dismissed EB-1A Case: Molecular Virology

(b)(6)
DATE: 
AUG 2 8 2015 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE#: 
PETITION RECEIPT#: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~~~:.~;trative Appeals Office 
REV 3/2015 www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied Form I-140, Immigrant Petition for 
Alien Worker, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences as a research 
scientist in molecular virology, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(l)(A), which makes visas available to individuals 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 determined that the 
petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which 
requires documentation of a one-time achievement or evidence that meets at least three of the ten 
regulatory criteria. 
On appeal, the petitioner submits a brief and asserts that he meets at least three of the regulatory criteria. 
For the reasons discussed below, we agree that the petitioner has not established his eligibility for the 
exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence of a 
one-time achievement pursuant to 8 C.P.R. § 204.5(h)(3), or evidence that satisfies at least three of the 
ten regulatory criteria set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x). As such, the petitioner 
has not demonstrated that he is one of the small percentage who is at the very top in the field of 
endeavor, and that he has sustained national or international acclaim. See 8 C.P.R. § 204.5(h)(2), 
(3). Accordingly, we will dismiss the petitioner's appeal. 
LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available .. . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph 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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
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Page 3 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the individual's sustained acclaim and the recognition of the individual's achievements in 
the field through evidence of a one-time achievement (that is, a major, internationally recognized 
award). If the petitioner does not submit this evidence, then a petitioner must submit sufficient 
qualifying evidence that meets at least three of the ten categories of evidence listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (91h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by its 
quality" and that USCIS examines "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"). 
ANALYSIS 
Evidentiary Criteria1 
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 specification for which classification is 
sought. 
The director determined that the petitioner established his eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(iv) requires "[e]vidence 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 
specification for which classification is sought." A review of the record of proceeding reflects that the 
petitioner submitted sufficient documentary evidence establishing that he meets the regulatory criterion. 
Accordingly, the petitioner established that he meets this criterion. 
1 
We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claims to meet or for which the petitioner has submitted relevant and probative evidence. 
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NON-PRECEDENT DECISION 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner did not establish his eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original 
scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the 
field." The petitioner's field, like most science, is research-driven, and scientists are unlikely to publish 
research that does not add to the general pool of knowledge in the field. According to the regulation at 
8 C.P.R. § 204.5(h)(3)(v), a petitioner's contributions must be not only original but of major 
significance. The phrase "major significance" is not superfluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. 
Potter, 343 F.3d 619, 626 (2"d Cir. 2003). To be considered a contribution of major significance in the 
field of science, it can be expected that other experts would have reproduced or otherwise applied the 
petitioner's results. Otherwise, the impact of the petitioner's work is difficult to gauge. Cf Visinscaia 
v. Beers, 4 F.Supp.3d at 134-135 (upholding a finding that a ballroom dancer had not met this criterion 
because she did not demonstrate her impact in the field as a whole). 
On appeal, the petitioner asserts that the director's finding that "the very top of the field of endeavor is 
far above the level the [petitioner] has attained" based on a comparison of the petitioner's 200+ citations 
to 1900+ citations, who authored a letter on the petitioner's behalf, is not relevant 
to determine whether the petitioner has made original contributions of major significance in the field. 
Pursuant to the Kazarian two-part analysis discussed above, the director must first determine whether 
the petitioner meets the plain language of this criterion requiring original contributions of major 
significance in the field. The director's finding that the petitioner is not at the very top of his field for 
this criterion is not appropriate under the first-step analysis; rather such a conclusion is more appropriate 
in the finals merits determination under the second-step analysis if the petitioner meets at least three of 
the regulatory criteria. 
The petitioner cites several of our non-precedent decisions and asserts that our "office has also held that 
'dozens' of citations are sufficient to show a petitioner's influence on the field." Although the 
regulation at 8 C.P.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). USCIS or any agency need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th 
Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Moreover, the specific facts of the cases cited by the 
petitioner are not in the record. Without those records, it cannot be determined whether the facts of any 
other cases are similar to those of the present case. 
At the initial filing of the petition, the petitioner submitted screenshots from Coogle Scholar reflecting 
that five of his scholarly articles were cited a total of 176 times. Specifically: ' 
( 
was cited 41 times; 
(b)(6)
Page 5 
was cited two times; 
and 
one time. 
