dismissed EB-1A Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 12, 2024 In Re: 31977149 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an attorney, has filed a petition on behalf of a physician who seeks classification as an 
individual of extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b )( 1)(A), 
8 U.S.C. § 1153(b)(l)(A). This first preference classification makes immigrant visas available to those 
who can demonstrate extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The matter is now before us on appeal under 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b )( 1 )(A) of the Act makes immigrant visas available to individuals with extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have been recognized in the field through 
extensive documentation. These individuals must seek to enter the United States to continue work in 
the area of extraordinary ability, and their entry into the United States will substantially benefit 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 petitioner 
can demonstrate international recognition of the beneficiary's achievements in the field through a one­
time achievement in the form of a major, internationally recognized award. Or the petitioner can 
submit evidence 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. If those 
standards do not readily apply to the individual's occupation, then the regulation at 8 C.F.R. 
§ 204.5(h)( 4) allows the submission of comparable evidence. 
Once a pet1t10ner has met the initial evidence requirements, the next step is a final merits 
determination, in which we 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). 
IT. ANALYSTS 
The Petitioner described the Beneficiary as "a Physician who specializes in Health Services Research." 
The Beneficiary earned a bachelor's degree in neuroscience from the I I 
in 2016, and both a doctor of medicine and master of public health degrees from thel I 
_____ at the in 2021. The Beneficiary then completed a one-
year internal medicine internship inl IColorado in 2022. When the Petitioner filed the petition 
in September 2023, the Beneficiary was about one year into a four-year residency in diagnostic 
radiology at the The Beneficiary intends "to establish a network of 
free or accessible healthcare clinic[s] ... to improve access to cancer screening services for 
underserved communities and people living in rural areas," and to apply artificial intelligence "to 
create solutions to healthcare's biggest problems." 
Because the Petitioner has not indicated or shown that the Beneficiary received a major, internationally 
recognized award, the Petitioner must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner initially claimed to have satisfied seven of these criteria, 
summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; and 
• (viii), Leading or critical role for distinguished organizations or establishments. 
The Director concluded that the Petitioner's evidence met two of the criteria, relating to participation 
as a judge and authorship of scholarly articles. On appeal, the Petitioner asserts that the evidence also 
meets the criterion relating to leading or critical roles. The Petitioner does not contest the Director's 
conclusions regarding the criteria relating to prizes, memberships, published material, and original 
contributions. Therefore, we consider the Petitioner to have waived appeal on those criteria. 1 
1 See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. U.S. Att'y Gen.. 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-2731201 1, 2011 WL 4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (concluding the plaintiff's claims were abandoned 
as he failed to raise them on appeal to the Administrative Appeals Office). 
2 
We agree with the Director that the Petitioner's evidence has satisfied the criteria relating to judging 
and scholarly articles. We will discuss the remaining claimed criterion below. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
As explained below, we agree with the Director's determination that the Petitioner has not submitted 
evidence that satisfies the requirements of this regulatory criterion. 
The Petitioner stated that the Beneficiary "has performed in a leading and critical role for distinguished 
organizations." The use of the plural "organizations" implies multiple organizations, but the Petitioner 
has identified only one organization. 
The Petitioner initially stated: 
During his tenure as a medical student at the in 20 l 7, [ the 
Beneficiary] established a student-run clinic to serve individuals who inject drugs 
called He established the clinic to work in conjunction with 
thel lwhich is the only program in Florida .... [H]e 
implemented an interdisciplinary patient navigation program. . . . Moreover, he 
launched a successful campaign to improve legislation that would expand access to 
syringes throughout the state of Florida. 
The Petitioner corroborated some of the above claims, but not others. For example, the Petitioner did 
not submit evidence to support the claim that the Beneficiary was significantly responsible for the 
passage oflegislation to expand thel Iprogram beyond its initial pilot location inl I 
Statements in a brief are not evidence and thus are not entitled to any evidentiary weight. See Matter 
ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998). 
The Petitioner submitted a copy of a letter from an assistant professor at which reads, in part: 
Our program, the I I is housed within our 
Division of Infectious Diseases. After I implemented this program, [ students 
identified] a need to add a I . .. In his roles as a founding member 
and project manager of the I I [ the Beneficiary] .... created the clinic's 
electronic health record and led recruitment and marketing efforts when the clinic first 
opened. . . . I have observed him expertly teaching the principles of harm reduction to 
student volunteers and visiting politicians. 
