This appeal was not successful at this stage
The AAO dismissed the appeal because the petitioner failed to satisfy at least three of the ten evidentiary criteria required for EB-1A classification. The petitioner met only one criterion (judging), failed to establish the leading/critical role criterion that the Director had incorrectly found met, and did not provide sufficient evidence of high remuneration.
2 more criteria would trigger a full merits review.
A Venezuelan orthopedic surgeon petitioned for EB-1A classification, claiming six criteria. The Director denied the petition finding only two criteria met, and the AAO dismissed the appeal finding only one. The petitioner abandoned three criteria (awards, memberships, published material) by not contesting the Director's adverse findings on appeal. The AAO reversed the Director's finding on the leading/critical role criterion, holding that letters from colleagues were insufficient without objective proof of the hospital's or university's distinguished reputation. The high salary criterion also failed due to internally inconsistent income figures and a deficient PayScale comparison based on only 10 respondents in the wrong specialty. Because the petitioner failed to clear the three-criterion threshold, the AAO did not conduct a final merits determination.
What worked: The petitioner successfully established the judging criterion by demonstrating participation on juries evaluating graduate-level medical students' work.
What failed: The high salary claim failed because the income documentation was internally inconsistent, uncorroborated, and the comparator data (PayScale) was based on too few respondents and the wrong medical specialty. The leading/critical role claim failed because the petitioner submitted only colleague letters rather than objective evidence that the employing institutions had distinguished reputations. Three other criteria (awards, memberships, published material) were abandoned by not being contested on appeal.
Takeaway: Petitioners must contest all denied criteria on appeal or risk abandoning them. Salary claims require clean, corroborated financial records and a comparison drawn from a robust, specialty-specific dataset rather than a small-sample general-physician survey.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1A criteria.
● Evidence that moved the needle
- The petitioner successfully established the judging criterion by demonstrating participation on juries evaluating graduate-level medical students' work.
● Evidence that wasn't enough alone
- The high salary claim failed because the income documentation was internally inconsistent, uncorroborated, and the comparator data (PayScale) was based on too few respondents and the wrong medical specialty
- The leading/critical role claim failed because the petitioner submitted only colleague letters rather than objective evidence that the employing institutions had distinguished reputations
- Three other criteria (awards, memberships, published material) were abandoned by not being contested on appeal.
Criterion-by-criterion breakdown
Lesser nationally or internationally recognized prizes or awards
Not metDirector denied; petitioner abandoned on appeal by not contesting the finding.
Membership in associations requiring outstanding achievement
Not metDirector denied; petitioner abandoned on appeal by not contesting the finding.
Published material about the person
Not metDirector denied; petitioner abandoned on appeal by not contesting the finding.
Judging the work of others
MetAAO agreed with Director that petitioner met this criterion through participation on juries evaluating graduate-level medical students.
Leading or critical role for distinguished organizations
Reversed in their favorDirector found this criterion met, but AAO reversed: petitioner did not submit objective evidence that his employers had distinguished reputations or that his role as head of a surgical unit was critical to the hospital as a whole.
High salary or other significantly high remuneration
Not metPetitioner's financial data was incomplete, uncorroborated, and internally inconsistent; PayScale comparison data was deficient due to small sample size, wrong specialty category, and unclear intervals.
Participation in juries evaluating graduate-level medical students established the judging criterion (iv).
Accountant-prepared income table: figures were internally inconsistent, not corroborated by underlying payroll or tax documents, and contained arithmetic errors.
PayScale printout: based on only 10 respondents, covered wrong specialties (general practice and internal medicine rather than orthopedic surgery), did not account for fees and bonuses, and showed identical average and maximum figures.
Letter from Venezuelan clinic stating petitioner earned 'more than 70% of fees' was too vague and did not show actual remuneration or an objective comparison basis.
Colleague and co-worker letters supporting leading/critical role claim were insufficient without objective documentary evidence of the organizations' distinguished reputations.
Awards, memberships, and published materials criteria were abandoned on appeal and not assessed by AAO.
Director incorrectly found the leading/critical role criterion (viii) met; AAO reversed because petitioner provided no objective evidence of distinguished reputation for the hospital or university, and a faculty position is not presumptively a critical role.
Director used the wrong currency exchange rate (VES instead of VEF) when calculating the petitioner's salary in USD; AAO withdrew that specific finding.
Completed
I-140 filed
Orthopedic surgeon and medical school faculty member, seeking to work as a scientific advisor or consultant in orthopedics and traumatology
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2019-12-12
AAO decision — Dismissed
The AAO dismissed the appeal because the petitioner failed to satisfy at least three of the ten evidentiary criteria required for EB-1A classification. The petitioner met only one criterion (judging), failed to establish the leading/critical role criterion that the Director had incorrectly found met, and did not provide sufficient evidence of high remuneration.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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