dismissed EB-1A Case: Plant Pathology

U.S. Citizenship 
and Immigration 
Services 
In Re: 21035246 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 16, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a plant pathologist, 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 the record did not 
establish that the Petitioner met the initial evidence requirements for this classification through 
evidence of a one-time achievement or meeting at least three of the evidentiary criteria at 
8 C.F.R. § 204.5(h)(3). 
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 )(1) 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 
international 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 criteria 
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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material if he or she is 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. USCJS, 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 
The Petitioner received her Ph.D. in plant pathology from the University I I in 2006, and has 
focused her research in the _____________ tropical fruits including pineapples 
and bananas. She submitted evidence showing her intentto continue working in her field in the United 
States. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received 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 found that the Petitioner met two of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3 )(i)-(x), relating to her authorship of scholarly articles and participation as a 
judge of the work of others. On appeal, she asserts that she also meets the evidentiary criteria relating 
to her original contributions of major significance to the field. 1 After reviewing all of the evidence in 
the record, we find that the Petitioner has not met the initial evidentiary requirements for the requested 
classification and is therefore not eligible as a noncitizen of extraordinary ability. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only 
have they made original contributions, but that the contributions have been of major significance in 
1 The Petitioner does not contesttheDirector's decision regarding the criterion at 8 C.F.R. § 204 .5(h)(3)(ii) relating to her 
membership in associations in the field which require outstandingachievementoftheirmembers. We therefore consider 
this issue to be abandoned. See Sepulveda v. US. Att'y Gen., 40 I F.3d 1226, 1228n. 2 (11th Cir. 2005); Hristovv. Roark, 
No. 09-CV-27312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30,2011) (the cou1ifound the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to theAAO). 
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the field. For example, a petitioner may show that the contributions have been widely implemented 
throughout the field, have remarkably impacted or influenced the field, or have otherwise risen to a 
level of major significance. See Visinscaia, 4 F. Supp. 3d at 134-35. 
The record shows that the Petitioner is named as one oOinventors on a United States patent, 
I granted in2014, relating to the development of a 
I lbanana plant. As noted by the Director in his decision, this evidence 
establishes that she has made an original contribution to her field of expertise. But the regulation at 
8 C.F.R. § 204.5(h)(3)(v) also demands that contributions be of major significance, which in the case 
of inventions should be supported by evidence of adoption by at least one industry actor outside of 1he 
petitioner's employer. Amin v. Mayorkas, 24 F.4th 383 (2022)(citing Visinscaia, 4 F.Supp. 3d at 126.) 
In responding to the Director's request for evidence (RFE), the Petitioner provided evidence of the 
I land its effect upon the global banana industry, but 
stated that the patent was not in use due to "the cost associated with purchasing and using the patent 
and lack of acceptance by the general public." The Director noted this statement in his decision, 
concluding that "the potential significance of a contribution does not meet the plain language 
requirement of this criterion." 
On appeal, the Petitioner stresses that the atent is a "solution to to Banana crops" and 
"was proven scientifically to and is therefore of major 
significance even without evidence ofadoption or commercialization. However, she has not submitted 
evidence of any actual impact that this research has had on other researchers in her field or on the 
banana industry. The Petitioner also argues that the patent "took years of research and breakthroughs 
in but the evidence in the record does not support her claim that this work is 
considered to be a breakthrough by others in the field of plant pathology, or that it influenced or was 
relied upon by other researchers in the field. Although she submitted reference letters from colleagues 
at the University ofl I all of them predate her work related to the patent, and she did not present 
evidence that her patent generated widespread interest amongst other researchers. 
The Petitioner also asserts on appeal that the provision at 8 C.F.R. § 204.5(h)( 4) for the submission 
of evidence comparable to that contemplated in the evidentiary criteria "leaves open discretion if or 
when there are grey areas in determining eligibility for benefit sought," and that per that provision 
we may "treat the patent as a criterion." However, as noted above, that provision requires that the 
Petitioner establish that the evidentiary criteria under 8 C.F.R. § 204.5(h)(3) do not readily apply to 
his occupation. She does not make such a claim on appeal, and has already demonstrated by 
submitting her patent and other documentation in support of this criterion that it does apply to her 
occupation. As such, she has not established that her patent should be considered as comparable 
evidence of her eligibility for this classification. 
After review of the Petitioner's appeal and the evidence in the record, we agree with the Director and 
conclude that she has not established that she meets this criterion. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
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merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding 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 for individuals progressing toward the top. USCIS has long held 
that even athletes perf orming 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 her 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)(l )(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 she is one of the small percentage who has risen 
to the very top of the field of endeavor. See section203(b )(l)(A) oftheActand 8 C.F.R. § 204.5(h)(2). 
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 statedreasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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