dismissed EB-1A Case: Surgery

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-M-G-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 7, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a healthcare provider, seeks to classify the Beneficiary, a surgeon, as an individual of 
extraordinary ability in the field of •~------~surgery." 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 while the Petitioner 
satisfied three of the ten initial evidentiary criteria, as required, it did not show the Beneficiary's 
sustained national or international acclaim and demonstrate that he is among the small percentage at 
the very top of the field of endeavor. 
On appeal, the Petitioner submits additional evidence and a brief: arguing that it has demonstrated the 
Beneficiary's required acclaim and that he has risen to the very top of his field. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes visas available to certain immigrants 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 V-M-G-
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 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 the petitioner does not submit this evidence, then he or she must 
provide documentation that meets at least three of the ten criteria listed under 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 
submitted material in a final merits determination and assess whether the record, as a whole, 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. United States Citizenship and 
Immigration Services (USCIS), 596 F.3d 1115, 1119-20 (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, 1343 (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 evidence, including the Beneficiary's resume, indicates that he received his medical physician 
and surgeon license from Pennsylvania in May 2013, and his certification from the American Board 
of Surgery in September 2017. According to a September 2018 letter from the Petitioner, since July 
2018, the Beneficiary has worked for the Petitioner as a '.__ ______ ____.Surgeon/Minimally 
Invasive! I Surgeon," receiving an "annual salary [ of] $261,000 with a potential quality bonus 
of $39,000." 
A. Evidentiary Criteria 
The Director concluded that the Petitioner did not meet the membership in associations criterion under 
8 C.F.R. § 204.5(h)(3)(ii) or the original contributions of major significance criterion under 8 C.F.R. 
§ 204.5(h)(3)(v). The record supports this conclusion. Specifically, while the Petitioner has submitted 
evidence of the Beneficiary's membership in associations in the field for which classification is sought, 
it has not demonstrated that these associations "require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or fields." Similarly, 
while the evidence - including reference letters as well as documentation on the Beneficiary's research 
and citation frequency - shows that he is a surgeon who might have the potential to impact the field, 
it does not confirm that he has already made original contributions of major significant in the field of 
".__ ______ __, surgery." 
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Matter of V-M-G-
Although the Director determined that the Petitioner did not meet the above criteria, he did find that 
the Petitioner satisfied three other criteria listed under 8 C.F.R. § 204.5(h)(3)(i)-(x). While we agree 
that the record confirms that the Petitioner meets two criteria - as relating to the Beneficiary's 
participation as a judge, 8 C.F.R. § 204.5(h)(3)(iv), and his authorship of scholarly articles, 8 C.F.R. 
§ 204.5(h)(3)(vi), we disagree that it also satisfies the criterion relating to the Beneficiary's salary or 
remuneration under 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner has presented evidence from professional publications - including JSM Pediatric 
Surgery and Saudi Medical Journal - confirming that the Beneficiary has served as one of their 
manuscript reviewers. Additionally, the record demonstrates that he has authored scholarly articles 
that are published in professional ·oumals. For exam le the Journal of Case Re arts and Ima es in 
Sur er ublished his article 
and Cases Journal ublished his paper 
While the record supports the Director's determination that the Petitioner satisfies two criteria under 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), it does not establish that it also meets the third criterion under 
8 C.F.R. § 204.5(h)(3)(ix), which requires "[e]vidence that the [Beneficiary] has commanded a high 
salary or other significantly high remuneration for services, in relation to others in the field." 
According to a June 2018 letter from the Petitioner, it has employed the Beneficiary as a "physician 
specializing in..,,._ ______ __,surgery," compensating him with an annual salary of $261,000 as 
well as "a potential quality bonus of $39,000." A 2018 employment agreement references the potential 
bonus as "deferred compensation" or "compensation at risk." The Beneficiary's 2018 pay stubs 
confirm his hourly rate of $125.48 and an annual salary of $261,000. 
In addition, the Petitioner has presented the following documentation in support of its claim that the 
Beneficiary has commanded a high salary or other significantly high remuneration: (1) a printout from 
O*NET OnLine, providing wage data on "Physicians and Surgeons, All Other" in I INew 
Jersey, the Petitioner's office location; (2) a United States Bureau of Labor Statistics printout, listing 
the hourly mean wage and annual mean wage for surgeons in "General Medical and Surgical 
Hospitals"; (3) a printout from Foreign Labor Certification Data Center, stating that due to "limitations 
in the OES [Occupational Employment Statistics] data," the website cannot provide "[l]eveled wages" 
for surgeons in thel INew Jersey, area; and (4) a printout from indeed.com, indicating an 
average salary range for "physician bariatric surgeon[ s ]" in the United States who have reported their 
salaries to the website. 
