dismissed EB-1A Case: Molecular Diagnostics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M-S-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 24, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a molecular diagnostics company , seeks to classify the Beneficiary as an individual of 
extraordinary ability in the sciences . See Immigration and Nationality Act (the Act) section 
203(b)(l)(A), 8 U.S.C. § l 153(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 Nebraska Service Center denied the Fonn I-140, Immigrant Petition for Alien 
Worker , concluding that although the Beneficiary satisfied four of the initial evidentiary criteria, in 
which she has to meet at least three, the Petitioner did not show her sustained national or international 
acclaim and demonstrate that she is among the small percentage at the very top of the field of endeavor. 
On appeal, the Petitioner submits additional documentation and a brief, arguing that the Beneficiary 
has sustained the required acclaim and has risen to the very top of her field . 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) 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 m the area of 
extraordinary ability, and 
(iii) the alien 's entry into the United States will substantially benefit prospectively the 
United States. 
Matter of C-M-S-, Inc. 
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 two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate 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 documentation that meets at least three of the ten categories 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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable 
material if he or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not 
readily apply to the individual's occupation. 
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). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner, located inl I California, employs the Beneficiary as an in vitro diagnostic (ND) 
assay development senior scientist. Because the Petitioner has not indicated or established that the 
Beneficiary has received a major, internationally recognized award, it must show that she satisfies at 
least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In denying the petition, the Director determined that the Beneficiary met four of the initial evidentiary 
criteria, original contributions under 8 C.F.R. § 204.5(h)(3)(v), scholarly articles under 8 C.F.R. 
§ 204.5(h)(3)(vi), leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii), and high salary under 8 
C.F.R. § 204.5(h)(3)(ix). The record reflects that the Beneficiary authored approximately six scholarly 
articles in professional publications. In addition, the Petitioner demonstratej that t~e Renefi:iarv 
performed in a critical role in the development of a molecular diagnostic test fo I I I Accordingly, we agree with the Director that the Petitioner fulfilled the scholarly 
articles and leading or critical role criteria. However, for the reasons discussed below, we do not 
concur with the Director's determination that the Beneficiary fulfilled the original contributions and 
high salary criteria. 
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Matter of C-M-S-, Inc. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business-related 
contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Director found that the Beneficiary satisfied this criterion without identifying the original 
contributions of major significance and explaining her determination. In order to satisfy the regulation 
at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only has a beneficiary made original 
contributions but that they have been of major significance in the field.1 For example, a petitioner 
may show that the beneficiary's contributions have been widely implemented throughout the field, 
have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance in the field. Because the record does not reflect that the Petitioner demonstrated that the 
Beneficiary meets this criterion, we will withdraw the findings of the Director for this criterion. 
The record reflects that the Petitioner claimed that the Beneficiary "is the co-inventor on a patent for 
a new methodology she developed at~------~that is used in a molecular diagnostic test 
for sepsis, which is a potentially life-threatening complication of an infection." In general, a patent 
recognizes the originality of an invention or idea but does not necessarily establish it as a contribution 
of major significance in the field. Further, the Petitioner provided three recommendation letters that 
discussed the Beneficiary's involvement in the methodology but do not demonstrate that it resulted in 
a contribution or mljor significance in the field. For instance,--------~ professor of 
microbiology at , described the Beneficiary's role in the research group and indicated that the 
method "allows for microbial! I recovery from patient blood sample in less than 45 minutes 
in sufficient quantity and quality for identification by a molecular test." However, I I did 
not explain how the method or patent has significantly impacted or influenced the field. 
In addition, ________ head of the community-university liaison office atD confirmed 
that the Beneficiary "was part of the scientific team that developed an original method for extracting 
I lfrom various microorganisms in blood infections" but did not further elaborate in explaining 
how the method is viewed in the field as having been of major significance. Instead, I I 
speculated on the potential influence and on the possibility of being majorly significant at some point 
in the future. For exampleJ !stated that "[t]he new method might assist physicians in rapidly 
and accurately diagnosing sepsis, which would ultimately benefit patients, decrease hospital stays, and 
improve laboratory efficiency." Moreover,! I claimed that "[t]he time saved with [the 
Beneficiary's] patented method can be critically important when treating diseases." Similarly, D 
~------~ associate professor at the University of I I. asserted that "the 
potential application ... will continue to guide research guide research in the field" and "has thus 
served as the potential launching point for researcher, medical practitioners, and businesses alike." 