Letters from persons with personal knowledge of the significance of the person'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. 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policy­
manual. In this instance, the faculty member's letter does not fully address this requirement. We note 
that the letter was not written to support the petition in 2023. Rather, the faculty member wrote the 
3 
letter in 2020 as a recommendation for the Beneficiary's admission into a "diagnostic radiology 
residency." Therefore, the author of the letter was not seeking to address the regulatory requirements. 
We agree with the Director's determination that, while the Petitioner has shown that the Beneficiary 
had a leading role at the I I the Petitioner has not established that the I I has a 
distinguished reputation. Similarly, the Petitioner has not established that the Beneficiary's 
establishment of the patient navigator program amounted to a leading or critical role for the I I 
I I 
The namel is an acronym for a Florida state law. While the 
program is statewide, the Petitioner does not claim that the Beneficiary has played a leading or 
critical role for the entire program. Rather, the Beneficiary's involvement has been with one 
clinic affiliated with the first at 
As "evidence that the I I and the I I ha[ ve] been featured in the media on 
numerous occasions," the Petitioner submitted copies of the following materials: 
• A 2019 blog post, published by a foundation that "awarded [ the Beneficiary] a Student Summer 
Fellowship grant to support the implementation and evaluation of the Patient Navigator 
Program" at the I I 
• Printouts from the I I website, quoting various media articles and university 
press releases about the I I One quotation refers directly to the "new student-
run I but the submitted printout does not identify the source of the quotation; 
• A printout from the I I website, describing the services offered and soliciting 
volunteers; and 
• An article about the Beneficiary and the I I from the Spring 2020 issue ofc=] 
described in the record as "[a] research magazine published by the students 
ofthe 
In a request for evidence (RFE), the Director stated that the Petitioner had established the Beneficiary's 
leading or critical role for the I I but had not shown that the I Ihas a distinguished 
reputation. The Director noted that the clinic's own promotional materials have little weight as 
evidence of its reputation, and that I I publications and websites do not establish the clinic's 
reputation beyond that university. 
In response, the Petitioner submitted several materials about the I I and stated: "it is 
abundantly clear that is a distinguished organization." In this way, the 
Petitioner conflated thel land thel IBut thel lis an offshoot of 
the I and a leading or critical role for the clinic is not necessarily leading or critical 
for the entirel IFurthermore, while thel Ibegan as a single pilot location 
at the record indicates that state legislation passed in 2019 allowed the establishment of additional 
exchange locations. Some of the materials submitted in response to the RFE concern the entire 
statewideI !program. Such materials are only relevant if the Petitioner establishes the 
Beneficiary's leading or critical role for the program at a statewide level. The Petitioner does not meet 
this burden with the unsubstantiated claim that the Beneficiary was largely responsible for the passage 
of the 2019 legislation. 
4 
The distinction between the I I and the I I is evident, for example, in a 2019 
article from National Public Radio's website, which discusses several I I programs, but 
does not mention the that the Beneficiary helped to establish. A 2021 article from 
US. News and World Report focuses on a "hybrid needle exchange telehealth and HIV medication 
outreach program." The record does not establish the extent of the Beneficiary's involvement, if any, 
with this aspect of _____ work. The article mentions that I I provides 
"medical treatment" but does not specifically mention the ______ 
When a beneficiary's role is leading or critical for a department or division of an organization, rather 
than for the entire organization, then the petitioner must establish the distinguished reputation of the 
department or division for which the beneficiary holds a leading or critical role. See, generally, 
6 USCJS Policy Manual, supra, at F.2(B)(l). 
The submitted materials likewise do not mention the patient navigator program, and therefore they do 
not show that the Beneficiary's involvement in establishing that program amounted to a leading or 
critical role for the I I 
The Director denied the petition, stating that the Petitioner established "the leading and/or critical role 
of the beneficiary at the I I but, the record does not sufficiently establish the distinguished 
reputation enjoyed by the I The Director also noted that some materials refer to the 
I I as a potentially temporary pilot program, and cited apparent shortcomings in some 
of the submitted publications. 
