FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

POGHOS KAZARIAN, 

Plaintiff-Appellant,

No. 07-56774 v.

D.C. No. US CITIZENSHIP AND IMMIGRATION  CV-07-03522-R-E SERVICES, a Bureau of the

Department of Homeland Security; OPINION

DOES, 1 through 10,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

December 9, 2008—Pasadena, California

Filed September 4, 2009

Before: Harry Pregerson, Dorothy W. Nelson and

David R. Thompson, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge Pregerson

12411
COUNSEL

Ruben N. Sarkisian, Glendale, California, for the plaintiffappellant Poghos Kazarian.

KAZARIAN v. USCIS 12413
Craig W. Kuhn and Elizabeth J. Stevens, Office of Immigration Litigation, Department of Justice, Washington D.C.; for

the defendant-appellee U.S. Citizenship & Immigration Services. 

OPINION

D.W. NELSON, Senior Circuit Judge:

Poghos Kazarian appeals the District Court’s grant of summary judgment to the United States Citizenship and Immigration Service (“USCIS”), finding that the USCIS’s denial of an

“extraordinary ability” visa was not arbitrary, capricious, or

contrary to law. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2003, Poghos Kazarian, a thirty-fouryear-old native and citizen of Armenia, filed an application

for an employment-based immigrant visa for “aliens of

extraordinary ability” (Form I-140) contending that he was an

alien with extraordinary ability as a theoretical physicist.

Kazarian received a Ph.D in Theoretical Physics from

Yerevan State University (“YSU”) in Yerevan, Armenia, in

1997. From 1997 to 2000, he remained at YSU as a Research

Associate, where, among other things, he “reviewe[d] [the]

diploma works of the Department’s graduates.” 

At YSU, Kazarian specialized in non-Einsteinian theories

of gravitation. According to a colleague, “[t]his work offered

a mechanism for the control of solutions’ accuracy, which

guarantees the accuracy of calculations in many theories of

gravitation.” Kazarian “solve[d] [the] more than 20 year[ ] old

problem of construction of the theory, satisfying the cosmog12414 KAZARIAN v. USCIS
ony conception of worldwide acknowledged scientist, academician V.A. Hambartsumian.”

Since 2000, Kazarian has served as a Physics / Math / Programming Tutor, an Adjunct Physics and Mathematics

Instructor, and a Science Lecture Series speaker at Glendale

Community College (“GCC”). Between 2000 and 2004, however, Kazarian’s work at GCC was on a volunteer basis.

In support of his application, Kazarian submitted several

letters of reference. The first reference was a letter from Dr.

Kip S. Thorne, the Feynman Professor of Theoretical Physics

at California’s Institute of Technology. Dr. Thorne, who

worked in the same research group as Kazarian, stated that he

had “formed a good opinion of Dr. Kazarian’s research. It is

of the caliber that one would expect from a young professor

at a strong research-oriented university in the United States.”

Kazarian also provided letters from professors at YSU, stating

that Kazarian “possesse[d] great ability and considerable

potency in science,” was “a young scientist with enough scientific potential,” had “high professionalism,” and had “displayed himself as exceptionally diligent, hard-working, [and]

highly qualified.” Finally, Kazarian submitted three letters

from colleagues at GCC praising his hard work and active

participation at GCC. 

As evidence of publication, Kazarian noted that he had

authored a self-published textbook, titled “Concepts in Physics: Classical Mechanics.” According to one of his colleagues

at GCC, the book “is certain to be required reading in many

secondary schools, colleges and universities throughout the

country.” Kazarian, however, presented no evidence that the

book was actually used in any class. Kazarian also submitted

two scholarly articles in support of his application in which he

was neither the author nor the co-author, nor was his research

cited or relied upon; instead, he was acknowledged for his

useful scientific discussions. In his resume, he also listed six

publications in Astrophysics, as well as one e-print.

KAZARIAN v. USCIS 12415
Finally, Kazarian presented evidence of his Science Lecture

Series at GCC. His resume also listed lectures at the 17th and

20th Pacific Coast Gravity Meetings, the Conference on

Strong Gravitational Fields at UC Santa Barbara, the 8th

International Symposium on the Science and Technology of

Light Sources, and the Foundations of Gravitation and Cosmology, International School-Seminar.

