dismissed EB-1A Case: Orthopedic Surgery

U.S. Citizenship 
and Immigration 
Services 
In Re : 5764846 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 12, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , an orthopedic surgeon , seeks classification 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 of the Texas 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. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S.C . § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to aliens 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 two options for satisfying this classification's initial evidence 
requirements. A petitioner can either demonstrate a one-time achievement (that is, a major, 
internationally recognized award), or 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 qualifying 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). 
II. ANALYSIS 
The Petitioner has worked as an orthopedic surgeon and on the faculty of a hospital-affiliated medical 
school. He does not indicate that he intends to work in these capacities in the United States. Instead, 
he states that he seeks employment as a scientific advisor or consultant in orthopedics and traumatology. 
The Petitioner has not indicated or established that he has 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 Director found that the Petitioner only fulfilled two of the initial evidentiary 
criteria, relating to judging the work of others and performing in a leading or critical role for 
organizations or establishments with a distinguished reputation. 
On appeal, the Petitioner maintains that he meets one additional criterion (pertaining to remuneration), 
discussed below. We have reviewed all of the evidence in the record, and conclude that it does not 
show that the Petitioner satisfies the requirements of at least three criteria. 
The Petitioner initially claimed to have met six criteria, including the following three: 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i) 
Documentation of the alien's membership in associations in the field for which classification 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) 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classtfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii) 
The Director found that the Petitioner had not met the above three criteria. On appeal, the Petitioner does 
not address or contest these findings. The purpose of an appeal is to identify erroneous conclusions of 
law or statements of fact. See 8 C.F.R. § 103.3(a)(l)(v). Because the Petitioner's appeal does not address 
the above findings, the Petitioner has abandoned the above criteria. See Sepulveda v. US. Atty Gen., 401 
F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885, at *1, 
2 
*9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned because he did not 
raise them on appeal). 
We will discuss the remaining three criteria below. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an alliedfield of spec[ficationfor which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv) 
We agree with the Director that the Petitioner satisfied this criterion through his participation in juries to 
evaluate of the work of graduate-level medical students. 
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 Director determined that the Petitioner established eligibility for this criterion. A review of the record 
of proceeding, however, does not reflect that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the regulatory requirements for the reasons outlined below. 
In general, a leading role is evidenced from the role itself, and a critical role is one in which the individual 
was responsible for the success or standing of the organization or establishment. 
The Petitioner stated that he performed in a leading or critical role as "Head of the Unit of Knee and 
Arthroscopic Surgery and Joint Replacement Surgery" at the Hospital Central I I in 
I I Venezuela, and a professor at the affiliated medical school at the University otLJ The 
Petitioner submitted letters from various co-workers and colleagues. 
The Petitioner appears to have held a leadership position within a particular surgical unit at the hospital. 
But he did not submit objective documentary evidence to establish that his employers have distinguished 
reputations; that his position in charge of a specialized surgical unit was a leading or critical role for the 
hospital as a whole; or that his unit has a distinguished reputation in its own right. Similarly, the Petitioner 
has not shown that the University ofD has a distinguished reputation, and a university faculty position 
is not automatically or presumptively a critical role. 
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) 
To satisfy this criterion, the Petitioner must submit evidence to ( 1) establish the level of his remuneration, 
and (2) allow a comparison between his remuneration and that of others in the field. We find that the 
Petitioner has not provided sufficient evidence to meet either of these requirements. 
The Petitioner initially submitted a letter from a clinic in Venezuela, indicating that the Petitioner earned 
"an income of more tha[n] 70% of fees, when compared with the rest of the medical specialist[s]." The 
meaning of this statement is not clear from its phrasing, and the letter did not show the Petitioner's actual 
remuneration or provide an objective basis for comparison with the remuneration of others in his field. 
3 
The Director requested objective documentation of the Petitioner's remuneration and evidence to allow 
the required comparison with others in the field. In response, the Petitioner submitted the following 
earnings figures, in Venezuelan bolivares fuertes: 1 
2015 
2016 
2017 
Total Income 
January 2018 
February 2018 
March 2018 
April 2018 
May2018 
June 2018 
Last Six Months Yearly Average 
Bs.F.182,350,000.00 
391,000,000.00 
549,200,000.00 
1,922,200,000.00 
198,652,000.00 
214,544,160.00 
239,907,408.00 
310,470,000.00 
406,658,500.00 
450,990,200.00 
25,294,475.37 
The Petitioner also showed that, given the conversion rates in effect as of March 8, 2019, 
Bs.F.25,294,475.37 were worth $2,532,613.30 in U.S. currency. The significance of the comparison is 
not clear, because, as explained below, the record does not adequately explain the origin of the 
Bs.F .25 ,294,4 7 5 .3 7 figure. 
