dismissed EB-1A Case: Cell Biology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-B-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a cell biologist, seeks classification as an individual of extraordinary ability in the 
sciences. See Immigration and Nationality Act (the Act) section 203(b)(l)(A). 8 U.S.C. 
§ 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the Form I -140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied the initial requirements set forth at 8 C.F.R 
§ 204.5(h)(3) by providing evidence that meets at least three of the ten regulatory criteria. However, 
the Director conducted a final merits analysis and found that the Petitioner had not established that 
he has sustained national or international acclaim, that he is one of the small percentage at the very top 
of the field of endeavor, and that his achievements have been recognized in the field through extensive 
documentation. 
On appeal, the Petitioner asserts that the Director did not sufficiently analyze the evidence and erred 
in his final merits analysis of the evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) ofthe Act states: 
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 m the area of 
extraordinary ability, and 
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Matter of P-B-S-
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation at 
8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major, 
internationally recognized award). Alternately, he or she must provide evidence that meets at least three 
of the criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 I 0) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
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." Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner received his Ph.D. in pathology from the and spent several 
years as a postdoctoral research fellow there, during which time he focused on identifying small 
molecules that regulate signaling functions of protein receptors within a cell. Subsequently, at 
the Petitioner worked towards developing 
molecular-based therapies for breast cancer. 
The Director found that the Petitioner met the initial evidence requirements for three criteria: 
judging, contributions, and scholarly articles. 1 However, he concluded in a final merits 
determination that the submissions were not commensurate with national or international acclaim. 
On appeal, the Petitioner maintains that the Director did not properly consider all of the evidence. 
He further claims that the Director used "circular reasoning" when he initially found that the 
Petitioner satisfied the original contributions of major significance, and then contradicted himself in 
1 
8 C.F.R. § 204.5(h)(3)(iv), (v), and (vi). 
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the final merits analysis finding that his contributions were not of major significance. 2 Also, he 
states that the Director made a mistake in conducting a final analysis of each item individually rather 
than in the aggregate. Finally, the Petitioner contends that the Director erred in finding that he has 
not performed in a leading or critical role for an organization or establishment with a distinguished 
reputation. 3 For the reasons discussed below, we conclude that the record is not indicative of the 
necessary level of acclaim and status in the field. 
A. Evidentiary Criteria 
The record supports the Director's findings that the Petitioner met the judging and scholarly articles 
criteria.4 While the Director concluded that the Petitioner meets the contributions criterion, in the 
final merits determination he questioned whether the contributions were in fact of major 
significance, which is a requirement to meet the criterion. 5 As discussed below, we share the 
Director's concern about the significance of the Petitioner's contributions. Regardless, as that issue 
is a qualitative one and the Director's basis of denial was set forth in a final merits determination, we 
will, in this case, address it at that stage of our analysis.
6 
With respect to the leading or critical role 
criterion, once the Petitioner satisfies at least three of the regulatory criteria, the focus shifts to 
whether the evidence establishes that he has the necessary status and acclaim in the field. As the 
Director found that the Petitioner meets three criteria, any items that might relate to other criteria are 
better considered in the context of the final merits analysis. 
B. Final Merits Analysis 
In the final merits determination, we consider the totality of the record to determine if a petitioner 
has demonstrated, by a preponderance of the evidence, that he has sustained national or international 
acclaim and is one of the "small percentage who have risen to the very top of the field of endeavor;' 
2 
While he also argues that the Director erred in issuing a NOlO rather than a request for evidence, limiting his time to 
respond, there is no requirement to issue a request for further information in every case. If a director determines that the 
initial evidence supports a decision of denial, the regulation at 8 C.F.R. ~ 103.2(b)(8) does not require solicitation of 
further documentation. Furthermore, even if the Director had committed a procedural error by failing to solicit further 
evidence, it is not clear what remedy would be appropriate beyond the appeal process itself. The Petitioner has 
supplemented the record on appeal, and we have considered all submissions. 
3 8 C.F.R. § 204.5(h)(3)(viii). 
4 8 C.F.R. § 204.5(h)(3)(iv), (vi). 
5 8 C.F.R. § 204.5(h)(3)(v). 