While the letters may show promise in the Beneficiary's method, they do not establish how her method 
already qualifies as a contribution of major significance in the field, rather than prospective, potential 
impacts. Here, the significant nature of her method has yet to be determined or measured. 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator"s Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 8-9 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (finding that although funded and published work may 
be "original," this fact alone is not sufficient to establish that the work is of major significance). 
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Matter of C-M-S-, Inc. 
Furthermore, the Petitioner claimed that the Beneficiary's "patent has also garnered a significant 
number of citations, being cited by 20 other patent applications." However, the Petitioner did not 
articulate the significance or relevance of the citations. In addition, although citations are indicative 
that her work has received some attention from the field, the Petitioner did not demonstrate that her 
citation numbers represent majorly significant contributions in the field. 2 Here, the Petitioner has not 
sufficiently shown that the Beneficiary's citations to her patent are commensurate with contributions 
of major significance. 
Moreover, the Petitioner asserted that D "has licensed the technology to a prominent company that 
is marketing it commercially (though the identity of this company is confidential based on the licensing 
agreement)." However, the licensing or marketing of a product based on the Beneficiary's patent does 
not necessarily show a contribution of major significance in the field. Further, without evidence 
demonstrating the extensive use, application, or influence, the Petitioner did not establish the overall 
field's general view of the technology as a contribution of major significance. 3 
The record also reflects that the Petitioner claimed that the Beneficiary's "work on the._l _____ _. 
.__ _______ ~ a molecular diagnostic test for I l is another original contribution of 
major significance." The Petitioner provided two recommendation letters that described her role in 
the development ofl I for0 and made general statements without demonstrating the major 
significance of thel lin the overall field. For example, I l staff scientist 
at~ indicated that the Beneficiary "was part of lead to two patent applications," "was actively 
involved in the development as well as in decision making on key design details," and "was one of the 
most senior scientists of the group working on the project." In the case hereJ I did not 
establish how her role m developing I I constituted an original contribution of major 
significance in the field. 
Further,.__ _______ __. senior director for research and development atO stated that theD 
I l'has major significance in the field based on its improved diagnostic performance and its wide 
implementation." However,.__ ______ __.did not farther elaborate on her claim of "wide 
implementation" to show that the field considers the I I to be a contribution of major 
significance. 4 Further, whilL I indicated that the I I "has generated more 
than $ l 5M in revenue" for LJ she did not establish the impact to the overall field beyond the 
employer. 
2 See USCTS Policy Memorandum PM 602-0005.1, supra, at 8-9 (providing an example that peer-reviewed articles in 
scholarly journals that have provoked widespread commentary or received notice from others working in the field, or 
entries (particularly a goodly number) in a citation index which cite the individual's work as authoritative in the field. may 
be probative of the significance of the person's contributions to the field of endeavor). 
3 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9; see also Visinscaia, 4 F. Supp. 3d at 134-35 (upholding 
a finding that a ballroom dancer had not met this criterion because she did not corroborate her impact in the field as a 
whole). 
4 Repeating the language of the statute or regulations does not satisty the petitioner's burden of proof F edin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
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Matter of C-M-S-, Inc. 
Here, the letters do not contain specific, detailed information explaining the unusual influence or high 
impact the Beneficiary's work has had on the overall field. Letters that specifically articulate how a 
beneficiary's contributions are of major significance to the field and its impact on subsequent work 
add value. 5 On the other hand, letters that lack specifics and use hyperbolic language do not add value, 
and are not considered to be probative evidence that may form the basis for meeting this criterion.6 
Moreover, USCIS need not accept primarily conclusory statements. 1756, Inc. v. The US. Att'y Gen., 
745 F. Supp. 9, 15 (D.C. Dist. 1990). 
As discussed earlier, we found that the Petitioner's evidence, including press releases and promotional 
material from O and indeQendent clinical studies, demonstrated the Beneficiary's critical role in 
developing I I for D meeting the leading or critical role criterion under 8 C.F.R. 
