sustained EB-1A Case: Toxicology Research

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUL 2 9 2014 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
~ffr-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. The appeal will be 
sustained. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien 
of extraordinary ability in the sciences. The director determined that the petitioner had not met the 
requisite criteria for classification as an alien extraordinary ability. 
On appeal, the petitioner submits a brief. The petitioner asserts that he meets the categories of 
evidence at 8 C.F.R. § 204.5(h)(3)(ii), (iv), (v), and (vi). For the reasons discussed below, we find 
that the petitioner meets the statutory and regulatory requirements for classification as an alien of 
extraordinary ability. 
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, 
(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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. 
!d. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
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established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten categories of evidence: 
(i) Documentation of the alien's receipt oflesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases ; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) aff'd in part 596 F.3d 
1115 (9th Cir. 2010). Although the court upheld the our 
decision to deny the petition, the court took 
issue with the our evaluation of evidence submitted to meet a given evidentiary criterion.1 With respect 
1 
Specifically, the court stated that we had unilaterally imposed novel substantive or evidentiary requirements beyond 
those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
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to the criteria at 8 e.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while users may have 
raised legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." !d. at 1121-22. 
The court stated that our evaluation rested on an improper understanding of the regulations. Instead of 
parsing the significance of evidence as part of the initial inquiry, the court stated that "the proper 
procedure is to colillt the types of evidence provided (which we did)," and if the petitioner failed to 
submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the we concluded)." !d. at 1122 (citing to 8 e.F.R. 
§ 204.5(h)(3)). The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, users determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. § 1153(b)(l)(A)(i). 
!d. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. 
II. Analysis 
A. Evidentiary Criteria 
The Form I-140, Immigrant Petition for Alien Worker, was filed on April 18, 2013. The petitioner 
seeks classification as an alien with extraordinary ability as a toxicology researcher. We find that 
the petitioner's evidence meets the following three categories of evidence under 8 C.F.R. 
§ 204.5(h)(3). 
Evidence of the alien 's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of specification for which classification is 
sought. 
The petitioner submitted rlocumentation showinQ that he served as a peer reviewer of articles for 
multiple journals such as .__-~-
In addition, as an elected Officer of the of the 
the petitioner evaluated more than forty abstracts submitted to the for the 
annual meeting. The director, however, determined that the petitioner had not established 
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eligibility for this criterion. The director stated that the petitioner must demonstrate that his "sustained 
national or international acclaim resulted in [his] selection to serve as a judge of the work of others in 
the field." The director ' s finding for this regulatory criterion went beyond the plain language of the 
regulations. users may not unilaterally impose novel substantive or evidentiary requirements 
beyond those set forth at 8 e.F .R. § 204.5. Kazarian, 596 F.3d at 1121, citing Love Korean Church 
v. Chertoff, 549 F.3d 749, 758 (9th eir.2008). Accordingly, the petitioner has established that he 
meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C .F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original 
scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the 
field." A review of the record of proceeding reflects that the petitioner submitted sufficient 
documentary evidence establishing that the petitioner meets the plain language of the regulation at 
8 e.F.R. § 204.5(h)(3)(v). The petitioner submitted letters of support from experts in the field 
discussing the significance of his original research contributions. The experts ' statements do not 
merely reiterate the regulatory language of this criterion, they describe how the petitioner's scientific 
contributions are both original and of major significance in the field. Moreover , in support of the 
experts' statements, the petitioner submitted documentation showing numerous independent cites to 
his published findings. These citations are solid evidence that the petitioner's work has influenced 
and is familiar to other researchers. This evidence corroborates the experts' statements that the 
petitioner has made original contributions of major significance in his field. In addition, the 
petitioner submitted evidence showing that the media such as and 
have reported his findings . The submitted documentation shows that the petitioner's 
contributions are important not only to the institutions where he has worked, but throughout the 
greater field as well. Leading toxicology researchers and news media have acknowledged the value 
of the petitioner ' s work and its major significance in the field. Accordingly, the petitioner has 
established that he meets this regulatory criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner submitted evidence of his authorship of scholarly articles in professional journals such 
as~ The director, however, determined that the petitioner 
had not established eligibility for this criterion. The director stated: "The mere publication of scholarly 
articles or research findings does not demonstrate national or international acclaim. In this case, the 
evidence does not indicate that the your [sic] published articles have garnered national or international 
attention .... " Again, the director 's finding for this regulatory criterion went beyond the plain 
language of the regulations. users may not unilaterally impose novel substantive or evidentiary 
requirements beyond those set forth in the regulation. Love Korean Church, 549 F.3d at 758. 
Accordingly, the petitioner has established that he meets this regulatory criterion. 
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Summary 
The petitioner has satisfied the antecedent regulatory requirement of three categories of evidence. 
B. Final Merits Determination 
We will next conduct a final merits determination that considers all of the evidence in the context of 
whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is 
one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. 
§ 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." Section 203(b )(1 )(A) of the Act; 8 C.F.R. 
§ 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. 
In the present matter , the petitioner has submitted extensive documentation of his achievements in 
the toxicology field and has demonstrated a "career of acclaimed work in the field" as contemplated 
by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence, in the aggregate, 
is sufficient to demonstrate the petitioner's sustained national acclaim as a researcher and that his 
achievements have been recognized in the field of expertise. In addition, the submitted 
documentation shows that the petitioner is among that small percentage who have risen to the very 
top of the field of endeavor. The petitioner peer-reviewed articles for multiple journals and, as an 
elected Officer of the he evaluated more than forty abstracts for the annual meeting. In 
addition, the petitioner authored a number of articles that have garnered an unusually large number of 
citations. See Kazarian, 596 F. 3d at 1121 (citations may be relevant to the final merits determination 
of whether an alien is at the very top of his field). Moreover, the petitioner's research findings have 
been reported by media such as Furthermore, the 
petitioner submitted reference letters from independent experts in the field, detailing his specific 
contributions and explaining how those contributions are of major significance in his field. For 
example, Dr. l Professor of Toxicology, 
comments that the petitioner ' s "original discoveries have 
triggered the intense testing of hsp90 inhibitors from natural products in phase II clinical trials 
around the country." Thus, in light of the evidence discussed 
herein and other corroborating evidence 
of record, the petitioner's achievements in the aggregate are commensurate with sustained national 
acclaim at the very top of his field. 
III. Conclusion 
In review, the petitioner has submitted evidence qualifying under at least three of the ten categories 
of evidence and established a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the[ir] field of endeavor" and "sustained national or 
international acclaim." His achievements have been recognized in his field of expertise. The 
petitioner has established that he seeks to continue working in the same field in the United States . 
The petitioner has established that his entry into the United States will substantially benefit 
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prospectively the United States. Therefore, the petitioner has established eligibility for the benefit 
sought under section 203 of the Act. 
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 been met. 
ORDER: The appeal is sustained and the petition is approved.