dismissed EB-1A Case: Molecular Diagnostics

U.S. Citizenship 
and Immigration 
Services 
In Re: 7707471 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 5, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a molecular diagnostics company, seeks to classify the Beneficiary as an alien 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 denied the petition, concluding that while the Beneficiary met four of the initial 
evidentiary criteria , the record did not establish that she has sustained national or international acclaim 
and is one of the small percentage at the very top of her field of endeavor. On appeal , we withdrew 
the previous findings regarding two of the criteria granted by the Director, and thus did not conduct a 
final merits analysis of the Beneficiary 's acclaim and standing in her field. The Petitioner now asserts 
in its motion to reconsider that we did not properly consider all of the evidence in the record. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review , we will dismiss the appeal. 
I. LAW 
The requirements of a motion to reconsider are located at 8 C.F.R . § 103.5(a)(3). A motion to 
reconsider must establish that our decision was based on an incorrect application of law or policy and 
that the decision was incorrect based on the evidence in the record of proceedings at the time of the 
decision. We may grant a motion that satisfies these requirements and demonstrates eligibility for the 
requested immigration benefit. 
II. ANALYSIS 
The Petitioner currently employs the Beneficiary as an in vitro diagnostic (IVD) assay development 
senior scientist. We note that on appeal , the Petitioner indicated that her field of expertise is molecular 
diagnostics , not molecular and cellular embryology as initially indicated . 
We will first consider the Petitioner's arguments concerning the Beneficiary's salary and whether it 
can be considered as "high" under the criterion at 8 C.F.R. § 204.5(h (3 (ix . In its motion brief, the 
Petitioner asserts that we disregarded the expert o inion letter from an associate 
professor at the University of.__ ____ ___. .__ _______ _,_ompares the Beneficiary's annual 
salary of $108,000, as verified by her 2017 Form W-2, to the median wage for cellular and molecular 
biologists as found in the O*Net online database, which he states to be $76,690. However, his 
comparison does not take into account local variances in salary, relying upon the less accurate national 
median rather than local wage data for the area in which the Beneficiary is employed. In addition, a 
comparison to the median salary alone does not provide a complete set of information to which the 
Beneficiary's salary may be compared. Therefore, the professor's letter does not establish that the 
Beneficiary's salary can be considered to be high in relation to similarly situated scientists in her field. 1 
The Petitioner further asserts that we erred in comparing the Beneficiary's salary to the senior scientist 
wages from the SalaryList website which it submitted in its initial filing, arguing that it provided the 
"most relevant data" for the molecular and cellular biologist position as described above. However, 
the Petitioner did not distinguish between the different salary survey evidence when it was initially 
submitted, nor does it explain how we erred in considering all of the evidence in the record. While 
we agree with the Petitioner's argument that it need not establish that the Beneficiary's wages are the 
highest for her position, and that the SalaryList data it submitted as evidence is not as relevant as the 
O*N et data as it is specific neither to field nor location, this evidence at the least suggests that the 
Beneficiary's salary is not high relative to that of others in her field. we further note that the rage I 
data from the Foreign Labor Certification Data Center (FLCDC) for biological scientists in the 
I I area, which was also submitted by the Petitioner and put the prevailing wage for "Level 4" or 
fully competent employees at $92,955 per year, also indicates that the Beneficiary's salary is above 
average but not high as required by the regulation. 2 
In its motion brief: the Petitioner also addresses our decision to withdraw the Director's previous 
finding regarding the Beneficiary's original scientific contributions of major significance per 
8 C.F.R. § 204.5(h)(3)(v). It notes that in our previous decision, we indicated that because evidence 
in the form of independent clinical studies, press releases and promotional material from the 
Beneficiary's former employer, I I had been used to establish her 
critical role for that company under a different evidentiary criteria, we would not consider it in support 
of her claim to the contributions criterion. The Petitioner asserts that "It is illogical to prohibit 
evidence from establishing two different criteria when there is significant overlap between EB­
! criteria in a business context." 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14. at 11 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html, noting that it the petitioner's burden to provide 
geographical and position-appropriate evidence to establish that a salary is relatively high. We further note that that data 
is available from the same website from whichl !obtained his data. 
2 We note that unlike the O*Net data referenced byl l the FLCDC data provides a broader range of 
salaries at different skill levels, and thus a more accurate basis for comparison. 
2 
Upon review, we agree with the Petitioner that evidence may be considered in support of more than 
one criterion under 8 C.F.R. § 204.5(h)(3)(i)-(x). 3 The marketing evidence referred to shows that the 
product which the Beneficiary contributed to developing, the I I Panel, is an important 
product for the company, and the independent studies submitted verify its value in clinical testing. 
However, as we noted in our previous decision, although the Beneficiary's contribution has 
undoubtedly made a financial impact for her former employer, the evidence does not establish an 
impact on the overall field of molecular diagnostics. 
The Petitioner asserts on motion that we "should not have required evidence of other companies using 
[the Beneficiary's] contributions to establish an "impact" in the field." Althorgh le noted that a letter 
from I I senior director for research and development at included a claim of 
"wide implementation" of the I O I Panel on which she did not elaborate, we did not 
require evidence of other companies' use of the product. We found that the Petitioner did not establish 
that the Beneficiary's work had an impact beyond her former employer, and thus that her contribution 
was of major significance to the broader field of molecular diagnostics, but we did not require specific 
evidence or utilize novel evidentiary requirements as the Petitioner suggests. 4 
The Petitioner also asserts that in our previous decision, we disregarded evidence of the Beneficiary's 
work while at the University! I which led to a patent that was licensed to a Canadian company 
that develops I I diagnostic devices. It argues that the licensing of this technology is sufficient 
to demonstrate its major significance, and that confidential sales figures should not be required. Upon 
review, our previous decision did not improperly dictate the type of evidence required to establish the 
major significance of the Beneficiary's original contribution, and we note that it included extensive 
analysis of the evidence submitted in relation to this work. For instance, we noted that in his letter, 
I I speculated on the potential influence of the Petitioner's I I method, stating 
that it could assist in the more rapid and accurate diagnosis of I I but did not state that such an 
impact to the field had already occurred. We also note that the letter from 
Vice President of Research & Development forl l the company to,__w_h_i-ch-th_e_p_a-te_n_t_w_a_,s 
licensed, writes in his letter that "this technology is an important lever tol I' and that it 
"contributes to makingl I extremely competitive in the field of.__ _______ _,' but 
similarly does not suggest or provide information to support a finding that the introduction of this 
technology has been of major significance in the wider field of molecular diagnostics. 
Since the Petitioner has not established that our decision to reverse the Director regarding the criteria 
at 8 C.F.R. § 204.5(h)(3)(v) and (ix) was incorrect, it has only satisfied the requirements of two of the 
requisite three evidentiary criteria. We therefore need not conduct a final merits determination to 
consider whether the Beneficiary has sustained national or international acclaim or is one of the small 
percentage at the top of her field. 
3 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14. at 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
4 USCIS may not utilize novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. See 
Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008). 
3 
III. CONCLUSION 
For all of the reasons stated above, the Petitioner has not established that our decision was based on 
an incorrect application of law or policy and that the decision was incorrect based on the evidence in 
the record of proceedings at the time of the decision. 
ORDER: The motion to reconsider is dismissed. 
4