dismissed EB-1A Case: Research Science

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 03, 2024 In Re: 32125202 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a research scientist, seeks classification as an individual of extraordinary ability in the 
sciences. 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 meets the classification's initial evidentiary requirements . The matter is 
now before us on appeal pursuant to 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 
An individual is eligible for the extraordinary ability classification if they have extraordinary ability 
in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and their achievements have been recognized in the field through 
extensive documentation; they seek to enter the United States to continue work in the area of 
extraordinary ability; and their entry into the United States will substantially benefit prospectively the 
United States. Section 203(b )(1 )(A) of the Act. 
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 a one­
time achievement (that is, a major, internationally recognized award). If that petitioner does not 
submit this evidence, then they must 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 
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). 
II. ANALYSIS 
In her initial filing, the Petitioner asserted that she has a major, internationally recognized award 
qualifying as a one-time achievement under 8 C.F.R. § 204.5(h)(3). The Director concluded that the 
record did not support this assertion, and the Petitioner has not challenged this conclusion on appeal. 
An issue not raised on appeal is waived. See, e.g., Matter of O-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 
2021) (citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). As such, the Petitioner must 
establish that she meets at least three of the ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Director concluded that the Petitioner meets the two criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), 
for acting as a judge of the work of others in her field and for publishing scholarly articles in her field. 
The record supports this conclusion. The Director also determined that the Petitioner did not submit 
sufficient evidence to establish her receipt of lesser nationally or internationally recognized prizes or 
awards in her field, membership in associations in her field which require outstanding achievements 
of their members, her original scientific contributions of major significance to her field, or performing 
in a leading or critical role for organizations with distinguished reputations. 8 C.F.R. § 204.5(h)(3)(i), 
(ii), (v), and (viii). As the Petitioner did not meet at least three criteria, the Director did not conduct a 
final merits determination. Kazarian, 596 F.3d 1115, 1119-20. 
On appeal, the Petitioner asserts that the Director's decision is in error because it attributes one of her 
awards to the wrong organization and because she does meet at least three of the initial evidentiary 
criteria. She also resubmits evidence from her underlying petition as well as new documentation 
addressing her eligibility. Upon a careful review of the record, we conclude that the Petitioner has not 
overcome the Director's grounds of denial. 1 
A. Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the 
Field of Endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
To establish her eligibility for the criterion at 8 C.F.R. § 204.5(h)(3)(i), the Petitioner submitted 
materials regarding her third-level, sixth place Excellent Achievements in Science and Technology 
1 While our decision may not reference every document submitted, we have reviewed each one. 
2 
award from the 2 and her second level 
Progress Award from the presented by thel I 
I The Director concluded that the record 
did not establish the significance of these awards or the criteria used to grant them. On appeal, the 
Petitioner submits new documentation including the rules and criteria governing the awards and 
contends that since they are awarded by the Chinese government and by national organizations, 
respectively, they are "nationally recognized," as required by regulation. 
First, we will not consider evidence submitted for the first time on appeal where the Petitioner was 
previously put on notice and given a reasonable opportunity to provide that evidence. See 8 C.F.R. 
§ 103.2(b)(l 1) (requiring all requested evidence be submitted together at one time); Matter ofSoriano, 
19 I&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence submitted on appeal because 
"the petitioner was put on notice of the required evidence and given a reasonable opportunity to 
provide it for the record before the denial"). The Director's notice of intent to deny (NOID) stated 
that the Petitioner could submit several forms of evidence for this criterion, including documentation 
of her awards' significance and the criteria used to award them, but the Petitioner did not submit these 
in her NOID response. As such, we will not consider the new award documentation provided on 
appeal. 3 
Furthermore, contrary to the Petitioner's assertions, an award is not considered nationally or 
internationally recognized for purposes of 8 C.F.R. § 204.5(h)(3)(i) simply because it is awarded by a 
national or international-level organization. To establish eligibility, we consider factors such as the 
criteria used to grant the awards or prizes, the national or international significance of the awards or 
prizes in the field, the number of awardees or prize recipients, and limitations on competitors. 4 As 
noted, the Petitioner previously did not provide any documentation indicating whether her awards are 
nationally or internationally recognized beyond the awarding institutions. While she does provide one 
magazine article on appeal, as well as information regarding the awards criteria, we decline to consider 
this evidence for the reasons explained above. See Matter ofSoriano, 19 I&N Dec. at 766. The record 
therefore does not establish that the Petitioner has received a lesser national or internationally 
recognized award for excellence in her field, and she does not meet the criterion at 8 C.F.R. 
§ 204.5(h)(3)(i). 
2 As noted by the Petitioner on appeal, the Director's decision misattributed this award to its translator, the Intercultural 
Mutual Assistance Association. However, because this award does not establish the Petitioner's eligibility regardless of 
who awarded it, the error was, at most, harmless. See generally Matter of O-R-E-, 28 I&N Dec. 350 n.5 ( citing cases 
where errors that were not material to the end result were therefore considered hannless). 
3 Additionally, while the evidence provided for the first time on appeal will not be considered when determining the 
appeal's outcome, we note that the regulatory document regarding the Excellent Achievements in Science award does not 
mention third level prizes like the one the Petitioner received - only first, second, and special prizes. This raises questions 
about what award the Petitioner won. In any future proceedings in this matter, the Petitioner should provide objective, 
reliable evidence resolving this discrepancy. Matter ofHo, 19 l&N Dec. 582, 591-92 (BIA 1988). 
