dismissed EB-1A Case: Biological Sciences

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 29, 2024 In Re: 33403917 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a research scientist, seeks classification as an individual 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 Texas Service Center denied the petition, concluding the Petitioner did not 
establish that she meets the initial evidence requirements for this classification, either through her 
receipt of a major internationally recognized award or by submitting evidence that satisfies at least 
three of the ten criteria set forth in the regulations. The matter is now before us on appeal pursuant to 
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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
An individual is eligible for the extraordinary ability immigrant classification under section 
203(b)(l)(A) of the Act 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 working in the area of extraordinary 
ability; and 
• Their entry offers substantial prospective benefits to 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 implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a pet1t10ner can demonstrate a 
petitioner's one-time achievement (that is, a major, internationally recognized award). If a petitioner 
does not submit this evidence, then they must provide documentation that they meet 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). 
Where a petitioner demonstrates that they meet 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 Amin 
v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022); Viscinscaia v. Beers, 4 F.Supp 3d 126, 131-32 (D.D.C. 
2013); Rijal v. USCIS, 772 F. Supp. 2dl339 (W.D. Wash. 2011). 
TI. ANALYSIS 
The Petitioner claims eligibility for this classification as an individual of extraordinary ability in the 
biological sciences, specifically in protein biology and molecular biology. The record reflects that she 
received her Ph.D. in medical microbiology from _______ in 2012. Between 2013 and 
_________ 
2022, the Petititioner worked in postdoctoral fellow and research associate positions with I I I Iand at At the time of filing, she 
was employed as a research scientist in the Department of Neurology at 
She indicates her intent to continue her work as a research scientist if 
granted lawful permanent residence in the United States. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must show that she satisfies at least three of the ten regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Director determined that the Petitioner submitted evidence related to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(ii), (v), (vi), (viii) and (ix) and concluded she satisfied only one of these criteria. 
Specifically, the Director found that the Petitioner met her burden to demonstrate her authorship of 
scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi). However, the Director determined that the 
Petitioner did not establish her membership in professional associations that require outstanding 
achievements, her original contributions of major significance in her field, her leading or critical role 
with organizations that have a distinguished reputation, or her high salary in relation to others in her 
field. 
The record indicates that the Petitioner has authored scholarly articles in professional publications 
including Journal of Bacteriology, Free Radical Biology and Medicine, Microbiological Research, 
and Journal ofAlzheimer's Disease. Therefore, we agree with the Director's determination that the 
Petitioner satisfied the criterion at 8 C.F.R. § 204.5(h)(3)(vi). Further, although not addressed by the 
Director, a review of the initial evidence submitted in support of the petition reflects the Petitioner 
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claimed she has participated as a judge of the work of others in her field, under 8 C.F.R. 
§ 204.5(h)(3)(iv). She provided evidence that she has served as a peer reviewer for the Journal of 
Diabetes Research and Therapy. Therefore, we conclude that the Petitioner has met this additional 
criterion. 
Although the Petitioner submits a brief in support of the appeal, she does not address or contest the 
Director's determination that she did not meet the criteria at 8 C.F.R. § 204.5(h)(3)(ii) and (v), relating 
to membership in associations in her field and original contributions of major significance in the field. 
An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 
2021) ( citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). Therefore, we will not further 
address these criteria. 
In her brief, the Petitioner asserts that the Director overlooked evidence she submitted in support of 
the criteria at 8 C.F.R. § 204.5(h)(3)(viii) and (ix). We will discuss her claims and evidence relating 
to these two criteria below. For the reasons provided, we conclude that the Petitioner has not 
established that she meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
1. Leading or Critical Role 
To determine whether an individual meets 
the criterion at 8 C.F.R. § 204.5(h)(3)(viii), U.S. Citizenship 
and Immigration Services (USCIS) first determines whether they have performed in a leading or critical 
role for an organization, establishment or a division or department of an organization or establishment. 
For a leading role, we look at whether the evidence establishes that the person was a leader within the 
organization or a division or department thereof. A title with appropriate matching job duties can help 
to establish whether the role is leading. For a critical role, we look at whether the evidence establishes 
that the person has contributed in a way that is significantly important to the outcome of the 
organization or establishment's activities. See generally 6 USCIS Policy Manual F .2(B)(l ), 
https://www.uscis.gov/policy-manual ( discussing evaluation of initial evidence of extraordinary ability 
under the criteria at 8 C.F.R. § 204.5(h)(3)). If the evidence demonstrates that the person performed in 
a leading or critical role, we determine whether the organization or establishment, or the department or 
division for which the person held a leading or critical role, has a distinguished reputation. 
The Petitioner claimed that she served in a critical role as a postdoctoral fellow at the 
in Texas from 2013 to 2014 and in a leadin role as a senior research 
associate with from 2016 to 
2017. 
