dismissed EB-1A Case: Structural Biology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-D-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30, 2015 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a structural biologist, 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 employment-based immigrant visa petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
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 satisfaction of at least three of the ten regulatory criteria. The 
Director, Texas Service Center, denied the employment-based immigrant visa petition on July 31, 2014. 
The petitioner then filed a motion to reconsider that the Director dismissed on October 8, 2014, 
ultimately upholding his original decision on the petition. On appeal, the Petitioner submits a brief. 
For the reasons discussed below, we agree that the Petitioner has not established his eligibility for the 
classification sought. Specifically, while we find that the Petitioner has satisfied three of the regulatory 
criteria, the Petitioner has not demonstrated his "sustained national or international 
acclaim." Accordingly, we will dismiss the Petitioner's appeal. 
I. 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, 
Matter of R-D-
(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 show such an achievement, then he 
must provide sufficient qualifying evidence that meets at least three of the ten categories listed at 
8 C.F.R. § 204.5(h)(3)(i)-(x). 
Satisfying 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 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"). 
II. ANALYSIS 
1. Evidentiary Criteria1 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements o_ftheir members. asjudged by recognized national 
or international experts in their disciplines orfields. 
The Director addressed the evidence submitted for this criterion and found that the Petitioner did not 
satisfY the requirements. On appeal, the Petitioner does not contest the Director's findings for this 
criterion or offer additional discussion. Therefore, we need not review the prior assertions pertaining to 
this criterion. Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885, at *1, 9 (E.D.N.Y. Sept. 30, 2011) (finding the 
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. 
2 
(b)(6)
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plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly , the 
Petitioner has 
not submitted qualifying evidence under this criterion. 
Evidence of the alien 's participation , e ither individually or on a panel, as a judge of the work of 
others in the same or an alliedfield of specification for which class[fication is sought. 
The Director determined the Petitioner met the requirements of this criterion. The Petitioner has 
submitted sufficient evidence , including emails documenting the Petitioner's peer review 
performance , to establish that he meets this criterion . 
Evidence of the alien 's original scient?fic, scholarly, artistic, athletic, or business-related 
contributions ~f major sign[ficance in the field. 
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 (3rct Cir. 1995) quoted in APWU v. Potter, 343 
F.3d 619,626 (2
11
ct Cir. Sep 15, 2003). Contributions of major significance connotes that the Petitioner's 
work has significantly impacted the field. See 8 C.P.R. § 204.5(h)(3)(v) ; see also Visinscaia, 4 F. Supp. 
3d at 135-36. The Petitioner provided reference letters, citations to his articles, and other evidence 
related to his citation record. The Director determined that the Petitioner did not meet the requirements 
of this criterion. Within the motion to reconsider decision, the Director changed the field of endeavor, 
but reaffirmed the remaining conclusions in the denial. The Petitioner indicates in the appeal brief that 
the following achievements in the areas of . and 
establish his eligibility under this criterion: 
• Authorship of 22 published articles that have garnered citations; 
• Authorship of a review article that has garnered citations; 
• Citation rankings among the top 10 percent of cited articles in the field for a particular year; 
and 
• Corroboration of the objective evidence ofhis impact in the field from experts in the field. 
The Petitioner also references 
two Administrative Appeals Office (AAO) administrative decisions in 
support of his eligibility. The Petitioner has not established that the fact patterns in the referenced cases 
are analogous to the instant case. Moreover, while the regulation at 
8 C.F.R. § 103.3(c) provides that 
AAO precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished (non-precedent) decisions are not similarly binding. 
Within the appeal, the Petitioner references some evidence that reflects his achievements occurring after 
he filed the petition. Achievements that occur after he filed the petition represent his continued efforts 
in the field rather than eligibility at the time of filing. See 8 C.P.R. § 103.2(b)(l) , and (12) (requiring 
eligibility as of the date of filing). A petition may not be approved if the petitioner was not qualified at 
the priority date, but expects to become eligible at a subsequent time. See Matter of Katigbak , 14 I&N 
Dec. 45,49 (Reg' l Comm'r 1971). 