4 See generally 6 USC1S Policy Manual F.2.(B)(l ), https://www.uscis.gov/policy-manual. 
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B. Membership in Associations in the Field of Endeavor Which Require Outstanding Achievements 
of Their Members, as Judged by Recognized National or International Experts. 8 C.F.R. 
§ 204.5(h)(3)(ii). 
The Petitioner contends that her membership in the Chinese Society of Particuology (CSP) meets the 
criterion at 8 C.F.R. § 204.5(h)(3)(ii), and initially provided a foreign-language website printout to 
support this claim. The Director's NOID informed the Petitioner that under 8 C.F.R. § 103.2(b)(3), 
all foreign-language documents submitted to USCIS must be accompanied by a complete and certified 
English-language translation, but the Petitioner did not provide such a translation in response. Lacking 
any English-language documentation about CSP's membership requirements, the Director concluded 
that the Petitioner does not meet this criterion. 
On appeal, the Petitioner provides an English-language printout of CSP's website for the first time, as 
well as supporting documentation regarding the organization's activities. As noted above, we do not 
consider evidence submitted for the first time on appeal where, as here, the Petitioner was previously 
put on notice and given an opportunity to provide that evidence. Matter ofSoriano, 19 I&N Dec. at 
766. The Petitioner has not overcome the Director's decision and established that she is a member of 
an association in her field which requires outstanding achievements of its members, as judged by 
national or international experts. 
C. Original Contributions of Major Significance in the Field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner states that her co-receipt of a patent in China indicates that she has made an original 
contribution of major significance to her field. 8 C.F.R. § 204.5(h)(3)(v). However, as noted by the 
Director, the record does not include documentation showing what impact this patent had on the 
Petitioner's field. The support letter from J-W-, the Petitioner's graduate school supervisor, only 
stated that "this patent has been of important significance and utilized in the relevant science and 
technology companies" and provided no examples of that utilization, and no corroborating evidence 
was provided to support these claims. 
On appeal, the Petitioner states that the patented work "has been utilized byl I I I but provides no documentation to support this claim apart from a printout ofl I 
website homepage, which does not mention the patented technology. 5 This evidence is insufficient to 
establish to what extent, if any, I I used the patented technology. The record therefore does not 
establish that this patent was majorly significant in her field. 6 The Petitioner has not shown her 
eligibility for the criterion at 8 C.F.R. § 204.5(h)(3)(v). 
5 We note that the website's "company news" section consists of articles from 2017 despite being printed out in 2024. It 
is therefore not apparent when it last updated. 
6 In her petition, the Petitioner also claimed that her citation record showed that her research constituted a major 
contribution to her field. The Director's decision noted that she did not provide documentation comparing her citation rate 
to that of others in the field. As the Petitioner did not bring this issue up on appeal, we consider it to be waived. See, e.g., 
Matter ofO-R-E-, 28 l&N Dec. 336 n.5. 
4 
D. Performed in a Leading or Critical Role for Organizations or Establishments with Distinguished 
Reputations. 8 C.F.R. § 204.5(h)(3)(viii) 
Finally, the Petitioner asserts that she qualifies for the criterion at 8 C.F.R. § 204.5(h)(3)(viii) through 
her work at the I I where she has been employed since 2014. She asserts that her authorship 
of a research protocol and performance of related experiments "established a very good foundation" 
for later results. The record includes documentation of disputes between the Petitioner and her 
colleagues regarding the level of credit she should receive for her role in a paper that was published 
as a result of this research. However, this documentation does not establish the Petitioner's eligibility 
for this criterion because it does not show that she performed in a leading or critical role for thel I 
I I as an organization. 
For example, the support letter from Professor D-K-, the Petitioner's I Isupervisor during 
the relevant period, only states that the Petitioner was a capable and diligent employee, and does not 
indicate that she either led research in his lab or played an especially important part in it. See generally 
6 USCIS Policy Manual, supra, at F.2(B)(l) (noting that employer letters can help show eligibility for 
this criterion "so long as the letters contain detailed and probative information that specifically 
addresses how the person's role for the organization, establishment, division, or department was 
leading or critical"). The email exchanges between the Petitioner and her colleagues regarding the 
relevant work also indicate that her authorship of the research protocol was not considered leading or 
critical by those colleagues, and that the relevant paper was drafted in its entirety by someone else. 
We acknowledge the Petitioner's statements regarding why she believes she played a leading and 
critical role in the disputed research paper. However, the criterion requires a showing that she played 
a leading or critical role for an establishment or organization. The record does not document the 
significance of the relevant paper to the overall outcome of the I I activities, and so does 
not establish that the Petitioner's contributions were critical to that organization. Additionally, given 
that the lab she worked in was led by her supervisor, the record also does not indicate that her role for 
thel lwas a leading one. Therefore, the Petitioner has not established that she meets the 
criterion at 8 C.F.R. § 204.5(h)(3)(viii). 
III. CONCLUSION 
Because the Petitioner does not have a one-time achievement under 8 C.F.R. § 204.5(h)(3) and has 
not provided evidence meeting at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), we need 
not conduct a final merits analysis under Kazarian and hereby reserve that issue. 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 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the applicant did 
not otherwise meet their burden of proof). The petition will remain denied. 
ORDER: The appeal is dismissed. 
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