dismissed EB-1A Case: Healthcare Management

(b)(6)
DATE: MAY 0 8 2014 Office: TEXAS SERVICE CENTER 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave ., N.W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov /forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~P~ I--Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) initially summarily dismissed the petitioner's 
appeal of that decision, subsequently reopened the matter on its own motion, and ultimately 
dismissed the appeal on the merits on October 19, 2013. The matter is now before the AAO on a 
motion to reconsider. The motion will be dismissed, the previous decision of the AAO will be 
affirmed, and the petition will remain denied. 
As stated in the final decision of the AAO dismissing the petitioner's appeal on the merits, the 
beneficiary met one of the criteria under the regulation at 8 C.F.R. § 204.5(h)(3), of which at least 
three are required. Specifically, the beneficiary met the judging criterion pursuant to the regulation 
at 8 C.F.R. § 204.5(h)(3)(iv), but did not meet the membership criterion pursuant to the regulation at 
8 C.F.R. § 204.5(h)(ii), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), and the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii). On appeal, the petitioner abandoned the published material criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the scholarly articles criterion pursuant to the regulation 
at 8 C.F.R. § 204.5(h)(3)(vi), and the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). 
In Part 3 of Form I-290B, Notice of Appeal or Motion, the petitioner claims: 
USCIS failed to properly estimate the total population of "clinicians employed as 
high level executives in managed care." Second, determining the "population" also 
means that you need to judge what is the actual field of endeavor. If the foreign 
worker claims to have extraordinary ability in a field of endeavor that is obscure or 
limited, although awards would be helpful, many times awards for these types of 
fields do not exist. However, the nonexistence of awards does not negate 
beneficiary's qualification as being among the "small percentage who have risen to 
the very top of the field of endeavor." Beneficiary has created 5 (five) Accountable 
Care Organizations that have each and cumulatively reduced unnecessary testing and 
allowed the savings to be put back into Medicare fund. Beneficiary was also 
acknowledged for obtaining FDA approvals for 5 (five) drugs. Finally, by virtue of 
being on H-lB status, Beneficiary is restricted from receiving a "high salary or other 
significantly high remuneration." USCIS's narrow approach in failing to expand its 
scope beyond the obvious criteria falls to embody legislative intent. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires that the 
motion must be "[a]ccompanied by a statement about whether or not the validity of the unfavorable 
decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and 
status or result of the proceeding." The regulation at 8 C.P.R.§ 103.5(a)(4) requires that "[a] motion 
that does not meet applicable requirements shall be dismissed." The petitioner did not submit a 
statement regarding whether the validity of the decision of the AAO has been or is subject of any 
judicial proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Notwithstanding the above, a motion to reconsider must state the reasons for reconsideration and be 
supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.F.R. 
§ 103.5(a)(3). A motion to reconsider contests the correctness of the original decision based on the 
previous factual record , as opposed to a motion to reopen which seeks a new hearing based on new 
or previously unavailable evidence. Compare 8 C.F.R. § 103.5(a)(3) with 8 C.F.R. § 103.5(a)(2) 
(describing the requirements for a motion to reopen). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments " that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that may not have been addressed by the 
party. Matter ofO-S-G-, 24 I&N Dec. 56,57-58 (BIA 2006). Further, a motion to reconsider is not 
a process by which a party may submit, in essence, the same arguments and seek reconsideration by 
generally alleging error in the prior decision. /d. Instead, the moving party must specify the factual 
and legal issues raised on appeal that were decided in error or overlooked in the initial decision or 
must show how a change in law materially affects the prior decision. !d. At 60. 
Here, the motion to reconsider does not allege that the issues raised on motion involve the 
application of precedent to a novel situation, or that there was new precedent or a change in law that 
affected the AAO ' s decision. Instead, the petitioner claims that USCIS did not properly estimate the 
total population of the beneficiary 's field without referencing any particular language in the AAO 
decision or citing any pertinent legal authority. The regulation at 8 C.F.R. § 204.5(h)(2) provides 
that the petitioner must establish that the beneficiary "is one of that small percentage who have risen 
to the very top of the field of endeavor." On the Form I-140, Immigrant Petition for Alien Worker, 
the petitioner indicated that the beneficiary is employed as an executive director of clinical research, 
and the petitioner ' s business is a healthcare provider. Although the beneficiary's occupational title 
is an executive director of clinical research, the beneficiary's field will not be narrowed to a single 
position title within the field of healthcare. To hold otherwise would render meaningless the 
requirement that the alien be among the small percentage of the very top of his field by allowing a 
petitioner to narrow the beneficiary ' s field until the beneficiary ranks among the top of a small group 
in that "field. " See Buletini v. INS, 860 F.Supp. 1222, 1229 (E.D. Mich. 1994) (finding that the 
alien's field was medical science rather than nephrology). 
Regardless, the petitioner must first meet the antecedent procedural requirement of submitting 
qualifying evidence that meets the plain language requirements of three criteria at 8 C.F.R. 
§ 204.5(h)(3) before USCIS will consider whether the beneficiary is within the small percentage at 
the very top of the field. Kazarian v. USCIS, 596 F.3d 1115, 1119-22 (9th Cir. 2010). While the 
AAO concluded that the petitioner had not established that the beneficiary was within the small 
percentage at the very top of his field, the AAO did not elaborate on this conclusion because the 
petitioner had not submitted the requisite initial evidence. The petitioner must first overcome the 
determination that it had not met the initial evidence requirements before reaching the issue of 
whether the evidence in the aggregate demonstrates that the beneficiary is within the small 
percentage at the very top of his field. 
(b)(6) NON-PRECEDENT DECISION 
Page 4 
The AAO's prior decision discussed the petitioner's documentary evidence, including the claims 
regarding the savings to Medicare funding and FDA approvals, as it related to the claimed regulatory 
categories of evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(3) and determined that the 
petitioner had established that the beneficiary only met one criterion. Furthermore, the petitioner 
never claimed to have received qualifying awards and did not, on appeal, contest the findings of the 
director regarding the high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix) .. 
See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226; 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 
09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). The petitioner 
does not cite any legal authority on motion to support a conclusion that the claimed unavailability of 
qualifying awards in the field or the claimed salary restrictions as a nonimmigrant demonstrates the 
beneficiary's eligibility for the classification sought, which requires evidence that meets only three 
of the ten criteria. Notably, the October 9, 2013 decision did not suggest that the petitioner's failure 
to submit qualifying evidence under the awards and salary criteria at 8 C.F.R. § 204.5(h)(3)(i) and 
(ix) precluded eligibility. Rather, the decision explained that the petitioner had not submitted 
qualifying evidence under at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3). 
The motion to reconsider does not allege that the issues raised in the prior decision involved the 
application of precedent to a novel situation, or that there is new precedent or a change in law that 
affects the AAO's denial. The petitioner has also not asserted any new facts or provided new 
evidence for consideration on motion. As noted above, a motion to reconsider must include specific 
allegations as to how the AAO erred as a matter of fact or law in its prior decision, and it must be 
supported by pertinent legal authority. Because the petitioner did not raise such allegations of error 
in the motion to reconsider, the AAO will dismiss the motion to reconsider. See also Rehman v. 
Gonzales, 441 F.3d 506 (7th Cir. 2006) (reconsideration depends on something new, if not 
necessarily new factual developments, then at least new arguments showing that something of 
import was overlooked). 
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 not been met. 
ORDER: The motion to reconsider is dismissed, the decision of the AAO dated October 9, 
2013 is affirmed, and the petition remains denied.