dismissed EB-1A Case: Healthcare Finance

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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. § I 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
w 
5 Robert P. Wiernann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 11 53(b)(l)(A), as an alien of extraordinary ability. The 
director determined the petitioner had not established the sustained national or intemational acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
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 intemational 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 to the United States will substantially benefit prospectively the 
United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 
3 204.5(h)(2). The specific requirements for supporting documents to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. 5 204.5(h)(3): 
Initial evidence: A petition for an alien of extraordinary ability must be accompanied by evidence that 
the alien has sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement 
(that is, a major, international recognized award), or at least three of the following: 
(i) Documentation of the alien's receipt of lesser 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; 
Page 3 
(iii) Published materials 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 specification 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. 
This petition, filed on October 29, 2004, seeks to classify the petitioner as an alien with extraordinary ability 
as a healthcare financial specialist and an underwriter. 
On appeal, counsel argues that the evidence in this case should be evaluated pursuant to the regulation at 
8 C.F.R. 3 204.5(h)(4). This regulation allows for the submission of "comparable evidence," but only if the 
ten criteria "do not readily apply to the beneficiary's occupation." Therefore, the petitioner must demonstrate 
that the preceding regulatory criteria are not applicable to healthcare financial specialists or underwriters. In 
this instance, however, the petitioner has submitted letters of support specifically acknowledging that at least 
six of the regulatory criteria at 8 C.F.R. 9 204.5(h)(3) readily apply to the petitioner's occupation. For 
example, the letter of support from 
4 
enior Vice President, Berkshire Mortgage Finance, 
specifically addresses the petitioner s assoc~at~on mem erships, participation as judge of the work of others, 
of major significance, and high salary.' Further, the letter of support 
fro 
 irector of Multifamily Investments with the AFL-CIO Housing Investment Trust, 
mentions the petitioner's authorship of an article in "a professional trade publication."2 Therefore, counsel's 
argument that the director erred by evaluating the evidence pursuant to 8 C.F.R. fj 204.5(h)(3) is without 
merit. Where an alien is simply unable to meet three of the regulatory criteria at 8 C.F.R. fj 204.5(h)(3), the 
wording of the regulation does not allow for the submission of comparable evidence. 
1 
 These categories of evidence correspond to the regulatory criteria at 8 C.F.R. 5 204.5(h)(3)(ii), (iv), (v), (vii), and (ix). 
2 
 This relates to the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
The petitioner has submitted evidence pertaining to the following criteria at 8 C.F.R. 5 204.5(h)(3). 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awards for excellence in the jield of endeavor. 
The petitioner submitted a "2003 Excellence Award" and an "Employee of the Month" award (May 2003) 
presented to her by her employer, Berkshire Mortgage Finance. These awards, however, reflect institutional 
recognition rather than national or international recognition. The petitioner has not established that she meets 
this criterion. 
Documentation of the alien S membership in associations in thejield for which classiJication 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines orjelds. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must show that 
the association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or current 
members, or payment of dues, do not satisfy this criterion as such requirements do not constitute outstanding 
achievements. In addition, it is clear from the regulatory language that members must be selected at the 
national or international level, rather than the local or regional level. Therefore, membership in an association 
that evaluates its membership applications at the local or regional chapter level would not qualify. Finally, 
the overall prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
The petitioner submitted evidence of her membership in the Golden Key National Honor Society. 
 The 
petitioner also submitted information printed from this society's internet website stating that membership is 
open to "the top 15 percent of undergraduate students from all fields of study." 
The petitioner submitted evidence of her membership in the George Washington University Chapter of Beta 
Gamma Sigma. The record also includes information printed from this society's internet website reflecting 
that "Students of Business Administration" must meet the following requirements in order to be accepted as 
members: 
Election of Juniors: Juniors among the highest 7 percent of their class may be inducted in the last 
term or semester of the junior year. . . . 
Election of Seniors: Members of the senior class may be inducted at any time during their senior year 
if their scholarship is sufficiently high to reasonably forecast their ranking in the upper tenth at 
graduation, or they may be inducted within one year after their graduation with their membership 
recorded as of the date of their graduation. . . . 
