dismissed EB-1A Case: Business

identifying data deleted to 
prevent clearly unwarranteo 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
0f)ce ofAdminisbative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
w 
$Ferry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien 
of extraordinary ability in business. The director determined that the petitioner had not established the 
requisite extraordinary ability through extensive documentation and sustained national or international 
acclaim. 
On appeal, the petitioner argues that he meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph 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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101" tong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. 
Id. and 8 C.F.R. $204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten criteria. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) 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 classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) 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 allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 2010 WL 7253 17 (9th Cir. March 4, 2010). 
Although the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
procedure for evaluating evidence submitted to meet a given evidentiary criterion.' With respect to the 
criteria at 8 C.F.R. tj 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, those 
concerns should have been raised in a subsequent "final merits determination." Id. 
' Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. 9 204.5(h)(3)(iv) and 8 C.F.R. 9 204.5(h)(3)(vi). 
The court stated that the AAO's approach rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at "6 (citing to 8 C.F.R. 
5 204.5(h)(3)). The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. 5 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. 5 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. 5 11 53(b)(l)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying 
under three criteria, considered in the context of a final merits determination. In reviewing Service 
Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo 
review, the AAO will conduct a new analysis if the director reached his or her conclusion by using a 
one-step analysis rather than the two-step analysis dictated by the Kazarian court. See Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). 
11. Analysis 
A. Evidentiary Criteria 
This petition, filed on February 25, 2009, seeks to classify the petitioner as an alien with 
extraordinary ability as a business software developer and contractor. The petitioner has submitted 
evidence pertaining to the following criteria under 8 C.F.R. fj 204.5(h)(3).* 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
In response to the director's request for evidence, the petitioner submitted an April 20, 2005 
certificate from the China Enterprise Resource Planning (ERP) Software Association stating that his 
"Golden Soft-Enterprise Resource Planning System V3.0" received a Number One "Special grant 
Technology Progress Prize" in the "2005 China ERP Software Grand Prix." The petitioner also 
submitted an April 20, 2006 certificate from the China ERP Software Association stating that his 
"Golden Soft-Enterprise Resource Planning System V3.0" received a "Special Award for customer 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
satisfaction" in the "2006 Chinese Grand Prix on the ERP software." Pursuant to 8 C.F.R. 
fj 103.2(b)(3), any document containing foreign language submitted to USCIS shall be accompanied 
by a full English language translation that the translator has certified as complete and accurate, and 
by the translator's certification that he or she is competent to translate from the foreign language into 
English. The English language translations accompanying the preceding certificates were not 
certified by the translator as required by the regulation. Moreover, the record does not include 
information from the China ERP Software Association indicating the significance of these awards or 
their evaluation criteria. The plain language of the regulatory criterion at 8 C.F.R. fj 204.5(h)(3)(i) 
specifically requires that petitioner's awards be hationally or internationally recognized in the field of 
endeavor and it is his burden to establish every element of thls criterion. In this instance, there is no 
documentary evidence demonstrating that the preceding awards are recognized beyond the 
presenting organization and therefore commensurate with nationally or internationally recognized 
prizes or awards for excellence in the petitioner's field. Accordingly, the petitioner has not 
established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classijkation is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
In response to the director's request for evidence, the petitioner submitted an August 15,2009 letter 
from the president of the China ERP Software Association stating that the petitioner became a 
member of the association in 2005. The English language translation accompanying this letter was 
not certified by the translator as required by the regulation at 8 C.F.R. $ 103.2(b)(3). Further, the 
record does not include evidence (such as membership rules or bylaws) showing the official 
admission requirements for this association. There is no evidence showing that the China ERP 
Software Association requires outstanding achievements of its members, as judged by recognized 
national or international experts in the petitioner's field or an allied one. Accordingly, the petitioner 
has not established that he meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business- 
related contributions of major signzjicance in the field. 
The petitioner submitted letters of support from a former classmate and a client whose company 
utilizes the petitioner's management software. The English language translations accompanying 
these letters were not certified by the translator as required by the regulation at 8 C.F.R. 