In August 2005, the USCIS denied the petition. Kazarian

appealed the denial to the Administrative Appeals Office

(“AAO”). The AAO found that Kazarian failed to establish

any of the necessary criteria for an “extraordinary ability”

visa and dismissed the appeal. Having exhausted his administrative remedies, Kazarian filed a complaint in the Central

District of California. The District Court granted the USCIS’s

motion for summary judgment, and Kazarian timely appealed

to this court.

STANDARD OF REVIEW

This court “review[s] the entry of summary judgment de

novo.” Family Inc. v. U.S. Citizenship & Immigration Servs.,

469 F.3d 1313, 1315 (9th Cir. 2006). “However, the underlying agency action may be set aside only if ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). “We have

held it an abuse of discretion for the Service to act if there is

no evidence to support the decision or if the decision was

based on an improper understanding of the law.” Tongatapu

Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th

Cir. 1984) (internal quotations omitted). “The agency’s factual findings are reviewed for substantial evidence.” Family,

469 F.3d at 1315. This court “will not disturb the agency’s

findings under this deferential standard unless the evidence

presented would compel a reasonable finder of fact to reach

a contrary result.” Id. (internal quotations omitted).

12416 KAZARIAN v. USCIS
DISCUSSION

A. THE “EXTRAORDINARY ABILITY” VISA

[1] Pursuant to 8 U.S.C. § 1153(b)(1)(A), aliens may apply

for a visa on the basis of “extraordinary ability.” An immigrant is an “alien with extraordinary ability” 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.

Id.

Only the first factor is at issue in this appeal. Extraordinary

ability “means a level of expertise indicating that the individual is 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). 

An alien can prove an extraordinary ability in one of two

ways. The first is “evidence of a one-time achievement (that

is, a major, international recognized award.” Id. § 204.5(h)(3).

Receipt of the Nobel prize is the quintessential example of a

major award. H.R. Rep. No. 101-723(I & II) (1990), reprinted

in 1990 U.S.C.C.A.N. 6710, 6739. Kazarian concedes that he

has won no such prize.

The second way to prove extraordinary ability is to provide

evidence of at least three of the following:

KAZARIAN v. USCIS 12417
(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 specification 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;

12418 KAZARIAN v. USCIS
(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.

8 C.F.R. § 204.5(h)(2). 

The “extraordinary ability” visa can be better understood in

context. Under the Immigration Act of 1990, thousands of

employment-based visas were created according to three

employment preferences. Pub. L. No. 101-649, 101 Stat.

4978. “Aliens with extraordinary ability” are “priority workers” and have the first preference. 8 U.S.C. § 1153(b)(1).

“Extraordinary ability” is distinct from “exceptional ability,” however, which receives second preference. Compare id.

§ 1153(b)(1)(A) (emphasis added), with id. § 1153(b)(2)

(emphasis added).1 To qualify for the “exceptional ability”

visa, a petitioner must make a lesser showing of ability, and

need only show three of the following: 

(A) An official academic record showing that the

alien has a degree, diploma, certificate, or similar

award from a college, university, school, or other

institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or

former employer(s) showing that the alien has at

least ten years of full-time experience in the occupation for which he or she is being sought;

1Skilled workers, professionals, and “other workers” make up the third

preference. Id. § 1153(b)(3). 

KAZARIAN v. USCIS 12419
(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary,

or other remuneration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and

significant contributions to the industry or field by

peers, governmental entities, or professional or business organizations.

8 C.F.R. § 204.5(k)(3)(ii). 

[2] To qualify for an “exceptional ability” visa, however,

the alien must also provide evidence that his services are

sought by a United States employer. Id. The “extraordinary

ability” visa thus has considerable advantages. Unlike the

“exceptional ability” visa petition, the “extraordinary ability”

petition is not dependent on an actual offer for employment

in the United States, and is exempt from the time-consuming

labor certification process, which requires that employers first

test the marketplace for existing qualified domestic workers.

Compare id. § 204.5(h)(3)(5), with id. § 204.5(k)(4). 

