dismissed EB-1A Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-M-B-
APPEAL OF TEXAS SERVICE SENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 30.2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a civil engineer, seeks classification as an individual of extraordinary ability in the 
sciences. See Immigration and Nationality Act (the Act) section 203(b )(I )(A), 8 U.S.C. 
§ 1153(b )(I )(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 Form 1-140. Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied two of the initial evidentiary criteria, of which 
he must meet at least three. 
On appeal, the Petitioner submits a brief and additional documentation, stating that the Director 
misapplied the appropriate standard of proof, and erred in not issuing an additional request for 
evidence prior to adjudication. 1 He claims that he meets at least three criteria, and maintains that he 
has established eligibility for the classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l )(A) of the Act makes visas available to qualified immigrants with extraordinary 
ability if: 
1 
As to the perceived error in the Director's failure to issue an additional request for evidence (RFE), we note that there is 
no requirement for U.S. Citizenship and Immigration Services (USCIS) to issue an RFE or to issue an RFE pertinent to a 
ground later identified in the decision denying the visa petition. The regulation at 8 C.F.R. § I 03.2(b)(8) penn its the 
Director to deny a petition for failure to establish eligibility without having to request evidence regarding the ground or 
grounds of ineligibility identified by the Director. Also. even if the Director had erred as a procedural matter in not 
issuing an RFE or NOlO relative to the Petitioner's lack of evidence, it is not clear what remedy would be appropriate 
beyond the appeal process itself. We conduct appellate review on a de novo basis. 
Malter of N-M-B-
(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. 
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 implementing 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). Alternately, he or she must provide documentation that meets at 
least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items 
such as awards, published material in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record 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. USC!S, 596 F.3d 1115 (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); Rijall'. USCIS, 772 F. Supp. 2d 1339 
(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 ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a civil engineer in the petroleum industry. Because the Petitioner has not indicated 
or established that he has received a major, internationally recognized award, he must satisfy at least 
three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In denying the petition, the Director found 
that the Petitioner met the judging criterion under 8 C.F.R. § 204.5(h)(3)(iv) and the 
leading or critical role criterion under 8 C.F.R.§ 204.5(h)(3)(viii), but that he failed to meet a third, 
required criterion. On appeal, the Petitioner maintains that, in addition to the judging and leading or 
critical role criteria, he meets the original contributions criterion under 8 C.F.R. § 204.5(h)(3)(v), the 
authorship of scholarly articles criterion under 8 C.F.R. § 204.5(h)(3)(vi), the high salary criterion 
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Matter of N-M-B-
under 8 C.F.R. § 204.5(h)(3)(ix), and the commercial success criterion under 8 C.F.R. 
§ 204.5(h)(3)(x). 
Except where a different standard is specified by law. a petitioner must prove eligibility for the 
requested immigration benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N 
Dec. 369, 375-76 (AAO 2010). Under the preponderance of the evidence standard, the evidence 
must demonstrate that the petitioner's claim is "probably true." /d. at 376. We will 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. 
If a petitioner submits relevant, probative, and credible evidence that leads us to believe that the 
claim is "more likely than not" or "probably" true, he has satisfied the standard of proof. Stated 
another way, a petitioner must establish that there is greater than a fifty percent chance that a claim 
is true. Here, we have reviewed all of the evidence in the record, and conclude that it does not 
support a finding that the Petitioner meets the plain language requirements of at least three criteria. 
Evidence of the alien's participation. either individually or on a panel. as a judge (~l the work of 
others in the same or an alliedfield ofspecificationfor 'rFhich class(fication is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The record contains evidence ret1ecting that the Petitioner served on jury panels to review civil 
engineering theses of university students. Therefore, the Director found that the Petitioner met this 
criterion, and we concur with that determination. 
Evidence ~l the alien's original scientific. scholarly. artistic, athletic. or business-related 
contributions olmajor sign(ficance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
In order to satisfy the plain language of this regulatory criterion, the Petitioner must demonstrate that 
his contributions are not only original, but also "of major significance in the field." The Petitioner 
asserted that his original approach to industry development has rendered him "quite famous.'' and 
that he has presented his approach at numerous conferences around the world. Participation in 
conferences demonstrates that his findings were shared with others and may be acknowledged as 
original based on their selection for presentation. The record, however, does not show that his 
presentations have been frequently cited by other researchers or have otherwise significantly 
impacted the field. 
