This appeal was not successful at this stage
The AAO dismissed the appeal because the petitioner failed to meet at least three of the ten regulatory criteria for extraordinary ability. The AAO also reversed the director's finding that the petitioner met the high salary criterion.
3 more criteria would trigger a full merits review.
The petitioner, a data integration/systems architect in the IT field, sought EB-1A classification but the AAO dismissed the appeal, finding he satisfied none of the ten regulatory criteria. The AAO reversed the director's finding on the high salary criterion because the petitioner's wage comparisons relied only on average, median, and prevailing wage data rather than comparing his earnings to top earners doing similar work. For the judging criterion, routine duties like performance reviews, recruiting interviews, and testing vendor software did not constitute formal participation as a judge of others' work. For the leading/critical role criterion, unsupported assertions about employers' distinguished reputations and the petitioner's hierarchical standing were insufficient. Because fewer than three criteria were satisfied, no final merits determination was conducted, though the AAO noted that even in aggregate the evidence fell short.
What failed: 1. Salary evidence based on average, median, or prevailing wages failed because the criterion requires comparison to top earners doing similar work, not just above-average pay. 2. Letters describing routine supervisory duties (performance reviews, recruiting, coworker feedback, vendor software testing) were insufficient for the formal judging criterion. 3. Claims about working in critical roles for named companies were unsupported by documentary evidence of those companies' distinguished reputations or the petitioner's specific place in their organizational hierarchy.
Takeaway: For the high salary criterion, petitioners must submit direct comparisons to high earners in the same specialty role—not just average or prevailing wages. For judging and critical role criteria, formal documentation (panel invitations, organizational charts, executive-level attestations with supporting records) is essential; employer reference letters describing ordinary work duties will not suffice.
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 based on average, median, or prevailing wages failed because the criterion requires comparison to top earners doing similar work, not just above-average pay
- Letters describing routine supervisory duties (performance reviews, recruiting, coworker feedback, vendor software testing) were insufficient for the formal judging criterion
- Claims about working in critical roles for named companies were unsupported by documentary evidence of those companies' distinguished reputations or the petitioner's specific place in their organizational hierarchy.
Criterion-by-criterion breakdown
Judging the work of others
Not metPetitioner's routine supervisory duties—performance reviews, recruiting, testing vendor software products, reviewing coworker output—were found not to constitute formal participation as a judge of the work of others in the field. Director had also denied this criterion.
Leading or critical role for distinguished organizations
Not metPetitioner failed to demonstrate that the organizations he worked for (as consultant or employee) had a distinguished reputation, and failed to show his role was leading or critical within the organizational hierarchy. Unsupported assertions in letters were given little weight. Director had also denied this criterion.
High salary or other significantly high remuneration
Reversed in their favorDirector had granted this criterion, but AAO reversed, finding the salary evidence (W-2s, pay stubs, offer letters, average/median/prevailing wage comparisons) did not demonstrate high remuneration relative to others in the field. Post-filing earnings were excluded. Comparison data used average, median, or prevailing wages rather than top-earner benchmarks.
Letters from supervisors and colleagues describing routine performance reviews, recruiting interviews, and feedback on coworkers' work as 'judging'—not accepted as formal judging under criterion iv
Letter from Big Data Systems Engineer describing petitioner's testing and review of a vendor software product—not accepted as judging the work of others in the field
Letters asserting petitioner performed critical roles for named companies without documentary corroboration of those companies' distinguished reputations
W-2 forms and pay stubs showing earnings of ~$80,000–$101,000 per year without comparison to top earners in the field
Salary search results showing 'average' or 'median' salaries for related job titles—not an appropriate benchmark for high salary criterion
O-NET median wage data ($81,140 for 2012)—median comparison insufficient to show high salary
Foreign Labor Certification prevailing wage data—prevailing wage not equivalent to high salary relative to others in the field
H-1B LCA filings listing Level II and Level III prevailing wages for Data Integration Architect—insufficient comparison benchmark
Offer letter showing $228,000 salary from a prospective employer with no evidence of actual earnings from that employer
Post-filing pay stubs and bonus received after February 18, 2014 filing date—ineligible for consideration
Director incorrectly granted the high salary criterion (criterion ix) where the petitioner's salary evidence only showed earnings above average or prevailing wage, not high remuneration relative to others in the field.
Completed
I-140 filed
Systems/Data Integration Architect in information technology
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2015-03-16
AAO decision — Dismissed
The AAO dismissed the appeal because the petitioner failed to meet at least three of the ten regulatory criteria for extraordinary ability. The AAO also reversed the director's finding that the petitioner met the high salary criterion.
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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