dismissed EB-1A Case: Chemical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-B-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a research engineer working in the field of chemical engineering , seeks classification 
as an alien of extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 petition , concluding that the record did not 
establish, as required , that the Petitioner has received a major, internationally recognized award or met 
the requirements of at least three of the ten evidentiary criteria listed at 8 C.F.R. § 204.5(h)(3)(i) - (x). 
On appeal , the Petitioner submits additional evidence and asserts that in addition to the two evidentiary 
criteria that the Director found he met , he meets an additional four criteria , and has sustained national 
or international acclaim. 
Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants 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. 
Matter ofN-B-
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 a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories 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. 2010) 
( 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 of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is currently employed as a research engineer in the I lf"in=d=u=st=r~Y~-~H=e~o=b=ta=in=e=d"" 
his Ph.D. in chemical engineering in 2013, focusing his research in the area ofl I .___ ______ __.I- .___ _____ ____. 
In his decision, the Director found that the Petitioner met two of the evidentiary criteria, those relating 
to his authorship of scholarly articles and his service as a judge of the work of others in his field. On 
appeal, he asserts that he also meets an additional four criteria. After reviewing all of the evidence in 
the record, we find that he does not meet the initial evidence requirement of at least three criteria. 
A. Evidentiary Criteria 
Documentation of the alien's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or _fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The evidence indicates that the Petitioner is a member of the 
I I and serves as one of six directors for the organiz .... a-t1-. o-n-' s_N_o_rt_h_e_rn_C_a_h __ f-orn_i_a-lo_c_a_l_s_e_ct_i_on__., 
which is its fifth largest in the world. In response to the Director's request for evidence (RFE), the 
Petitioner submitted a letter froml lwho states that he is a Fellow withl I a membership 
level which he states "recognizes long-term excellence in both professional accomplishments and 
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Matter ofN-B-
service to the P.rofession." He also verifies the Petitioner's membership on the Executive Leadership 
Committee forl !Northern California section, and indicates that the general requirements for this 
position include nomination by a selection committee "which selects candidates based on background 
and expertise in chemical engineering and any volunteering experience," followed by an election by 
all members. I ~dds that candidates who will be symposium chairs, a role which the Petitioner 
has served in, "are required to have additional qualifications on being well-reputed among the 
academia and industry peers ... " On review, the letter indicates that nomination is based upon 
background and volunteering experience, not outstanding achievements, and that the final selection is 
made by vote of all of the members versus recognized national or international experts. 
On appeal, the Petitioner submits thel !Northern California section's bylaws. Article III lists 
the four membership classes, but defers to the national or "home office" requirements for each class 
without further details. In addition, in explaining the nomination process for the executive committee, 
Article V indicates that "qualified" candidates should be selected, but does not explain what the 
qualifications for committee membership are, stating only that student members are not eligible. 
Therefore, neither the bylaws norl ~s letter establish that the Petitioner's membership on the 
I I Northern California section executive committee requires outstanding achievements or is 
judged by recognized national or international experts. This criterion has not been met. 
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 specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The Petitioner submitted evidence that he served as a chair for a one day sym osium presented by the 
Northern California cha ter co-chaired sessions at the 2016 and 2017 annual meetin s 
a meeting, and the 2017 .__ _________ _. 
~------------------~ and reviewed undergraduate and graduate students 
awards submissions. In addition, he served as a peer reviewer for three papers submitted to the Journal 
of Membrane Science, and reviewed a research proposal for the University ofl !Research 
Board. Accordingly, we agree with the Director that this criterion has been met. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only 
has he made original contributions, but that they have been of major significance in the field. For 
example, a petitioner may show that the contributions have been widely implemented throughout the 
field, have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance. 
The Director noted in his decision that the number of citations of the Petitioner's published research 
was far fewer than other researchers in the field, and compared it to the number of citations to the 
work o~ I who authored a reference letter submitted with this petition. On appeal, the 
Petitioner asserts that this comparison does not takd ~ long career into account, and instead 
argues that the number of citations in his first six years as a researcher should be compared to the 
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Matter ofN-B-
Petitioner's. However, while the Petitioner's overall citation history is a relevant consideration in a 
final merits determination, neither comparison is particularly useful as an indicator of whether he has 
made original contributions of major significance to the field of chemical engineering as a whole. We 
note that the record does not include more relevant, contemporary comparative data to aid in the 
determination of whether the number of citations to the Petitioner's published research is indicative of 
impact or influence in the field. 
