dismissed EB-1A Case: Clinical Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-X-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 9. 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a clinical investigator, 1 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 Texas Service Center revoked the approval of the petition. concluding that the 
record did not establish, as required, that the Petitioner had satisfied at least three of the regulatory 
criteria. 
On appeal, the Petitioner submits additional evidence. He asserts that he did not receive the 
Director's notice of intent to revoke and that he meets more than three criteria. In September 2017, 
we issued a notice of intent to dismiss (NOID) based on discrepancies in the record. The Petitioner 
responded with a statement and additional exhibits. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) ofthe Act describes qualified immigrants for this classification as follows: 
(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 111 the area of 
extraordinary ability, and 
1 While the Petitioner listed his company in part 1 of the petition, he indicated in part 5 that he is petitioning for himself. 
Matter of H-X-
(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. Alternatively, he or she must provide 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. USC/S, 596 F.3d 1115 (9th Cir. 201 0).2 
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). 
With respect to revocations, section 205 of the Act, 8 U.S.C. § 1155, states, in pertinent part, that the 
Secretary of Homeland Security "may, at any time, for what he deems to be good and sutlicient 
cause, revoke the approval of any petition approved by him under section 204." 
Regarding revocation on notice, the Board of Immigration Appeals has stated: 
In Matter of" Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for ·'good and sufficient cause'' where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted. would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter o( Estime, 19 l&N Dec. 450 (BIA 
1987)). 
2 This case discusses 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. 20 13); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.O. Wash. 20 II). 
2 
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Matter of H-X-
By itself~ the Director's realization that a petition was incorrectly approved is good and sut1icient 
cause for the revocation of the approval of an immigrant petition. !d. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. !d. at 589. A beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. !d. 
II. ANALYSIS 
A. Background 
The Petitioner founded his own company in 2006, and. at 
the time of filing the petition in 2011 was in the United States pursuant to a nonimmigrant visa that 
the company had filed on his behalf The Petitioner maintains that he is a sponsor-investigator. both 
initiating and conducting clinical investigations. Initially, he contended that he could not 
demonstrate a track record of clinical results because of intellectual property concerns that could 
undermine his ability to treat patients. The record contains the Petitioner's medical degree, an 
award, professional memberships, presentations, 
scholarly articles. protocol documentation, and a 
patent application. The Petitioner also offered his curriculum vitae (CV), which lists experience as a 
visiting scholar at the 
from December 1995 through March 2000 as well as a principal investigator with from 
April 2000 through May 2006, when he founded We note that the record lacks 
letters from 
his previous employers corroborating his work experience, as required by 8 C.F.R. § 204.5(g)( 1 ). or 
its significance. 
Moreover, while the Petitioner incorporated in 2006. he has not documented its 
accomplishments other than obtaining permission to run clinical trials whose outcome is entirely 
speculative. The record also lacks approved grant applications demonstrating how will fund 
its research. The materials he provided from reflect that his trials are ongoing but 
not recruiting patients. The U.S. Food and Drug Administration (FDA) exempted the studies from 
an Investigational New Drug (IND) Application because the investigation is not intended to be 
reported to the FDA as a well-controlled study in support of a new indication for use, support any 
other significant change in the labeling for the drug, or support a significant change in the 
advertising for a prescription drug product. It also does not involve a change in route of 
administration, dosage level, or patient population. Finally, the notice advises that the FDA does not 
"regulate exploratory studies of this kind" and that the submitted protocols "are inadequate for 
patient treatment." 
The Director initially approved the 
petition. Upon further review, he issued a notice of intent to 
revoke and ultimately revoked the approval. While the Petitioner asserted that he did not receive 
that notice, the Director issued it to the address on the petition. which is address. We have 
considered all evidence responding to the grounds of revocation on appeal and in response to our 
NOID, discussed below. 
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Matter of H-X-
B. Discrepancies 
In our NOID, we noted several discrepancies regarding his award from the 
one of his articles, his credentials as listed at a conference, and his 
representation to U.S. government agencies that he holds a Ph.D. degree. An overseas investigator 
from U.S. Citizenship and Immigration Services contacted 
and was advised that the society had never issued a prize with the title on the Petitioner's certificate 
or any other award to him. Furthermore, contradicting his claimed authorship, the website 
listed only a single author, not the Petitioner, of the article 
Finally, an article the investigator located about the 2008 
identified the Petitioner 
as a medical doctor from an institution 
with which he maintains no at1iliation. Finally, he had listed his education as including a Ph.D. on 
several documents presented to U.S. government authorities when his sole degree is a medical 
baccalaureate. We advised that the Petitioner could only resolve these issues with independent 
objective evidence and that photocopied items would not suffice. 