According to the documentation submitted by the petitioner, admission to membership in the preceding honor 
societies is based on scholastic achievement as of one's junior or senior year in college rather than 
Page 5 
outstanding achievement in the field of business or finance. University study is not a field of endeavor, but, 
rather training for future employment in a field of endeavor. An honor society membership may place the 
petitioner among the top students at her particular university, but it offers no meaningful comparison between 
the petitioner and financial professionals who are employed in their own right and who therefore do not apply 
for membership in a student honor society. Membership in such an organization is not an indication that the 
petitioner is among that "small percentage who have risen to the very top of the field of endeavor." See 
8 C.F.R. $ 204.5(h)(2). 
The petitioner submitted evidence of her membership in the Association of Informati 
Professionals. In regard to this association's admission criteria, a letter of support from 
Executive Vice President, Washington, D.C. Chapter, states: "Membership is reserved for individuals who 
are or have been employed in the management of information resources including, but not limited to, 
managers, staff, sales service providers and educators who are approved for membership according 
procedures provided from time to time by the Board of Directors." 
There is no evidence showing that that admission to membership in the preceding organizations required 
outstanding achievement in the petitioner's field or that she was evaluated by national or international experts 
in consideration of her admission to membership. Thus, the petitioner has not established that she meets this 
criterion. 
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 alliedjeld of speclJicationfor which classijication is sought. 
As previously noted, the regulation at 8 C.F.R. 3 204.5(h)(3) provides that "a petition for an alien of 
extraordinary ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." Evidence of the 
petitioner's participation as a judge must be evaluated in terms of these requirements. For example, 
evaluating the work of accomplished professionals as a member on a national panel of experts is of far greater 
probative value than evaluating one's subordinates or coworkers. In an occupation where 'tjudging" the work of 
others is an inherent duty of the occupation, such as an instructor, teacher, manager, professor or editor, simply 
performing one's job related duties demonstrates competency, and is not evidence of national or international 
acc~aim.~ 
[The petitioner] as an approved MAP [Multifamily Accelerated Processing] underwriter is a decision- 
maker with fiduciary responsibility for HUD [United States Department of Housing and Urban 
Development]. HUD's new role under MAP would not be to underwrite, but to review the 
underwriting. MAP provides predictability, greater efficiency, faster HUD decisions, and a better use 
3 
 This is true with all duties inherent to an occupation. For example, publication is inherent to scientific researchers. 
Thus, the mere publication of scholarly articles cannot demonstrate national acclaim. The petitioner must demonstrate 
that the articles have garnered national attention, for example, by being widely cited. 
of federal staff resources. The goal of MAP is to strike a balance between expedited processing and 
acceptable risk to the federal mortgage insurance fund. 
IThe petitioner1 reviews the Oualifications and Judges the Work of MAP Third Party Vendors 
(Contractors) 
She is Berkshire's only designated liaison with new MAP Third Party Vendors. These vendors 
include independent appraisers, market study consultants, architects, engineers, and environmental 
scientists. The HUD MAP program requires stand alone third party professionals to provide MAP 
underwriters with technical recommendations involving, property valuation, market potential, 
drawings, and construction matters and scientific evaluation of the suitability of the site with regard to 
soil, drainage, and environmental issues. [The petitioner] reviews their qualifications and adjudicates 
on their suitability as MAP professional consultants. 
In addition to her direct healthcare and multifamily housing underwriting responsibilities, as a Team 
Leader at Berkshire, [the petitioner] also manages, and trains the largest underwriting and analytical 
team in the FHA [Federal Housing Administration] department. [The petitioner] directly supervises 
and evaluates the work performances of the underwriters and underwriting analysts/processors on her 
team. In addition, [the petitioner] also judges, reviews, and approves the healthcare underwriting 
work of a peer senior underwriter. 
The activities discussed in letter are inherent to the petitioner's position as a Senior 
Underwriter for Berkshire Mortgage Finance. In regard to the petitioner's involvement with the HUD MAP 
program, we note that HUD officials, rather than the petitioner, hold final authority over determinations related to 
the MAP underwriting process. While performance of these activities demonstrates the petitioner's level of 
experience in her field, they are not adequate to demonstrate that she has earned acclaim beyond her immediate 
employer. We find that duties or activities which nominally fall under a given regulatory criterion do not 
demonstrate national or international acclaim if they are inherent or routine to the occupation itself. In this 
case, there is no evidence showing that petitioner has judged the work of others in a manner significantly 
outside the general duties of her senior position at Berkshire Mortgage Finance and reflective of national or 
international acclaim. Thus, the petitioner has not established that she meets this criterion. 
Evidence of the alien's original scientzjc, scholarly, artistic, athletic, or business-related 
contributions of major signGcance in thejeld. 
The petitioner submitted several letters in support of the petition. 
President, Sigma Computer Technologies, Inc., states: "[The petitioner] has developed original 
computer software, known in the industry as OPUS, which is widely utilized by the multifamily and health 
care mortgage finance industry." 