6 The Petitioner states that the original contributions criterion is the "'fulcrum on which a successful EB-1 A petition rests, 
for without satisfying [U.S. Citizenship and Immigration Services (USCIS)] that the Petitioner of such a petition has 
made original contributions of major significance in the field of endeavor, no case can pass the final merits determination 
with a favorable result.'' This interpretation is not correct. As stated above, once a petitioner submits qualifying 
evidence under at least three criteria, regardless of which three criteria, we will then review the evidence in the aggregate 
to determine whether the record as a whole shows sustained national or international acclaim and demonstrates that the 
individual is among the small percentage at the very top of the field of endeavor. Thus, a Petitioner can establish 
eligibility for this visa classification without submitting evidence of original contributions of major significance under 
8 C.F.R. § 204.5(h)(3)(v). 
3 
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Matter of P-B-S-
and that his achievements have been recognized in the field through extensive documentation. We 
consider the entire record, including submissions that do not meet any of the enumerated criteria. 
On appeal, the Petitioner maintains that the Director misapplied Kazarian , 596 F. 3d at 1119-20 and 
should have, instead , looked to the reasoning in Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 
1994). According to the Petitioner, this case held that the burden shifts to USCIS once 
the necessary 
initial evidence is produced. First, we note that in contrast to the broad precedential authority of the 
case law of a United States circuit court such as the 20 I 0 decision in Kazarian, we are not bound to 
follow the published decision of a United States district court in cases arising within the same 
district. 7 The reasoning underlying a district judge's decision will be given due consideration when 
it is properly before us; however, the analysis does not have to be followed as a matter of law. 8 
Buletini, a district court decision from 1994, stated that once USCIS determines that the evidence is 
sufficient to meet three of the criteria listed in the regulation, it must deem the foreign national to 
have extraordinary ability unless it "sets forth specific and substantiated reasons for its finding that 
the [petitioner] , despite having satisfied the criteria, does not meet the extraordinary ability 
standard." 9 While the court expressed the requirement that USCIS explain its reasons , it doe s not 
suggest the overall burden of proof shifts to USCIS. 10 
In 2012, the Petitioner judged a poster competition for the where 
he reviewed the work of entrants, thus he satisfies the criterion at 8 C.F.R. § 204.5(h)(3)(iv). 
However, the record does not include evidence that the Petitioner ' s role in the competition is 
indicative of or consistent with national or international acclaim. On appeal, the Petitioner contends 
that the Director scrutinized this criterion individually , rather than considering it in the aggregate "as 
part of the whole picture ."'' With respect to the Petitioner 's concern that the Director did not 
consider the evidence in the aggregate in his final merits analysis, it is appropriate to first discuss 
and analyze the Petitioner 's accomplishments as a framework to perform an overall, final 
determination. We then weigh all of the evidence together to determine if his successes are 
sufficient to demonstrate that he has extraordinary ability in the respective field of endeavor. 12 
Scientific journals and poster competitions rely on many scientists to review submissions. Thus, 
peer review and judging is routine in the field; not every peer reviewer enjoys international 
recognition. The Petitioner did not provide evidence of the nature of the competition, who the 
entrants were, or whether other individuals also served as judges , and their respective credentials. 
Without responsibilities that set the Petitioner apart from others in his field, such as evidence that he 
7 
See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 
8 /d. at 719. 
9 860 F.Supp. at 1234. 
10 See also Muni v. INS, 891 F. Supp. 440,443 (N.D. 111. 1995) (including a "Totality of the Evidence" section that, like 
Buletini, requires USCIS to explain why evidence that meets three criteria does not establish eligibility, while not 
suggesting the burden shifts to USCIS). 
11 The nature of the Petitioner 's judging experience is a relevant consideration as to whether the evidence is indicative of 
the Petitioner 's national or international acclaim. See Kazarian, 596 F.3d at 1122. 
12 See section 203(b)(I)(A)(i) ofthe Act; 8 C.F .R. § 204 .5(h)(2) , (3); see also Kazarian, 596 F.3d at1119-20. 
4 
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Matter of P-B-S-
has judged posters for a competition that credits a small, elite group of referees, received 
independent requests from a substantial number of journals or competitions, or served in an editorial 
position for a distinguished journal, the Petitioner has not established that his judging experience is 
commensurate with national or international recognition. 
