dismissed EB-1A Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-K-E-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 21, 2016 
\ I 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a computer scientist, seeks classification as an individual of extraordinary ability in 
the sciences. See Immigration and Nationality Act (the Act) section 203(b)(1)(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 petition, concluding that the Petitioner had 
satisfied only two of the initial evidentiary criteria, of which he must meet at least three. 
The matter is now before us on appeal. In his appeal, the Petitioner submits a brief stating that he 
meets at least three criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(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 aj:hletics 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 
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Matter of M-K-E-
(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." 8C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
sustained acclaim and the recognition of his or her achievements in the field through 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 sufficient qualifying 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). 
\ 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v. USCIS, 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); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that 
the "truth is to be determined not by the quantity of evidence alone but by
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its quality" and that U.S. 
Citizenship and Immigration Services (USCIS) examines "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"). Accordingly, where a 
petitioner submits qualifying evidence under at least th~ee criteria, we will determine whether the 
totality of the record shows sustained national or int~rnational acclaim and demonstrates that the 
individual is among the small percentage at the very top of the field of endeavor. 
II. ANALYSIS 
The Petitioner is currently employed as a post-doctoral computer scientist at 
As the Petitioner has not established that he has received a major, 
internationally recognized award, he must satisfy at least three of the alternate regulatory criteria at 8 
C.F.R. § 204.5(h)(3)(i)-(x). In denying the Petition, the Director found that that the Petitioner met 
the judging criterion under 8 C.F.R. § 204.5(h)(3)(iv) and the scholarly articles criterion under 8 
C.F.R. § 204.5(h)(3)(vi). On appeal, the Petitioner maintains that he meets the original contributions 
criterion under 8 C.F.R. § 204.5(h)(3)(v) and the leading or critical role criterion under 8 C.F.R. 
§ 204.5(h)(3)(viii). We have reviewed all of the evidence in the record of proceedings, and it does 
not support a finding that the Petitioner meets the plain language requirements of at least three 
criteria. , 
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Matter of M-K-E-
A. Evidentiary Criteria 1 
--Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.P.R. § 204.5(h)(3)(i). 
The Director found that the Petitioner's research fellowship, student and travel grants, and 
did not meet the 
regulatory requirements. On appeal, the Petitioner does not address the Director's decision for this 
criterion or submit documentary evidence. A review of the record of proceedings reflects that 
although the Petitioner submitted evidence of his receipt of the fellowship and grants, he did not 
submit evidence demonstrating that they are nationally or internationally recognized for excellence 
in his field consistent with the plain language of this regulatory criterion. Regarding the 
award, the Petitioner provided a screenshot regarding background and history but did not 
show that the award is nationally or internationally recognized for excellence. Accordingly, the 
Petitioner has not established that he 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 allied field of specification for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The record contains evidence reflecting that the Petitioner has reviewed articles for scientific 
journals such as As such, the 
Director found that the Petitioner met this criterion, and we concur with that determination. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
As evidence of the significance of his work, the Petitioner initially submitted documentation 
showing that his published articles garnered 27 citations, with his article, ' 
cited 22 times. Generally, citations 
confirm 
that the field has taken some interest in a researcher's work. The Petitioner provided an example of 
an article that cited to his work; however the article does not reflect that his work was singled out as 
particularly important. Rather, the Petitioner's article was utilized as background information to the 
authors' paper. In this case, the Petitioner has not demonstrated that the citations to his work, 
considered both individually and collectively, are commensurate with a contribution "of major 
significance in the field." 
Similarly, the Petitioner offers evidence of his presentations at various conferences, such as the 
and the 
Participation in conferences demonstrates that 
his findings were shared with others and may be acknowledged as original based on their selection 
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We will discuss those criteria the Petitioner has raised and for which the record contains relevant evidence. 
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Matter of M-K-E-
for presentation. The record of proceedings, however, does not show that his presentations have 
been frequently cited by other researchers or have otherwise significantly impacted the field. 
Publications and presentations 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), affd 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. 
In addition, the record contains evidence of the Petitioner's three patents issued by the U.S. Patent 
and Trademark Office, and that his patent, ' 
was cited three times by others in their patents. The Petitioner 
presented evidence of two patents from other inventors who cited to his patent. A review of those 
patents does not indicate that the Petitioner's original findings were instrumental to the inventors in 
developing their patents.· Rather, the inventors credited the Petitioner for his original work. In 
general, a patent recognizes the originality of the idea, but it does not demonstrate that the Petitioner 
made a contribution of major significance in the field. Overall, the record does not demonstrate that 
the three citations of one of the Petitioner's patents reflect a contribution of major significance. 
