remanded EB-1A Case: Biomedical Research

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 20, 2023 In Re: 23099341 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a biomedical researcher, 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 )( 1)(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 Texas Service Center revoked the approval of the petition, concluding that the 
record did not establish that the Petitioner met at least three of the ten evidentiary criteria required for 
eligibility. 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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)(l)(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); Amin v. Mayorkas, 24 F.4th 383, 391-92 (5th Cir. 2022). 
However, USCIS may revoke its approval of an immigrant visa petition "at any time" for "good and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. The realization that a petition was approved 
in error may be good and sufficient cause for revoking its approval. Matter ofHo, 19 I&N Dec. 582, 
590 (BIA 1988). USCIS may issue a notice of intent to revoke (NOIR) a petition's approval if the 
unexplained and unrebutted record at the time of the notice's issuance would have warranted the 
filing' s denial based on the petitioner's failure to meet their burden of proof Matter ofEs time, 19 I&N 
Dec. 450,451 (BIA) 1987). The NOIR provides the opportunity to submit evidence in support of the 
petition and in opposition to the alleged grounds for revocation. 8 C.F.R. § 205.2(b ). If the NOIR 
response does not rebut or resolve revocation grounds stated in the notice, USCIS properly revokes a 
petition's approval. Matter ofEstime, 19 I&N Dec. at 451-52. 
II. ANALYSIS 
The Petitioner is a biomedical researcher, and intends to continue this pursuit in the United States. In 
her initial petition, she stated that she qualifies for the extraordinary ability classification under the 
following three evidentiary grounds: 1 
• 8 C.F.R. § 204.5(h)(3)(iv), participation as a judge of the work of others in the field; 
• 8 C.F.R. § 204.5(h)(3)(v), original contributions of major significance in the field; and 
• 8 C.F.R. § 204.5(h)(3)(vi), authorship of scholarly articles in the field. 
The Petitioner's case was approved in April 2021. In May 2021, the Director issued a request for 
evidence (RFE), stating that the Petitioner had met the evidentiary criteria for participation as a judge 
and authorship of scholarly articles and requesting further documentation of her contributions to her 
field in order to establish her eligibility under the criterion at 8 C.F.R. § 204.5(h)(3)(v). 2 Upon 
receiving the Petitioner's timely response, the Director issued an NOIR stating that the petition had 
1 The Petitioner does not claim, and the evidence does not establish, that she has a one-time achievement under 8 C.F.R. 
§ 204.5(h)(3) of the Act. 
2 The Petitioner correctly notes that RFEs should not be issued for previously-approved petitions. Under 8 C.F.R. § 205.2 
and § 204.S(n), an approved T-140 remains valid indefinitely unless it is properly revoked, which requires the issuance of 
an NOIR. However, the Director subsequently issued a proper NOIR based solely on the evidence in the record at the time 
of the petition's approval, to which the Petitioner had a full opportunity to respond. 8 C.F.R. § 205.2(b). As such. this 
procedural error has been remedied and we will not address it further. 
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been approved in error because the record only established the Petitioner's eligibility for two criteria 
instead of the required three. The Director again stated that the Petitioner had established her 
authorship of scholarly articles and her participation as a judge, and requested farther documentation 
of the Petitioner's original contributions of major significance to her field. The Petitioner provided a 
timely response, and the petition's approval was subsequently revoked with a finding that the 
Petitioner did not meet at least three of the required ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
A. The Director Properly Issued the Notice oflntent to Revoke 
On appeal, the Petitioner contends that the Director had no authority to revoke the petition's approval 
because "[t]he revoking officer did not state that the original adjudicating officer was unreasonable 
in 
his or her original conclusion that the evidence was sufficient" and didn't cite an error in the approval 
apart from a lack of sufficient probative, relevant, and credible evidence establishing that the Petitioner 
had made a major contribution to her field. According to the appellate brief, this subjected the petition 
to "a higher standard of review ... not rooted in law or policy guidance" but instead "a matter of 
subjective opinion." We disagree. 
An officer issuing an NOIR does not need to demonstrate a "clear error" in the prior decision or to 
show that the approving officer was "unreasonable," as claimed by the Petitioner, but only to find that 
the unrebutted record at the time of the NOIR' s issuance would merit the petition's denial based on 
the petitioner's failure to meet their burden of proof Matter of Es time, 19 I&N Dec. at 451. If 
supported by the record, the realization that an approval was made in error may, in and of itself: be 
"good and sufficient cause" for revoking a petition. Matter ofHo, 19 I&N Dec. at 590. 
Furthermore, it is a petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013); Matter 
ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012); Matter ofHo, 19 I&N Dec. at 588-89; 
Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966). This burden remains with the petitioner 
throughout revocation proceedings. Matter ofHo, 19 I&N Dec. at 588-89, Matter ofEstime, 19 I&N 
Dec. at 452 n.1 ( citations omitted). 
