dismissed EB-1A Case: Epigenetics And Oncology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7743609 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 5, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a researcher in epigenetics and oncology, seeks classification as an alien of 
extraordinary ability. 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 petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is an individual in that 
small percentage at the very top of the field. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to aliens 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. 
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 they 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 completed his graduate studies at thd!Institutes for Biological Sciences. He is 
now a postdoctoral fellow at the I I Clinic'sc===]Research Institute, "conducting research to 
discover novel I I cancer treatments and address fundamental questions concerning I I 
metabolism inl !cancer." 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claims to have met three criteria, summarized below: 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; and 
• (vi), Authorship of scholarly articles. 
The Director found that the Petitioner meets all three claimed criteria. The Petitioner's involvement in 
peer review constitutes participation as a judge of the work of others in the same or allied field under 
8 C.F.R. § 204.5(h)(3)(iv). The Petitioner has written several scholarly articles in the field in professional 
or major trade publications under 8 C.F.R. § 204.5(h)(3)(vi). 
2 
The Director also granted the Petitioner's claim to have made original scientific contributions of major 
significance in the field under 8 C E R S 204 5Cb)(3)(v)I The Petitioner asserted that his "major 
contribution is [his] discovery ofl ... and [his] being the first to uncover the 
role orl lin cancer." 
To explain the nature and significance of the Petitioner's work, a professor atl !Medical School 
states: "Epigenetics ... studies heritable changes that do not involve changes in DNA sequence .... 
One of these biochemical changes, I I was long considered a permanent 
modification ... [but can] be reversed by specific enzymes." 
A professor at the University o~.__ __ __.I Medical School states: 
[The Petitioner] determined that the gene I I can regulate other genes by 
modifying particular proteins that bind DNA calledl I Besides that, the gene 
was abnormally abundant inl I cancer, and could sensitize! I cancer cells 
which are otherwise resistant tq I therapy . . . . This discovery 
added significantly to our understanding of how organisms control their own genes to 
guide normal development and physiology. 
The Petitioner asserted that"[ m ]any national and international pharmaceutical companies have started 
developing new anti-cancer treatments based specifically on [the Petitioner's] research." At the time 
of filing, the Petitioner had published 11 journal articles. Most of those articles have been cited by 
other scientists. Two of the Petitioner's articles, published in 2007, accumulated most of those 
citations. Extensive citation of published work can be a hallmark of major significance in the field. 1 
Although the Director concluded that the Petitioner had established the major significance of his 
scientific contributions, as with all the regulatory criteria, satisfaction of this criterion does not 
establish eligibility or create a presumption of sustained acclaim. 
Because the Petitioner met three of the regulatory criteria, the Director proceeded to a final merits 
determination. 
B. Final Merits Determination 
As the Petitioner submitted the reqms1te initial evidence, we will evaluate whether he has 
demonstrated, by a preponderance of the evidence, sustained national or international acclaim and 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. In a final merits determination, 
we analyze a petitioner's accomplishments and weigh the totality of the evidence to determine if their 
1 See USCTS Policy Memorandum PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14, 8 (Dec. 22, 2010). 
http://www.uscis.gov/legal-resources/po !icy-memoranda. 
3 
successes are sufficient to demonstrate that they have extraordinary ability in the field of endeavor. 
See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 
1119-20. 2 In this matter, we determine that the Petitioner has not met this very high standard. 
In denying the petition, the Director determined that the Petitioner has had a productive and successful 
career, but has not shown that he has risen to the very top of the field and earned sustained national or 
international acclaim. The Director noted that some of the Petitioner's activities satisfy the wording 
of individual regulatory criteria but, when viewed in the context of the record as a whole, do not 
establish eligibility. 