The Petitioner responds to each of those concerns. He maintains executives till part-time 
jobs, have no knowledge of occasional awards the society issues, and cannot represent the entity. He 
at1irms that the "physical evidence,'' the copy of the award, should be sufficient to demonstrate he 
received it. He offers another photocopy of the award and a photocopy of a "Confirmation Letter" 
from a' Office" advising that it issued the award and that the Petitioner's wife accepted it on 
his behalf. He also notes that chief physician and a professor at 
declares that he helped the Petitioner prepare his application to join in 
2010 and that the society issued him a "prize" based on receiving FDA approval for a clinical trial. 
Regarding the article on the Petitioner questions the reliability of and 
supplies another photocopy of the Chinese language version that lists him as an author. He informs 
that the original is at the but does not, however, submit a copy of the 
original journal issue with the article. , The Petitioner avows that he did attend the 2008 summit and 
suggests a different individual with the same name who worked at also 
attended. He references the list of representatives that includes his name and that of his wife, 
demonstrating that he did attend, and states that he gave no interviews. Finally, he continues to 
declare that equated his medical degree to both an M.D. and a Ph.D. He does not however, 
provide corroboration from on that point or an evaluation explaining how his bachelor of 
medicine equates not only to an M.D., but also a Ph.D. 
The Petitioner has not overcome our concerns. As noted, the Petitioner did not submit the journal 
issue that contained his article. In addition, while he presented his biography from the 2008 summit 
that made no mention of ' he did not include the registration of a 
physician with the same name who might have given the interview. Regardless, even assuming 
1 The biography does state that the Petitioner worked for from 1995 through 2000, which the Petitioner has not 
documented. Accordingly, the record still does not demonstrate that he accurately provided his credentials at that event. 
4 
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Matter of H-X-
is not a reliable source of the total number of authors and that another individual 
with the Petitioner's name who did work at attended the 2008 summit, the 
Petitioner has not overcome the discrepancies regarding his award and how he has represented his 
education. The Petitioner must resolve this discrepancy in the record with independent, objective 
evidence pointing to where the truth lies. Matter ol Ho, 19 I&N Dec. 582. 591-92 (BIA 1988). 
Specifically, we advised in our NOID that photocopies would be insufficient. As such. additional 
photocopies relating to the award will not overcome the information from the investigation. 
Moreover, the letter from which does not explain how he has firsthand knowledge of the 
society's award decisions, is not independent objective evidence resolving the discrepancy. In 
addition, the Petitioner did not offer any corroboration from the relevant government agencies 
confirming that they reviewed his medical degree and found it equivalent to both an M.D. and a 
Ph.D. Nor has he provided his transcript and an independent expert evaluation that compares his 
credits during that program with those required to receive a Ph.D. in the United States. For these 
reasons, serious discrepancies in the record remain. !d. 
C. Criteria 
Despite the concerns we set forth above, the record demonstrates that the Petitioner has satisfied a 
single criterion. Regardless of whether the Petitioner authored ' 
there are four 
additional articles in the record. 4 Accordingly, he meets the authorship of scholarly articles criterion 
at 8 C.F.R. § 204.5(h)(3)(i). For the reasons discussed below, however, he does not meet any other 
criteria. 
Documentation of the alien's receipt (!{lesser national~y or internationally recognized prizes or 
awards for excellence in thefield ofendeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner relies on the award for this criterion. As discussed above. he has not overcome 
the information we obtained indicating that the society did not issue that or any other award to the 
Petitioner. The Petitioner now maintains 
that it was an "occasional'' award, separate from the awards 
the organization issues to larger groups of people and that the infrequency demonstrates its significance. 
On the contrary, the fact that a representative of the society's own had 
no knowledge of the award suggests that, if it exists, it is not recognized within the society. The record 
also lacks evidence confirming that this award, if it occurred, is recognized beyond 
contends that decided to issue the award, but does not explain how that award is nationally or 
internationally recognized outside The Petitioner also did not offer official printed or 
online materials containing the criteria for the award or announcing the selection to the field. Finally, 
the record lacks media coverage of the selection or ceremony to demonstrate its national or international 
recognition. For all of these reasons. the Petitioner has not satisfied this criterion. 
4 As noted by the Petitioner, he submitted five articles rather than three as stated in our NOlO. 
c 
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Matter of H-X-
Documentation of the alien's membership in associations in the field for which classffication is 
sought, which require outstanding achievements (?(their members, asjudged hy recognized national 
or international experts in their disciplines orfield\·. 8 C.F.R. § 204.5(h)(3)(ii). 
The Petitioner's memberships in the 
the 
the 
meet the requirements for this criterion. A letter bearing the stamped signature of 
and do not 
executive director and chief executive officer of states that members "need have the [sic] 
outstanding achievements, as judged by recognized national level experts in the field of chemical [sic].'' 
