Case Study: AAO Sustained an EB1-A Appeal of Petition on Behalf of a Biochemical Engineering Researcher

by Victoria Chen, Esq., J.D.

Background: 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. s 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. This petition seeks to classify the petitioner as an alien with extraordinary ability as a biochemical engineering researcher. At the time of filing, the petitioner was working at the Center for Engineering in Medicine, Massachusetts General Hospital, Harvard Medical School.

USCIS Decision: The director of Texas Service Center determined the petitioner had not established that the beneficiary qualifies for classification as an alien of extraordinary ability.

AAO’s Decision: Disagreeing with the USCIS, the AAO found that the petitioner’s evidence meets at least three of the regulatory criteria.

1. 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 evidence showing that she was appointed to the Editorial Board of the Journal of Industrial Microbiology and Biotechnology. The petitioner also submitted documentation indicating that that she reviewed a large number of manuscripts for multiple journals including Biotechnology Progress, World Journal of Microbiology and Biotechnology, Applied Microbiology and Biotechnology, Journal of Applied Microbiology, and Biofouling. Accordingly, the AAO concurred with the director’s finding that the petitioner meets this criterion.

2. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

The petitioner submitted several letters of support discussing her original research contributions. The AAO citeed several representative examples :

Member of the U.S. National Academy of Sciences and Research Fellow in Microbial Biochemistry at the Charles A. Dana Research Institute for Scientists Emeriti at Drew University, New Jersey, states:

“Since I have never collaborated with [the petitioner] nor have I supervised her, I can provide an independent evaluation of her research.”

“[The petitioner’s] extraordinary work … greatly advances our understanding of the mechanism of biofilm formation, and allows us to develop novel strategies for control of antibiotic-resistant disease-causing biofilms to prevent high recurrence of infections. . . . . ”

Professor of Microbiology and Director of the Institute for Microbiology, Westfalische Wilhelms-Universitat Munster, Germany, states:

” I am not personally acquainted with the petitioner but am well aware of her work through her publications and through my position as the Editor in Chief of the journal Applied Microbiology and Biotechnology.”

” The petitioner has demonstrated an excellent capacity to make new discoveries, as evidenced by the groundbreaking papers that she has published. She made the pioneering discovery of a plant-derived biofilm inhibitor, ursolic acid… The petitioner also made original contributions to our understanding of biocorrosion in her study of biocorrosion inhibition through the use of beneficial antimicrobial biofilms….”

Director of the Center for Biofilms, School of Dentistry, University of Southern California, states:

” I have not previously supervised [the petitioner’s] work or collaborated with her.”

” … The petitioner’s research is highly significant because it is the very first report of the use of antimicrobial-producing biofilms against sulfur-reducing bacteria using real world industrial process water. Additionally, the petitioner is the first scientist to report the successful simultaneous inhibition of two corrosion-causing bacteria. This work has resulted in two papers describing [the petitioner’s] pioneering findings ….”

Department of Microbiology, National Polytechnic Institute, National School of Biological Sciences, Mexico, states:

” I am . . . familiar with [the petitioner’s] research through her highly regarded publications in international scientific journals, one of which was cited in my own paper….The petitioner’s pioneer work involves a lot of “the first” in terms of scientific findings….”

In addition, in support of the preceding experts’ statements, the petitioner submitted documentation showing dozens of cites to her published findings. The AAO found these citations are solid evidence that other researchers have been influenced by the petitioner’s work and are familiar with it. This evidence corroborates the independent experts’ statements that the petitioner has made original contributions of major significance in her field. The record reflects that the petitioner’s contributions are important not only to the institutions where she has worked, but throughout the greater field as well. Leading scientists from around the world have acknowledged the value of the petitioner’s work and its major significance in her field. Accordingly, the AAO found that the petitioner has established that she meets this criterion.”

3. 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 her authorship of several articles in publications such as Applied Microbiology and Biotechnology, Corrosion Science, Biotechnology and Bioengineering, Journal of Bacteriology, and Applied and Environmental Microbiology. As discussed, the petitioner also submitted evidence of a significant amount of articles that cite to her work. Accordingly, the AAO concurred with the director’s finding that the petitioner meets this criterion.

The AAO concluded that in this case, the petitioner has satisfied three of the regulatory criteria required for classification as an alien of extraordinary ability. 8 C.F.R. s 204.5(h)(3).

Totality Test:

The AAO found that the totality of the evidence establishes an overall pattern of sustained national acclaim and extraordinary ability. The petitioner has also established that she seeks to continue working in the same field in the United States and that his entry into the United States will substantially benefit prospectively the United States. Therefore, the AAO determined that the petitioner has overcome the stated grounds for denial and thereby established eligibility for immigrant classification under section 203(b)(1)(A) of the Act and the appeal is sustained.

from Chen Immigration Law Associates

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