$ 103.2(b)(3). 
of the Chinese People's University Business College in China states that he was a 
classmate and good friend of the petitioner. hrther states: 
I have known [the petitioner] for 23 years since the university, [the petitioner] was a good 
student acknowledged. He studying hard, a Division of outstanding academic performance; 
he has leadership, was our class monitor; he helping others in the study and work helped a lot 
of students. 
After graduation, we have always maintained contacts. He founded a computer software 
company, developed a number of foreign trade and the factory computer management 
software. We often communicate with the subject of economic management, while he often 
and I talked about a number of automated management software, he have been two national 
invention of computer software technology, both software obtained national patent. In 
addition the publication of several papers. He often to work in factories, the company needs 
to do customer surveys, analysis and technical transformation. China has a lot of enterprises 
the use of his software, and thus greatly improves production efficiency, improved 
management procedures. He is a worthy of my admiration for the inventors and business 
managers. 
Our company has been used of [the petitioner's] "gold soft-commerce V3.0" since 2000 until 
now. This software, [the petitioner] obtained national patent computer software. Our 
company use this software for customer management, merchandise coding management, 
contract management, mail management and shipping, such as document management, to 
manage the company's entire business flow; this software on our company improve 
efficiency, management level, has played a significant role. 
Our company's factory has been used [the petitioner's] "Golden Soft ERP V3.0" from 2004 
until now. This software is [the petitioner's] second time obtained national patent computer 
software products. This software has seven management features: products and materials 
management, project management, manufacturing management, distribution management, 
transportation management, financial management and human resources management. Our 
company to use the seven management model 
The use of [the petitioner's] above two management software, our company has created a 
huge economic benefits, one of the products and materials management model for our annual 
cost savings in procurement and storage of about 15 million Yuan RMB, and human resource 
management model created economic benefits each year over five million Yuan RMB. 
With [the petitioner's] co-operation at the same time, our personal relationships are also very 
friendly. His wisdom, the experience of enterprise management, management skills and 
entrepreneurial spirit to me is very impressed, we often do things together like dinner, travel, 
hiking, playing tennis and walking during Holidays, weekend. 
The petitioner also submitted documentation of two computer software "copyright" registrations for 
software he developed. The English language translations accompanying these copyright 
registrations were not certified by the translator as required by the regulation at 8 C.F.R. 
5 103.2(b)(3). Although the petitioner and the preceding references refer to these copyright 
registrations as "patents," the submitted documentation does not support their conclusion. 
Nevertheless, the grant of a patent or of a copyright demonstrates only that the petitioner's software 
product was original. This office has previously stated that a patent is not necessarily evidence of a 
track record of success with some degree of influence over the field as a whole. See Matter ofNew 
York State Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Cornmr. 1998). Rather, the significance of 
the work must be determined on a case-by-case basis. Id. In this case, there is no evidence showing 
that the petitioner's software products have been widely utilized throughout his industry or otherwise 
equate to business-related contributions of major significance in the field. 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. While the petitioner has earned the admiration of a 
former classmate and a business acquaintance, the submitted documentation does not establish that 
he has made original contributions of "major significance" in his field commensurate with sustained 
national or international acclaim. For example, the record does not indicate the extent to which his 
work has impacted others in his field nationally or internationally, nor does it show that the field has 
significantly changed as a result of his work. 
In evaluating the reference letters, we note that the preceding letters are limited to the petitioner's 
close acquaintances. Such letters by themselves cannot establish that the petitioner's software 
products are original contributions of major significance in the field. USCIS may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. 791,795 (Commr. 1988). However, USCIS is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. 
See id. at 795-796. Thus, the content of the writers' statements and how they became aware of the 
petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence of original contributions of major significance that one would expect of a 
software developer or a businessman who has sustained national or international acclaim. Without 
evidence showing that the petitioner's work has been unusually influential, highly acclaimed 
throughout his field, or has otherwise risen to the level of original contributions of major 
significance, we cannot conclude that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner submitted documentation showing that he authored two articles in Computer Software. 