He further claimed that his large-scale project development and structural safety protocol designs are 
"now used around the world." He concluded that his designs and development work constitute 
original contributions, and submitted numerous letters in support of this assertion. 
For example, a letter from former President of 
states that the Petitioner developed special technical programs, such as the "Tank 
Settlement Study," that "greatly benefited" their joint employer at the time. She further 
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Matter of N-M-B-
claimed that other programs he developed, such as the 
' revolutionized storage designs for petroleum and "became standard around the country." 
Although she claimed that these designs "are now all mandatory and implemented across the country 
and in many countries abroad," no independent, objective evidence corroborating this claim was 
submitted. The record does not document that these designs have widely impacted the field, so as to 
demonstrate original contributions of major significance. See Visinscaia, 4 F. Supp. 3d at 134-35 
(upholding a finding that a ballroom dancer had not met this criterion because she did not 
corroborate her impact in the field as a whole). 
and both former colleagues of the Petitioner at submitted 
letters of recommendation. praises the Petitioner, stating that he is an "outstanding 
engineer" with a "broad spectrum of knowledge never seen before." stated that the 
Petitioner has managed and overseen numerous projects for noting that he has been "an 
incredible asset in guiding and advising other professionals in the field." 
A letter from Business Manager of 
and former employee, claimed that he worked on numerous endeavors with the Petitioner 
such as the and the projects. He noted that such projects were well conceptualized 
and saved approximately $1 billion. He claimed that "oil and gas projects of this magnitude 
had never before been achieved in Venezuela." 
Although these letters make several assertions of his achievements, the Petitioner did not provide 
accompanying evidence to corroborate the claims, and the letters lack specificity of how his 
achievements have affected the field or that the asserted achievements are being used or reproduced 
within his field. While such letters are important in providing details about the Petitioner's role in 
various projects, they cannot by themselves establish the Petitioner's acclaim beyond his immediate 
circle of colleagues. Vague, solicited letters from local colleagues that do not specifically identify 
contributions or provide specific examples of how those contributions influenced the field are 
insufficient. Kazarian v. USCIS, 580 F.3d I 030, 1036 (91h Cir. 2009) afl"d in part 596 F.3d 1115 (9th 
Cir. 201 0). In 2010, the Kazarian court reiterated that our conclusion that "letters from physics 
professors attesting to [the alien's] contributions in the field'' were insufficient was "consistent with 
the relevant regulatory language." 596 F.3d at 1122. 
In addition, the letters considered above primarily contain attestations of the Petitioner's 
achievements in the field without providing specific examples of how his contributions rise to a level 
consistent with major significance. Letters that repeat the regulatory language but do not explain 
how an individual's contributions have already influenced the field are insufficient to meet this 
criterion. Kazarian, 580 F.3d at 1036, aff'd in part 596 F.3d at 1115. USCIS need not accept 
primarily conclusory statements. 1756. Inc. v. The U.S. Au y Gen.. 745 F. Supp. 9, 15 (D.C. Dist. 
1990). As a result, the Petitioner has not met his burden of showing that he has made original 
contributions of major significance in the field. 
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Matter of N-M-B-
Evidence of fhe alien ·s authorship of scholarly arficles in the .field. in pr(~fessional or major 
trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The Petitioner claimed that he has published more than 40 technical reports, and at least four 
international reports regarding his findings and developments in seismic risk and safety protocols, 
copies of which were submitted into the record. He asserted that all of these reports "were circulated 
among thousands of engineers and officials of ,., The record, however, does not establish 
that these reports appeared in professional or major trade publications or other forms of major media. 
Furthermore, the Petitioner has not demonstrated that these reports are equivalent to scholarly 
articles, as contemplated by the regulatory language. 