In order to meet their burden of proof, a petitioner must submit relevant, probative, and credible 
evidence leading us to believe that their claim is "more likely than not" or "probably" true. Matter of 
Chawathe, 25 I&N Dec. at 375-76 (AAO 2010) (citing Matter ofE-M-, 20 I&N Dec. 77, 79-80 (BIA 
1989)) (explaining the "preponderance of the evidence" evidentiary standard petitioners must meet in 
these proceedings). A failure to meet this burden as to a material claim is sufficient to merit a petition's 
denial, and therefore sufficient to merit the revocation of its approval. Id.; Matter ofEstime, 19 I&N 
Dec. at 451. Upon de novo review of the entire record, we conclude that at the time of the petitioner's 
approval, the Petitioner did not meet this burden of proof regarding her contributions to her field. 
8 C.F.R. § 204.5(h)(3)(v). As such, the Director had good and sufficient cause to issue the NOIR. 
Matter ofEstime, 19 I&N Dec. at 451. 
The Petitioner farther claims that NOIR did not state a good and sufficient cause for revocation 
because it did not "include a specific statement not only of the facts underlying the proposed action, 
but also of the supporting evidence." Id. at 451-52. According to the appellate brief: the NOIR was 
issued "without acknowledging any discrepancies from the approval or what evidence is in question," 
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and so did not provide an adequate explanation of the grounds of revocation. However, as explained 
above, an NOIR need only explain why the unrebutted record at the time of its issuance would merit 
the petition's denial based on a petitioner's failure to meet their burden of proof Id. at 451. In the 
present case, the NOIR properly explains why the evidence of record at the time of the petition's 
approval was insufficient to meet the Petitioner's burden of proof and establish she had made a majorly 
significant contribution to her field, as required by 8 C.F.R. § 204.5(h)(3)(v). 
For example, the notice states that the Petitioner's listing as a co-inventor on a patent does not, in and 
of itself: establish the significance of the underlying invention to the Petitioner's field, and that the 
record did not include corroborating documentation showing that the patent had resulted in significant 
commercial sales or had an impact on others in her field. This articulates why the patent 
documentation does not include the information needed to meet the Petitioner's burden of proof and 
show it is more likely than not that the invention documented in the patent is majorly significant to 
her field. Matter of Chawathe, 25 I&N Dec. at 375-76. The Director similarly provides reasoned 
explanations of why the remainder of the evidence did not establish, by a preponderance of the 
evidence, that any of the Petitioner's contributions to her field were of major significance. Id., 8 C.F.R. 
§ 204.5(h)(3)(v). As explained in the NOIR, this meant that the evidence at the time of the approval 
did not meet at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), and so did not establish the 
Petitioner's eligibility for the extraordinary ability classification. 
The NOIR is supported by the record and explains why the petition's approval was in error, and 
therefore states a good and sufficient cause for revoking that approval. Matter ofHo, 19 I&N Dec. at 
590. However, as detailed below, the Petitioner has since overcome the NOIR's concerns and 
established eligibility under 8 C.F.R. § 204.5(h)(3)(v). 
B. Contribution of Major Significance to the Field 
The second issue on appeal is whether the record establishes that the Petitioner has made a scientific 
contribution of major significance to her field of pharmacology. 3 8 C.F.R. § 204.5(h)(3)(v). On 
appeal, the Petitioner contends that the revocation was in error because "the statutory and regulatory 
framework defining eligibility for immigrant status as an alien of extraordinary ability nowhere 
requires that each and every research contribution by a petitioner be demonstrated to be majorly 
significant; the framework only requires that, as a whole, a petitioner's work be demonstrative of 
national or international acclaim in his or her field of expertise ... " ( emphases removed). 
We agree that the plain language of 8 C.F.R. § 204.5(h)(3)(v) only requires evidence that a noncitizen 
made "contributions of major significance," not evidence that all of a noncitizen's work meets this 
standard. However, the Petitioner's interpretation of this criterion conflates it with the final merits 
evaluation under Kazarian, which is not applicable unless she can first show that she meets at least 
three of the initial evidentiary criteria. Kazarian, 596 F.3d at 1119-20; see also Amin v. Mayorkas, 
24 F.4th 383, 391-92. As stated by the Director in the NOIR, 8 C.F.R. § 204.5(h)(3)(v) requires a 
showing that the Petitioner has made a specific contribution to her field, that this contribution was 
original, and that this contribution was majorly significant to the field. See generally 6 USCIS Policy 
3 It is noted that while the regulatory language calls for plural "contributions," a singular contribution may be sufficient to 
establish eligibility. See generally 6 USC1S Policy Manual F.2(B), https://www.uscis.gov/policymanual. 
4 
Manual, supra, at F.2(B) (describing factors to be considered in evaluating this criterion). While the 
Petitioner puts forward various arguments about how her overall citation record establishes her 
eligibility for this criterion, the issue of whether her body of work is indicative of national or 
international acclaim is one that USCIS does not reach until the final merits analysis. Id.; Kazarian, 
596 F.3d at 1119-20. For this criterion, we will instead examine the originality and significance of the 
Petitioner's stated achievements. 
On appeal, the Petitioner identifies three achievements as qualifying her for the criterion at 8 C.F.R. 