On appeal, the Petitioner contends that his computer research has had "international significance" 
and provides a letter from senior research scientist at 
describes the Petitioner's discovery for using the · 
modeling. She also indicates that the Petitioner's work in 
this area "will achieve significantly better 
improvements," "is ready to be released," and "will be a landmark milestone in the progress of 
[concurrent collections] modeling." A petitioner cannot establish eligibility under this criterion 
based on the expectation of future significance. Given the descriptions in terms of future 
applicability and determinations that may occur at a later date, the actual impact on the field has yet 
to be determined. Eligibility must be demonstrated at the time of filing. 8 C.F.R. §§ 103.2(b)(1), 
(12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
The Petitioner also references a letter from assistant professor at 
as evidence of the impact of his work on the field. Although indicated that his 
team is utilizing some of the Petitioner's concepts at his school, he did not indicate or describe how 
his work has 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). 
The record also contains l other recommendation letters from the Petitioner's peers. Although the 
letters praise his work, they do not explain how the Petitioner's contributions are "of major 
significance in the field." Specifically, the letters describe the Petitioner's contributions without 
showing how his work has significantly impacted or influenced the field, so as to establish that he 
has made original contributions of major significance. Instead, the letters reference the importance 
of the Petitioner's works as indicated by their publication in professional journals and presentation at 
conferences. As discussed above, the Petitioner has not shown through his citation history or other 
evidence that his contributions have been of major significance in the field. Again, while the 
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Matter of M-K-E-
selection of the Petitioner's articles in professional journals or at conference proceedings verifies the 
originality of his work, it does not necessarily reflect that his research is considered of major 
significance. 
Ultimately, letters that repeat the regulatory language but do not explain how a petitioner'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 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. The letters considered above primarily contain 
attestations -of the Petitioner's status in the field without providing specific examples of how those 
contributions rise to a level consistent with major significance in the field. Repeating the language 
of the statute or regulations does not satisfy a petitioner's burden of proof. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997).' Moreover, 
USCIS need not accept primarily conclusory statements. 1756, Inc. v. The US Att'y Gen., 745 F. 
Supp. 9, 15 (D.C. Dist. 1990). Without supporting evidence, the Petitioner has not met his burden of 
showing that he has made original contributions of major significance in the field. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.P.R.§ 204.5(h)(3)(vi). 
As discussed above, the Petitioner documented his authorship of scholarly articles in professional 
publications, such as and 
Thus, the Director concluded that the Petitioner satisfied this criterion, and the record 
supports that finding. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.P.R. § 204.5(h)(3)(viii). 
On appeal, the Petitioner contends that he meets this criterion based on his role as a post-doctoral 
computer scientist at and he references a letter from 
for stated · that the Petitioner "provides critical research 
for projects related to fault tolerance arid resilience." In addition, indicated that the 
Petitioner "is working on developing programming abstractions to the application developers and 
domain scientists .... " 
In general, a leading role is evidenced from the role itself. Here, the Petitioner serves as a post­
doctoralcomputer scientist. letter, however, does not indicate whether the Petitioner 
served in a leading role for the organization or 
where his position fit in the overall hierarchy of 
Based on the Petitioner's position title and the lack of details contained in 
letter, the Petitioner has not shown that he performed in a leading role for 
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Matter of M-K-E-
Furthermore, a critical role is one in which a petitioner was responsible for the success or standing of 
the organization or establishment. Although stated that the Petitioner has "completed 
original research" and briefly describes his current projects, he 
did not show how the Petitioner's 
accomplishments impacted standing in the field. For instance, there is no evidence 
reflecting that garnered attention based on the Petitioner's work. Accordingly, the Petitioner 
has not established that he performed in a critical role for For these reasons, the Petitioner 
has not met his burden of demonstrating that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to others in the field. 8 C.P.R. § 204.5(h)(3)(ix). 
On appeal, the Petitioner does not address the Director's finding that he did not meet this criterion or 
submit documentary evidence. Although the Petitioner submitted job offer letters with salaries for 
positions as a post-doctoral research staff member, post-doctoral appointee, and computer scientist, 
he did not provide sufficient evidence comparing his salary to others in his field. As such, he did not 
demonstrate that he received a high salary in relation to others as required by this regulatory 
criterion. Accordingly, the record does not show that he meets this criterion. 
B. Summary 
As explained above, the record only satisfies two of the regulatory criteria. As a result, 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 listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). Had the 
Petitioner satisfied at least three evidentiary categories, the next step would be a final merits 
determination that considers all of the filings 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 field of endeavor," and (2) that the individual "has sustained 
national or international acclaim and that his or her achievements have b~en recognized in the field 
of expertise." 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. Although we 
need not provide the type of final merits determination referenced in Kazarian, a review of the 
record in the aggregate supports a finding that the Petitioner has not established the level of expertise 
required for the classification sought. · . 
III. CONCLUSION 
For the above stated reasons, the Petitioner has not met his burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). , 
ORDER: The appeal is dismissed. 
Cite as Matter of M-K-E-, ID# 119789 (AAO Dec. 21, 2016) 
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