3 
(b)(6)
Matter of R-D-
Regarding his achievements that occurred prior to the petition's priority date, the Petitioner has 
referenced the impact factor of the journals that published his work. More probative i's the reaction in 
the field to the Petitioner's specific articles. The Petitioner initially submitted his Google Scholar 
Citation printouts reflecting he had published 22 articles, 14 of which had been cited by other scholarly 
works. However, his overall citation record at the time he filed the petition was just over half the 
number he references on appeal.2 The Petitioner stated within the request for evidence (RFE) 
response that his papers have been "specifically discussed extensively and positively commented 
on," and that these are "more than just mere footnote mentions." The record contains two examples 
of other researchers discussing his work and positively commenting on his findings. The first 
article, 
appeared in the The authors 
discuss the Petitioner's findings in multiple instances within the article. The second article, 
-
· appeared in the In 
a 21-page review article that cites at least 115 articles, 
the authors utilized a paragraph to discuss how the 
Petitioner's findings pointed to a reliable tool to infer new modulators. 3 Finally, while the Petitioner 
did not document the ultimate impact of the patents that cite his work, he has provided three patents that 
cite to his published work relating to the 
the and Chair of the Department of Cell and 
Molecular Biology at provided a letter dated November 4, 2013. 
discussed the Petitioner's work with high-resolution crystal structures. 
indicated that the Petitioner's work with these structures has significantly furthered research that will 
aid in the understanding of and potential therapies for tuberculosis and the chorismate mutase enzyme. 
He identified a group from led by which developed a tuberculosis 
drug discovery initiative based on the Petitioner's crystal structure research. Within the initial filing, the 
Petitioner submitted a letter from that explained the importance of the Petitioner's findings. 
The letter confirmed that this independent research tean1 had initiated a drug discovery initiative based 
on the Petitioner's results involving multiple research groups, and also stated that they have found 
promising "hits" that are being tested and asserted that if the tests are successful, the results of the 
project will be far-reaching. 
in Structural Genomics and Senior Scientist with the 
provided a letter dated November 19, 2013. discussed the 
Even if we were to recognize the higher number, that number is an aggregate number representing several articles. 
More probative of the influence of individual articles is the number of citations each article has garnered. 
3 With his motion to reconsider , the Petitioner provided a review article titled, 
. . _ The Petitioner 
characterized this article as citing extensively to his work . This art icle was published more than one year after the 
Petitioner filed the petition and it cannot serve as qualifying evidence within the present proceedings. See 8 C.F.R. 
§ 103 .2(b )( 1 ), and ( 12); also see Katigbak, 14 J&N Dec. at 49. Regardless, as with the other review article, this article cites 
over I 00 research articles. 
4 
(b)(6)
Matter of R-D-
Petitioner's work related to crystal structures and the , indicating the Petitioner's work was an 
original contribution of major significance and that it has had an impmtant influence on the field's 
understanding of the function of this gene as it relates to cancer. confirmed that she has 
cited to the Petitioner's work within one of her own publications. 
The reference letters submitted by the Petitioner discussed the fact that he has impacted their own work 
and that he has had some influence in the field through his research findings and are corroborated by 
citations. Specifically, the record shows that laboratories are utilizing the Petitioner's findings to further 
their own research as it contains articles and patents that cite to his work, reference letters from other 
researchers elaborating on his work within their own, and his published articles in highly ranked 
journals. When considered together, the Petitioner has demonstrated that such achievements in the 
aggregate meet the plain language requirements of this criterion. 
For the reasons outlined above, a review of the record of proceeding reflects that the Petitioner 
submitted sufficient documentary evidence establishing that he meets the plain language of 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 the Petitioner met the requirements of this criterion. The Petitioner has 
submitted sufficient evidence , including multiple published works in scholarly journals, to establish 
that he meets this criterion. 
2. Summary 
The Petitioner has satisfied the antecedent regulatory requirement of at least three types of evidence. 
