dismissed EB-1A Case: Physiology Research

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 5, 2024 In Re: 29769815 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a physiology researcher, 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 the Petitioner did not 
establish he satisfied at least three of the initial evidentiary criteria. The matter is now before us on 
appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203 (b)(1)(A) 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 achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award) or 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). 
II. ANALYSIS 
Because the Petitioner has not indicated or established receipt of a major, internationally recognized 
award, she must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). The Director determined the Petitioner fulfilled only two (judging under 8 C.F.R. 
§ 204.5(h)(3)(iv) and scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi)). On appeal, the Petitioner 
maintains her qualification for an additional one ( original contributions under 8 C .F.R. 
§ 204.5(h)(3)(v)), discussed below. 1 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), USCIS determines whether the person 
has made original contributions in the field. 2 USCIS then determines whether the original 
contributions are of major significance to the field. 3 Examples of relevant evidence include, but are 
not limited to: published materials about the significance of the person's original work; testimonials, 
letters, and affidavits about the persons original work; documentation that the person's original work 
was cited at a level indicative of major significance in the field; and patents or licenses deriving from 
the person's work or evidence of commercial use of the person's work. 4 
The Director discussed the Petitioner's submission ofreference letters, citations, publication history, 
conference presentations, and downloads. On appeal, the Petitioner does not contest or address any 
of the Director's specific determinations relating to this evidence. Issues not raised on appeal are 
considered waived. See, e.g., O-R-E-, 28 I&N Dec. at 336 n.5 (citing R-A-M-, 25 I&N Dec. at 658 
1 The Petitioner does not contest or address the Director's decision relating to her previous claim of meeting the awards 
criterion under 8 C.F.R. § 204.5(h)(3)(i). We consider the Petitioner's prior eligibility claims not contested on appeal to 
be abandoned. An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 T&N Dec. 330, 336 n.5 (BIA 2021) 
( citing Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)). 
2 See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
3 Id. 
4 Id. 
2 
n.2). Instead, the Petitioner contends that the Director overlooked her eligibility based on her 
contributions in the development of the drug,I I which is her sole argument on appeal. 
The record contains a letter from Dr. A-G- who stated: 
[The Petitioner has identified a s ecific subset of h othalamic neurons that increase 
metabolic rate '------------------------------' This work is very important in treatin obese atients and was disseminated to the field 
through publication in . I 
can confirm that this research is the basis of one notable drug, called ~--~ 
I I, which was developed during my time as Head of Research at [R-P-]. 
Indeed, [the Petitioner's] research was implemented in our determination of what these 
signals are and where they act. Her work showed that I 
~-----------------~11, __~lhas been recently approved 
b the U.S. Food and Dru Administration for clinical use and is the first-in-class 
The Petitioner also submitted documentation about I such as "Highlights of Prescribing 
Information" and "Instructions for Use." In addition, the Petitioner provided screenshots from 
geneticobesitynews.com regarding an update on ongoing clinical trials by R-P- relating to 
I l 
Analysis under this criterion focuses on whether the person's original work constitutes major, 
significant contributions to the field. 5 Evidence that the person's work was fonded, patented, or 
published, while potentially demonstrating the work's originality, will not necessarily establish, on its 
own, that the work is of major significance to the field. 6 For example, published research that has 
provoked widespread commentary on its importance from others working in the field, and 
documentation that it has been highly cited relative to others' work in that field, may be probative of 
the significance of the person's contributions to the field of endeavor. Similarly, evidence that the 
person developed a patented technology that has attracted significant attention or commercialization 
may establish the significance of the person's original contribution to the field. 7 
Here, the Petitioner has not demonstrated how her research contributions resulting i~ Irises to 
an original contribution of major significance in the field. Although Dr. A-G- credits the Petitioner's 
research with the eventual development of the drug, I I the Petitioner did not show how 
I lhas impacted or influenced the field in a major way. The Petitioner presented evidence 
establishing the existence ofl !without demonstrating how the drug is viewed in the field as a 
majorly significant contribution. 
5 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
6 Id. 
7 Id. 
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I 
Likewise, Dr. A-G- did not farther elaborate and discuss the effects ofl For instance, while 
Dr. A-G- indicated the FD A's recent approval of the drug, the letter does not explain the extent, if any, 
of I I implementation, usage, or overall impact in treating obese patients. Similarly, as 
indicated above, the geneticobesitynews.com screenshots report on the ongoing clinical trials of
Irather than showing how the field views the research or drug as already being significantly 
important in a major way. Without farther information, the Petitioner has not shown how the 
application of her research with I lresulted in a contribution of major significance in the field. 
Detailed letters from experts in the field explaining the nature and significance of the person's 
contribution may also provide valuable context for evaluating the claimed original contributions of 
major significance, particularly when the record includes documentation corroborating the claimed 
significance. 8 Submitted letters should specifically describe the person's contribution and its 
significance to the field and should also set forth the basis of the writer's knowledge and expertise. 9 
In this case, the letter lacks specific, detailed information explaining how the Petitioner's research 
involving! Icaused an original contribution of major significance in the field. USCIS need not 
accept primarily conclusory statements. 1756, Inc. v. The US. Atty Gen., 745 F. Supp. 9, 15 (D.C. 
Dist. 1990). 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown she has made original contributions of major significance in the field. 
III. CONCLUSION 
Because she did not satisfy the original contributions category, the Petitioner did not meet the initial 
evidentiary requirement of at least three criteria under 8 C.F.R. § 204.5(h)(3). Therefore, we need not 
provide the type of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. 
Accordingly, we reserve this issue. 10 
Nevertheless, we have reviewed the record in the aggregate, concluding it does not support a 
conclusion that the Petitioner has established the acclaim and recognition required for the classification 
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. Matter ofPrice, 20 
I&N Dec. 953, 954 (Assoc. Comm'r 1994) (concluding that even major league level athletes do not 
automatically meet the statutory standards for classification as an individual of "extraordinary 
ability,"); Visinscaia, 4 F. Supp. 3d at 131 (internal quotation marks omitted) (finding that the 
extraordinary ability designation is "extremely restrictive by design,"); Hamal v. Dep 't ofHomeland 
Sec. (Hamal II), No. 19-cv-2534, 2021 WL 2338316, at *5 (D.D.C. June 8, 2021), aff'd, 2023 WL 
1156801 (D.C. Cir. Jan. 31, 2023) (determining that EB-1 visas are "reserved for a very small 
percentage of prospective immigrants"). See also Hamal v. Dep 't ofHomeland Sec. (Hamal I), No. 
l 9-cv-2534, 2020 WL 2934954, at* 1 (D.D.C. June 3, 2020) ( citing Kazarian, 596 at 1122 (upholding 
denial of petition of a published theoretical physicist specializing in non-Einsteinian theories of 
8 See generally 6 USCTS Policy Manual, supra, at F.2(B)(l ). 
9 Id. 
10 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
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gravitation) (stating that "[c]ourts have found that even highly accomplished individuals fail to win 
this designation")); Lee v. Ziglar, 237 F. Supp. 2d 914, 918 (N.D. Ill. 2002) (finding that "arguably 
one of the most famous baseball players in Korean history" did not qualify for visa as a baseball 
coach). Here, the Petitioner has not shown the significance of her work is indicative of the required 
sustained national or international acclaim or 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)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate the Petitioner has 
garnered national or international acclaim in the field, and she 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 record does not contain sufficient evidence establishing the Petitioner among the 
upper echelon in her field. 
For the reasons discussed above, the Petitioner has not demonstrated her 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. 
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