Page 7 
currently Director of Multifamily Investments with the AFL-CIO Housing Investment Trust, 
and formerly Director of Finance at Prudential Huntoon Paige, states: "Prudential chose to utilize on a 
nation-wide basis, loan sizing and underwriting software designed and developed exclusively by [the 
petitioner]. . . . The software developed by [the petitioner] is one of the finest versions of underwriting 
software in current use today among firms in the FHA lending community." 
~xecutive Vice President, University Eldercare, Inc., states: 
[The petitioner's] software, also known as OPUS, is being utilized by top firms in our industry all 
over the country. Some of these companies include GMAC, Prudential, Red Capital Group, Inc. 
(formerly Banc One), Suburban Mortgage, Berkshire Mortgage Finance, PNC Multifamily Capital, 
AM1 Capital (Wachovia), DVI and PMC Financial Services. OPUS is the most widely utilized 
software in our industry. 
An estimated $2 billion in new loans for the development and financing of healthcare and affordable 
housing are processed utilizing this software each year. This represents an original business-related 
contribution of major significance in her field. 
A letter of support from 
 egional Vice President, PNC Multifamily Capital, repeats the 
observations o 
resident, Suburban Mortgage, Inc., states: 
I 
My company is a nationwide multifamily lender and a FHA approved mortgagee, and one of the 
leading firms in the field of health care financing in the United States. It is one of the first companies 
in the industry to be appointed by HUD as a Multifamily Accelerated Processing (MAP) Approved 
Lender in 2000. 
Since the year 2000, Suburban Mortgage has been using and continues to use the original software 
developed by [the petitioner] . . . for industry FHA underwriting and loan processing. This software, 
also known by the brand name OPUS, is utilized by leading firms in our field, and is implemented 
nationwide. It is estimated that about $2 billion in new loans for the development and financing of 
healthcare and affordable housing are underwritten and processed through [the petitioner's] software 
programs each year. 
This software is utilized in all our offices in the United States and represents a major breakthrough in 
how FHA healthcare and low-income housing loans are underwritten and processed. 
We find that the record adequately demonstrates the petitioner's OPUS software is important not only to the 
financial institutions where she has worked, but throughout the greater field. Leading experts in her field 
have acknowledged the value of the petitioner's work and its major significance in her industry. Therefore, 
we find that the petitioner's evidence satisfies this criterion. 
Page 8 
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 co-authorship of two brief articles appearing in Loan Lines: A 
Publication of Berkshire Mortgage Finance. This marketing publication, which promotes her immediate 
employer's financial services, appears to be more of an informational newsletter for the company's customer 
base rather than a major trade publication. The plain wording of this regulation requires the petitioner's work 
to appear "in professional or major trade publications or other major media." The petitioner's evidence does 
not meet this requirement. Nor do we find that the brief sections co-written by the petitioner qualify as 
"scholarly articles." The petitioner has not established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted material from trade publications such as Multi-Housing News and Apartment Finance 
Today demonstrating that Berkshire Mortgage Finance has earned a distinguished national reputation in its 
industry. The petitioner also submitted letters of support from her employer reflectin that she has performed in a 
leading or critical role for her company as senior underwriter. For example, letter of support 
indicates that aside from the petitioner serving as chairperson of the Berkshire FHA Underwriter's Committee 
meetings, the petitioner's "projects represented 5 of the 7 MAP projects (70%) successfully funded in the first 
quarter 2003 alone," enabling the FHA Department to exceed its first quarter goal of $100 million. We find that 
the petitioner's evidence meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration for 
services, in relation to others in thejeld. 
[The petitioner's] current base salary per year is $99,360 plus an additional $23,693 in benefits. [The 
petitioner's] bonus in 2004 was $30,000. The total 2004 compensation is $153,053. Based on the 
most recent U.S. Department of Labor, Bureau of Labor Statistics (as of May 2003), the national 
mean annual wage for Mswob position is $55,590. In the District of Columbia, (the closest 
statistic available for our office location in Bethesda, Maryland), the annual mean wage is $70,060. 
The record, however, includes no supporting evidence (such as payroll records or federal W-2 forms) 
showing the petitioner's actual earnings for any specific period of time. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. 
 has the petitioner submitted documentary evidence of the wage 
statistics described letter. Nonetheless 
b. 
use of "mean" wage statistics is 
not an appropriate 
 petitioner must su m~t nat~onal wage data demonstrating that 
Page 9 
her compensation places her at the very top of her field rather than above average in her field. See 8 C.F.R. 