III. FINAL MERITS DETERMINATION 
Within the final merits determination, a petitioner has already met the reqms1te production 
requirements, and the evidence is no longer individually considered against the 10 regulatory criteria 
under 8 C.F.R. § 204.5(h)(3) . Instead, we now turn to an examination of the totality ofthe record to see 
if the individual has demonstrated, by a preponderance of the evidence , that he or she has sustained 
national or international acclaim,4 and whose achievements are recognized in the field through 
extensive documentation , 5 making them one of the small percentage who has risen to the very top of his 
4 Sustained means to support or maintain, especially over a long period. Black's Law Dictionary 1585 (9th ed. 2009). 
Therefore, the foreign national must have maintained the national or international acclaim over a period of time through 
the date of filing. 
5 While the statute requires extensive evidence , eligibility is to be determined not by the quantity of evidence alone but by 
its quality. Cf Chawathe, 25 I&N Dec. at 376 citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm 'r 1989). We "examine 
each piece of evidence for relevance , probative value, and credibility , both individually and within the context of the totality 
of the evidence ." Cf id 
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Matter of R-D-
or her field of endeavor. If so, a petitioner has met the requisite burden of proof and established 
eligibility for visa classification as an individual "of extraordinary ability." Section 203(b)(l)(A)(i) of 
the Act; 8 C.F.R. § 204.5(h)(2) and (3). See Kazarian, 596 F.3d at 1119-20. 
The documents we consider within a final merits analysis may include achievements that were not 
directly applicable to one of the criteria within the regulation at 8 C.F.R. § 204.5(h)(3)(i)- (x), such as 
comparable evidence under 8 C.F.R. § 204:5(h)(4) . Also, a petitioner may request that submissions that 
do not meet any of the enumerated criteria, and does not qualify as comparable evidence, be considered 
within a final merits analysis, provided a petitioner has already satisfied at least three criteria. 
In a final merits analysis, we first discuss and analyze the foreign national's achievements to provide a 
framework to perform an overall, final determination. We then weigh all of the evidence and 
achievements together to determine if the individual's achievements and ability are sufficient to 
demonstrate that he or she has extraordinary ability in the respective field of endeavor. Ultimately , we 
consider the individual's overall acclaim, recognition in the field, and levels of expertise to determine 
whether a petitioner has established eligibility. Section 203(b)(1)(A)(i) of the Act; 8 C.F.R. 
§ 204.5(h)(2) and (3). See Kazarian, 596 F.3d atlll9-20. As we look at whether the foreign national is 
within the small percentage at the very top of the field, the achievements of others in the field, including 
those who support the petition, can be relevant. 
In the present case, the Petitioner's memberships do not exhibit national or international acclaim, nor do 
they reveal a high level of recognition within his field. For example, he has not established that the 
associations of which he is a member require outstanding achievements of their members as a required 
condition of membership. He has also not shown that his associations utilize nationally or 
internationally recognized experts to judge the achievements of prospective members to determine if the 
achievements are outstanding. Significantly, Professor at 
who provided a letter on the Petitioner's behalf, is a member of the 
Accordingly, not only does the evidence not satisfy the regulation at 8 C.F.R 
§ 204.5(h)(3)(ii), it is not indicative of national or international acclaim. 
The Petitioner's judging experience consists of peer review on behalf of three scientific journals and 
selection to serve as an editorial board member on an open access journal. The nature of the 
Petitioner's judging experience is a relevant consideration as to whether the evidence is reflective of his 
national or international acclaim. See Kazarian , 596 F.3d at 1122. The Petitioner has not demonstrated 
the prestige associated with the three journals in which he has performed a moderate amount of peer 
review. We note that peer review is a routine element of the process by which journals select articles 
for publication in or scholarly journals or for presentation at conferences. Simply participating in the 
peer review process does not confirm that an individual has sustained national or international acclaim 
at the very top of his field. 
The Petitioner has also not established that he is actually on the editorial board of the open access 
journal , nor has he shown the distinguished nature of the online publication . Examples that might set 
the Petitioner apart from others in his field include evidence that he has received and completed 
(b)(6)
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independent requests for review from a substantial number of journals or conferences, served in 
editorial positions for distinguished journals, or chaired technical committees for reputable conferences. 
