dismissed EB-1A Case: Immunology

U.S. Citizenship 
and Immigration 
Services 
In Re: 06178689 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 20, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a biotechnologist in the field of immunology, 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 denied the petition, concluding that the record did not establish that the Petitioner met 
the initial evidence requirement of at least three of the evidentiary criteria. The Petitioner then 
submitted a combined motion to reopen and reconsider. Although the Director concluded that the 
Petitioner met the initial evidentiary requirement, he did not find that the Petitioner established the 
requisite national or international acclaim, and standing in the overall field, to qualify as an alien of 
extraordinary ability. On appeal, the Petitioner asserts that the Director did not consider the entirety 
of the record in his final merits determination. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) 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. 
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 ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner obtained his Ph.D. in life and health sciences from the . .__ ________ .....,France 
with a specialization in immunology. The record indicates that he has performed research in the area 
of immunology, led research projects, and participated in and coordinated scientific workshops. 1 
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 Director found that the Petitioner met three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his service as a judge of the work of others, 
authorship of scholarly articles, and leading role for organizations having a distinguished reputation. 
Upon review, we agree that the record demonstrates that the Petitioner meets these three criteria. 
Specifically: 
• :de Director noted that ~e r:~i~:-~------.......,.--------.-------~--~ 
I J during his work as part of the'-----~ Project. We forth er note 
1 Although several reference letters indicate that the Petitioner founded a company in Venezuela, the record does not 
include documentary evidence regarding the company, its formation or its products or services. In addition, the Petitioner 
does not assert that his eligibility as an alien of extraordinary ability is founded upon acclaim in the field of business or as 
an entrepreneur. 
2 
that the record establishes that he served on a doctoral thesis jury atl I University, 
and that he evaluated applications and papers for an award granted by the Ministry of the 
College Education, Science and Technology; .__ ______ ___, 
• The Petitioner has authored several papers which have been published in scholarly journals, 
and; 
• The Petitioner served as executive vice president of the 
I ~- ~----~ 
On appeal, the Petitioner asserts that he also meets the evidentiary criterion relating to lesser natilonally I 
or internationally recognized awards, and that he also served in other leading or critical roles for 
which should also be considered to be qualifying for purposes of the criterion at 
8 C.F.R. § 204.5(h)(3)(viii). However, because he has already established that he meets the requisite 
three evidentiary criteria, we will consider this evidence along with the totality of the record under the 
final merits determination below. 
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, his 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 
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 shown his eligibility. 
We initially note that in conducting the final merits determination in his motion decision, the Director 
focused only on evidence related to those criteria which he had found that the Petitioner met. As noted 
by the Petitioner on appeal, USCIS policy states that all evidence in the record be considered under 
the final merits determination, independent of the evidentiary criteria analysis performed previously. 3 
We will therefore analyze the record according! y below. 4 
On appeal, the Petitioner submits new evidence and a brief in which he addresses the issue noted above 
and others. Regarding the new evidence of the Petitioner's activity as a judge of the work of others in 
his field, we note that this evidence postdates the filing of the petition in this matter. Eligibility must 
be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
2 See also 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 4 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (stating that USCTS 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 Id. 
4 Although we have reviewed all of the evidence in the record, including the numerous reference letters submitted, not all 
of the evidence is mentioned in this decision. 
3 
45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 17 5 (Comm'r 1998). 
That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), farther provides that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
We will therefore not consider this new evidence in the final merits determination. 
In his appeal brief, the Petitioner stresses that the peer review work he comP._,..c;l.c..et;..;;.e..;;;.d....;;f;..;;.o.;c..r+--___ ___. 
mentioned by the Director in his motion decision, was for the government of.__ __ .,.. and thus that 
he has served as a judge for organizations both in and outside of his native Venezuela. 5 However, 
while we acknowledge that these organizations relied on the Petitioner's expertise to evaluate the work 
of others, the evidence is insufficient to demonstrate that this work reflects acclaim for him on the 
national or international level. The certificates thanking the Petitioner for his work as an evaluator on 
the I I "Challenge on Scientific Investigation" do not provide information such as the 
number of evaluators involved, whether the projects evaluated were proposed by researchers in his 
field, and whether the Petitioner had responsibility for the final decision regarding the projects (such 
as whether they were fonded, received an award, etc.) Likewise, the letter from the Ministry of the 
.__ ______ _.College Education, Science and Technology regarding the National Award for 
Best Scientific, Technological and Innovation Work" similarly lacks such information, nor does it 
appear elsewhere in the record. 
