dismissed EB-1A Case: Molecular Biology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 23, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a molecular biologist, seeks classification as an individual 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 one of that small 
percentage at the very top of the field. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by comparing 
him "to only a few hand-picked individuals" instead of "the entirety of his field." 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(A) of the Act makes visas available to immigrants with extraordinary ability in the 
sciences, arts, education, business, or athletics if: ( 1) their extraordinary ability has been demonstrated 
by sustained national or international acclaim and their achievements have been recognized in the field 
through extensive documentation; (2) they seek to enter the United States to continue work in the area 
of extraordinary ability, and (3) their 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. A petitioner can either demonstrate a one-time achievement (that is, a major, 
internationally recognized award), or 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 
Matter ofT-S-
in certain media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner 
to submit comparable material if they are able to demonstrate that the standards at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
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. EVIDENTIARY CRITERIA 
The Petitioner is currently employed as an assistant project scientist at the~----.------ ..... 
I I 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). In denying the petition, the Director determined that the 
Petitioner met three of the initial evidentiary criteria: judging the work of others under 8 C.F.R. 
§ 204.5(h)(3)(iv); original contributions under 8 C.F.R. § 204.5(h)(3)(v); and scholarly articles under 
8 C.F.R. § 204.5(h)(3)(vi). The record supports a finding that the Petitioner meets the plain wording 
of these criteria. As the Petitioner has demonstrated that he satisfies three criteria, we will evaluate 
the totality of the evidence in the context of the final merits determination below. 
III. FINAL MERITS DETERMINATION 
As the Petitioner submitted the requisite 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 his 
successes are sufficient to demonstrate that he has 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. 1 In this matter, we determine that the Petitioner has not shown his eligibility. 
1 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 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). 
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Matter ofT-S-
The Petitioner earned his Ph.D. degree in 2009, and then undertook a two-year postdoctoral fellowship 
atl I University. Since that time, he has worked in the laboratory of I [ at 
I I first as a postdoctoral research fellow and then as an assistant project scientist. There is no 
indication that the Petitioner has held a permanent position or run his own laboratory rather than 
working as a temporary assistant, or that any research institution has sought to employ him in such a 
capacity. While not dispositive, the developmental stage of the Petitioner's career is one of several 
pieces of evidence to consider when weighing the critical issue of the Petitioner's standing in his field. 
The Petitioner's research has generally centered around genetic adaptations in I O I human 
populations. The Petitioner indicated that one of his chiefresearch contributions is the "identification of 
genetic variants that are associated withl I traits in I I populations and of 
genetic markers that are associated with an increased risk for the development of I I 
~------~' The chair of the Department of Pediatrics atl I where the Petitioner now works, 
and his doctoral thesis advisor attested to the Petitioner's role in selected past research projects. For 
example, the Petitioner measured the activity of certain genes and bred a strain of mutant mice for a drug 
study. 
The Petitioner submitted letters from researchers who have cited his work but not collaborated with him. 
For examplej I of I I University stated: 
[The Petitioner's] work represents an important contribution to the field because it 
provides previously missing information regarding the control ofj.-----------,1 
.... In turn, this understanding of how the brain controls! I .. has applications 
towards the treatment ofl !disorders. ~--~ 
I lofl I Medical Center called the Petitioner's discovery of a gene relating 
tol O • , l"revolutionary." ~-------~of University I !offered 
the more measured assertion that the Petitioner's "work now suggests ... a therapeutic target" for further 
research. 
I I of the University o-0 stated that the Petitioner's research group provided "a vital 
precedent to our own" research into genetic variants relating td • 1 I In a 2015 articleJ I 
praised one of the Petitioner's articles for showing effects that likely would not have been evident under 
laboratory conditions. In the same article, howeverJ l cautioned against "overinterpretation of 
these results," and that "[m]ore work will be needed" to establish the importance of the gene described in 
the Petitioner's article. 
U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r 
1988). However, USCIS is ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought. Id. The submission of reference letters supporting the 
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Matter ofT-S-
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the individual's eligibility. See id. at 795-96; see also Matter 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"). 
Thus, the content of the references' statements and how they became aware of the Petitioner's reputation 
are important considerations. Even when written by independent experts, letters solicited by an individual 
in support of an immigration petition are of less weight than preexisting, independent evidence that one 
would expect of a scientist who has made original contributions of major significance in the field. Cf 
Visinscaia v. Beers,-F. Supp. 2d-, 2013 WL 6571822, at *6, *8 (D.D.C. Dec. 16, 2013) (concluding 
that USCIS' decision to give little weight to uncorroborated assertions from professionals in the field was 
not arbitrary and capricious). 
An apparent purpose of the Petitioner's study of I I populations is to apply the findings to 
medical situations involvind I The Petitioner has not shown that his work has led to 
major, significant advancements in the field toward this goal. While the submitted letters indicate that 
his work points to potential new avenues of inquiry towards the development of such treatments, they do 
not demonstrate that recognition of this important work equates to sustained national or international 
acclaim. Under the regulatory structure, original contributions of major significance do not automatically 
qualify a petitioner for the classification sought; those contributions are only one element of a larger 
evidentiary framework. In this regard, the Petitioner has not established that as-yet-unrealized potential 
has resulted in sustained national or international acclaim. 
With respect to the dissemination of his findings, the Petitioner established that he published "29 peer­
reviewed scientific articles and 2 book chapters." The Petitioner acknowledged that "publication is a 
relatively common activity for researchers and thus is not necessarily indicative of one's extraordinary 
ability," but contended that he "has consistently published in top-ranked journals," and that his "work has 
been cited 1066 times ... [by] independent and leading researchers." The record establishes heavy 
citation of the Petitioner's published work, which contributed to the finding regarding the major 
significance of the Petitioner's contributions. 
