remanded EB-1A Case: Computational Biology

U.S. Citizenship 
and Immigration 
Services 
In Re: 24568537 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 03, 2023 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a researcher, 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 while the record 
showed that the Petitioner met the initial evidentiary requirements for the requested classification, it 
did not establish that the Petitioner enjoys sustained national or international acclaim and is one of the 
small percentage at the top of her field. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&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 
To establish eligibility as an individual of extraordinary ability, a petitioner (or anyone on the 
petitioner's behalf) must establish that they: 
• Have extraordinary ability in the sciences, arts, education, business , or athletics; 
• Seek to enter the United States to continue work in their area of extraordinary ability; and that 
• Their entry into the United States will prospectively substantially benefit the United States. 
Extraordinary ability must be demonstrated by evidence of sustained national or international acclaim 
as well as extensive documentation that the individual's achievements have been recognized in the 
field. Section 203(b)(l) of the Act. 
The implementing regulation further states that 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." It also 
sets forth a multi-part analysis. A petitioner can demonstrate international recognition of their 
achievements in the field through a one-time achievement (that is, a major, internationally recognized 
award). In the alternative, they must provide evidence that meets at least three of the ten listed criteria, 
which call for evidence about other awards they may have received, published material about them in 
qualifying media, and their authorship of scholarly articles, among other types of evidence. 
8 C.F.R. §§ 204.5(h)(2),(3). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination, assessing whether the record shows that they possess 
the acclaim and recognition required for this highly exclusive immigrant visa classification. See 
Kazarian v. USC IS, 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); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is currently a post-doctoral researcher at the University of 
I I where she works in the field of biomolecular 
computational modeling. She earned a Ph.D. in strnctural and computational biology and molecular 
biophysics froml !University in 2015, and has worked in her current position since. She intends 
to continue conducting research in her field in the United States. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she 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 three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to her authorship of scholarly articles, her service as 
a judge of the work of others, and her role for an organization having a distinguished reputation. On 
appeal, the Petitioner asserts that she also meets the evidentiary criteria relating to published material 
about her and her original scientific contributions of major significance. In addition, she also asserts 
that the Director erred in not considering the entirety of the record in the final merits determination. 
After reviewing all of the evidence in the record, we agree that the Petitioner meets the criteria at 
8 C.F.R. §§ 204.5(h)(3)(iv) and (vi). But we disagree with the Director regarding the criterion at 
subsections (v) and (viii) per the analysis below. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
Under this criterion, an individual must show that published material was about them and related to 
their work in the field, and did not just focus on their employer or another organization. Marketing 
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materials intended to sell an individual's products or promote their services will generally not qualify. 
In addition, an individual must show that the publication in which this material appeared was one of 
the qualifying types through evidence comparing its circulation or viewership to other publications 
and/or evidence regarding its intended audience. 1 
Two sets of evidence were submitted in support of this criterion. The first was a commentary article 
published in Proceedings of the National Academy of Science (PNAS) that focused on an article 
authored by the Petitioner and her collaborators in the previous issue of the same journal. While we 
agree with the Petitioner that this article is about her work, she is only referred to in this article as the 
lead author ([Petitioner] et. al.). As there is no further information regarding the Petitioner (such as 
her educational background, career, or other research projects), it is not about her, and the article does 
not meet the requirements of this criterion. 
The second set of evidence consists of a press release on the website of the _____ 
, as well as evidence of the reposting of this press release on other websites. 
The press release discusses the K- lab's research on the structure of a protein linked to skin cancer, 
and includes several quotations from the Petitioner regarding her use of a supercomputer at I I to 
conduct simulations. As this article includes details about the Petitioner's background and her 
thoughts concerning future research, it is about her and her work as a researcher. However, we note 
that press releases in general are intended to promote the activities of the organizations that release 
them, and are thus marketing materials. Here, I I press release informs readers about the 
application of its supercomputer and systems to conduct research related to a serious health issue, thus 
promoting its services. In addition, the reposting of press releases by other organizations without 
substantial edits or substantive comment does not constitute additional published material but simply 
the distribution of the original. Finally, the record is insufficient to establish thatl I website is 
a professional or major trade publication or other major medium. We therefore conclude that this 
material also does not qualify under this criterion. 
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 
the field. For example, a petitioner may show that their 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 Director focused primarily on citations to the Petitioner's published work when evaluating the 
evidence submitted under this criterion, concluding that the number of citations to her most cited 
papers was not indicative of contributions of major significance, particularly when compared to the 
citation record of other researchers in the Petitioner's field. On appeal, the Petitioner stresses that 
other types of evidence, including journal impact factors, other metrics, and reference letters, show 
that that she has made contributions of major significance. For example, the Petitioner refers to the 
commentary article in PNAS that was previously discussed, as well as a letter from PNAS stating that 
1 See generally 6 USCIS Policy Manual F.2, Appendices Tab, https://www.uscis.gov/policy-manual. 
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such articles are intended to highlight "noteworthy" articles, recommended by a board member, and 
focus on approximately 5% of articles published in the journal. The prestige of PNAS as shown by 
its high ranking and journal impact factor, the selective nature of commentary articles, and the 
statement in the commentary that the research findings described in this paper "have some significant 
implications" indicate that this work is considered influential in the Petitioner's field. Also, Dr. J-C-
of the _____________ who collaborated with the Petitioner on the research 
published in PNAS, writes in her reference letter that the Petitioner's work was essential to the success 
of this study, and that it laid the groundwork for the development of therapies which could prevent the 
spread of breast cancer. 