He submitted a letter from Ph.D., Professor at the 
who claimed that he wrote a paper with the Petitioner in 1993 in the 
in Venezuela. also claimed that the Petitioner wrote a second paper 
individually during that time. The record does not contain the papers or information related to their 
publication to corroborate claims. 
The Director determined that the Petitioner did not meet this criterion and the record supports this 
finding. Specifically, while the Petitioner has submitted some evidence of his authorship, he has not 
established that his reports and papers constitute "scholarly articles'' or have appeared in 
"professional or major trade publications or other major media." On appeal, he merely contends that 
the evidence submitted in support of the petition satisfied this criterion "by a preponderance of the 
evidence," and presents no new qualifying evidence. He therefore does not meet this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The Petitioner submitted evidence demonstrating that he served as a Director and Member of the 
Board for Engineering and Construction Section, as well as serving as the Leader of the 
Control Committee. He established that as a high-level engineering director, he orchestrated 
negotiations and joint ventures for the benefit of the company. Consequently, the Director 
determined that the Petitioner satisfied this criterion, and we agree with that finding. 
Evidence that the alien has commanded a high salary or other sign{ficantly high remuneration for 
services. in relation to others in thefield. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner stated that he served as Director and Member of the Board for Engineering 
and Construction Section. Further, he claimed that "as one of the top experts in Petroleum 
Engineering in the Oil and Gas Industry,•· he commanded a high salary in relation to others in the 
field. 
In support of the petition, he submitted six documents that appear to be internal records; 
however, they are in Spanish and are not accompanied by certified 
translations. Any document in a 
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Maller of N-M-B-
foreign language must be accompanied by a full English language translation. 8 C.F.R. § 
103.2(b)(3). The translator must certify that the English language translation is complete and 
accurate, and that the translator is competent to translate from the foreign language into English. ld. 
Because the Petitioner did not submit a properly certified English language translation of the 
document, we cannot meaningfully determine whether the translated material is accurate and thus 
supports the Petitioner's claims. 
He also submitted a document entitled "Extract Translation of Employment Contract.." Although it 
contains the required certification from the translator, there is no original Spanish language 
employment contract; therefore, the uncertainty about this document's origin, and the claims therein, 
cannot serve as evidence of the Petitioner's claimed high salary. Moreover, based on the title of the 
document, it appears to be only an extract of a document and not a complete translation as required 
by 8 C.F.R. § 103.2(b)(3). 
The Petitioner also submitted excerpts from the U.S. Bureau of Labor Statistics' (BLS) Occupational 
Employment and Wages Report for May 2015, which demonstrates that petroleum engineers in 
earned a median salary of $149,590 during that time. We note the Director's determination that this 
data was not persuasive because it dealt with salary statistics for U.S. workers, and not those of 
similarly-employed individuals in Venezuela, and we concur with that determination. The Petitioner 
must submit evidence of earnings in comparison with those performing similar work. Maller (?f 
Price, 20 I&N Dec. 953, 955 (Assoc. Comm'r 1994); see also Grimson v. INS, 934 F. Supp. 965, 
968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 
891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to salary of 
other NHL defensemen). The Associate Commissioner in MatTer l?f Price compared the alien's 
monetary earnings with his rankings among those in the top of his field performing similar work. 
Notably the Associate Commissioner compared the alien ' s 1991 winnings to the remaining 
Professional Golfers' Association Tour during the same year. Matter (?{Price, 20 l&N Dec. at 955. 
Therefore, the Petitioner must compare his income with income earned by those in his field during 
the same time period. 
Here, the greater problem is that the Petitioner claims to have served as a Director and Board 
member of a high-ranking executive position. and repeatedly uses the term "oil director" 
when discussing his position. The BLS data submitted, however, applies to petroleum engineers, not 
high-ranking oil executives such as the Petitioner. 2 
2 For example, the BLS's Occupational Outlook Handbook indicates that petroleum engineers "design and develop 
methods for extracting oil and gas below the Earth's surface" and "find new ways to extract oil and gas from older 
wells.'" See Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Petroleum 
Engineers, on the Internet at https:l/www.bls.gov/ooh/architecture-and-engineering/petroleumengineers.htm (visited Jan. 