As the Director notes in his decision, the evidence of the Petitioner's participation as a judge of the 
work of others does not set him apart from others performing similar duties. The Petitioner asserts 
that the quality of the institutions where he served as a judge should also be taken into consideration 
as placing him at the top of his field, and refers to evidence in the record from the website ofl7 as 
well as media that mentions this institution. But this evidence does not show that I I o~ 
I I University are independently considered to be prestigious institutions at the national or 
international level. More importantly, it does not establish that the Petitioner's role as a peer reviewer 
and as a panelist on a single doctoral thesis committee for these institutions, respectively, are indicative 
of or garnered him sustained national or international acclaim. 
Beyond his roles as an evaluator and reviewer for several rgani
1
ations, the Director acknowledged 
the Petitioner's leading role as Executive Vice President of On appeal, the Petitioner stresses 
that he also performed in other important roles forl l including his work in coordinating the 
institution' p--immpnoproduction laboratory, and establishing the I I I I or L__J However, we note that while his title and work as Executive Vice President is 
~rted by a legal announcement and an office memo, the evidence regarding his other roles at 
L__J does not include documentary evidence to support the statements includs· nee letters. 
The Petitioner refers to two reference letters, one from I I oft University 
ofl I (Argentina) and another from'----------~ of the University of 
Ecuador, which describe I I as having "an infrastructure of 2000 m2 and an investment of US 
$3,950,000.00" and note that this facility was "devoted to the.__ _________ ~molecules 
useful for the development of diagnostic kits." 6 However, neither of these writers indicates that they 
~ I located in Ecuador, whild._ ___ ___.~ University is in Venezuela. 
6 We note that other reference letter~ecord include similar language, but also do not provide further detail regarding 
the Petitioner's role in coordinatingl__J 
4 
worked with the Petitioner atl I and the letters do not provide detail regarding the Petitioner's 
duties and role withl I or the product of his efforts while in that role. In addition, we note that 
while the Petitioner provided some information aboutl I from two Venezuelan government 
websites, none of this material mentions! lor provides further information about its objectives or 
accomplishments. 
A review of the materials regarding the Petitioner's work with the Venezuela~ I I I andl I provides some detail Jegardrg his work with these organizations. The 
evidence indicates that he conducted r~h fo as part of a study concerning Venezuela's 
biotechnology sector and its role in L_J security, which was sponsored by the Venezuelan 
overnment. In this role, the evidence indicates that the Petitioner served as coordinator of the 
.......... -------~---.----w'-'--h_;ic;_h_1_·n-'c_lu'-'-d'-'-e"--'d;.;....;;...,subprojects. However, the report on this project lists 
him as a member of the '.__ _______ __. Analysis Team," and the acknowledgments section 
refers to him as one of eight "advisers and researchers." While the Petitioner clearly played an 
important part in this research project, the evidence does not establish that he played an equally 
prominent role for D overall. 
Regarding the Petitioner's work atl I the evidence shows that through the I I Program 
conducted at I lthe Petitioner served as both a researcher and teacher to aid in the development of 
detection methods forl !brucellosis. In addition, the evidence indicates that he participated as a 
lecturer at two conferences devoted to veterinary science as a part of this project, as well as at a science 
and technology conference and contributed to the development of a master's degree program in plant 
biotechnology at the institution. He also served as a peer reviewer during this time, as noted above. 
However, while the Petitioner appears to have played an important role in these particular projects, 
the evidence does not establish that during the year-long duration of his work with thel I 
Project at D these roles were leading or critical for the organization overall, or that the results of 
these efforts led to wides read recognition in the field of immunology. We note that a reference letter 
from.__ __ ____,.---.------' of the I I University of Chile, who worked with the Petition~ 
same project at , indicates that it "produced interesting results for the Universidad de lasL__J 
I ID and i grord-breaking study in Ecuador," but does not provide further details 
regarding its impact to or the broader field of immunology in Ecuador and beyond. 
Turning to the publication of his research and its impact on the overall field of immunology, the 
Petitioner focuses on research he conducted early in his career during his doctoral studies and post­
doctoral research at the I I Specifically, he refers to an article he co-authored which 
was published in the Journal of Immunology in 1998, and points to evidence of the ranking of this 
journal in the field of immunology. In addition, he highlights two letters initially submitted in response 
to the Director's request for evidence. 
