dismissed EB-1A Case: Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 18334469 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 5, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a consultant, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S .C. § l 153(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 that the record did not 
establish, as required, that the Petitioner had satisfied at least three of ten initial evidentiary criteria for 
this classification. We dismissed the Petitioner's subsequent appeal of that decision . The matter is 
now before us on a motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S. C. § 13 61; Matter of Chawathe, 25 l&N 
Dec. 369, 375 (AAO 2010). Upon review , we will dismiss the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reconsider must ( 1) state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application oflaw or U.S. 
Citizenship and Immigration Services (USCIS) policy , and (2) establish that the decision was incorrect 
based on the evidence in the record of proceedings at the time of the initial decision. 8 C.F.R. § 
103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form 1-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion. We cannot grant a motion that does not meet applicable requirements. See 
8 C.F.R. § 103.5(a)(4). 
II. LAW 
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 
international recognition of his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If the petitioner does not submit this evidence, then he 
or she must provide sufficient qualifying documentation that meets at least three of the ten criteria 
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 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). 
III. ANALYSIS 
The issue before us is whether the Petitioner has established that our decision to dismiss his appeal was 
based on an incorrect application oflaw or USCIS policy. 8 C.F.R. § 103.5(a)(3). The Petitioner must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in our 
decision. 
Because the Petitioner did not indicate or establish that he has received a major internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 
204.5(h)(3)(i)-(x). Prior to the denial of the petition, and on appeal, the Petitioner claimed that he could 
satisfy three of the ten criteria, relating to original contributions of major significance, leading or critical 
roles for organizations with a distinguished reputation, or high salary or other remuneration in relation 
to others in his field. See 8 C.F.R. § 204.5(h)(3)(v), (viii) and (ix). The Director determined that he did 
not satisfy any of the claimed criteria and denied the petition. 
In dismissing the Petitioner's a1;eal, we concluded that he had demonstrated that he performed in a 
critical role with thel ., I and established the distinguished reputation of that 
organization, thereby satisfying the criterion at 8 C.F.R. § 204.5(h)(3)(viii). However, we agreed with 
the Director's determination that the Petitioner did not submit evidence demonstrating that he satisfies 
the two remaining claimed criteria, and therefore he did not meet the initial evidentiary requirements for 
this classification. 
On motion, the Petitioner maintains that the previously submitted evidence is sufficient to demonstrate 
that he satisfies up to five of the ten initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), including 
two criteria that he did not address or claim he could meet previously. Specifically, he now claims that 
he can meet the criteria relating to memberships in associations that require outstanding achievements, 
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and published materials in professional, major trade publications, or other major media. See 8 C.F.R. § 
204.5(h)(3)(ii) and (iii). 
These new eligibility claims are not properly before us on a motion to reconsider. A motion does not 
entail de nova review of the full record of proceeding. To warrant reconsideration, the Petitioner must 
specify the issues raised on appeal that were decided in error, by establishing errors of law or policy ( as 
documented by any relevant precedent decisions or other cited law or policy) or errors of fact (through a 
showing the decision was incorrect based on the record as it stood at the time of the prior decision). 8 
C.F.R. § 103.5(a)(3); Cf Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). The Petitioner has not 
established how we erred as a matter of fact, law, or policy by failing to consider eligibility claims that 
he did not make at the time of filing and that were not before us on appeal. Therefore, we will not address 
the Petitioner's claim that he can satisfy the criteria at 8 C.F.R. § 204.5(h)(3)(ii) and (iii). 
The Petitioner also contests our determination that the previously submitted evidence was insufficient to 
demonstrate that he satisfies the criterion at 8 C.F.R. § 204.5(h)(3)(ix), which requires him to establish 
that he has commanded a high salary or other significantly high remuneration for services in relation to 
others in his field. In support of this criterion, the Petitioner submitted a letter from the I ~ 
\ !summarizing his financial terms of service as a senior representative of thd 
[inl !Russia between August 2009 and August 2015. 1 The letter indicates that he 
received monthly gross wages of $6000, as well as up to $300 in monthly representative fees, $2300 in 
monthly rent expenses, an "education fund," and "children education funding at the race of service." 
The Petitioner also provided evidence that his children's private school inl billed thel I I O ~ for their 2014-2015 school year tuition and fees. Finally, the Petitioner provided data 
regarding "Average Russian NGO Salaries" from Simply Hired, which indicates an average annual salary 
of $25,000. 2 
We determined that the evidence was insufficient to satisfy this criterion for several reasons. First, we 
emphasized that, in order to establish that he has commanded a high salary or other significantly high 
remuneration, the Petitioner must provide documentary evidence of his actual earnings. We noted that 
the letter from thd I was insufficient to document his earnings for his period of 
employment in Russia. Specifically, we note that it was not accompanied by earnings statements, payroll 
or bank records, tax documentation or other evidence demonstrating the total salary or total remuneration 
he received from his employer during his period of employment in Russia. 
We also concluded that, even if the Petitioner had adequately documented his total earnings from that 
period, he did not submit sufficient comparative data to establish that he had commanded a high salary or 
significantly high remuneration in relation to others. We reviewed the evidence he provided regarding 
1 We observed in our prior decision that the letter from the.__ _______ __, indicates that the Petitioner received 
the stated compensation package as a senior representative in Russia from August 2009 until August 2015. However, 
other evidence in the record, including the Petitioner's resume and the employment history he provided on his concrrentlyl 
filed Form T-485, AVplication to Register Permanent Residence or Adjust Statu. s, indicates that he worked for the 
~-----~inl I only from January 2014 until August 2015, and was based in other countries prior to 
2014. The Petitioner has not attempted to resolve this apparent inconsistency on motion. 
2 The record also contains documentation of the Petitioner's earnings in the United States for 2017; however. we 
determined that the record did not demonstrate that he earned a high salary or other significantly high remuneration based 
on this evidence. He does not address his U.S.-based earnings on motion. 