Most of these documents relate to salaries of physicians and surgeons, but do not parse out specific 
information on the salaries of surgeons inl medicine. 1 According to the Petitioner's September 
2018 letter.I I medicine is the Beneficiary's primary, if not entire, practice. The letter states 
that he has worked as a surgeon providing "minimall -invasive surgical procedures" in I I 
medicine" and that he "fill[s] the need for farther care in the.__ ______ ___,] region." 
Salary evidence on surgeons who are not in .__ _ ____.medicine is therefore insufficient to demonstrate 
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Matter of V-M-G-
that the Beneficiary "has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field." See 8 C.F.R. § 204.5(h)(3)(ix); Matter of Price, 20 l&N 
Dec. 953, 955 {Assoc. Comm'r 1994) (comparing a professional golfer's earnings with those of other 
Professional Golfers' Association (PGA) Tour golfers); Skokos v. United States Dep 't of Homeland 
Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding salary information for those performing lesser 
duties does not establish a proper basis of comparison); Crimson v. Immigration and Naturalization 
Service (INS), 934 F. Supp. 965, 968 (N.D. Ill. 1996) (comparing National Hockey League (NHL) 
enforcer's salary with salaries of other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. 
Ill. 1995) (comparing salary of NHL defensive player to salaries of other NHL defensemen). 
The remaining relevant documentation, which is from indeed.com, provides avera~e salary 
information on bariatric surgeons, indicating that "[t]he average salary for 'physician I 
surgeon[s]' ranges from approximately $175,930 per year for Surgeon[s] to $227,401 per year for 
Hospitalist[s]." This evidence also does not establish that the Petitioner satisfies the criterion. First, 
the regulation requires the Petitioner to offer evidence showing that the Beneficiary has commanded 
a high salary or significantly high remuneration relative to others in the field, rather than a salary that 
is above average in his field. Second, the salary information from indeed.com is limited to those who 
reported their salaries to the website, and the Petitioner cannot confirm the accuracy of the self­
reported information. The Petitioner has not demonstrated that the wage information it has presented 
constitutes an appropriate basis for comparison. As such, it has not shown that the Beneficiary's 
annual salary and potential bonus constitute "al high salry" or "other significantly high remuneration 
for services" as compared to other surgeons in medicine. See 8 C.F.R. § 204.5(h)(3)(ix). 
B. Final Merits Determination 
The Petitioner has not submitted the required initial evidence of the Beneficiary's receipt of a one­
time achievement or his satisfaction of at least three of the ten criteria listed under 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). It has also not established the acclaim and recognition required to classify him 
as an individual of extraordinary ability in the field of "general and I lsurgery." Kazarian, 596 
F.3d at 1119-20. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals who are 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. Price, 20 l&N Dec. at 954. Here, the Petitioner has not shown that 
the significance of the Beneficiary's academic, scholarly, research, and professional accomplishments 
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){l){A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Beneficiary has garnered national or international acclaim in the field, and he is 
one of the smal I percentage who has risen to the very top of the field of endeavor. 2 See section 
203(b){l){A) of the Act; 8 C.F.R. § 204.5(h)(2). 
2 While the Petitioner has cited to our non-precedent decisions discussing foreign nationals' qualifications as individuals 
of extraordinary ability, these decisions were not published as a precedent and therefore do not bind USCIS officers in 
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Matter of V-M-G-
III. CONCLUSION 
The record does not establish that the Beneficiary qualifies for classification as an individual of 
extraordinary ability. The appeal will therefore be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. In visa petition proceedings, it is 
the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofSkirball 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 ofV-M-G-, ID# 3751527 (AAO Aug. 7, 2019) 
future adjudications. See 8 C.F.R. ~ 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts 
of the individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues considered, 
and applicable law and policy. Specifically, the foreign nationals discussed in the non-precedent decisions were not in the 
same field as that of the Beneficiary, and had submitted documents that were qualitatively different than those in this case. 
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