For example, the Director found that the Petitioner's involvement in peer review amounts to judging 
the work of others, but concluded that such work does not require, reflect, or result in sustained 
acclaim, and is not reserved for the small percentage at the very top of the field. The Petitioner did 
not establish the various journals' requirements for peer reviewers, and the Director stated: "Evidence 
of the petitioner's participation as a judge must be evaluated in terms of these requirements." Peer 
review for journals that select peer reviewers based on subject matter expertise does not provide strong 
support for the petition, because expertise is a considerably lower threshold than acclaim. 
Likewise, practical applications are not the same as acclaim; therefore, evidence that "[g]iant 
biopharmaceutical companies ... are developing~-----~-----~' is not presumptive 
evidence of eligibility for the highly restrictive classification that the Petitioner seeks. This is 
particularly true given the Petitioner's stipulation that "four different groups" independently made the 
same discovery regarding th?,I I gene in 2007, and therefore it is less evident that the 
Petitioner's work, in particular, is responsible for these developments. Also, the Petitioner does not 
establish that it is comparatively rare for pharmaceutical companies to take note of epigenetic research, 
such that their interest in the Petitioner's work is a hallmark of acclaim. 
The Director pursued other lines of evidence in the denial notice, including grant fonding and 
invitations for the Petitioner to participate in scientific conferences. 3 On appeal, the Petitioner does 
not address the Director's conclusions in these areas, focusing instead on citations of his published 
work. 
At the time of filing, two of the Petitioner's papers from 2007 had accumulated more than 200 citations 
each. The Petitioner has placed significant emphasis on this fact throughout the proceeding. On 
appeal, relying on data from a 2016 article in Science, the Petitioner states that "only 5% of senior 
2 See also USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 4 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (stating that USCIS officers should then evaluate the 
evidence together when considering the petition in its entirety to determine if the petitioner has established, by a 
preponderance of the evidence, the required high level of expertise for the immigrant classification). 
3 One organization invited the Petitioner to give a speech at a "Conference on Neurology and Neuromuscular Disorders," 
although the Petitioner claims no experience or expertise in those fields. This discrepancy raises unanswered questions 
about how the organization selects invitees. 
4 
scientists [ with more than 20 years of experience] gained more than 200 citations from a single article 
and only 5% of researchers are senior scientists. So, less than 0.2% of all researchers reached this 
citation rate." 4 This argument relies on unproven assumptions. The Petitioner assumes that only 
"senior researchers" have high citation rates, and that "senior scientists" represent the top scientists, 
rather than the most experienced scientists. (The Petitioner's own history contradicts the first 
assumption, as he had less than 20 years of experience at the time of filing.) 
The statute demands "extensive documentation" of recognition. Section 203(b )(1 )(A)(i) of the Act. 
The Director took the Petitioner's citation record into consideration, but the Petitioner cannot rely on 
that record (and the Science article) to mathematically place himself at the top of the field without 
other persuasive evidence of sustained acclaim. 
Furthermore, while the Petitioner has written some highly-cited articles, he hasn't shown a consistently 
high citation record indicative of sustained acclaim and recognition that has continued through his 
career. He was a graduate student when his most-cited articles appeared, 12 years before he filed the 
petition. 
The aforementioned professor atl I Medical School calls the Petitioner "one of the pioneers and 
explorers in this area," and asserts that the Petitioner's "work contributes to the foundation of the field 
of epigenetics and is a must-read for every scientist who wishes to pursue studies of epigenetic and 
genetic regulation." The Petitioner contends that the Director "arbitrarily excluded" this letter from 
consideration. 
The Director did not specifically mention and quote from this one letter in the decision, but this does 
not necessarily mean that the Director ignored it or refused to consider it. Letters of this kind lend 
support to the Director's finding that the Petitioner has made original contributions of major 
significance. Nevertheless, the weight of such letters is limited. 
The letter's reference to the Petitioner as "one of the pioneers and explorers" indicates that the 
Petitioner seeks and finds new knowledge in his field, which the Director did not dispute. The Director 
also acknowledged the significance of the Petitioner's scientific contributions. The remaining issue is 
whether the Petitioner has earned sustained national or international acclaim as a researcher at the very 
top of the field of epigenetics, and on this point the letter does not suffice to establish eligibility. The 
statute requires "extensive documentation," which the Petitioner has not provided in this proceeding. 