NON-PRECEDENT DECISION 
1 was cited 53 times; 
was cited 47 times; 
was cited 32 times; 
was cited 
In response to the director's request for evidence, the petitioner submitted screenshots from Google 
Scholar reflecting that the article was cited 58 times, the 
article was cited seven times; and the article was 
cited 64 times. The petitioner did not submit any updated citations for the other two articles and one 
book chapter. Regarding the updated citations, the petitioner did not submit the entire list of citations; 
instead the petitioner only submitted the first page of the screenshot for each article that reflected the 
total number citations. Therefore, the petitioner did not establish that the additional citations were cited 
by others prior to the initial filing of the petition. Eligibility must be established at the time of filing. 8 
C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 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, 175 (Comm'r 1998). That decision, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981 ), further provides that US CIS cannot "consider facts that come into being 
only subsequent to the filing of a petition." !d. at 176. As such, we will only consider the citations that 
were filed at the time of the filing of the petition. 
Generally, citations demonstrate that the field has taken some interest to the petitioner's work. 
However, they are not an automatic indicator that his work has been of major significance in the field. 
In this case, the number of the petitioner's citations, considered both individually and collectively, and 
the lack of sufficient supporting evidence such as detailed recommendation letters or other evidence 
reflecting significant impact or influence to the field, is not reflective that his work has been "of major 
significance in the field." Again, the number of citations indicates that others have taken some interest 
in the petitioner's work; however he has not submitted sufficient supporting evidence to establish those 
citations rise to the level of original contributions of major significance in the field as will be evidenced 
in our discussion below of the recommendation letters submitted on the petitioner's behalf. 
The petitioner also submitted documentary evidence reflecting that he has presented his work at the 31
51 
Annual Meeting of the 2005 and 2014 and 
attended the Meeting. Many professional fields regularly hold meetings and symposia 
to present new work, discuss new findings, and to network with other professionals. These conferences 
are promoted and sponsored by professional associations, businesses, educational institutions, and 
government agencies. Participation in such events, however, does not equate to original contributions 
of major significance in the field. There is no documentary evidence showing that any of the 
petitioner's specific conference presentations are frequently cited by other researchers, have 
significantly impacted the field, or otherwise rise to the level of contributions of major significance in 
the field. While presentation of the petitioner's work demonstrates that his findings were shared with 
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others and may be acknowledged as original contributions based on their selection for presentation, the 
petitioner has not established the impact or influence of his presentations once disseminated in the field. 
The petitioner also submitted recommendation letters that praise the petitioner and his work but do not 
demonstrate that his work has been of major significance in the field. Although the authors identify the 
petitioner's research and establish its originality, they do not provide specific information on the impact 
or influence that his work has had on the field, so as to demonstrate that his work has been of major 
significance consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v). For 
instance, identified the petitioner's research but did not elaborate on how the research is 
considered as of major significance in the field. Similarly, 
-.~ and acknowledged the petitioner's research but indicated that his work 
was "important" based on its publication in several journals. for example, stated that the 
petitioner made "a number of significant contributions to our understanding of [Foot and Mouth Disease 
Virus] replication" which resulted in a published paper. However, she did not specify how these 
contributions otherwise impacted the field. Publications and presentations are not sufficient evidence 
under 8 C.F.R. § 204.5(h)(3)(v) absent evidence that they were of "major significance." Kazarian v. 
USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d at 1115. In 2010, the Kazarian court 
reaffirmed its holding that we did not abuse our discretion in finding that the individual had not 
demonstrated contributions of major significance. 596 F.3d at 1122. 
Furthermore, asserted that in his published paper, · 
the petitioner "discovered a 
previously unknown mechanism that insect viruses used to inhibit immune response by counteracting 
RNAi-based signals. These signals are critical for the function of insect immune response to combat 
viral pathogens." indicated 
that the petitioner's work "may be useful for 
designing therapeutic strategies to combat pathogens." A petitioner cannot establish eligibility under 
this criterion based on the expectation of future significance. Given the descriptions in terms of future 
applicability and determinations that may occur at a later date, the petitioner's research, while original, 
is still ongoing, and the actual impact of his work on the field has yet to be determined. Eligibility must 
be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 
49. 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. at 175. That decision, citing Matter of Bardouille, 18 I&N 
Dec. at 114, further provides that USCIS cannot "consider facts that come into being only subsequent to 
the filing of a petition." !d. at 176. 
