This appeal was not successful at this stage
The AAO dismissed the motion to reconsider because the petitioner failed to show the prior AAO decision was based on an incorrect application of law or policy. The beneficiary only met two of the required three evidentiary criteria, so no final merits determination was conducted.
1 more criterion would trigger a full merits review.
A molecular diagnostics company petitioned for EB-1A classification for its senior scientist specializing in IVD assay development. The Director initially denied the petition finding only four criteria met but no sustained acclaim; on appeal, the AAO reversed findings on two of those criteria (high salary and original contributions of major significance), leaving the beneficiary with fewer than three criteria satisfied. On this motion to reconsider, the petitioner argued the AAO misapplied the law and improperly weighed salary evidence and contributions evidence. The AAO found that the expert salary comparison relied on national median data without local adjustments, and that evidence of the beneficiary's IVD panel and licensed patent technology showed commercial value to former employers but not major significance to the broader field of molecular diagnostics. Because the petitioner could not establish that the prior AAO decision was legally incorrect, the motion was dismissed with the beneficiary meeting only two criteria.
What failed: 1. Salary evidence: the expert compared the beneficiary's salary to a national median without accounting for local wage variances, and available local data showed her pay was above average but not 'high' as required. 2. Original contributions: evidence of commercial success and importance to former employers (IVD panel, licensed patent) did not demonstrate impact on the broader molecular diagnostics field. 3. The motion to reconsider failed because the petitioner could not show the AAO's prior decision rested on an incorrect application of law or policy.
Takeaway: When arguing high salary, always provide geographically specific wage data rather than national medians, and show the salary relative to a full range of skill levels. For original contributions, gather concrete evidence of field-wide impact — not just employer-level commercial success or speculative future influence — before filing.
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
- See summary above for details.
● Evidence that wasn't enough alone
- Salary evidence: the expert compared the beneficiary's salary to a national median without accounting for local wage variances, and available local data showed her pay was above average but not 'high' as required
- Original contributions: evidence of commercial success and importance to former employers (IVD panel, licensed patent) did not demonstrate impact on the broader molecular diagnostics field
- The motion to reconsider failed because the petitioner could not show the AAO's prior decision rested on an incorrect application of law or policy.
Criterion-by-criterion breakdown
Original contributions of major significance
Not metAAO had previously reversed the Director's grant of this criterion. Evidence of the beneficiary's IVD panel and university patent work did not establish major significance to the broader field of molecular diagnostics beyond the former employer's commercial interests.
High salary or other significantly high remuneration
Not metAAO had previously reversed the Director's grant of this criterion. Beneficiary's $108,000 salary was above average but not established as 'high' because the expert's comparison used only national median data without local wage adjustments; FLCDC prevailing wage data for Level 4 employees was $92,955, indicating above-average but not high compensation.
FLCDC prevailing wage data showing Level 4 biological scientist salary of $92,955 in the relevant area, used as a comparison benchmark
SalaryList data submitted by petitioner, noted as suggesting salary is not high relative to others in the field
Independent clinical studies and marketing evidence acknowledged as showing commercial value of the beneficiary's IVD panel product
Expert opinion letter from university associate professor comparing beneficiary's salary to national median O*Net data without local wage adjustments — insufficient to establish high salary
Letters speculating on potential future influence of beneficiary's patent-licensed technology without demonstrating actual field-wide impact
Letter from former employer's R&D senior director claiming 'wide implementation' without elaboration or supporting data
Vice President letter from patent licensee describing technology as competitively important to the company but not establishing broader field significance
AAO found no legal errors in its own prior decision; petitioner's arguments that the AAO improperly excluded evidence from supporting multiple criteria were rejected, though the AAO agreed in principle that evidence may support more than one criterion
Petitioner's claim that AAO imposed novel evidentiary requirements for the original contributions criterion was rejected
Completed
I-140 filed
In vitro diagnostic (IVD) assay development senior scientist specializing in molecular diagnostics
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2020-03-05
AAO decision — Dismissed
The AAO dismissed the motion to reconsider because the petitioner failed to show the prior AAO decision was based on an incorrect application of law or policy. The beneficiary only met two of the required three evidentiary criteria, so no final merits determination was conducted.
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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