The Director addressed the Petitioner's role as a postdoctoral fellow forl land concluded 
that she did not meet her burden to establish that her role was leading or critical to the organization or 
to a department or division of the organization. We agree with the Director's conclusion and note that 
the Petitioner has not contested the Director's determination with respect to this role on appeal. The 
Petitioner did not submit a letter from this employer or from a person with knowledge of her work 
with to support her claim that her role was significantly important to the outcome of 
the I I activities. Further, we note the Petitioner herself described her 
postdoctoral fellow role as a "trainee" position that "participates as a support in ongoing projects under 
the supervision of a principal investigator." Absent a detailed statement from her former supervisor or 
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other person familiar with her work at I I the Petitioner did not demonstrate that her 
performance in this trainee or supporting position was nevertheless critical to the organization's or 
department's activities during her one-year tenure there. 
On appeal, the Petitioner asserts that the Director overlooked evidence relating to her role as a senior 
research associate at ________ She emphasizes that her response to the Director's 
request for evidence (RFE) included several evidentiary exhibits intended to demonstrate she held a 
leading role within the university's ________________ between September 
2016 and September 2017. 
The Petitioner provided evidence of this employment, which included an internally-prepared position 
description for the senior research associate position from 2017; an October 2023 letter froml I 
I !Human Resources, confirming the Petitioner's dates of full-time employment as a 
senior research associate, her salary, and her job functions; a July 2016 letter from the director of the 
offering the Petitioner the position of 
"microbiologist" in the Research Laboratory; and a copy of her 2017 IRS Form W-
2, Wage and Tax Statement, issued by _______ 
This evidence indicates that the Petitioner was required to perform some supervisory and technical 
management functions as a senior research associate. For example, the letter provided by I I 
I I human resources department states that, along with her performance of various technical and 
non-supervisory laboratory functions, she provided "supervisory and direct support of designated 
approved research efforts involving the __________ assisted in the training and 
supervision of graduate students and laboratory interns and provided operational supervision for the 
I I Research Laboratory "as needed." However, her job title and duties alone are 
insufficient to demonstrate how her role was in fact leading to the university or a division or 
department of the university. 
The Petitioner's own statements emphasize the supervisory aspects of her senior research associate 
role and the importance of the work performed by the laboratories operated by the ______ 
However, as noted by the Director in the RFE, this is one 
criterion where letters from individuals with personal knowledge of a petitioner's leading or critical 
role can be particularly helpful, so long as the letters contain detailed and probative information that 
specifically addresses how the person's role for the organization, establishment, division or 
department was leading or critical. See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
Here, the Petitioner did not submit this type of evidence. Neither the submitted position description, 
the letter from the university's human resources department, nor the job offer letter contained this level 
of detailed and probative information. Therefore, we conclude that the Petitioner did not meet her 
burden to demonstrate that she held a leading or critical role as a senior research associate withl I 
I I Because the Petitioner did not demonstrate that she held a leading or critical role, 
we need not determine whether she worked for an organization ( or a department or division of an 
organization) that has a distinguished reputation. 
For the reasons discussed, the Petitioner has not established that she meets the criterion at 8 C.F.R. 
§ 204.5(h)(3)(viii). 
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2. High Salary 
To satisfy the criterion at 8 C.F.R. § 204.5(h)(3)(ix), the Petitioner must demonstrate that her salary 
or remuneration is high relative to the compensation paid to others in the field. To determine whether 
a person's compensation is high relative to others, USCIS will consider comparative evidence, such 
as geographical or position-appropriate compensation surveys. See generally 6 USCIS Policy Manual, 
supra, at F.2(B)(l). 
The Director determined that the Petitioner did not demonstrate her eligibility under this criterion, 
noting that her supporting evidence was limited to a copy of one IRS Form W-2 and copies of several 
job offer letters. On appeal, the Petitioner asserts that the Director overlooked additional evidence she 
provided in response to the RFE. We have considered this additional evidence, and for the reasons 
discussed below, conclude that the record does not demonstrate she meets this criterion. 
The Petitioner initially submitted copies of offer letters and recommendation letters from 
I I and from her current employer, which stated her annual salaries with these employers. In 
the RFE, the Director advised the Petitioner that she should submit additional evidence of her salary 
or other remuneration, such as copies of her IRS Forms W-2 or 1099. The Director also informed the 
Petitioner that she should provide evidence that allows for a comparison between her compensation 
and that of others working in the field, such as geographic or position appropriate compensation 
surveys, media reports of notably high salaries in the field, or information from the U.S. Department 
of Labor (DOL). 
In response to the RFE, the Petitioner submitted: 
• Copies of her IRS Forms W-2 for the years 2017, 2019 and 2020. 
• An online article titled "Postdoc payday: Salaries for fellows are on the up" published by 
New Scientist on May 8, 2023. 
• An announcement issued by National Institutes of Health (NIH) on November 7, 2016, 
titled "Adjustment to Stipend Levels for Postdoctoral Trainees and Fellows on Ruth 
Kirschstein National Research Service Awards (NRSA)." 
• A letter from _______ informing the Petitioner that she would be receiving 
an annual salary of $51,360 in fiscal year 2019, an increase from $48,000 in 2018. 