9, 20 18). It is apparent, therefore, that the occupation for which the Petitioner provided salary data applies to petroleum 
engineers that primarily engage in field work by visiting drilling or well sites to implement these methods, which are not 
tasks the Petitioner performed as Director and Board member of , where his stated duties include ·'organizational 
restructuring initiatives'" and "tiscal streamlining of the Engineering and Construction department.'' 
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Matter of N-M-B-
In response to the Director's request for evidence (RFE), he submitted new documentation. 
including a letter from President, stated that it is within the 
company's charter "to base compensation otT of the 
official tabulator for average and basic salaries." He further attested that the Petitioner held a 
"Professional Classification of PI 0" but received a much higher base salary (240, 999.50 Bolivar) 
than the average PlO base salary (167,860.00 Bolivar) for his services. In addition , he stated that his 
total benefits package (705,598.56 Bolivar) was much higher than the average base salary and 
benefits package for PlO employees (384,735.12 Bolivar), as reported by the 
This assertion is accompanied by a certified "Salary Extract Translation," 
that translates only one 
line out of a full-page chart submitted on the letterhead of the 
The evidence submitted by the Petitioner to demonstrate he meets this criterion lacks the required 
full and certified translations or the original foreign language documents. Thus. we cannot 
meaningfully determine if the record supports his claims regarding his compensation and its relation 
to others in the field. 
The Petitioner is undoubtedly one of numerous oil executives at and in the petroleum field 
in general, yet he submitted no evidence demonstrating that his salary is higher than those similarly 
ranked colleagues. Merely claiming that he earns above the average base salary is not sufficient, 
absent evidence of the salary of similarly-employed oil executives in the industry. 
Finally, as noted by the Director, the Spanish documents submitted in support of the petition, which 
were not accompanied by certified translations, indicate different base salaries for the Petitioner. 
Based on a reading of the dates, it appears that an internal document dated July 11, 2016 
lists 
his base salary as 172,142.50, whereas a second document dated July 28 lists it as 240,999.50. 
Although the Director noted these discrepancies, the appeal contained no new clarifying information. 
The Petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and 
objective evidence. Matter of Ho. 19 I&N Dec. 582, 591-92 (BIA 1988). 
The evidence the Petitioner submits does not establish that he has received a high salary or other 
significantly high remuneration for services in relation to others in the field. Accordingly. the 
Petitioner has not demonstrated that he meets this criterion. 
Evidence of commercial successes in the performing arts. as shown by box office receipts or 
record, casselle. compact disk. or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
This criterion anticipates a petitioner will establish eligibility through volume of sales or box office 
receipts as a measure of his commercial success in the performing arts. The Director determined 
that the Petitioner did not meet this criterion and the record supports this conclusion. 
The Petitioner, a civil engineer and oil executive, did not submit evidence that he has achieved 
commercial success in the performing arts. On appeal, he asserts that the Director erred by failing to 
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Matter ofN-M-B-
consider comparable evidence submitted in support of this criterion; namely. evidence of technical 
reports the Petitioner published, seminars he conducted, and expert opinion letters attesting to his 
extraordinary ability. 
His arguments, however, are not persuasive. The comparable evidence regulation at 8 C.F.R. 
§ 204.5(h)( 4) requires that a petitioner demonstrate why a specific criterion is not readily applicable 
to his occupation, and how the submitted evidence is comparable to that criterion. Here, the 
Petitioner does not explain why this criterion does not apply to a civil engineer, nor does he identify 
how the documentation provided is comparable. Further, an inability to meet a criterion does not 
necessarily mean that the criterion does not apply to a petitioner's occupation. Accordingly, the 
Petitioner has not established that he meets the requirements of the provision at 8 C.F.R. 
§ 204.5(h)(4). Consequently, he has not shown that he satisfies the plain language of this criterion. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result we need not provide the type of 
tina! merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we have 
reviewed the record in the aggregate, concluding that it does not support a finding that the Petitioner 
has established the level of expertise required for the classification sought. For the foregoing 
reasons, the Petitioner has not shown that he qualifies for classification as an individual of 
extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-M-B-, ID# 876394 (AAO Jan. 30, 2018)