dismissed EB-1A Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-M-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 18, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a computer vision scientist, seeks classification as an individual of extraordinary 
ability in the sciences. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. 
§ 1153(b )(1 )(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 Nebraska Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied two of the initial evidentiary criteria, of which 
she must meet at least three. 
On appeal, the Petitioner submits a brief contending that she satisfies at least three criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b )( 1 )(A) of the Act makes visas available to qualified immigrants with extraordinary 
ability 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 m 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 
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Matter ofS-M-
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). If that petitioner does not submit this evidence, then he or she 
must provide documentation that meets at least three of the ten categories 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. US CIS, 596 F .3d 1115 (9th Cir. 201 0) 
(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); Rijal v. 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 currently a senior software engineer at Because she has not 
indicated or established that she has received a major, internationally recognized award, she 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 two criteria: judging under 8 C.F. R. 
§ 204.5(h)(3)(iv) and scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi). 
On appeal, the Petitioner maintains that she meets three additional criteria: awards under 8 C.F.R. 
§ 204.5(h)(3)(i), original contributions under § 204.5(h)(3)(v), and 
leading or critical role under 
8 C.F.R. § 204.5(h)(3)(viii). 1 We have reviewed all of the evidence in the record and conclude that 
it does not support a finding that the Petitioner satisfies the plain language requirements of at least 
three criteria. 
1 
While the Petitioner previously claimed eligibility for the published material cntenon under 8 C.F.R. 
§ 204.5(h)(3)(iii), she does not continue to do so on appeal, nor does the record support a finding that she meets it. 
Accordingly, we will not further address this criterion in our decision. 
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A. Evidentiary Criteria 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner contends that she meets this criterion based on her ' at the 
in2016. 
Further, the Petitioner indicates that her award is not limited to students and postdoctoral 
researchers but "open to scientists across the globe .... "and lists 
two other individuals who have previously received such awards. 
The record contains a letter from chairperson for who stated that the 
conference is "a gathering of the best research minds in the field of 
from all over the world," and " is an internationally renowned conference .... " In addition, 
the Petitioner provided screenshots from website regarding the 2016 conference. The 
documentation relates to the conference generally, and does not establish that the awards are 
recognized for excellence outside of the conference. Further, the Petitioner lists two other 
individuals who have received awards and submitted screenshots from website 
reflecting the 2015 winners. We are not persuaded, however, by the Petitioner's argument that the 
receipt of awards by others who she asserts are acclaimed in the field establishes the national 
and international recognition of the awards themselves. For these reasons, the Petitioner did not 
demonstrate that she meets this criterion. 
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 alliedfield of specification for which class~fzcation is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The record reflects that the Petitioner served as the chairperson for the 
on 
Accordingly, the Director determined that the Petitioner satisfied this 
criterion, and we agree with that finding. 
Evidence of the alien's original scient~fzc, scholarly, artistic, athletic, or business-related 
contributions ofmajor significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner argues on appeal that she provided "ample evidence" to meet this criterion, and that 
her discoveries have been implemented in her field, as indicated by a pending patent and 
recommendation letters. In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner 
must establish that not only has she made original contributions but that they have been of major 
significance in the field. For example, a petitioner may show that the contributions have been 
widely implemented throughout the field, have remarkably impacted or influenced the field, or have 
otherwise risen to a level of major significance in the field. 
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As it pertains to her pending patent, the Petitioner submitted a provisional patent application for 
In general, a patent recognizes the originality of an 
invention or idea but does not necessarily establish that it is a contribution of major significance in 
the field. While a few of her recommendation letters2, such as (professor at 
the , generally indicate that her concept "is currently submitted for patenting," 
they do not further explain how it has impacted or influenced the field to show a contribution of 
major significance in the field. 
The record also contains several recommendation letters that describe the Petitioner's contributions 
but do not establish that they are of major significance in the field. While her letters provide 
examples of instances where her work has been implemented, they do not show that her 
contributions have been majorly significant. For example, principal at 
stated that the Petitioner worked for him as a research intern, and she 
completed the project, 
based on a research grant from the City of Canada. Although indicated that 
is currently using her algorithm to count people in stations, he did not establish that the 
Petitioner's work has been widely applied in the field to show a contribution 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). 
In addition, professor at the discussed the 
Petitioner's work on a project, sponsored by the in developing an 
automated technique for estimating power consumption by computers in buildings by processing 
visual imagery. stated that "[s]uccessful completion of the project would result in 
development of an automatic robotic system" and "[t]his in turn would save millions of government 
money" (emphasis added). Although discusses the impact of the Petitioner's project in 
terms of future applicability, he did not demonstrate the influence that the Petitioner's work has 
already had on the field to indicate an existing contribution of major significance. 
Similarly, chief executive officer at stated that the Petitioner developed a 
"radical 'adaptive background subtraction' algorithm pivotal to the separation of cars from their 
background" and indicated her algorithm has been embedded in thermal imaging sensors that are 
being Beta tested in four states. Here, did not show that the Petitioner's work has been 
widely applied throughout her field but rather that it is being tested in select areas. Thus, the actual 
significant impact of her work has yet to be determined in the field. In fact, 
vice president of program development and sales for stated that "[t]his product will be 
used by in the US, and throughout the 
world," and "this technology will also be adapted for predicting road conditions, perimeter security 
and presence detection markets" (emphasis added). Again, while discusses her work in 
2 
While we discuss only a sampling of these letters, we have reviewed and considered each one. 