• Copies of DOL Forms ET A 9035, Labor Condition Application for Nonirnrnigrant 
Workers (LCA ), previously submitted in support of H-1 B nonirnrnigrant petitions filed by 
I Ion the Petitioner's behalf in 2015 and 2018. 
• Postdoctoral salary information from Salary.corn. 
The Petitioner asserted this evidence demonstrates that her salary as a postdoctoral research associate 
has been consistently "above average." While the record may support that claim, the regulation 
requires that the Petitioner demonstrate that she has commanded a "high salary" or other significantly 
high remuneration in relation to others working in the same occupation and field, rather than an "above 
average" salary. 
The salary data published by New Scientist and NIH only reports figures for postdoctoral researchers 
employed by NTH and therefore does not provide a sufficient basis for comparison for similarly 
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employed workers in the field or in the Petitioner's specific geographic area. In addition, the entry­
level "level 1" prevailing wage data reported on the submitted DOL-certified LCAs similarly does not 
provide insight into what constitutes a "high salary" for similarly experienced workers in the 
Petitioner's field. 
The information the Petitioner submitted from Salary.com includes data that is specific to both the 
Petitioner's occupation and geographic area of employment. However, this data does not demonstrate 
that she has commanded a "high salary." This evidence states that the "average base salary" for a 
postdoctoral researcher inl ITexas is $48,025, but reports a range that extends up to $57,954. 
The Petitioner's last position located inl lpaid a salary that was closer to the "average" figure. 
Further, it appears that Salary.com relies on user-reported salary data, which may not provide a valid 
or accurate comparison, if, for example, too few users reported their salaries. 
In summation, while the Petitioner has documented her earnings as a postdoctoral research associate 
and provided some evidence in support of her claim that she has earned an above average salary, she 
did not demonstrate that she has earned a "high salary" or "significantly high remuneration" as 
required by the plain language of 8 C.F.R. § 204.5(h)(3)(ix). Accordingly, she did not establish that 
she meets this criterion. 
B. Final Merits Determination 
As noted, the Director discussed evidence the Petitioner submitted relating to five of the ten 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) and concluded that she satisfied only one criterion. 
Based on the foregoing discussion, the Petitioner has demonstrated that she meets the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi) but has not demonstrated that she satisfies a third criterion as 
necessary to satisfy the initial evidence requirements for this classification under 8 C.F.R. 
§ 204.5(h)(3). As a result, it is not necessary to provide the type of final merits determination 
referenced in Kazarian, 596 F.3d at 1119-20. 
However, despite concluding that the Petitioner did not satisfy the initial evidence requirements, the 
Director included the following statement on the final page of the decision: 
USCIS has evaluated the evidence on an individual basis and determined that the evidence 
does establish that the [petitioner] meets at least three of the ten criteria found at 8 C.F.R. 
[§] 204.5(h)(3). USCIS has then examined the entire record and has determined that the 
[petitioner] is not one of that small percentage who have risen to the top of the field of 
endeavor. Furthermore, the evidence does not show that the [petitioner's] achievements 
set him [sic] significantly above almost all others in the field at a national or international 
level and does not establish sustained acclaim. 
On appeal, the Petitioner asserts that this "final merits determination" was inadequate, as the Director 
did not explain why the evidence was insufficient to establish her sustained national or international 
acclaim and her placement among the small percentage at the top of her field of endeavor. However, 
when read in context with the preceding pages of the decision, the Director's statement that "the 
evidence does establish that the petitioner meets at least three of the ten criteria" appears to be a 
typographical error, rather than a conclusion that the Petitioner had in fact met the initial evidence 
6 
requirements for this classification. As such, the typographical error was, at most, harmless. See 
generally Matter of O-R-E-, 28 I&N Dec. 330,350 n.5 (BIA 2021) (citing cases regarding harmless 
or scrivener's errors). When read its entirety, the Director's decision clearly explained why the 
evidence did not establish that the Petitioner met at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). As the Petitioner did not meet this requirement, the Director was not required to 
conduct a final merits determination. Thus, the Petitioner has not established that the Director's error 
was prejudicial to the outcome of her case. 
Nevertheless, we advise that we have reviewed the record in the aggregate and conclude it does not 
support a finding that the Petitioner has established the acclaim and recognition required for the 
classification sought. 
The Petitioner seeks a highly restrictive visa classification. USCIS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" standard. 
Matter ofPrice, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner has not shown that 
the significance of her work is indicative of the required sustained national or international acclaim or 
that it is consistent with a "career of acclaimed work in the field" as contemplated by Congress. H.R. 
Rep. No. lO1-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) of the Act. Moreover, the record 
does not otherwise demonstrate that the Petitioner has garnered national or international acclaim in 
the field, and that she is one of the small percentage who has risen to the very top of the field of 
endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). Although the Petitioner 
has reviewed manuscripts, conducted research, published her work, joined associations in her field, 
and received some recognition from other researchers in the form of citations, the record does not 
contain sufficient evidence establishing that she is among the upper echelon of research scientists in 
her field. 
III. CONCLUSION 
For the 
reasons discussed above, the Petitioner has not demonstrated her eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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