The Petitioner also argues on appeal that the significance and influence of her most-cited paper, 
published in Elife in 2016, is also supported by metrics from the National Institute of Health's (NIH) 
iCite tool. The record includes a report from iCite which indicates that that paper has a relative citation 
ratio (RCR), a metric that takes into account an article's field and date of publication, which ranks in 
the 90th percentile amongst NIH-funded research papers. Dr. D-S- of the University ofl lat 
states that this study, together with the Petitioner's other published work on the 
structure and function of proteins in the MAPK cell signaling pathway, is a major contribution to the 
understanding of how they function and how to develop therapies for when they malfunction. 
Additional reference letters also support the significance of this work, such as Dr. W-C- of I I 
University, who writes that the Petitioner "has distinguished herself through her invaluable studies on 
specific proteins implicated in the MAPK/ERK pathway," which he explains is tied to multiple forms 
of cancer. 
The Petitioner has shown that her research in modelling the structure and function of proteins has been 
published in highly-regarded scientific journals, recognized as noteworthy and significant in one of 
those journals, and has been highly cited by other researchers in her field. This evidence establishes 
that she has made original contributions of major significance in her field. We therefore disagree with 
Director and find that she meets this criterion. 
Evidence that the alien has pe1formed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
To meet this criterion, an individual must establish that their role for an organization was either leading 
or critical, and that the organization or establishment had a distinguished reputation. A leading role 
should be apparent by its position in the overall organizational hierarchy and through the role's 
matching duties. A critical role may be evidenced by an individual 's contributions to an organization 
or establishment that are of significant importance to its activities. Evidence of an individual's 
performance in this role should establish whether it was critical for the organization or establishment, 
or for a division or department. 2 
In his decision, the Director concluded that the Petitioner's role as a post-doctoral researcher in the K­
lab at was qualifying under this criterion. But we note that the evidence submitted under this 
criterion consists primarily of two letters submitted by Dr. K-, the first with the initial filing and the 
second in response to the Director's request for evidence (RFE). Both letters are exceedingly lengthy 
2 See generally 6 USCIS Policy Manual F.2, Appendices Tab. 
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( 19 and 43 pages, respectively), address each of the regulatory criteria claimed by the Petitioner along 
with evidence presented in the petition, and use regulatory language throughout. This despite Dr. K­
making no claim in either letter regarding expertise in immigration law. In addition, the second letter 
states that "[W]e received an RFE from your office," but neither Dr. K- nor are a party in this 
matter. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept, or may give less weight to that evidence. Matter of Caron International, 
19 T&N Dec. 791, 795 (Comm 'r 1988). Here, these concerns, and the fact that parts of these letters 
are exactly repeated in the appeal brief, give rise to significant questions regarding the authorship of 
these letters and whether they reflect the professional opinion of Dr. K-, and we will accordingly give 
them no evidentiary weight. As these letters are the only evidence referenced by the Petitioner in 
support of her role in the K- laboratory, we conclude that the record does not show that she played a 
leading or critical role for that organization or any other within I I 
Further, even if we were to consider these letters, the primary evidence in the record in support of the 
distinguished reputation of Dr. K-' s laboratory consists of pages from the websites of the laboratory 
itself, ______ Because the record does not include sufficient evidence showing that other 
institutions and researchers in the field consider the K- lab to be distinguished, or that it has received 
recognition indicative of its distinction in the field, the Petitioner has not established that it enjoys a 
distinguished reputation. We disagree with the Director's conclusion regarding this criterion and 
withdraw his finding in that respect. 
B. Final Merits Determination 
In a final merits determination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has sustained national or international acclaim and is one of the small 
percentage at the very top of the field of endeavor, and that his achievements have been recognized in 
the field through extensive documentation. 
The Director concluded in his decision that the evidence concerning the Petitioner's peer review 
activity, authorship of articles in scientific journals in her field, the number of citations to her published 
work, and role as a post-doctoral researcher in Dr. K-'s lab were insufficient to establish that she 
enjoyed sustained national or international acclaim and is one of the small percentage at the top of her 
field. On appeal, the Petitioner argues that the Director did not follow USCIS policy and did not 
consider the totality of the evidence in the record when conducting his final merits analysis. We agree. 
Notably, the Director did not consider the materials submitted in support of the third criterion relating 
to published material about the Petitioner, and ignored or glossed over much of the evidence submitted 
in support of the fifth criterion about her original contributions of major significance. On remand, the 
Director should include this evidence in his final merits determination analysis, and should also 
consider the analysis of the three criteria provided above. 
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ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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