On appeal, the Petitioner maintains that his original contributions manifest primarily in his graduate 
work identifying and characterizing a set of small molecules that can selectively inhibit the activity 
of proteins. He contends that his "selective have 
since been used by many other scientists for further investigative research," and he offers several 
letters discussing this work, along with a sampling of citing papers. On appeal, the Petitioner 
maintains that the Director gave insufficient weight to these letters, and disregarded the citing 
papers. 13 The submission of letters from experts supporting the petition is not presumptive evidence 
of eligibility; USCIS may, as this decision will do below, evaluate the content of those letters as to 
whether they support the foreign national's eligibility. 14 
Dr. an associate professor at 
described the Petitioner ' s graduate work at the _ explaining that the Petitioner 
focused on identifying several small molecules that interact with gamma beta proteins by direct , 
reversible, and non-covalent bonding, resulting in three publications in peer-reviewed scientific 
journals. She goes on to state that the Petitioner joined her laboratory to apply the skills obtained 
during his doctoral work to generate key molecular tools aimed at developing novel therapeutics for 
breast cancer, and that he established himself as an "instrumental investigator on my federally­
funded research projects." She further explained that her team has obtained a provisional patent for 
one of the reagents and that the Petitioner's unique skill set was critical to the teams' success. In 
addition to the patent, Dr. stated that the manuscript reporting the findings has been 
"reviewed positively by the highly respected journal, ' and that she expects that the 
article will be published within 3-4 months." Dr. expectation regarding the possible 
future impact of the Petitioner's work, however, does not establish that the work has achieved 
acclaim. 
Additionally, while issuance of a patent recognizes the originality of an idea, it does not demonstrate 
that the contribution is of major significance. Rather, the significance of the innovation must be 
demonstrated by the use or citing of the patent by others in the field. Here, the record does not 
include evidence that the patent has been utilized or cited extensively by other researchers. 
Dr. director of translational science at 
described the Petitioner's work with small molecule reagents and how they interact with 
the to modulate signaling effects. He asserted that the Petitioner did not invent the 
compounds; rather, he discovered and described their mechanisms of action and characterized how 
13 While we discuss only a sampling of the submitted letters, we have reviewed and considered each one. 
14 
See Matter of Caron lnt '/, 19 I&N Dec. 791 , 795 (Comm ' r 1988); see also Maller of V-K-. 24 I&N Dec. 500, n.2 (BIA 
2008) (noting that expert opinion testimony does not purport to be evidence as to " fact"). 
5 
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Matter of P-B-S-
that specific interaction affects downstream cell signaling events. Dr. further stated that the 
Petitioner's work "afforded 
other scientists a broad range of future applications for those reagents in 
further research into many areas of many areas of molecular cell biology, cancer research, kidney 
and heart disease research" thereby "identifying potential drug development pathways for all of 
those diseases." Similarly, Dr. associate professor of medicine at 
_ , commented on. the Petitioner ' s work identifying small 
molecule inhibitors that selectively modulate signaling. He noted that he 
used the Petitioner's findings to further his research on signaling related to mutations related to 
breast and prostate cancer, glioblastoma, and other diseases. 
Dr. , a reader in cell physiology at _ , wrote that his 
laboratory has "successfully incorporated some of the reagents developed from [the Petitioner ' s] 
work into our research." He explained that the Petitioner's work is helping to develop and 
characterize a drug that selectively inhibits the action of the molecule and this 
drug, which works through and its associated pathways "may be therapeutic 
targets to treat angina and myocardial infarction." While he noted that the Petitioner's work may 
lead to therapeutic targets to treat 
disease , he did not provide evidence that these results have come 
to fruition. 
Similarly, Dr. a professor at . commented 
that he first became aware of the Petitioner's work through his presentations at an annual medical 
conference in . He described how the Petitioner was the first person to demonstrate 
that a cytoskeletal motor protein is able to regulate the functioning and downstream effects of a 
hormone inside a nucleus , and stated that this work holds "enormous potential" for pharmaceutical 
targeting of previously intractable diseases. Although Dr. confirmed that this work may 
benefit scientists in the field, he did not explain how he or any other independent researcher has 
utilized the Petitioner's findings. 
Two references also address the Petitioner's involvement in the development of a 
platform. Dr. is a chief scientist at a maker 
of instruments and equipment used in research. Dr. noted that he became familiar with the 
Petitioner's work between 2008 and 2011, when he and his Ph.D. advisor worked with to 
develop its instrument platform. Dr. commented that the Petitioner made numerous 
recommendations to his team resulting in valuable improvements to their first generation 
instrument, and in more of its components being manufactured in-house by rather than 
sourced externally. He further described how the Petitioner's meaningful contributions ultimately 
assisted in developing its fourth generation product which is now available on the market. 
Dr. an associate professor at the _ _ also discussed the 
Petitioner's work with work indicating that the methodologies developed by the 
Petitioner were "instrumental" and "directly applied'" to his study. Dr. did not explain how he 
became aware of the methodologies that he referenced, as the record does not include any articles , 
abstracts , or poster presentations relating to and he did not offer further detail about his study 
or how methodologies were used. Furthermore , the record does not include evidence that the 
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Matter of P-B-S-
Petitioner developed the methodologies for dissemination to the field; rather, the Petitioner and 
Dr. characterize it as proprietary to . Neither Dr. nor Dr. explain the 
Petitioner's specific role in developing methodologies or provide evidence that this 
work constitutes an original contribution of major significance. 