The Petitioner identifies as the most important of his ori inal contributions his research on the "V­
treatment" technique he developed for which was 
published in the ioumal Carbon and led to a granted patent. A reference letter from 
I I of the I I Institute of Technology I ~' under whose supervision the 
Petitioner worked during his graduate research, states that this technique increases the performance of 
I ~esulting in lower cost and environmental impact in 
commercial settings. 1 He also notes that his group at I I built upon the Petitioner's work, 
leading to a patent assigned to the United States Department of Energy on which the Petitioner is not 
named as an inventor. In a second letter submitted in response to the Director's request for evidence 
(RFE), I I writes that his research group continues to pursue commercialization of the 
V-treatment process, with the expectation of successful field tests. While these letters demonstrate 
that the Petitioner's research has been important to~-----~s research group, they do not 
establish that it has already been of major significance to the overall area ofl I technology . 
.__ _______ __,I CTO atL..._ __ ___,..-----.........----____.,also submitted a reference letter, 
noting that he first met the Petitioner at also endorses the Petitioner's V-
treatment technique, writing that it "could help apply.__ _____ ~ on an industrial scale," and 
states that other companies, including his employer, "have leveraged [the Petitioner's] original work 
in their patent research." However, he does not provide specifics on how others have implemented 
the Petitioner's work, and like.__ _____ _, indicates that the industrial implementation of his 
invention is yet to occur. 
Another expert who writes about the Petitioner's V-treatment process isl He states 
in his letter that it "offers a solution to one of the field's major challenges," and that "the quality and 
number of citations the article has received in a short amount of time" shows the Carbon article's 
influence on the field. However, the record lacks supporting evidence of the quality of the citations, 
as well as comparative evidence showing that the rate of citation to this article is indicative of 
remarkable influence on other researchers in the field. 
The record also includes evidence of the four granted patents listing the Petitioner as an inventor, as 
well as six patent applications filed in 2018 that are currently pending. Two of the granted patents 
relate to the Petitioner's V-treatment process, discussed above . .__ _____ __, the Petitioner's 
technical supervisor with his current employer, describes his work on the company'~ I I I I project which led to another of the patents, and indicates that it "will be key on farther 
development of the I I technology." Although I Is letter shows that the 
Petitioner has had an influence on this and other research projects for his employer, it does not 
demonstrate that this work has already been of major significance to the overall field. 
1 While all of the reference letters in the record have been thoroughly reviewed, not all will be mentioned in this decision. 
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Matter ofN-B-
In summary, the evidence described above, as well as other evidence not specifically mentioned, 
shows that the Petitioner has made important contributions to I Is research group atl I 
C=1 as well as to his current employer. But it does not establish that his original contributions have 
been of major significance to the overall field of chemical engineering, or the more specialized area 
ofl I technology. Accordingly, this criterion has not been met. 
Evidence 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 record includes evidence which establishes that as of the date he filed his petition, the Petitioner 
had authored two scholarly articles which had been published in scientific journals, and has since 
authored an additional two published articles. As such, it establishes that he has met this criterion. 2 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
In order to qualify under this criterion, a leading role should be apparent by its position in the overall 
organizational hierarchy and through the role's matching duties. On the other hand, a critical role may 
be shown by evidence of a petitioner's impact on the organization or the establishment's activities. A 
petitioner's performance in this role should establish whether the role was critical for the organization 
or establishment as a whole. 
Here, the Petitioner focuses on his roles with L.._ __ .---- ________ ____J Research Group at 
I I as well as in his current position w · and points to reference letters 
describing his role in each of those organizations. ~--~ writes in his reference letter that as a 
Ph.D. candidate in his group, the Petitioner developed the V-treatment procedure which significantly 
improves the performance I land allows them to be scaled up for commercial use. He 
notes that this research contribution "chan ed the direction of our future studies in the advancement 
and commercialization of technology," and concludes that the Petitioner "blazed a 
path for my group at~----~' In a second letter, I I expands upon this, stating that 
roughly 60% of the work now conducted by his research group "follow along the path that [the 
Petitioner] has opened up with his research." However, we note that these letters indicate that the 
criticality of the Petitioner's work did not become evident until after his departure, and do not establish 
that his role as a graduate student researcher was critical while he was a member of the group. 
In addition, even if the evidence were to establish that the Petitioner played a critical role forD 
I Is research group, it does not demonstrate that the research group has a distinguished re:utation. 
The Petitioner submitted evidence that the graduate chemical engineering department atl ~ I 
was ranked sixth (tied with at least four other departments) by US. News & World Report, butD 
I ldoes not claim in his letters that the Petitioner's ro)e was critical for the overall department. 
Further, while I Is biography listed inl ~ faculty directory webpage indicates that 
2 We note that while the Petitioner's curriculum vitae indicated that he had also authored several abstracts which had been 
presented at scientific conferences, the record does not include evidence to show that the abstracts were published. 