Moreover, the petitioner submitted recommendation letters from 
and as well as several emails from individuals requesting 
information or samples from the petitioner, indicating that they have cited to the petitioner's work. 
Although the letters establish that the authors have applied the petitioner's research to their own work, 
they fall short in demonstrating that the petitioner's work is considered an original contribution of major 
significance to the field as a whole. The authors did not demonstrate that the petitioner's work has 
significantly influenced or impacted the field rather than limited applicability to the authors' own work. 
For example, and stated that they cited to the petitioner's 
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research in their own publications and grant applications but did not indicate how the petitioner's 
research affected the field as a whole. 
The letters repeat the regulatory language and indicate that his contributions are "groundbreaking" and 
"vital" without explaining how the petitioner's work rises to the level of original contributions of major 
significance. Vague, solicited letters that repeat the regulatory language but do not explain how the 
petitioner's contributions have already influenced the field is insufficient to establish original 
contributions of major significance in the field. Kazarian v. USCIS, 580 F.3d at 1036 aff'd in part 596 
F.3d at 1115. In 2010, the Kazarian court reiterated that the USCIS' conclusion that the "letters from 
physics professors attesting to [the petitioner's] contributions in the field" were insufficient was 
"consistent with the relevant regulatory language." 596 F.3d at 1122. The letters considered above 
primarily contain bare assertions of the petitioner's status in the field without providing specific 
examples of how those contributions rise to a level consistent with major significance in the 
field. 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, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). 
Without supporting evidence, the petitioner has not met its burden of establishing that the petitioner's 
present contributions of major significance in the field. Moreover, USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. 
Dist. 1990). 
Although the petitioner's research has value, any research must be original and likely to present some 
benefit if it is to receive funding and attention from the scientific community. In order for research to 
be accepted for publication, the research must offer new and useful information to the pool of 
knowledge. Not every researcher who performs original research that adds to the general pool of 
knowledge has inherently made a contribution of major significance in the field as a whole. While the 
record includes numerous attestations of the potential impact of the petitioner's work, none of the his 
references provide examples of how the petitioner's work is already significantly influencing the field. 
Although the evidence demonstrates that the petitioner's work has potential, the submitted 
documentation does not establish that he has already made contributions of major significance. 
The opinions of the petitioner's references are not without weight and have been considered above. 
USerS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (eomm'r 1988). However, USCIS is ultimately 
responsible for making the final determination regarding eligibility for the benefit sought. !d. The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility; users 
may evaluate the content of those letters as to whether they support eligibility. See id. at 795-796; 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 an individual who has made 
original contributions of major significance in the field. Cf Visinscaia v. Beers, F. Supp.3d at 134-135 
(b)(6)
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Page 8 
(concluding that US CIS' decision to give little weight to uncorroborated assertions from professionals 
in the field was not arbitrary and capricious). 
Without additional, specific evidence showing that the petitioner's work has been unusually influential, 
widely applied throughout the field, or has otherwise risen to the level of contributions of major 
significance, the petitioner has not established that he meets the plain language of this regulatory 
criterion. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The director determined that the petitioner established his eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[e]vidence ofthe alien's authorship of 
scholarly articles in the field, in professional or major trade publications or other major media." A 
review of the record of proceeding reflects that the petitioner submitted sufficient documentary 
evidence establishing that he meets this regulatory criterion. 
Accordingly, the petitioner established that he meets this criterion. 
Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the individual has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the field of endeavor," and (2) "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(2) 
and (3); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not done so, the proper 
conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of presenting 
evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) and (4). 
Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final merits 
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Page 9 
determination referenced in Kazarian, a review of the evidence in the aggregate supports a finding that 
the petitioner has not demonstrated the level of expertise required for the classification sought.2 · 
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 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
2 
We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 
381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final 
merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see 
also INA§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).