The English language translations accompanying these articles were not certified by the translator as 
required by the regulation at 8 C.F.R. $ 103.2(b)(3). Further, there is no evidence (such as circulation 
statistics) showing that Computer Software qualifies as a major trade publication or some other form of 
major media. Moreover, the plain language of this criterion requires authorship of scholarly articles in 
more than one publication or medium. Accordingly, the petitioner has not established that he meets 
this criterion. 
Page 8 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
In response to the director's request for evidence, the petitioner submitted letters and income sheets 
from 
listing his earnings from 2005 through 2008. The English language translations 
accompanying these letters were not certified by the translator as required by the regulation at 
8 C.F.R. 8 103.2(b)(3). Nevertheless, the plain language of this regulatory criterion requires the 
petitioner to submit evidence of a high salary "in relation to others in the field." The petitioner offers 
no basis for comparison showing that his compensation was significantly high in relation to others in his 
particular field. 
The petitioner's response to the director's request for evidence included a July 1, 2009 "ENGENEER 
[sic] CONTRACTOR AGREEMENT" between the petitioner and - for a sum of 
$60,000. The petitioner also submitted copies of July 15, 2009 and August 15, 2009 checks in the 
amount of $5000.00 written out to the petitioner by but there is no evidence 
showing that either payment was processed. Regardless, the preceding contract and paychecks postdate 
the filing of the petition. A petitioner, however, must establish eligibility at the time of filing. 
8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). 
Accordingly, the AAO will not consider the agreement or the paychecks from July and August of 
2009 as evidence for this criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate his 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. 204.5(h)(3). 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.R. 204.5(h)(2); and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 8 C.F.R. 
tj 204.5(h)(3). See also Kazarian, 2010 WL 725317 at *3. In this case, many of the deficiencies in 
the documentation submitted by the petitioner have already been addressed in our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In this case, the deficiencies in the documentation submitted by the petitioner have already been 
addressed in our preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). The 
submitted evidence is not commensurate with sustained national or international acclaim and there is 
no indication that the petitioner's achievements have been recognized in the field through extensive 
documentation. For instance, the letters of support are limited to the petitioner's close acquaintances, 
there is no evidence showing that the petitioner's two copyrighted software products have had a 
significant impact in the field at large, and there is no evidence that the petitioner's two articles have 
been frequently cited or otherwise attracted favorable attention from others in hs field. Even in the 
aggregate, the evidence does not distinguish the petitioner as one of the small percentage who has 
risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). 
C. The Regulation at 8 C. F.R. fi 204.5(h) (5) 
Beyond the decision of the director, the regulation at 8 C.F.R. § 204.5(h)(5) requires "clear evidence 
that the alien is coming to the United States to continue work in the area of expertise. Such evidence 
may include letter(s) from prospective employer(s), evidence of prearranged commitments such as 
contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue 
his or her work in the United States." As previously discussed, the petitioner's response to the 
director's request for evidence included a July 1, 2009 "ENGENEER [sic] CONTRACTOR 
AGREEMENT" between the petitioner and -1 for a sum of $60,000. The 
petitioner also submitted a September 1,2009 letter from 
Inc. stating that the petitioner has a contract to work with the company. The petitioner's response also 
included copies of July 15,2009 and August 15,2009 checks in the amount of $5000.00 written out to 
the petitioner by but there is no evidence showing that either payment was 
processed. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). With regard to the unprocessed payments from 
- doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Id. at 591. Accordingly, the unprocessed payments cast doubt on the validity of the 
employment letter and contract from - Thus, the evidence submitted is not 
clear that the petitioner will continue to work in his area of expertise in the United States. 
111. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Moreover, the evidence is not clear that the petitioner will continue to work in his area of 
expertise in the United States. Therefore, the petitioner has not established eligibility pursuant to 
sections 203(b)(l)(A)(i) and (ii) of the Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. tj 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.