dismissed EB-1A Case: Mental Health

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 26, 2024 In Re: 32826124 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a nonprofit mental health provider seeking to classify the Beneficiary as an alien of 
extraordinary ability as a medical director of one of their organizational divisions. 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 Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the record did not establish that the Beneficiary had a major, internationally 
recognized award, nor did the Petitioner demonstrate that he met at least three of the ten regulatory 
criteria. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of 
the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We 
review the questions in this matter de nova. Matter ofChristo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 
2015). Upon de nova review, we will dismiss the appeal. 
I. LAW 
To qualify under this immigrant classification, the statute requires the filing party demonstrate: 
• The foreign national enjoys 
extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b)(1 )(A)(i)-(iii) of the Act. 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-step analysis. In the first 
step, 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 move to the second step to 
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, 
1121 (9th Cir. 2010) (discussing a two-step 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 Amin v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must show that he can satisfy at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). Before the Director, the Petitioner claimed the 
Beneficiary met five of the regulatory criteria. The Director decided that the evidence relating to the 
Beneficiary satisfied one of the criteria relating to a high salary or remuneration, but it had not satisfied 
the criteria associated with membership, published material, judging, or a leading or critical role. On 
appeal, the Petitioner pursues its claims relating to judging and a leading or critical role, but only in 
the sense that the Director added requirements that are not included in the regulation. We note those 
claims were presented on the Form I-290B, Notice of Appeal or Motion, in Part 7 and the appeal 
reflects the Petitioner would submit their brief and/or additional evidence to this office within 30 
calendar days after filing their appeal. However, the Petitioner has not provided anything further to 
date. 
Evidence ofthe alien's participation, either individually or on a panel, as a judge ofthe work 
of others in the same or an allied field of specification for which classification is sought. 
8 C.F.R. § 204.5(h)(3)(iv). 
This criterion requires that the Petitioner produce evidence the Beneficiary actually participated as a 
judge. Additionally, these duties must have been directly judging the work of others in the same or 
an allied field in which the Beneficiary seeks their immigrant classification within the present petition. 
The Petitioner must submit evidence satisfying all of these elements to meet the plain language 
requirements of this criterion. 
In the initial filing before the Director, the Petitioner claimed the Beneficiary performed judging duties 
as a member of two committees within the petitioning organization, as well as those he performed as 
an adjunct professor. Relating to the committees, the Petitioner claimed he measured and evaluated 
all areas of practitioner competency for care provided at the petitioning organization and they indicated 
he was responsible for reviewing and monitoring credentials of medical staff. They further asserted 
that in his role as an adjunct professor, the Beneficiary provided guidance and instrnctions to students 
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in which he ultimately evaluated their work. The only evidence the Petitioner offered consisted of a 
committee charter and an internal policy document relating to the responsibility of members of those 
committees, but it did not submit documentation demonstrating the Beneficiary actually performed 
any of those claimed judging functions. The Director correctly did not accept the general 
documentation of what committee members do as direct evidence of what functions the Beneficiary 
actually performed. 
And we note within the request for evidence (RFE), the Director requested "documentation that will 
be helpful to assist us in determining whether you served as a judge, and at what level, such as 
independent and objective documentation about the event or occasion where you served as judge, the 
work that you judged, the level of the participants, how you were selected as an official judge, and 
evidence conveying when your judging occurred." In response the Petitioner only submitted a copy 
of an unpublished district court decision, MRC Energy Co. v. US. Citizenship & lmmigr. Servs., No. 
3:19-eV-2003-K, 2021 WL 1209188, at *11 (N.D. Tex. Mar. 31, 2021), but they offered no material 
pertaining to the Director's specific request. 
Because the Director put the Petitioner on notice that the submitted evidence was insufficient, the 
Petitioner's failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103 .2(b )( 14). Similar to the situation identified within 8 C.F.R. 
§ 103.2(b)(l3)(i) which states: "If the Petitioner or applicant fails to respond to a request for evidence or 
to a notice of intent to deny by the required date, the benefit request may be summarily denied as 
abandoned," the failure to respond to a specific element of the RFE also is considered to be abandonment 
of the Petitioner's eligibility claims relating to that element. As the Petitioner did not respond to the 
Director's RFE relating to the Beneficiary's performance as a judge, it is considered abandoned. 