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Matter ofN-B-
his group "is a leader" in the field, this statement is not corroborated with independent documentary 
evidence of the group's reputation. 
Regarding the Petitioner's current role with I I he references two letters from current and 
former colleagues. I I who co-authored a patent application with the Petitioner, also 
notes that they collaborated on two conference presentations which "demonstrated I ts 
proprietary I I technology before the international I I community and were crucial to 
garnering the interest of potential develo ers." While I !concludes that the 
Petitioner "has served in a critical capacity for " he does not ex lain the impact of the patent 
or the presentations in terms of their effect on .__ ___________ ~overall operations, 
finances or research. 
The second letter regarding the Petitioner's critical role with his current employer was written bv □ 
I I He states that the Petitioner was the technical lead on I . :r I 
.__ ____________________ ____,research projects. The Petitioner's role in 
spearheading the experimental design and commercialization of the~ project led to a patent 
application and further funding for its development, and I I states that the I I "is 
expected to increase revenue by $30-$40 million/year." He also writes that the Petitioner was "a key 
contributor to the I I project," and was the project manager for a water desalination 
project. I I concludes by noting that the Petitioner has received over a dozen internal 
performance award~ for this an~ other contributions to I Is research and development 
programs. As withl._ ____ _.j letter, however, this evidence demonstrates that the Petitioner has 
made contributions to his employer through several research projects, but does not establish this work 
made a critiCa.LlDllllli~ on its overall operations. Further, while the record includes evidence which 
indicates that is the.__ _________ _,company in the United States, the evidence 
regarding it ,.._ ____ __, subsidiary does not establish that it enjoys a distinguished reputation. 
For all of the reasons given above, the Petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration/or services, in relation to others in thefield. 8 C.F.R. § 204.5(H)(3)(ix) 
As evidence of his salary, the Petitioner submitted his 2016 and 2017 IRS Form W-2s, which show 
that he earned approximately $107,000 and $112,000 in those years, respectively. In addition, a letter 
from his current employer states that his base salary for 2018 was $122,000. In support of the level 
of his salary in relation to others in his field, he submitted two salary reports from the website of the 
Foreign Labor Certification (FLC) Data Center, which shows the salaries for chemical euo:iueers iu 
the I I California metropolitan area for 2017 and 2018. He also submitted the I I 
Global Salary Guide from recruiting company Hays for 2016. The Director concluded that this 
evidence does not show that the Petitioner "is among the highest paid research engineers in the United 
States." 
On appeal, the Petitioner asserts that the Director applied an incorrect evidentiary standard, as the 
language does not require that the Petitioner's salary be among the highest, but that it be relatively 
high. We agree. However, we do not agree with the Petitioner's interpretation of the FLC data. On 
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Matter ofN-B-
appeal, he asserts that since this was his first job since obtaining his Ph.D. in 2013, his wage should 
be compared to that of entry level chemical engineers at the level 1 wage. As noted on the salary data 
reports in the record, qualifying education and training for the referenced position consists of a 
bachelor's degree. The Petitioner's doctorate degree places him well above these minimum 
qualifications, and well above the trainee or intern level appropriate for a level 1 wage. 3 At the more 
applicable level 3 wage, which includes positions requiring "years of experience or educational 
degrees that are at the higher ranges," 4 the evidence shows that the Petitioner's salary for 2016 and 
2017 was below average, and only slightly above average for 2018. 
In addition, we do not find that the Hays report includes data which is sufficient to form a basis for 
comparison to the Petitioner's salary. Specifically, none of the job titles included appear to be research 
positions, nor is there any description of the duties of these positions, and the data does not account 
for local variations in salary. Accordingly, after comparison of the Petitioner's salary with the relevant 
data in the record, the evidence does not establish that the Petitioner meets this criterion. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the Petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). Furthermore, our authority 
over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is comparable 
to the relationship between a court of appeals and a district court. Even if a service center director has 
approved a nonimmigrant petition on behalf of an individual, we are not bound to follow that finding 
in the adjudication of another immigration petition. Louisiana Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
III. CONCLUSION 
The evidence does not establish that the Petitioner received a major, internationally recognized award 
or meets three of the ten evidentiary criteria. As a result, we need not provide the type of final merits 
analysis determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in its entirety, and conclude that it does not support a finding that the 
Petitioner has established the level of sustained acclaim and standing in his field required for the 
classification sought. For these reasons, the Petitioner has not shown that he qualifies for classification 
as an individual of extraordinary ability. 
3 See Prevailing Wage Determination Policy Guidance at 6 for a detailed explanation of the four skill levels, accessed on 
the FLC Data Center website at https://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
4 Id. 
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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 
Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-B-, ID# 4420324 (AAO Sept. 30, 2019) 
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