dismissed EB-1A Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 22652791 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 3, 2023 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a physician, 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 that the Petitioner did not 
establish that he received a one-time achievement or that he satisfied at least three of the initial 
evidentiary criteria. On appeal , the Petitioner submits a brief and contends that the Director incorrectly 
concluded that the Petitioner does not meet the high level of expertise required for this classification. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
See Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has 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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
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 his or her achievements in the field through a one-time achievement (that 
is a major, internationally recognized award). If that 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). 
II. ANALYSIS 
The Petitioner is a physician specializing in I medicine I I medicine, and l _____ I I and previously worked for thel !Hospital. The Petitioner has not indicated 
that he received a major, internationally recognized award. Therefore, he must satisfy at least three of 
the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claims to have satisfied 
six of these criteria, relating to membership in associations, judging, original scientific contributions 
of major significance, authorship of scholarly articles, a leading or critical role, and a high salary. 
The Director concluded that the Petitioner met only two criteria, relating to authorship of scholarly 
articles and judging. On appeal, the Petitioner asserts that he meets three other claimed criteria, 
relating to a leading or critical role, membership in associations, and a high salary. Upon review of 
the record, we agree with the Director on the scholarly article and judging but conclude that the 
Petitioner has not satisfied the other claimed criteria. 
Documentation of the alien 's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 8 
C.F.R. § 204.5(h)(3)(ii). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of the 
alien's membership in associations in the field for which is classification is sought, which require 
outstanding achievements of their members, as judged by recognized national or international experts 
in their disciplines or fields." In order to demonstrate that membership in an association meets this 
criterion, a petitioner must show that the association requires outstanding achievement as an essential 
condition for admission to membership. 
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The Petitioner contends that he satisfies this criterion based on being approved for the fellowship of 
the Academy of Physicians in Clinical Research (APCR). The Petitioner submitted a letter from the 
I I of the APCR, which states that fellowship of the APCR is reserved for the APCR 
members who have demonstrated their commitment to the organization, achievements as researchers, 
and leadership in the field of clinical research. The letter indicates that accepted criteria includes: (1) 
academic degree in clinical research or medicines development; (2) clinical research training 
certificates; (3) other advanced degrees and the American Board of Medical Specialties Board 
Certification; (4) publications in peer reviewed journals; (5) contributions to national or international 
conferences; (6) leadership in professional association related to clinical research; (7) participation in 
phase I-IV clinical trials; (8) a member of a medicines development team or the Medical Director of a 
clinical research site; (9) fostering clinical research or medicines development in the community; (10) 
academic positions in clinical research; (11) work in regulatory agencies related to clinical research 
and medicines development; (12) awards and recognitions for contributions to clinical research; (13) 
innovation; and (14) membership at the APCR. The record does not reflect that the fellowship of the 
APCR requires outstanding achievements of its members. Instead, the fellowship of the 
APCR requires education, training, professional association, publications, contributions, professional 
experience, innovation, and membership at the APCR. Membership requirements based on 
employment or activity in a given field, education, professional experience, professional association, 
publications, participation in conferences, contributions to a given field, or payment of dues to be a 
member do not satisfy this criterion as such requirements do not constitute outstanding achievements. 
Although the evidence in the record demonstrates the Petitioner's fellowship of the APCR and that 
the individuals responsible for judging the fellowship of APCR are comprised of recognized national 
experts consistent with this regulatory criterion, the record does not reflect that outstanding 
achievements are required for the fellowship of the APCR. Accordingly, the Petitioner does not meet 
this criterion. 
Evidence of the alien's original scient#fic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
The Director determined that the Petitioner did not establish eligibility for this criterion. On appeal, 
the Petitioner points out previously submitted documents to establish that he meets this criterion but 
does not provide additional arguments or additional documents. See Sepulveda v. US. 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) (finding the plaintiff's claims to be abandoned as he failed to raise 
them on appeal). Accordingly, the Petitioner does not meet this criterion. 
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). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien 
has performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation." In general, a leading role is evidenced from the role itself, and a critical role is one in 
which the alien was responsible for the success or standing of the organization or establishment. 
3 
The Petitioner claims that he has performed in a critical role forl I Hospital. The 
Petitioner submitted a letter from a medical doctor forl I Program atl I Hospital, 
which states that the Petitioner is a leading physician who played a critical role for the hospital's success 
in treating patients with I I diseases. The Petitioner also submitted a letter from the Director 
of I services at _____ Hospital, which states that the Petitioner has participated 
in the Steering Committee and in obtaining the Accreditation 
for Hospital. The Petitioner submitted documentary evidence from the I I 
_ Hospital website about its accreditation but did not submit any independent, objective evidence 
demonstrating that I I Hospital has a distinguished reputation. For example, the record 
does not contain media coverage, evidence of significant awards, published ranking, or other sufficient 
evidence to establish that I I Hospital has been very successful in its hospital business 
and has a good reputation or thatl I Hospital is an esteemed and renowned hospital in the 
United States for treating patients hospitalized withl !diseases. 
