.D. Cal. Nov. 11, 2021) ("Having a novel idea in 2000 is no small thing, but the regulations require 'sustained national or international acclaim,' ... and so would seem to require continued contributions in the twenty-one years hence."); Bodhankar v. USCIS, l:19-CV-706 (MAD/CFH), 2020 WL 777211, *4 (N.D. N.Y. Feb. 18, 2020) (agreeing with us that an "approximately ten-year gap between [the petitioner's] petition and his last scholarly publication is not consistent with sustained national or international acclaim").
The Petitioner also argues that we should treat USCIS' prior approval of an 0-1 nonimmigrant visa petition for her as a "positive factor" in this proceeding. Like the EB-1 immigrant visa petition at issue here, 0-1 nonimmigrant visa petitions generally require noncitizens to have "extraordinary ability in the science, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim." Section 10l(a)(l5)(O)(i) of the Act, 8 U.S.C. § l 10l(a)(l5)(O)(i); 8 C.F.R. § 214.2(o)(l)(i). 2
We agree that a prior approved 0-1 nonimmigrant petition can indicate a beneficiary's eligibility for an EB-1 extraordinary ability visa. But, for EB-1 purposes, an 0-1 approval is not determinative. See, e.g., La. Philharmonic Orchestra v. INS, 248 F.3d 1139 (5th Cir. 2001) (per curiam) (agreeing that service center or district directors' decisions do not bind us); see generally 6 USCIS Policy Manual F.(2)(B)(3).
Here, as discussed above, the Petitioner has not demonstrated "sustained national or international acclaim" since 2012. See section 203(b)(l)(A)(i) ofthe Act (emphasis added); 8 C.F.R. § 204.5(h)(3) ( emphasis added). Thus, despite the prior approved 0-1 petition for her, the Petitioner has not established her eligibility for the requested immigrant visa classification.
The Petitioner also submits additional evidence on appeal. The Director's request for evidence, however, afforded her notice ofrequired materials and a reasonable opportunity to submit them before the decision's issuance. Thus, we will not consider the Petitioner's additional evidence for the first time on appeal.Evidence submitted too late See 8 C.F.R. § 103.2(b)(l l) (requiring submission of all requested evidence together at one time); Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988) ( declining to consider new evidence on appeal because "the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial")3
Conclusion
Although the Petitioner meets the initial evidentiary requirements for an EB-1 extraordinary ability visa, she has not demonstrated sustained national or international acclaim in her field. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.