[3] Interpretation of the statutory and regulatory requirements for the “extraordinary ability” visa presents a question

of first impression for this court. The scant caselaw indicates

that “[t]he regulations regarding this preference classification

are extremely restrictive.” Lee v. Ziglar, 237 F. Supp.2d 914,

918 (N.D. Ill.2002) (finding that “arguably one of the most

famous baseball players in Korean history” did not qualify for

the visa as a baseball coach for the Chicago White Sox

because his acclaim was limited to his skills as a player and

not as a coach); cf. Grimson v. INS, 934 F.Supp. 965, 969

12420 KAZARIAN v. USCIS
(N.D. Ill. 1996) (finding denial arbitrary and capricious where

NHL hockey enforcer was one of the top three players in the

world and agency improperly discounted the importance of

the enforcer position); Muni v. INS, 891 F.Supp. 440 (N.D. Ill.

1995) (finding the agency improperly discounted evidence for

an NHL hockey player who won the Stanley Cup three times,

won “most underrated defenseman,” was paid more than the

average NHL player, submitted numerous articles establishing

his stature in the hockey world, and provided affidavits from

eight renowned hockey players stating that he was highly

regarded); Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich.

1994) (finding denial was arbitrary and capricious where

Albanian physician won a national award, published a medical dictionary and numerous articles, was responsible for general health projects, and served as an adjunct professor);

Matter of Price, 20 I. & N. Dec. 953, 955-56 (BIA 1994)

(granting the visa petition to a professional golfer who won

the 1983 World Series of Golf and the 1991 Canadian Open,

ranked 10th in the 1989 PGA Tour, collected $714,389 in

1991, provided numerous affidavits from well-known and celebrated golfers, and received widespread major media coverage).

B. APPLICATION TO KAZARIAN

The AAO found that Kazarian did not meet any of the regulatory criteria. Only four of the ten are at issue in this appeal.

We find that substantial evidence supports all of the AAO’s

findings.

1. Participation as a Judge of the Works of Others

[4] In finding that Kazarian did not meet this criterion, the

AAO acknowledged that Kazarian had served as a reviewer

of diploma works at YSU, but determined that his YSU service was not qualifying evidence, because “[r]eviewing

‘diploma works’ for fellow students at one’s own university

is not persuasive evidence of acclaim beyond that university.”

KAZARIAN v. USCIS 12421
Because internal review of students’ work fails to establish

“sustained national or international acclaim,” this finding was

not arbitrary, capricious, or contrary to law. 

2. Evidence of Original Scientific, Scholarly Contributions of Major Significance in the Field of Endeavor

The AAO discounted the letters submitted on Kazarian’s

behalf, noting that they were vague, solicited letters from

local colleagues. The letters did not specifically identify contributions nor did they provide specific examples of how

those contributions influenced the field. 

[5] An independent look at the letters reveals that although

Kazarian is well-respected by his colleagues, he has not yet

attained the stature required by the statutory scheme. Dr.

Thorne had “formed a good opinion” of Kazarian, and found

him to be “of the caliber that one would expect from a young

professor.” Evidence that Kazarian had “enough scientific

potential,” however, does not demonstrate that he is in “the

top percentage of his field,” 8 C.F.R. § 204.5(h)(2). 

[6] Kazarian’s publications and presentations overseas are

not to the contrary. There was no evidence that his textbook

had been adopted by any schools, and although Kazarian had

several publications, there was no evidence that they were of

“major significance,” 8 C.F.R. § 204.5(h)(2)(v) (emphasis

added). This does not compel a finding that Kazarian had contributed work of the required caliber. 

3. Authorship of Scholarly Articles in the Field

[7] Although Kazarian listed six articles on his resume,

there was no evidence in the record that his scholarship was

cited by others. In determining that Kazarian did not meet this

criterion, the AAO found that “publication of scholarly articles is not automatically evidence of sustained acclaim; we

12422 KAZARIAN v. USCIS
must consider the research community’s reaction to those articles.” 

[8] The question presented here is somewhat closer.