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terms of potential or possible applicability, he did not establish that her work is already being 
extensively utilized in the field. 
Some of the Petitioner's recommendation letters indicate that the Petitioner's research has been 
published in journals and presented at conferences. For instance, associate 
professor at the stated that the Petitioner "develop[ ed] algorithms for tracking 
and counting . which were published in 
2013, 2014 and 2015 respectively." did not, however, discuss how the 
Petitioner's publications and presentations are considered unusually inf1uential or how they impacted 
the field in a substantial way. Without further supporting evidence, such as documentation showing 
that her published material has been extensively cited, the Petitioner did not establish that her written 
or presented work significantly influenced the field. Publications are not sufficient under 8 C.F.R. 
§ 204.5(h)(3)(v) absent evidence that they were of "major significance." Kazarian v. USCIS, 580 
F .3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F .3d 1115. In 2010, the Kazarian court 
reaffirmed its holding that we did not abuse our discretion in our adverse finding relating to this 
criterion. 596 F .3d at 1122. 
The letters considered above primarily contain attestations of the Petitioner's status in the field 
without providing specific examples of how her 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 establish original contributions of 
major significance in the field. Kazarian, 580 F.3d at 1036, aff'd in part 596 F.3d at 1115. In 2010, 
the Kazarian court reiterated that the U.S. Citizenship and Immigration Services' (USCIS') 
conclusion that the "letters from physics professors attesting to [the petitioner's] contributions in the 
field" were insufficient was "consistent with the relevant regulatory language." 596 F .3d at 1122. 
Moreover, USCIS need not accept primarily conclusory statements. 1756, Inc. v. The U.S. Att y 
Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). For these reasons, the Petitioner did not demonstrate that 
she 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. 8 CF.R. § 204.5(h)(3)(vi). 
The Petitioner provided evidence that she authored four scholarly articles in professional journals, 
such as the Therefore, the 
Director found that the Petitioner satisfied this criterion, and we agree with that determination. 
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 contends that she meets this criterion based on her role with As support 
for this contention, she references three recommendation letters, two of which were discussed above 
from and and another from senior software engineer at 
indicated that the Petitioner is a team lead and "plays an absolutely essential 
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role, not just to the project, but to the company as a whole." In addition, discussed why 
the Petitioner was selected for the position and stated that her expertise "directly influences our 
company's future." Further, according to the Petitioner "is currently the most 
knowledgeable person in our company, and also the only expert in the field of and 
In general, a leading role is evidenced from the role itself, and a critical role is one in which a 
petitioner was responsible for the success or standing of the organization or establishment. Here, the 
recommendation letters do not demonstrate that the Petitioner performed in a leading role with 
As a senior software engineer, the Petitioner did not establish where her position fits in 
the overall hierarchy of the company or how her role compares to others, such as who is 
the chief executive officer of the company. Without supporting evidence, such as an organizational 
chart, the Petitioner did not establish she performed in a leading role for 
As it relates to a critical role, the authors stated that the Petitioner's role was "critical" or "essential." 
However, repeating the language of the statute or regulations does not satisfy the petitioner's burden 
ofproof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 
41 (2d. Cir. 1990); Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Although 
the authors value the Petitioner for her contributions in the projects in which she was involved, the 
letters do not establish that she performed in a critical role for the company as a whole. The 
Petitioner, for instance, did not show that she was responsible for the success of or that 
her contributions impacted the company's overall reputation or status in the field. For instance, 
while the Petitioner worked on a project that is being tested in several states, as discussed above. the 
record does not show that garnered attention or received accolades from the project. As 
such, the Petitioner did not demonstrate that she performed in a critical role for 
The regulation at 8 C.F.R. § 204.5(h)(3)(viii) also requires a petitioner to establish that her role is for 
organizations or establishments that have a distinguished reputation. The Petitioner provided press 
releases and business wires reflecting the work on various projects. In addition, the 
Petitioner submitted articles regarding the installation of sensors in different areas. Although 
is credited in the articles for supplying the technology, the evidence does not indicate that 
the company enjoys a distinguished reputation. The articles are not about do not 
otherwise feature the company, and do not discuss its status or standing in the field among other 
related companies. Therefore, the Petitioner did not demonstrate that enjoys a 
distinguished reputation. For these reasons, the Petitioner did not show that she satisfies this 
criterion. 
B. Summary 
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 
final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
Matter ofS-M-
that 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. 
C. 0-1 Nonimmigrant Status 
The record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd., 724 F. Supp. at 1103. Furthermore, our authority over the USCIS service centers, the 
office adjudicating the nonimmigrant visa petition, is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of an individual, we are not bound to follow that finding in the adjudication of 
another immigration petition. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 
282785, at *2 (E.D. La. 2000). 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not shown that she qualifies as an individual of 
extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-M-, ID# 591113 (AAO Oct. 18, 2017)