The Petitioner argues on appeal that the Director unilaterally added to the plain language requirements 
of the regulation, the requirement that the beneficiary must participate in judging outside of his job. 
The Director's denial decision quoted the RFE stating: 
users does not find that working for a company performing duties, specific tasks, and 
activities (reviewing) on behalf of that company is a tantamount to "judging" the work 
of others in one's field for purposes of this criterion. Duties or activities inherent or 
routine in the occupation itself which nominally fall under a given regulatory criterion 
at 8 C.F.R. § 204.5(h)(3) do not demonstrate that the beneficiary participated either 
individually or on a panel, as a judge of the work of others in the same or an allied field 
of endeavor. 
The Director's denial decision further stated: 
Incidental evaluation responsibilities inherent to one's position do not establish that the 
beneficiary served in an official capacity, either individually or on a panel, as a judge 
of the work of others. users notes, that in an occupation where reviewing the work 
of others is an inherent duty of the occupation, simply performing one's job-related 
duties demonstrates competency but is not evidence that one's "achievements have 
been recognized in the field of expertise." 
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We note this quote's final sentence incorporates analysis we might include m a final merits 
determination, but not under the regulatory criterion. 
Within the Petitioner's RFE response, they cited to the MRC Energy Co. district court opinion to 
demonstrate the Director was incorrect in indicating the Beneficiary must judge the work of others 
outside of his job. There, the Petitioner asserted that the Director's decision imposed an 
extra-regulatory requirement by discounting the Beneficiary's judging activities in the course of his 
employment. And we agree with that aspect of the Petitioner's arguments on appeal. 
Nevertheless, the regulation requires a petitioner to provide "evidence of [the Beneficiary'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." 8 C.F.R. § 204.5(h)(3)(iv). The Director's 
denial addressed the aspect of judging the work of others in the field when they stated that "[t]he 
regulation cannot be read to include every informal instance of evaluating organizations subordinate 
employees." 
But the Petitioner doesn't address that aspect of the decision in the appeal, and our focus here is 
whether the Petitioner demonstrated that the Beneficiary judged the work of others in the field. While 
the Petitioner's appeal briefly addresses the issue of whether his judging duties may occur within his 
job functions, they did not argue how the Beneficiary's work duties amount to judging under this 
criterion. So, they not only failed to address that issue when responding to the RFE, but also in the 
appeal. Every basis of the adverse decision must be addressed in the appeal, otherwise we consider it 
to be abandoned within this and any subsequent proceeding based on this petition. See Matter of 
Garcia, 28 I&N Dec. 693,693 (BIA 2023) (finding arguments that do not meaningfully challenge any 
aspect of the underlying decision are deemed waived on appeal). 
In summary, the Petitioner has not presented appellate arguments or submitted evidence that meets 
the plain language requirements of 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). 
We conclude that although the Petitioner offered evidence satisfying the high salary or remuneration 
criterion, it does not meet the criteria regarding judging. While it argues and submits evidence for one 
additional criterion on appeal relating to the Beneficiary's performance in a leading or critical role at 
8 C.F.R. § 204.5(h)(3)(viii), it is unnecessary that we make a decision on this additional ground 
because it cannot numerically meet the required number of criteria. 
As the Petitioner cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(h)(3), we reserve the remaining leading or critical role issue. Patel v. Garland, 596 U.S. 328, 
332 (2022) ( citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (finding agencies are not required 
to make "purely advisory findings" on issues that are unnecessary to the ultimate decision)); see also 
Matter of Chen, 28 I&N Dec. 676, 677 n.1, 678 (BIA 2023) ( declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
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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 criteria. As a result, we do not need to 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 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 that goal. USCIS 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 the significance of their work is indicative of the required sustained 
national or international acclaim or that it is consistent with 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)(1 )(A). Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and they are one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b)(l)(A) and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's eligibility as 
an individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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