§ 204.5(h)(3)(viii), a separate and distinct criterion. Consistent with the regulatory requirement that a 
beneficiary meet at least three separate criteria, we will generally not consider evidence relating to the 
ITdini or critical role criterion. Regardless, while the evidence shows that the Beneficiary contributed 
to activities, the Petitioner did not show the unusual influence or great impact in the overall field 
beyond her employer. 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that the Beneficiary has made original contributions of major significance in the field. 
Accordingly, we withdraw the finding of the Director for this criterion. 
Evidence that the alien has commanded a high salary or other sign#ficantly high remuneration for 
services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
The Director determined that the Beneficiary fulfilled this criterion without any discussion of the 
Petitioner's arguments or evaluation of the submitted documentation. In order to meet this criterion, 
a petitioner must demonstrate that a beneficiary's salary or remuneration is high relative to the 
compensation paid to others working in the field. 7 As the Petitioner has not established that the 
Beneficiary has commanded a high salary in relation to others, we must withdraw the Director's 
decision for this criterion. 
The record reflects that the Petitioner indicated it its initial cover letter that it has employed the 
Beneficiary as an IVD assay development senior scientist. In addition, the Petitioner provided the 
Beneficiary's 2017 Form W-2, Wage and Tax Statement, reflecting an annual salary of $108,000. As 
a comparison, the Petitioner submitted prevailing wage data from the Foreign Labor Certification Data 
Center (FLCDC) for "biological scientists" reflecting a Level 4 Wage of $92,955 per year.8 In 
addition, the Petitioner offered a screenshot from glassdoor.com for "molecular biologists" reflecting 
a high salary of $93,000. 
5 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9. 
6 Id. at 9. See also Kazarian, 580 F.3d at 1036, aff'd in part 596 F.3d at 1115 (holding that letters that repeat the regulatory 
language but do not explain how an individual's contributions have already influenced the field are insufficient to establish 
original contributions of major significance in the field). 
7 See USCIS Policy Memorandum PM-602-0005.1, supra, at 11. 
8 The Level 4 Wage relates to fully competent employees. See Prevailing Wage Determination Policy Guidance, 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_11 _2009.pdf at page 7, accessed on July 23, 2019, and 
incorporated into record of proceedings. 
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Matter of C-M-S-, Inc. 
Although the Petitioner compares the Beneficiary's compensation to molecular biologists, her position 
is a senior scientist. The Petitioner must present evidence showing that the Beneficiary has earned a 
high salary or significantly high remuneration in comparison with those performing similar services 
in the field. See Matter of Price, 20 l&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). Here, the Petitioner has not established that the fully competent wage 
information for molecular biologists constitutes an appropriate basis for comparison. Moreover, the 
record contains a screenshot from salarylist.com reflecting salaries for senior scientists. Specifically, 
the screenshot shows that the average salary for senior scientists is $86,781, with $250,000 classified 
as "high." Thus, the Petitioner's evidence does not demonstrate that the Beneficiary earned a salary 
placing her at the high end of the spectrum for wages of other senior scientists. 
Based on the foregoing, the Petitioner has not demonstrated that the Beneficiary meets this regulatory 
criterion. Accordingly, we withdraw the findings of the Director for this criterion. 
111. 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 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 Beneficiary's acclaim and recognition required for the classification 
sought. 
The Petitioner seeks a highly restrictive visa classification for the Beneficiary, intended for individuals 
already at the top of their respective fields, rather than for individuals progressing toward the top. 
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 l&N Dec. at 954. Here, the Petitioner has 
not shown that the significance of the Beneficiary's 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) of the Act. Moreover, the record does not otherwise demonstrate that the Beneficiary 
has garnered national or international acclaim in the field, and she 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). 
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. In visa petition proceedings, 
the petitioner bears the burden to establish eligibility for the immigration benefit sought. Section 291 
6 
Matter of C-M-S-, Inc. 
of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M-S-, Inc., ID# 3712113 (AAO July 24, 2019) 
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