See 8 C.F.R. § 204.5(h)(2). For example, has served on six journal editorial boards and has 
served as the editor of the Multiple other scientists who have provided 
reference letters for the Petitioner are editors, are on the editorial board, or have performed peer review 
for a dozen or more scientific journals. The Petitioner's level of peer review is not commensurate with 
one who is in the top percentage in his field. 
Authoring scholarly articles is inherent within a scientific researcher's occupation. We may consider 
the field's response to the articles in a final merits determination. Kazarian, 596 F.3d at 1122. As such, 
the Petitioner's citation history may be a factor in evaluating the Petitioner's publication history. At the 
time the Petitioner filed this petition, he had authored 22 articles, 14 of which had been cited by other 
scholarly works garnering a total of 110 citations.6 The five most cited articles individually garnered 
between 15 and 20 citations. The remainder aggregated seven or fewer citations, and eight did not 
amass any citations. 
Senior Principal Investigator and Chief of the Laboratory of 
discussed the Petitioner's work regarding the 
and affirmed that this paper has been cited at a level that places it among the top ten percent of papers in 
2013. In support of this assertion, the Petitioner submitted citation percentiles for the entire field of 
Biology and Biochemistry . While these percentiles show that the citation level for the Petitioner's 
article is above average for articles of the same year, the Petitioner has not demonstrated the 
significance of these averages for recent articles. 
The Petitioner also relies on the results of lists from _ The home page of this service's 
website, which the Petitioner submitted, indicates that it updates users on their "domain of scientific 
work and clinical practice." Users can customize their journal "to match [their] exact scientific domain, 
using one or a few publications and/or one or a few keywords." That the Petitioner used unknown 
keywords to create lists where his articles appear as number seven and number one on the lists is not 
confirmation that his articles are the seventh and first most influential mticles in a particular domain. 
Rather, the percentages listed next to each article reveal that his articles are 67 percent and 92 percent 
relevant to the domain he created using his own keywords. The Petitioner has not demonstrated the 
significance of this evidence to his recognition in the field. 
The patents citing to the Petitioner's published work and confirmation that other researchers, such as 
are using the Petitioner's work in their tests is reflective of a contribution in the field that 
assisted the Petitioner in satisfYing the plain language requirements of 8 C.F.R § 204.5(h)(3)(v). 
6 In explaining the significance of his citations, on appeal the Petitioner indicates that his review article in the 
" ranks among the top 0.0 I% of most cited articles in Biology and Biochemistry for its 
publication year. " This article and its associated citations both occurred after the Petitioner filed the petition and , as 
such , are not indicative of the Petitioner 's eligibility as of the date of filing. See 8 C.F.R. § 103.2(b)(l) , (12) ; also see 
Katigbak, 14 l&N Dec. at 49. 
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However, the level that others are relying on his findings does not rise to the level of this classification's 
overall requirements. While his work is valuable, when considering the totality of the evidence, the 
degree at which others have used his work to test their hypotheses falls short of demonstrating (1) that 
his achievements have been recognized in the field of expertise through extensive documentation or (2) 
that his level of expertise places him among the small percentage at the very top of his field. While the 
Petitioner's collective contributions in his field were sufficient to show that he met the requisite 
antecedent evidentiary criterion, they are not indicative of or consistent with sustained national or 
international acclaim or the status placing him among the small percentage at the top of the field. 
In summary, considering the full measure of the Petitioner's ability and achievements, the level of his 
national or international acclaim and the extent to which his achievements have been recognized in the 
field are not indicative of a record of sustained acclaim. Also, he has not submitted extensive 
documentation exhibiting he has attained a level of expertise placing him among that small percentage 
who have risen to the very top of the field of endeavor. 
IV. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must show that the alien has 
achieved sustained national or international acclaim and is one of the small percentage who has risen to 
the very top of the field of endeavor. 
A review of the evidence in the aggregate, however, does not demonstrate that the Petitioner has 
distinguished himself to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field of biomedical 
research. The record is not persuasive that the Petitioner's achievements set him significantly above 
almost all others in his field at a national or international level. Therefore, the Petitioner has not 
established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition may not be approved. 
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 
Cite as Matter ofR-D-, ID# 12414 (AAO Sept. 30, 2015)