The Petitioner states the impact of his research "can be proven" by a review article in Cell Research 
which mentioned two of the Petitioner's articles. The Petitioner protests that the Director "did not 
consider this as evidence of national and international acclaim, nor as a 'singled out' citation." The 
article in question cited 14 sources, describing each in technical detail. Regarding one of the 
Petitioner's articles, the review article states: 
K9me2I I in the promoter region of the human rDNA gene that results in 
rRNA transcription requires I I H3K9me2 occupancy on rDNA gene by ChIP 
4 The Petitioner does not explain the "less than 0.2%" figure; 5% of 5% is 0.25%. 
5 
assay in control cells displayed two peaks, while H3K9me2 occupancy was strnger I 
but more diffuse in I I knockdown cells. Thus, these data suggest that 
functions as part of a multienzyme complex upstream of rDNA genes. 
The Petitioner maintains that this citation, and others in the record, show that his work was singled out 
for special attention, but he has not established how mentions of this kind translate into sustained 
national or international acclaim. The review article discusses the other source articles in similar 
terms; there is no special emphasis on the Petitioner's work. The article does not indicate that the 
cited articles were chosen based on their importance or prominence. The purpose of the article appears 
to be simply to explain the current state of knowledge regarding a ver: specific area of inquiry. (The 
title of the article is 1 ~ I 
The Petitioner asserts that it is the nature of scientific publications to cite and briefly describe source 
articles, and the record amply bears out this assertion. By way of analogy, the Petitioner cites the 
discovery that "the bacteria Helicobacter Pylori is the pathogen [that causes] chronic gastritis and 
gastric ulcers." The Petitioner states that this Nobel Prize-winning discovery has "become common 
sense in the field," but references to it in the scientific literature might be "concentrated into one 
sentence." The Petitioner acknowledges that his own findings have had less impact, but contends that 
his "case is in a similar situation," because his "findings ... contribute as [sic] fundamental knowledge 
of epigenetics and are broadly acknowledged and implemented." The Petitioner's analogy does not 
succeed, because, from the evidence presented, virtually all citations take the form described, whether 
describing passing observations or Nobel Prize-caliber discoveries. 
The Petitioner's arguments on appeal focus his original contributions of major significance, and we 
do not question that conclusion here; however, the issue is whether recognition of the Petitioner's 
contributions has risen to the level of sustained national or international acclaim that has elevated the 
Petitioner to the very top of his field. 5 The Petitioner has shown that his work, particularly the research 
he published in 2007, is important, but not that it has earned him sustained acclaim. Also, patent 
applications and other materials show that other researchers have relied on the Petitioner's work, but 
such reliance is not intrinsically indicative of acclaim at the very top of the field. The Petitioner's 
work is clearly important and has practical applications, but the Petitioner has not shown that it is rare 
for scientific research to be put to use in these ways. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. U.S. Citizenship and 
Immigration Services has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994). Here, the Petitioner has not shown that the significance of his ongoing work 
is indicative of the required sustained national or international acclaim or that it is consistent with a 
"career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 
(Sept. 19, 1990); see also section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Petitioner has garnered national or international acclaim in the field, and that he 
5 The Petitioner refers to research into~-----~as a "field," but this area of research appears to be much too 
narrow and specialized to constitute a field in its own right. 
G 
is one of the small percentage who has risen to the very top of the field of endeavor. See section 
203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). The Petitioner produced some high-impact work 
during his graduate studies, but while his subsequent work has also been productive, the record does 
not indicate a degree of recognition consistent with the sustained acclaim that the statute demands. 
We find the record insufficient to demonstrate that he has sustained national or international acclaim 
and is among the small percentage at the top of his field. See section 203(b)(l)(A)(i) of the Act; 
8 C.F.R. § 204.5(h)(2). 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
7