The Petitioner has submitted evidence of three publications in peer-reviewed scientific journals: 
. 15 It is 
appropriate t~ ~onsider the field's ~espons~ to these articles in this final merits determination .16 The 
record demonstrates that one of the Petitioner's publications, his article in 
has garnered a higher than average level of citation. He claims that since his citation rate 
for this article exceeds the average for his field, his research reported in the article demonstrates a 
contribution of major significance. Specifically, the Petitioner points to a sampling of citing papers 
and states that "these publications illustrate how reagents whose behavior [he] has identified and 
characterized have been widely adopted by scientists in many fields.' ' The Petitioner asserts that 
these citing papers were neither discussed nor acknowledged by the Director. 
An examination of the citing papers, however, reveals brief references to the Petitioner ' s work that 
do not include specific discussion of the research or reflect that his work was singled out as 
particularly important. Rather, the Petitioner's findings were utilized as background information to 
the authors' papers. For example, six of the citing articles refer to the Petitioner's work published in 
and provide a brief discussion of the Petitioner's finding that small 
molecule disruption of signaling inhibits disease processes. However, these 
articles do not explain the importance of this finding or indicate that it precipitated further discovery. 
Many of the papers cite the Petitioner 's work among dozens of other references without providing a 
detailed or specific discussion of its significance. 
Overall, the Petitioner has not demonstrated that the citations to his research, considered both 
individually and collectively, are commensurate with contributions "of major significance in the 
field." Additionally, while we do not question that the Petitioner's research has value, in order for 
an institution to accept any research for graduation, publication, or funding, it must offer new and 
useful information to the pool of knowledge. Not every medical researcher who performs original 
research that adds to the pool of knowledge has inherently made a contribution of "major 
significance " to the field. The record does not show that the Petitioner's research has substantially 
influenced the field, or otherwise rises to the level of an original contribution of major significance. 
Further, in light of the discussion above , the Petitioner has not documented original contributions 
whose significance in the field is commensurate with national or international acclaim. Rather , 
letters and documentary evidence ret1ect that he has produced promising methodologies with 
applicability in the field. 
15 The record indicates that the Petitioner has not published any other articles in peer-reviewed journals since 20 I 0. 
16 
Kazarian, 596 F.3d at 1122. 
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On appeal, the Petitioner contends that he played a critical role assisting in the development of the 
. 17 He maintains that the Director disregarded testimony that the 
Petitioner worked closely with the company to "expand possible applications for the 
instrument by customizing many of its components" and refining it to the point that it can be 
marketed to major academic and pharmaceutical customers. As stated above, Dr. attests that 
the Petitioner refined the accuracy and usability of the company 's representing a 
"major step forward in this field." He confirms that these refinements resulted in a more sensitive 
product that served as the foundation for the current, fourth generation product 
currently marketed. 
However, he does not explain how the Petitioner ' s role related or compared with others involved in 
the development of the product. Even assuming this role was a critical one for the organization and 
that the organization enjoys a distinguished reputation, the record lacks evidence showing that 
selected the Petitioner based on his national or international acclaim or that the Petitioner 
garnered such acclaim based on his impact there. As noted above, the record contains little 
information about the Petitioner's role for , such as how he fits within the overall hierarchy 
of the company or his impact there. For these reasons, the Petitioner has not demonstrated that the 
Petitioner's roles are commensurate with national or international acclaim . 
Ultimately, the evidence in the aggregate does not distinguish the Petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. The record establishes that the 
Petitioner is an experienced cell biologist who, while studying for his Ph.D. worked on important 
projects with promising results that have been referenced in other published articles. He participated 
in the widespread process of manuscript authorship and review, and he successfully completed his 
work that improved the accuracy and usefulness of platforms. The 
Petitioner, however , has not met his burden of demonstrating that these accomplishments, even in 
the aggregate , are commensurate with sustained national or international acclaim in his field as 
required for this highly restrictive classification. 
III. CONCLUSION 
The Petitioner has not demonstrated that he qualities as an individual of extraordinary ability under 
section 203(b)(l)(A) of the Act. Accordingly, he has not established eligibility for the immigration 
benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-B-S-, ID# 394579 (AAO June 28, 2017) 
17 The Petitioner and testimonials also refer to this company as