§ 204.5(h)(3)(v): her development of a "never-before-seen PTX/FTS 4 combination therapy for cancer 
treatment," the "widespread commentary" caused by being "the first scientist to discover the deadly 
side effects of PTX, the best-selling cancer drug," and being "the first scientist to create a prodrug­
based NLG919 molecule, pioneering a new approach to immunochemotherapy." 5 Upon review, the 
Petitioner has submitted sufficient documentation to establish that her 2016 paper6 in Nature 
Communications regarding the prodrug-based NLG919 molecule is an original and majorly significant 
contribution to the field. 
According to the support letter from Professor J-H- ofl !university, the Petitioner "creatively 
designed and synthesized a unique prodrug-based NLG919 molecule" that constitutes "a novel multi­
functional drug delivery system for immunotherapy." Professor L-X- of the University! I 
who collaborated with the Petitioner through her doctoral advisor, states that "[h ]er work on 
multifunctional nanocarriers was one of the first to focus on properly designed ... prodrugs" and has 
had success in breast cancer animal models. He further states that this work was a "driving force to a 
major revision in our thinking about the design of new drug carriers and reinvigoration of a field that 
had reached a conceptual dead end." Professor R-K-, of1 I further explains 
that the Petitioner's work "showed that the new combination of drugs can achieve synergistic effect 
while using a functional nanocarrier" and helped "overcome obstacles ... and solve the problem of 
delivery drug combination with different pharmacokinetics and solubilities." Professor K-P- of 
I I University states that this work created "a novel method to effectively induce 
immunogenic tumor cell death, pioneering a new approach for cancer immunotherapy," and describes 
how it inspired further research. This is supported by various sample citations provided by the 
Petitioner, showing that the article was considered notable by others in the field. 
The article's Google Scholar record and the corresponding documentation from Clarivate Analytics 
demonstrating the article's noteworthy citation record further indicate that the Nature Communications 
paper was a majorly significant contribution to the Petitioner's field of pharmacology. Finally, the 
record indicates that this paper provided much of the preliminary data for a related grant proposal that 
ultimately received funding from the National Cancer Institute (NCI). 7 We therefore conclude that 
4 PTX is an abbreviation of Paclitaxel, a chemotherapy medication also known commercially as Taxol. FTS is an 
abbreviation oftrans-famesylthiosalicylic acid, a synthetic molecule used in cancer treatment research. 
5 While we will not address every claim made in each of the Petitioner's letters of support, we have considered and analyzed 
each one. 
6 The Petitioner was one of the paper's three equal first authors. 
7 We note that the Petitioner's appellate brief states that she "has received grants from the National Cancer Institute" based 
on her NLG919 research. However, the grant proposal included in the record is authored by the principal investigator, 
S-L- (the Petitioner's doctoral advisor), and includes a list of all of the investigators to be involved in the proposed research, 
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the Petitioner has established by a preponderance of the evidence her eligibility under the criterion at 
8 C.F.R. § 204.5(h)(3)(v). 
C. Final Merits Determination 
The Petitioner has met three of the initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) and has 
overcome the Director's ground of revocation. As such, the Director must make a final merits 
determination to analyze the Petitioner's accomplishments and weigh the totality of the evidence to 
determine if it establishes her extraordinary ability in her field of endeavor. Kazarian, 596 F.3d at 
1119-20. 8 Because the Director did not perform a final merits determination in their decision, we are 
remanding this matter for them to do so. 
On remand, the Director should examine all of the evidence in the record and determine whether it 
shows, by a preponderance of the evidence, that the Petitioner's achievements have translated into a 
level of recognition that constitutes sustained national or international acclaim and demonstrates that 
she is among the small percentage at the very top of her field of endeavor. Section 203(b )(1 )(A) of 
the Act; 8 C.F.R. § 204.5(h)(3). 
III. CONCLUSION 
Because the Petitioner has overcome the revocation ground, we will remand this proceeding so that 
the Director can make a final merits determination 
in keeping with the Kazarian framework. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
noting their expe11ise and contributions to the preliminary data in the grant proposal. This list does not include the 
Petitioner. As noted above, the Petitioner's 2016 Nature Communications paper provides much of the proposal's 
preliminary data. However, as S-L- is the author and principal investigator of the grant proposal, which does not list the 
Petitioner as pa11 of the research team, it is not apparent that the Petitioner was awarded this grant, as claimed in her brief. 
Where there are discrepancies in the evidence, it is the Petitioner's burden to resolve these discrepancies using independent, 
objective evidence pointing to where the truth lies. Matter ofHo, 19 T&N Dec. at 591-92. The Petitioner has not resolved 
the discrepancy between her claim that she has received NCI funding for her research and the documentation indicating 
that she was not one of the listed investigators on the relevant grant proposal, and this issue should be addressed on remand. 
8 Some factors that may establish that a noncitizen has extraordinary ability include senior or primary authorship of articles 
in pa11icularly high-ranked journals, a total rate of citations which is high relative to others in the field, and employment 
or research experience with leading institutions in the field. See generally 6 USC1S Policy Manual, supra, at F.2(B)(2). 
Examples relevant to the Petitioner's field may be found in the credentials of the experts who wrote letters on her behalf 
in this case. 
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