dismissed EB-1A Case: Sciences

MATTER OF S-K-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 19,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an individual, seeks classification as an individual of extraordinary ability in the 
sciences. See Immigration and Nationality Act (the Act) § 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). 
The Director, Texas Service Center, denied the petition. We dismissed a subsequent appeal. The 
matter is now before us on a motion to reopen and a motion to reconsider. The motion to reopen 
will be denied. The motion to reconsider will be denied. 
I. PERTINENT FACTS AND PROCEDURAL HISTORY 
On June 26, 2013, the Petitioner filed a Form I-140, Immigrant Petition for Alien Worker. The 
classification the Petitioner seeks makes visas available to foreign nationals 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 a one-time achievement or exhibits that meet at least three of the ten 
regulatory criteria. Within our appeal decision dated June 8, 2015, we affirmed the Director's 
ultimate determination that the Petitioner had satisfied two criteria; the judging criterion at 8 C.F.R. 
§ 204.5(h)(3)(iv) and the authorship of scholarly articles criterion at 8 C.F.R. § 204.5(h)(3)(vi). On 
motion, the Petitioner submits a brief with additional material. 
For the reasons discussed below, we reaffirm that the Petitioner has not established his eligibility for 
the classification sought. Specifically, the Petitioner has not submitted qualifying evidence of a one­
time achievement pursuant to 8 C.F.R. § 204.5(h)(3), or documentation that satisfies at least three of 
the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such, the 
Petitioner has not demonstrated that he is one of the small percentage who are at the very top in the 
field of endeavor, and that he has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). 
II. RELEVENT LAW AND REGULATIONS 
Section 203(b) of the Act states, in pertinent part, that: 
Matter of S-K-R-
(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. 
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 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 his or her achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). If a petitioner does not have such an award, then he must 
provide sufficient evidence material that meets at least three of the ten categories listed at 8 C.F.R. 
§ 204.5(h)(3)(i)- (x). 
Satisfaction of 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 the required number of criteria are met, considered in 
the context of a final merits determination). See also Rijal v. USCJS, 772 F.Supp.2d 1339 (W.D. 
Wash. 2011) (affirming our 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 U.S. Citizenship and 
Immigration Services (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"). 
III. ANALYSIS 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires that the 
motion must be "[a ]ccompanied by a statement about whether or not the validity of the unfavorable 
decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and 
status or result ofthe proceeding." In this case, the Petitioner has not addressed whether the validity 
of our appeal decision has been, or is the subject of any judicial proceeding. Notwithstanding the 
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above, the motion does not overcome our decision dismissing the Petitioner's original appeal, which 
concluded that the Petitioner did not establish that he meets at least three of the regulatory criteria 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
A motion to reopen must state the new facts to be provided and to be supported by affidavits or other 
documentation . 8 C.F.R. § 103.5(a)(2). However, any new facts must relate to eligibility at the time 
the Petitioner filed the petition . See 8 C.F.R. § 103.2(b)(l), (12); see also Matter of Katigbak , 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A motion to reconsider must state the reasons for 
reconsideration and be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or USCIS policy. 8 C.F.R. § 1 03.5(a)(3). A motion to 
reconsider is based on the existing record and the Petitioner may not introduce new facts or 
evidence relative to his or her arguments. A motion to reconsider contests the correctness of the 
original decision based on the previous factual record, as opposed to a motion to reopen which seeks 
a new hearing based on fresh documents. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. 
§ 103.5(a)(2). 
In our June 8, 2015, decision, we addressed all of the criteria for which the Petitioner had included 
relevant evidence. We specifically and thoroughly discussed the Petitioner's submissions and 
determined 
that while he met the judging criterion at 8 C.F.R § 204.5(h)(3)(iv) and the scholarly 
articles criterion at 8 C.F.R § 204.5(h)(3)(vi) , he did not satisfy a third criterion by meeting any of 
the following criteria previously addressed: 
• The awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i); 
• The membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii); 
• The published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) ; 
• The original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v); 
On motion, the Petitioner focuses solely on the criterion at 8 C.F.R § 204.5(h)(3)(v), which requires 
evidence that the Petitioner has made contributions of major significance in the field. Accordingly, 
whether the Petitioner meets that criterion is the sole issue on motion. The plain language provides 
that the evidence must establish that the contributions rise to the level of major significance in the 
field as a whole, rather than to a project or to an organization. The phrase "major significance" is 
not superfluous and, thus, it has some meaning. Silverm an v. Eastrich Multiple Investor Fund, L.P., 
51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWUv. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
Contributions of major significance connotes that the Petitioner's work has significantly impacted 
the field. See 8 C.F.R. § 204.5(h)(3)(v) ; see also Visinscaia, 4 F. Supp. 3d at 135-136. 
In our decision, we discussed the A ward to attend the 
The Petitioner asserts on motion that the ranking of his 
abstract as within the top ten percent of approximately 4, 000 others furthers his eligibility under this 
criterion. As a result of this selection, the Petitioner presented his poster presentation at a second 
conference. The Petitioner affirms that nearly 20,
000 
participants attended the conference and had the potential to be introduced to, and to benefit, from 
his research. The Petitioner further indicates that the record reflected that his studies would have 
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Matter of S-K-R-
greater visibility and a broader reach for other research. Even if all of the conference participants 
viewed his poster presentation, the Petitioner has not submitted evidence that shows how this 
viewership has significantly furthered the field. At issue is the impact of this work upon 
dissemination. 