5 204.5(h)(2).~ The petitioner has not established that she meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate she meets at 
least three of the criteria at 8 C.F.R. 5 204.5(h)(3). 
Other comparable evidence. 
The regulation at 8 C.F.R. 5 204.5(h)(4) states: 
 "lf the above standards do not readily apply to the 
beneficialy's occupation, the petitioner may submit comparable evidence to establish the beneficiary's 
eligibility." [emphasis added]. As previously noted on page 3 of this decision, the regulatory language 
precludes the consideration of comparable evidence in this case, as there is no indication that eligibility for 
visa preference in the petitioner's occupation cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. 5 204.5(h)(3). However, we will address counsel's argument that reliance upon expert 
opinion letters is sufficient to demonstrate eligibility pursuant to section 203(b)(l)(A) of the Act. 
While the regulation at 8 C.F.R. 5 204.5(h)(4) permits "comparable evidence" where the ten criteria do not 
"readily apply" to the alien's occupation, the regulation at 8 C.F.R. 5 204.5(h)(4) neither states nor implies that 
letters of support attesting to the petitioner's achievements and standing in the field are "comparable" to the strict 
documentation requirements in the regulations setting forth the ten criteria. Pursuant to the statute and 
regulations, the classification sought requires "extensive documentation" of sustained national or international 
acclaim, and the petitioner cannot arbitrarily replace such evidence with attestations from the petitioner's 
business contacts, who assert that they find her abilities to be extraordinary. The commentary for the proposed 
regulations implementing section 203(b)(l)(A) of the Act provides that the "intent of Congress that a very high 
standard be set for aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to 
present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 
(July 5, 1991). The classification sought by the petitioner therefore requires specific documentation beyond mere 
testimony. We find that evidence in existence prior to the preparation of the petition carries greater weight 
than letters of support prepared especially for submission with the petition. Further, the statutory requirement 
that an alien have "sustained national or international acclaim" necessitates evidence of recognition beyond one's 
current and former coworkers or those who were involved with the same financial projects. As noted by the 
director, an individual with sustained national or international acclaim should be able to produce ample 
unsolicited materials reflecting that acclaim. 
That said, we note that the letters of support submitted by the petitioner were not without merit. For example, the 
expert testimony regarding the impact of the petitioner's OPUS software helped to demonstrate her fulfillment 
of the criterion at 8 C.F.R. 5 204.5(h)(3)(v). Further, we found the two letters submitted by the petitioner's 
employer helpful in demonstrating her leading or critical role for an organization with a distinguished reputation. 
4 
 For example, were the petitioner to submit her Form W-2 for 2004 and evidence printed from the United States 
Department of Labor, Bureau of Labor Statistics' internet website showing that her 2004 salary placed her in the top ten 
percent range for underwriters at the national level, then such evidence would satisfy this criterion. 
Page 10 
8 C.F.R. $ 204.5(h)(3)(viii).' While letters of support may place the evidence for other criteria in context, they 
cannot serve as primary evidence of the achievement required by each criterion. The benefit sought in the present 
matter is not the type for which documentation is typically unavailable and the statute specifically requires 
"extensive documentation" to establish eligibility. See section 203(b)(l)(A)(i) of the Act. 
On appeal, counsel states that Citizenship and Immigration Services (CIS) has approved two prior 0-1 
nonimmigrant visa petitions filed on behalf of the petitioner. Nevertheless, those prior approvals do not preclude 
CIS from denying an immigrant visa petition based on a different, if similarly phrased, standard. It must be 
noted that many 1-140 immigrant petitions are denied after CIS approves prior nonimmigrant petitions. See 
e.g. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. USDept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because 
CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Data Conszrlting, Inc. v. INS, 293 F. Supp. 2d at 29- 
30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that 
prior approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
the petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Comm. 1988). 
 It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 
1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf 
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), am, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 5 1 (200 1). 
Review of the record does not establish that the petitioner has distinguished herself to such an extent that she 
may be said to have achieved sustained national or international acclaim or to be within the small percentage 
at the very top of her field. The evidence is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field at a national or international level. Therefore, the petitioner 
has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be 
approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
5 
According to 8 C.F.R. $204.5(g), letters from an employer are acceptable evidence of experience. We note, however, that 
an alien must also submit objective evidence of the reputation of the employer to satisfy the specific requirement of 8 C.F.R. 
5 204.5(h)(3)(viii). In the present case, the petitioner submitted material from trade publications showing that her employer 
had a distinguished national reputation. 
Page 11 
ORDER: The appeal is dismissed.