We agree with the Petitioner's assertion on appeal that, while some materials in the record refer to the 
as a pilot program, other materials show that the State of Florida expanded by 
program by legislation in 2019. Also, some of the submitted online publications appear to derive from 
major media outlets. This information, however, does not rebut the Director's core determination, 
because that determination did not rest solely on those issues. The Director referred to "the 
I I and I I indicating that the terms are not interchangeable names for the same 
thing, and concluded that "the record does not sufficiently establish the distinguished reputation 
enjoyed by the I I Coverage of the I I was considerably more limited than 
coverage of the larger I I 
The Petitioner asserts, on a eal, that the evidence in the RFE response showed "the eminence and 
distinction of the although the relevant materials contained little or no 
mention of the 
The Petitioner quotes 6 USCIS Policy Manual, supra, at F.2(B)(l): "For academic departments, 
programs, and institutions, officers may also consider ... receipt of government research grants as 
positive factors." The Petitioner states that the Director "ignored the evidence submitted in the RFE 
Response which indicates that the I is the recipient of a major NIH grant." The cited 
evidence is a press release from the I I referring to "a new $3 .1 million grant from the National 
Institutes of Health." The press release does not mention the I I or indicate that the scope 
of the grant includes I I 
5 
The Petitioner has not established that the Beneficiary performed in a leading or critical role for the 
I I as a whole, or that the I I - the department or division for which he 
performed in such a role - has a distinguished reputation in its own right. 
The Petitioner has not met its burden of proof to satisfy at least three of the initial evidentiary criteria 
at 8 C.F.R. § 203.4(h)(3). We will therefore dismiss the appeal. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten lesser criteria. As a result, we need not provide the type 
of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a conclusion 
that the Petitioner has established the acclaim and recognition required for the classification sought. 
While we have not undertaken a full final merits determination, we will briefly address the issue of 
sustained acclaim. The bulk of the record concerns activities that the Beneficiary undertook while he 
was still a medical student, and his medical training was still ongoing when the Petitioner filed the 
petition in 2023. The evidence shows that the Beneficiary has been active and dedicated, but it does 
not establish that he has earned sustained national or international acclaim or reached the small 
percentage at the very top of the field of medicine. The Beneficiary's activity as a judge has been as 
a reviewer for the Journal ofStudent-Run Clinics. The record does not indicate that this journal is a 
prestigious publication that invites only top physicians to participate in peer review. A submitted 
printout from the journal's own website acknowledges that the journal has yet to "achieve the 
publication volume and quality criteria established by the National Library of Medicine" to qualify 
"to be indexed by popular searchable databases such as MEDLINE and PubMed Central." The 
Petitioner initially claimed media coverage of the Beneficiary's work, but has not shown that the 
Beneficiary received significant attention from independent major media, as opposed to local, campus, 
or student publications. Coverage ofl Ithat did not mention the Beneficiary does not 
contribute to his acclaim or recognition. 
Also, the record includes little information about his accomplishments and recognition after he 
graduated from I I more than two years before he filed the petition. The Petitioner has not 
documented any published articles by the Petitioner that did not derive from his work atl IThe 
Petitioner's RFE response indicated that the Beneficiary is the vice president of the Residents and 
Fellows Section of the but the Petitioner did not establish that this 
position indicates recognition beyond trainee residents at the state level. Furthermore, the Petitioner 
did not mention this position at the time of filing, and the evidence in the RFE response does not say 
when the Beneficiary became the section's vice president. Therefore, the Petitioner has not shown 
that the Beneficiary held this position at the time of filing. The Petitioner must meet all eligibility 
requirements at the time of filing. See 8 C.F.R. § 103.2(b )(1 ). Subsequent facts cannot retroactively 
establish eligibility. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Also in the RFE response, the Petitioner submitted evidence that the Beneficiary interviewed for 
residencies at several prestigious medical schools in 2020. The Petitioner claimed: "Interviews at 
these prestigious institutions are only offered to a small percentage [ of] professionals who have risen 
6 
to the top of their field of endeavor." The Petitioner did not substantiate this claim, and as noted above 
the Petitioner's unsupported claims have no evidentiary weight. Residencies are late-stage training 
for recent medical school graduates. The Petitioner has not established that interviews for such 
residencies are recognition afforded to "professionals who have risen to the top of their field." 
The Beneficiary seeks a highly restrictive visa classification, intended for individuals already at the 
top of their respective fields, rather than for individuals progressing toward the top. U.S. Citizenship 
and Immigration Services has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994). Here, the Petitioner has not shown recognition of the Beneficiary's work that 
indicates the required sustained national or international acclaim or demonstrates a "career of 
acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 
1990); see also section 203(b)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate 
that the Petitioner 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). 
The Petitioner has not demonstrated the Beneficiary's eligibility as an individual of extraordinary 
ability. We will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
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