While discussing the letter from Dr. Professor with the Department of Physics at the 
the Petitioner indicates our decision placed too much reliance on this 
individual's affirmation that the Petitioner's results will have a future effect in the field. The 
Petitioner points to his study with in vivo systems as the area that the bulk of Dr. letter 
covered. We addressed the project relating to in vivo markers in our appellate decision noting that 
Dr. refers to how the Petitioner's research on those markers will be highly beneficial. We 
accurately recounted the statements in that letter; he maintained that the Petitioner's findings are 
significant for in vivo markers and that the continuation of his work "will be beneficial for improved 
national security and the health of those people treated with medical laser technology." Within the 
motion, the Petitioner has not identified language in this letter that explained the impact the 
Petitioner's 
results have already had in the field. 
Regarding Professor of Medicine and Consultant Physician at the 
the Petitioner provides a quote from the professor's letter that recounts the Petitioner's 
accomplishment exploiting the conservation of molecular pathways between zebra fish and humans. 
As noted by the Petitioner, Mr. confirmed that the Petitioner has "successfully translated his 
work using zebra fish to study cardiac complications to the field of diabetes." This letter does not 
suggest that the Petitioner's results led to other independent research teams using zebra fish or that 
the Petitioner's diabetes study has impacted the field. 
The Petitioner also maintains that our previous decision should not have considered the letter from 
Dr. . Senior Scientist at 
in the context of the existence of only a single citation for the article discussed in that letter. The 
Petitioner provides a Google Scholar printout confirming that his articles and book chapter in the 
aggregate have now garnered 82 citations. In our decision, we noted that it was Dr. 
who discussed a single mention in a 2012 review article as demonstrating the impact of the cited 
study. Our reference to the single citation of that chapter was in direct response to Dr. 
assertion. While the total number of references to all of the Petitioner's research 
has now risen, those new citations postdate the filing of the petition and cannot establish eligibility 
as of that date. See 8 C.F.R. § 103.2(b)(l), (12); Katigbak, 14 I&N Dec. at 49. While we further noted 
that a single brief mention in a citing article, the Petitioner did not submit other citing articles of this 
book chapter to show the level of reliance on the Petitioner's work. The record contains one other pre­
filing citation to this chapter which references the Petitioner along with five other studies for the same 
proposition. 
With respect to the Petitioner's citation numbers in the aggregate, initially the Petitioner documented 
40 references to his research, and in response to the Director's request for evidence (RFE) he 
submitted a Google Scholar printout that reflected 59 citations. Accordingly, more than half of the 
82 citations presented on motion postdate the filing of the petition. Moreover, more probative than 
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the number in the aggregate are the citations for individual articles. While the Petitioner's studies 
involving zebra fish have now garnered moderate citation, he has not demonstrated that these are 
indicative of a contribution of major significance, especially as of the date of filing. !d. 
The Petitioner also asserts that we mistakenly placed too much emphasis on the future tense that 
Assistant Professor at the utilized within his letter. On 
motion, the Petitioner writes: "Dr. is affirmatively stating that the [Petitioner's] creat[ion of] 
the model to test the drug delivery for diabetes is [a] major 
significant contribution to the field." We recognized this achievement within our appellate decision, 
explaining: 
Dr. indicates the petitioner developed a key advancement in drug testing that is 
"one of the most novel research tools in the field" that allows researchers to "assess 
the effects of a huge library of FDA approved drugs from 
' Dr. letter lacks an explanation of how widespread the use of the 
petitioner 's development has been in the field. 
We also analyzed the Petitioner 's model discussed in other expert letters on record, concluding 
that they did not confirm the use of the Petitioner's model in the field. The Petitioner does not 
respond to this concern on motion with corroboration of the use of the Petitioner's advancement by 
independent researchers in the field. 
As the letters from Dr. and others did not reflect that the Petitioner 's advancement has resulted 
in a significant impact within the field, he has only established that his achievement in the 
model may have the potential to be significant in the field. Achievements that may occur in the 
future are not qualifying elements under this criterion. 8 C.P.R. § 1 03.2(b )(1), (12); Katigbak, 
14 I&N Dec. at 49. 
The Petitioner offers new facts supported 
by "peer-review recently received form [sic] an 
open-access journal for biomedical and life sciences." The Petitioner asserts: "The positive 
feedback, comments and remarks from [ Editor-in-Chief and the publication 's staff] show the 
significance and the present day impact of the research undertaken by [the Petitioner]." The 
Petitioner's manuscript under peer-review is titled, ' 
' The Petitioner did not -
corroborate that this study has been published. Within this draft article, the Petitioner and his 
coauthors refer to other researchers' results published in Therefore, this work, and the peer-
review of it, both postdate the petition 's filing date in The Petitioner cannot rely on 
research that was pending on the date he filed the petition, not even in a motion to reopen that 
requires new facts. !d. 
Even if this new evidence could be considered within these proceedings, it remains that it would not 
satisfy this criterion's requirements . That the Petitioner 's research was published after peer-review 
does not establish that the work qualifies him under this criterion. More probative is the impact of 
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Matter of S-K-R-
that study upon dissemination in the field. In light of the above, the Petitioner has not provided new 
facts that overcome the conclusions in our June 8, 2015, decision. 
IV. CONCLUSION 
The motion will be denied 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. Here, the Petitioner has not 
met that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-K-R-, ID# 15141 (AAO Jan. 19, 2016)