The Director, in the denial notice, stated that the individuals who provided the letters had, themselves, 
accumulated thousands more citations to their published work than the Petitioner has done. The 
Petitioner, on appeal, states that the Director "compared [the Petitioner] to only a few hand-picked 
individuals who are not representative of the field at large," rather than determine where the Petitioner 
stands in relation to his entire field. The Petitioner further contends that comparing his citation record to 
those of his recommenders "implies that any recommender who has a greater number of citations invites 
a comparison that disqualifies them from eligibility" and encourages petitioners to "seek out 
recommenders who have fewer citations and perhaps less credibility as experts in their field." 
The Petitioner asserts that he has published "a great quantity of articles," and their sheer number "suggests 
research capabilities of an expert at the very top of his field." Quantity, however, does not imply quality, 
either of the articles themselves or of the research that led to their publication. Prolific output does not 
necessarily reflect sustained acclaim. 
The Petitioner is correct that comparing his citation record to his recommenders' records does not 
necessarily accomplish the goal of determining whether he is at the top of his field. However, a 
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Matter ofT-S-
comparison of citation records to others in his field of endeavor who are recognized as being at the top in 
the field may provide some support to a finding that he is in the small percentage at the top of his field. 
The evidence does not demonstrate that the recommenders are recognized as being at the top in the field, 
therefore, we will not compare the citation records and evaluate whether they show that he is at the top 
of his field. 
The statute requires "extensive documentation" of sustained acclaim. The Petitioner has built his case 
primarily around the citation rate of his own published work, without providing sufiicient context to show 
that this citation rate has translated into national or international acclaim for one particular author of the 
cited works. Some of the Petitioner's most-cited papers are the work of a consortium, with dozens of 
credited authors; the collective reputation of a large research group does not necessarily or presumptively 
translate into acclaim for individual members of that group. 
Also, the burden is on the Petitioner to show that the context of the citations points not only to the 
significance of the reported research, but also to the acclaim of the researchers. In this case, the Petitioner 
has submitted excerpts from a number of citing articles. In many instances, the authors appeared to cite 
the Petitioner's research essentially in passing, as background for the findings they sought to report. These 
articles generally contain dozens of such citations, and the limited context provided by the submitted 
excerpts does not indicate that the authors held out the Petitioner's work as being more important or 
acclaimed than that of the many other cited authors. 
In addition to his own published work, the Petitioner contends that his peer review and editorial work are 
reflections of his acclaim. The Petitioner submitted evidence of his peer review work for several 
academic journals and his membership on the editorial board of the Journal of Pulmonology Study and 
Treatment. 
The Petitioner acknowledged that "peer review work may be a relatively common activity among 
researchers," but contended he stands out because he "conducted peer review work for top-ranked 
journals in the field," and "only top experts in the field are qualified to conduct peer review work for such 
prestigious and impactful journals." The Director found that the Petitioner did not show that his peer 
review work and editorial board membership indicated sustained acclaim or placed him at the top of his 
field. 
On appeal, the Petitioner asserts that the Director failed "to consider all of the evidence," and emphasizes 
his position on a journal's editorial board. The Petitioner submits a copy of an article about the role of 
editorial boards, and states that the responsibilities of an editorial board member involve "greater and 
broader demands on a researcher's expertise," and therefore "selection as an editorial board member 
implies recognition of a higher level of expertise that exceeds that expected of normal peer-reviewers." 
The Petitioner did not submit evidence to support the claim that the journals in question "enlist the 
services of only the most accomplished researchers" as peer reviewers. A given journal's impact and 
reputation are not prima fade evidence that the journal has restrictive requirements for its peer reviewers. 
With respect to his peer review work, the Petitioner submits a graph indicating that he has reviewed a 
relatively high number of papers. The Petitioner contends that this shows "that he is one of the most 
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Matter ofT-S-
impactful peer reviewers in the field." The Petitioner does not submit evidence of a correlation between 
acclaim and the number of peer reviews performed. 
The Petitioner cannot establish eligibility through his assertions about what general background 
information "implies." A key deficiency in the record is the lack of evidence about how the Journal of 
Pulmonology Study and Treatment selects members for its editorial board. A printout from the website 
of the Journal of Pulmonology Study and Treatment identified the Petitioner as a member of the editorial 
board, but it also showed a link labeled "Join Editorial Board." The Petitioner did not submit evidence 
to show the requirements for membership on that board, or explain what steps he had to take after he 
clicked on the "Join" link. Without such evidence, there is no support for the Petitioner's claim that his 
membership on the board "is an additional demonstration of his status as a highly respected expert in the 
field." In the absence of evidence about this particular board and, for that matter, about the journal itself: 
we cannot find that the Petitioner's editorial board membership is evidence of sustained acclaim. 
The record, as a whole, does not establish the Petitioner's eligibility for the benefit sought. The Petitioner 
seeks a highly restrictive visa classification, intended for individuals already at the top of their 
respective fields, rather than those progressing toward the top. USCIS has long held that even athletes 
performing at the major league level do not automatically meet the statutory standards for 
classification as an individual of "extraordinary ability." Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994). While the record shows that the Petitioner's published work has been well 
received, the totality of the evidence does not indicate he has sustained national or international acclaim 
and he is among the small percentage at the top of his field. See section 203(b )(1 )(A)(i) of the Act 
and 8 C.F.R. § 204.5(h)(2). 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S-, ID# 5124098 (AAO Oct. 23, 2019) 
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