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"average Russian NGO salaries" from Simply Hired and noted that the publisher of the data 
acknowledged that such salaries "can vary greatly." We also emphasized that the data from Simply Hired 
did not include information regarding high salaries in the field as a point of comparison, noting that it is 
not sufficient for the Petitioner to demonstrate that his salary was "above average" compared to all persons 
working in any type of position for an NGO in Russia. 
On motion, the Petitioner maintains that the letter from the~---------~is sufficient to 
establish that he received a total monthly remuneration of $13,425 per month or $161,100 annually, for a 
period of six years, from August 2009 until August 2015. He cites to an unpublished AAO decision in 
support of his assertion that a letter from an individual's employer has been deemed sufficient to 
document earnings under this eligibility criterion. The decision he references was not published as a 
precedent and therefore does not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). 
Non-precedent decisions apply existing law and policy to the specific facts of the individual case and may 
be distinguishable based on the evidence in the record of proceedings, the issues considered, and 
applicable law and policy. Further, although the Petitioner asserts that we deemed a letter from an 
employer to be acceptable evidence of a petitioner's earnings, we ultimately determined that the petitioner 
in the cited matter had not adequately documented her actual salary. The Petitioner has not demonstrated 
that we erred as a matter oflaw or USCIS policy by finding the letter from the ~---------~ to be insufficient to document his salary or total remuneration for the period in question. 
The Petitioner also contests our determination that the evidence he provided regarding "average Russian 
NGO salaries" did not provide sufficient comparative data to establish that he earned a high salary or 
significantly high total remuneration relative to others in his field. The Petitioner emphasizes that he 
was not able to locate any other source of data regarding NGO executive salaries in Russia, noting that 
"[ u ]nlike the United States, Israel and most European countries, Russia does not have a Department of 
Labor that publishes government-sourced information on salaries in various fields or industries." He 
states that it was "not reasonable or equitable" for USCIS to make an adverse decision regarding this 
criterion based on the lack of quality data on comparable salaries. Finally, the Petitioner maintains that 
his annual remuneration of $161,000, as reflected in the letter from his employer, "is a high 
compensation for an NGO executive anywhere in the world." 
If a petitioner claims to meet this criterion, then the burden is on that petitioner to provide appropriate 
evidence. The plain language of this regulatory criterion requires evidence of "a high salary or other 
significantly high remuneration for services, in relation to others in the field." Therefore, it is 
reasonable to expect the Petitioner to submit objective earnings data showing that he has earned a 
"high salary" or "significantly high remuneration" in comparison with those performing similar work. 
See Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994) (considering a professional golfer's 
earnings versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 
1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 
440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen). Further, persons working in different countries should be evaluated based on the wage 
statistics or comparable evidence in that country. See 6 USCIS Policy Manual F(2) appendix, 
https://www.uscis.gov/policy-manual. 
While the Petitioner maintains that he submitted the only salary information available for "NGO 
executives" in Russia, the information he provided is not for executive positions, but rather appears to 
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be an average salary that is based on all data available for NGO positions, including lower-level 
positions. Further the data is accompanied by a note from the publisher indicating there is great 
variation in salaries within the Russian NGO field based on company, location, industry, and 
experience. The Petitioner has not cited to any law, USCIS policy or precedent decision that would 
require us to compare his total remuneration of $161,000 (most of which was paid in benefits) as an 
NGO executive to an average base salary that includes every type of NGO position. While the base 
salary figure provided in the letter from thel I ($72,000 annually) is higher 
than the average salary figure provided in the data from Simply Hired, that data is not specific to 
experienced professionals working in senior positions in the Petitioner's field and does not provide an 
appropriate basis for comparison. 
Further, the Petitioner claims that he earned total compensation of $161,000 for a period of six years and 
that this is a high compensation for a comparable position in his field "anywhere in the world." This 
broad assertion is not supported by sufficient evidence and does not satisfy the Petitioner's burden to 
demonstrate that he meets the criterion at 8 C.F.R. § 204.5(h)(3)(ix). As noted above, there are 
inconsistencies in the record as to where the Petitioner worked between 2009 and 2015. Ifhe did in fact 
work in countries other than Russia during this period, as stated in his resume and on his Form 1-485, he 
could have submitted comparative salary data from those countries. The comparative salary data 
provided for Russia was inadequate to demonstrate that his salary or total remuneration was high 
compared to similarly employed workers in his field. 
For the reasons discussed above, we conclude that the Petitioner has not established that we incorrectly 
applied the law or USCIS policy in determining that he did not satisfy the eligibility criterion at 8 
C.F.R. 204.5(h)(3)(ix). 
Finally, we acknowledge that the Petitioner contests our determination that the previously submitted 
evidence was insufficient to establish that he meets the criterion related to original contributions of 
major significance at 8 C.F.R. § 204.5(h)(3)(v). However, even if we determined that he meets that 
criterion, he could not establish that he meets the initial evidence requirement for this classification by 
satisfying at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), and therefore would not 
overcome the grounds for dismissal of his appeal. Accordingly, we will reserve this issue. See INS v. 
Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally 
required to make findings and decisions unnecessary to the results they reach). 
IV. CONCLUSION 
The Petitioner has not established that our previous decision was based on an incorrect application of 
law or USCIS policy, or that the decision was incorrect based on the evidence ofrecord at the time of 
that decision. Therefore, the motion to reconsider will be dismissed. 
ORDER: The motion to reconsider is dismissed. 
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