Requiring acclaim within the criterion may be circular,

because publication, on its own, indicates approval within the

community. Because postdoctoral candidates are expected to

publish, however, the agency’s conclusion that the articles

must be considered in light of the community’s reaction is not

contrary to the statutory mandate that the alien have achieved

“sustained national or international acclaim.” See 8 U.S.C.

§ 1153(b)(1)(A)(i). 

4. DISPLAY of the Alien’s Works at Artistic Exhibitions

or Showcases

[9] Because the plain language of the regulation refers to

“artistic exhibitions or showcases” and because evidence of

lectures and conference presentations are accounted for in the

“authorship of scholarly articles” criterion, the agency correctly held that this criterion did not apply to Kazarian. See 8

C.F.R. § 204.5(h)(2)(vi)-(vii).

CONCLUSION

[10] Although Kazarian appears to be a well-respected,

promising physicist, who may well have qualified for an “exceptional ability” visa (were he to have established that his

services were sought by a United States employer), he is not

yet of the caliber that qualifies him as “an alien with extraordinary ability.” Accordingly, we AFFIRM the District Court’s

order. 

AFFIRMED.

KAZARIAN v. USCIS 12423
PREGERSON, Circuit Judge, dissenting:

I dissent. Dr. Poghos Kazarian received his Ph.D. in the

field of theoretical physics from Yerevan State University

and, since arriving in the United States, has continued to

research and teach in this challenging field. Dr. Kazarian participated in a research group headed by Dr. Kip Thorne at the

California Institute of Technology. Dr. Thorne submitted a

letter in support of Dr. Kazarian’s visa application. Dr.

Kazarian volunteers his teaching services at Glendale Community College and has authored and published his own physics textbook. Dr. Kazarian has received strong words of praise

from colleagues at Yerevan State University, Glendale Community College, and the California Institute of Technology.

Dr. Kazarian’s contributions in the United States have been

undoubtedly valuable. Forcing Dr. Kazarian to depart from

our country would be undoubtedly wasteful and make one

think that there is something haywire in our system.1

I also disagree with the majority opinion’s interpretation of

8 C.F.R. § 204.5(v). Section 204.5(v) permits an applicant to

demonstrate extraordinary ability by showing, as one factor,

“[e]vidence of the alien’s authorship of scholarly articles in

the field, in professional or major trade publications or other

major media[.]” In support of his application, Dr. Kazarian

offered evidence that he published several articles and pre1At oral argument, Dr. Kazarian’s current counsel represented to the

court that the attorney who started Dr. Kazarian on the path of applying

for this “extraordinary ability” visa was George Verdin. Verdin is listed

as being indefinitely suspended from practice before the Immigration Service, the Immigration Courts, and the Board of Immigration Appeals.

Executive Office for Immigration Review, Office of General Counsel, List

of Currently Disciplined Practitioners (Aug. 11, 2009),

http://www.usdoj.gov/eoir/profcond/chart.htm. Verdin has also been disbarred by the Supreme Court of Hawai’i. Office of Disciplinary Counsel

v. Verdin, No. 22349 (Haw. Sept. 27, 2001). It is distressing how many

good people—including the highly educated and the minimally educated

—fall prey to disreputable lawyers known to the system. 

12424 KAZARIAN v. USCIS
sented his work at conferences. Nevertheless, the Administrative Appeals Office rejected Dr. Kazarian’s evidence, stating

that it was the position of the United States Citizenship and

Immigration Services (“USCIS”) “that publication of scholarly articles is not automatically evidence of sustained

acclaim; [USCIS] must consider the research community’s

reaction to those articles.”

As observed by the majority opinion, this extra requirement

articulated by the Administrative Appeals Office is circular,

because publication itself indicates some approval by the

research community. Moreover, the requirement that articles

be considered in light of the research community’s reaction is

nowhere found in the statute or regulations. By its own language, the regulation requires evidence of authorship and

authorship alone. The plain language of the regulation does

not state that an applicant is required to submit evidence of

the research community’s reaction to the publications. There

is not even a suggestion in the regulations as to what such evidence might look like. I do not agree with the majority opinion’s conclusion that articles must be considered in light of

the research community’s reaction to those articles. For all

these reasons, I dissent.

KAZARIAN v. USCIS 12425