The Director stated: "As of the date of this decision [March 14, 2019], the market rate of the Venezuelan 
Bolivar to the US dollar is 0.00003601," resulting in "an annual salary of $92,156.88," which "is 
significantly lower than the 2016 median salary [f]or a physician." To derive this figure, the Director 
relied on the exchange rate for VES, not VEF as the Petitioner did. Therefore, we withdraw the Director's 
specific finding regarding exchange rates. 
Nevertheless, the financial figures are problematic for several other reasons: 
• The accountant who prepared the above table stated that the figures derived from "bank 
statements, tax returns, agreements and other documents," but those documents are not in the 
record, and the accountant did not specify the amounts shown on individual documents. Because 
the Petitioner did not submit payroll or tax documents, we cannot determine whether the 
Petitioner's compensation increased substantially every month, or, instead, the figures represent 
cumulative totals, with the figures for each month or year added to the next. (The amount shown 
as the Petitioner's income for June 2018 is worth about $45 million in U.S. currency, given the 
cited exchange rate of roughly ten bolivares fuertes to the dollar. This amount appears to be 
implausibly high for a month's remuneration.) 
• The table does not specify how much of the reported income was in the form of remuneration for 
services, rather than from other sources such as investments. 
1 We note that Venezuela revalued its cunency in August 2018, with the new bolivar soberano (VES or B.S.) being phased 
in to replace the bolivar fuerte (VEF or B.F.), although trading continues in both currencies. All the figures shown above 
predate the conversion and therefore represent bolivares fuertes. Information about the currency conversion is available 
through links embedded at http://bcv.org.ve/billetes-y-monedas/bolivar-soberano, last visited Nov. 20, 2019. 
4 
• The annual figures for 2015 through 2017 do not add up to the amount shown as 'Total Income" 
directly beneath those figures. 
• The monthly figures shown for January to June of 2018 have no discernible relation to the much 
lower figure identified as the "Last Six Months Yearly Average." The record does not show how 
this average was calculated. 
Given these deficiencies, the Petitioner has not provided sufficient evidence to establish his actual 
remuneration for services. 
In an effort to provide a basis to compare his income with that of others in the field in Venezuela, the 
Petitioner submitted a printout from PayScale, showing the following figures for Venezuela as of 
December 7, 201 7: 
Physician / General Practice 
Physician / Internal Medicine 
Bs.750,900 
1,368,000 
The Petitioner resubmits this printout on appeal, and, comparing the Bs.1,368,000 figure to 
Bs.549,200,000.00 from the accountant's table, states that he "earns almost 400 [times] more" than "the 
maximum amount made by a physician in Venezuela in December 2017." 
The PayScale printout is deficient for several reasons: 
• The printout shows "Salary" information, which does not appear to take into account other forms 
of remuneration such as bonuses and foes for specific services. Without knowing such figures, 
both for the Petitioner and for others in his field, a fair comparison is not possible. 
• The Petitioner is an orthopedic surgeon, not a general practitioner or internist. 
• The Petitioner earned remuneration not only as a physician, but also as a university faculty 
member. There is no indication that the individuals surveyed for the PayScale chart held paid 
academic positions. 
• The chart refers to the above amounts as both "Average" and "Median Salary," but the terms are 
not necessarily interchangeable. (For data sets with wide ranges of values, the arithmetic mean 
may differ significantly from the median.) 
• The chart shows the same figures for the "Average" and "Max[imum]" salaries. 
• The chart does not specify the interval of the salaries ( e.g., weekly, monthly, or annual). 
• An annotation on the chart shows that only 10 individuals provided salary information. This 
sampling is too small to support any larger or general conclusions. 
The Petitioner's claim of high remuneration rests on incomplete, uncorroborated, and questionable 
numbers. We agree with the Director that the Petitioner has not met his burden of proof with respect to 
this criterion. 
III. CONCLUSION 
The Petitioner seeks a highly restrictive visa classification, intended for individuals at the top of their 
respective fields. 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. 
5 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). Here, the Petitioner has not shown 
that the significance and recognition of his medical career are indicative of the required sustained 
national or international acclaim or that they are 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)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has 
garnered national or international acclaim in the field, and that he 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 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 acclaim and recognition required for the classification sought. For the 
foregoing reasons, the Petitioner has not shown that he qualifies for classification as an alien of 
extraordinary ability. 
ORDER: The appeal is dismissed. 
6