The Petitioner did not present bylaws or other official materials confirming the exact membership 
requirements. A letter bearing the stamped signature of director of membership for 
provides: "Based on your outstanding achievements in the discipline of clinical oncology as 
recognized by our experts in the we appreciate your joined [sic].'' Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof 
Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). As noted by the Director, 
according to their bylaws, is open to experienced licensed physicians or other health 
professionals who devote a majority of their professional activity to cancer patient care, research, or 
education; and admits investigators who have two years of research resulting in peer-reviewed 
publications relevant to cancer. The bylaws for reflect that an individual member must be "well 
educated and have basic professional qualification,'' and be recommended by two active members. 
On appeal, the Petitioner contends that each of these associations reviewed his credentials and offered 
him membership based on his outstanding achievements. The record does not support that conclusion. 
The Petitioner did not document the requirements to join The remaining entities are professional 
organizations that require experience in the field, publications, and recommendations. The Petitioner 
has not shown that any of those factors represent outstanding achievements as opposed to demonstrated 
competence in the field. Accordingly, he has not met this criterion. 
Published materials about the alien in prC?fessional or major trade publications or other major 
media. relating to the alien's work in thefieldfor which classification is sought. Such evidence shall 
include the title. date. and author C?l the material. and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
Previously, the Petitioner contended that the inclusion ofhis study on the FDA's website serves to meet 
this criterion. The Director concluded that the record did not contain evidence that the website is m~jor 
media. On appeal, the Petitioner notes that maintains clinicaltrials.gov. Listings of clinical studies 
that name the Petitioner as a sponsor, investigator, or contact do not constitute titled and authored 
published materials about him relating to his work as required. The record contains no articles or other 
journalistic coverage of him that might relate to this criterion. As such, he has not satisfied it. 
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Matter of H-X-
Evidence of the alien's participation. either individually or on a panel. as a judge (?l the work (!l 
others in the same or an alliedfield of spec(fication for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The Petitioner relies on his role as the "chairman of the for his own 
company to meet this criterion. The board, however, is designed to review studies, for which 
the Petitioner will be the principal investigator. Accordingly , he has appointed himself as a judge ofhis 
own work. That position tails to meet the plain language of this criterion. which requires judging the 
work of others. 
Evidence of the alien's original scient(fic, scholarly, artzst1c. athletic. or business-relat ed 
contributions of major sign[ficance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner contends that he designed parallel research protocols while working for from 1995 
through 2000. He ofters articles on and The record does not contain 
corroborating evidence that credits him for their protocol design, or letters from officials at 
confirming his position and role. The Petitioner next relies on his work for the foreign entity 
where he maintains that he proved the safety and efficacy of several traditional Chinese medicines. 
The record does not establish that his work there resulted in contributions of major significance in the 
field. He did not publish any articles during his time there. 
The Petitioner's publication record does not support his eligibility under this criterion. Since 1995, he 
has published one paper, a 2004 article on : He has not documented that others in the field 
have cited this article or otherwise verified its influence. 
Finally, the Petitioner relies on the studies he has designed tor While the FDA may have 
authorized these trials, not every trial design is a contribution of major significance. Moreover, the 
letter from the FDA finding the proposed study exempt specifies that the "protocols [the Petitioner 
has] submitted are inadequate for patient treatment." The FDA website listings indicate that none of the 
Petitioner's trials are accepting patients. The letter with the signature stamp of chief 
executive officer of details what the Petitioner plans to study, concluding he will '"surely be able 
to succeed, this is being [sic] no doubt." Similarly, explains the value of use 
against small cell lung cancer and describes the Petitioner's aim to personalize treatment for this 
disease. Proposals, even if promising , are not evidence of contributions that have already impacted the 
field at a level of major significance. For all of the above reasons, the Petitioner has not satisfied this 
criterion. 
Evidence of the display C?fthe alien's work in the .field at artistic exhibitions or showcases. 8 C.F.R. 
§ 204.5(h)(3)(vii). 
The Petitioner relies on the presentation of his research at the 
2008 summit, but does not explain how that event was an "artistic exhibition or showcase" as required. 
Scientific presentations are often published in proceedings and fall under the scholarly articles criterion 
Matter of H-X-
which, as discussed above, the Petitioner meets. The Petitioner offers no justification for considering 
such evidence separately under this criterion and we find that declining to do so is consistent with the 
relevant regulatory language. Kazarian, 596 F.3d at 1122. 
III. CONCLUSION 
The Petitioner is not eligible because he has not submitted the required initial evidence of either a 
one-time achievement or documents that meet at least three of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). Thus, we need not fully address the totality of the materials in a final merits 
determination. Kazarian, 596 F.3d at 1119-20. Nevertheless, we have reviewed the record in the 
aggregate, concluding that it does not support a finding that the Petitioner has established the level of 
expertise required for the classification sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-X-, ID# 466601 (AAO Nov. 9, 20 17)