The Petitioner also claims that he has performed in a critical role for the Massachusetts Cha ter of the 
American College of Physicians (ACP). The Petitioner submitted a letter from the of the 
Massachusetts Chapter of the ACP, which states that the Petitioner served as the Co-Chair ofth 
I I committee; was involved with advocacy efforts as a member of the Health and Public 
Policy Committee; and was invited to represent the ACP at thel I meetings to advocate in 
support of thel I bills. The Petitioner submitted information about the ACP and the Massachusetts 
Chapter of the ACP from the ACP website but did not submit any independent, objective evidence 
demonstrating that the Massachusetts Chapter of the ACP has a distinguished reputation. For example, 
the Petitioner did not submit any documentary evidence that distinguishes the Massachusetts Chapter of 
the ACP from other highly regarded professional associations or medical-specialty societies. 
Although the Petitioner demonstrated that he has performed in critical roles for I ______ 
Hospital and the Massachusetts Chapter of the ACP, the Petitioner did not establish that they have a 
distinguished reputation. Accordingly, the Petitioner does not meet this criterion. 
Evidence that the alien has commanded a high sala,y or other significantly high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that the alien 
has commanded a high salary or other significantly high remuneration for services, in relation to others 
in the field." 
The Petitioner claims eligibility for this criterion based on his salary as a hospitalist at 
I I Hospital in I Massachusetts. The Petitioner submitted a letter from the Director of 
Human Resources Department of I Hospital, which confirms that the Petitioner was 
employed as a hospitalist and that his salary for clinical services was $275,000 per year. The Petitioner 
also submitted Forms W-2 (wage and tax statements) for 2019 and 2020, which indicate that the 
Petitioner earned $298,641.12 in 2019 and $325,550.50 in 2020. 
The Petitioner claims to meet this criterion based on his annual salary of $275,000, which is more than 
$37,194 above the yearly prevailing wage of physicians and surgeons in the I I I I Massachusetts and New Hampshire areas. The Petitioner submitted "Online Wage Library-
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Foreign Labor Certification Data Center Wage Search Results" indicating that the prevailing wage for 
fully competent (level 4) physicians and surgeons in the I Massachusetts 
and New Hampshire areas was $237,806 per year. 1 The Petitioner, however, must submit evidence 
showing that he has earned a high salary or other significantly high remuneration relative to others in 
the field, not a salary that is above the amount paid to the majority of fully competent physicians and 
surgeons in the _________ Massachusetts and New Hampshire areas. 
The Petitioner also submitted salary information for general internal medicine physicians, hospitalists, 
and physicians inl I Massachusetts, from various websites, including CareerOneStop, O*N et 
OnLine, Physician Compensation Report 2020, payscale, glassdoor, and salary.com. Regarding these 
various websites and report, these surveys measure the average statistics of general internal medicine 
physicians, hospitalists, or physicians inl I Massachusetts. These surveys only provides 
average salary data for general internal medicine physicians, hospitalists, and physicians in I 
Massachusetts, and do not identify the high-end salaries for those performing work with similar 
responsibilities as the Petitioner. The plain language of the regulation requires the Petitioner to 
establish his salary is high when compared to others in the field. As such, average statistics do not 
meet this requirement. 
The Petitioner compares his sala as a leading physician and the Lead of 
Hospital Department at Hospital to salaries of other physicians, surgeons, internists, 
and hospitalists in Massachusetts. He did not establish that he commanded a high salary 
in relation to others as a leading physician and the Lead. Both precedent and 
case law support this application of 8 C.F.R. § 204.5(h)(3)(ix). 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 Skokos v. US. Dept. of Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) 
(finding salary information for those performing lesser duties is not a comparison to others in the 
field); 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). 
On appeal, the Petitioner asserts that he was not employed by I I Hospital as a 
___ or a lead physician and that thel I Lead is a voluntary role that he 
accepted dudue to his experience as a physician-scientist focusing on the treatment ofl I 
in hospital settings. The Petitioner further asserts that this is not a compensated position within 
I Hospital and that all the salary he received during his tenure was based on his 
services as a hospitalist. The Petitioner submitted various documents to support the claim that he 
qualifies as an alien of extraordinary ability based on his roles, among other thin s, as a leadin 
physician and thel I Lead. Since the Petitioner claims that the 
I I Lead is a voluntary role, which is not a compensated position within 
Hospital, the record does not reflect that he has commanded a high salary for his services in relation 
to other leading physicians or the Lead at other hospitals. Accordingly, the 
Petitioner does not meet this criterion. 
1 A "prevailing wage" is defined as "trade and public work wages paid to the majority of workers in a specific area." See 
http://www.businessdictionary.com/definition/prevailing-wage.html, copy incorporated into the record of proceeding. 
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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 finding that 
the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner 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 shown that he is a talented and accomplished 
physician specializing inl I medicineJ I medicine, and _______ but the 
record as a whole does not demonstrate a level of recognition 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 )(1 )(A) of the Act 
and 8 C.F.R. § 204.5(h)(2). 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. The appeal 
will be dismissed for the reasons stated above. 
ORDER: The appeal is dismissed. 
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