The first letter was the second written ~yl ,I in which he states that he first met the 
Petitioner in 1993 at thel. He identifies two published papers written by the Petitioner, 
the 1998 paper noted above and another published in the journal Experimental Parasitology in 1995, 
both focusing on a particular parasite. I I notes that in both cases, other researchers 
have cited to these papers in their own work, and that "this has allowed for the field to further advance." 
While he provides specific examples of other researchers' papers which have referenced these works, 
5 
he does not explain how this work has advanced the science of immunology, or in what way those 
other researchers used the Petitioner's work in their own. 
Similarly,..,..,_-,--....,......,._-,----------,--....,,......-~ of thel !university of Venezuela also focuses on the 
paper published in the Journal of Immunology, writing that it "has been frequently cited by several 
authors." He further states that it "proposed numerous models which have been addressed in several 
undergraduate and fraduate theses which directly or indirectly [the Petitioner] has been involved." 
I _ states in conclusion that "with the proper conditions [the Petitioner] would be one 
of the most active and productive researchers in the immunology area." 
These letters state generally that the papers mentioned have been referenced by other researchers, 
which is supported by evidence in the record from Google Scholar showing the number of citations to 
the Petitioner's published work. However, this evidence does not demonstrate that the Petitioner's 
body of work in this area has impacted the field of immunology to the extent that it places him among 
those at the top of this field, as is acknowledged inl I concluding statement. Further, 
while a reference letter from I I goes into further detail about the early work done by the 
Petitioner which focuses on the parasite I t, he writes that as a result the Petitioner 
"has obtained recognition within his circle of immediate collaborators," as opposed to acclaim at a 
national or international level. 
In addition, while we acknowledge that the evidence shows that the Journal of Immunology is a well­
ranked journal in the field, we will not assume that every paper published in such a journal will 
necessarily have an impact on the field. Rather, we look to evidence of reaction to the paper by the 
scientific community. As indicated above, the Petitioner's paper which was published in this journal 
has been referenced by other researchers in the field on dozens of occasions, as have his papers 
published in other scientific journals. But the evidence does not establish that the quantity or quality 
of references to the Petitioner's work, or the reaction to that work as stated in the reference letters 
submitted, places him at the top of his field. 
The Petitioner also asserts on appeal that the I I Medal he received from the governor of the 
Venezuelan I I for his work on the team responsible for attempting to recover the 
remains o±1 I, is comparable to the National Medal of Science in the United States. 
As noted by the Director, the record includes several media articles about this project, some of which 
mention the Petitioner or interview him. However, none of these articles mention the I I 
Medal, thus detracting from the Petitioner's assertion regarding the stature of this award and any 
acclaim which he may have garnered as an awardee. Further, the evidence indicates that the medal 
was not intended to recognize achievement in the Petitioner's field of immunology, but rather "as a 
designated tribute to highlights historians, writers, journalists, plastic artists and Venezuelan 
musicians" who worked to preserve and disseminate knowledge regarding.__ _______ ____. 
While the Petitioner's work on this project gained him some notoriety in Venezuela, as evidenced by 
the articles published in major newspapers in his home country, the record does not show that this led 
to sustained acclaim in the field of immunology. 
The record demonstrates that the Petitioner was a productive researcher in the field of immunology in 
his early career, and later shifted his focus to the administration and management of research projects. 
Indeed, several of the reference letters submitted highlight his work as a manager, as well as his 
6 
participation in conferences and workshops at the international level and his founding of a Venezuelan 
company in the biotechnology sector. However, the evidence does not establish that the Petitioner has 
achieved national or international acclaim as a researcher in the field of immunology, or as a science 
administrator or biotechnology entrepreneur. We therefore find that he has not established eligibility 
as an alien of extraordinary ability. 
III. CONCLUSION 
The Petitioner submitted the required initial evidence of either a one-time achievement or documents 
that meet at least three of the ten criteria, and we therefore conducted the final merits analysis 
referenced in Kazarian, 596 F.3d at 1119-20. Upon a thorough review of the record and analysis as 
described above, we conclude that it does not support a finding that the Petitioner has established the 
acclaim and recognition required for the classification sought. 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, with each considered as an independent and alternate 
basis for the decision. 
ORDER: The appeal is dismissed. 
7