dismissed EB-1A Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 16816380 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 29, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an assistant professor of computer science and information systems, seeks classification 
as an individual of extraordinary ability. See Immigration and Nationality Act (the Act) section 
203(b )(l)(A), 8 U.S.C. § 1153(b)(l)(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 record did not 
establish, as required, that the Petitioner meets at least three of the ten initial evidentiary requirements 
for this classification. We dismissed the Petitioner's subsequent appeal of that decision. The 
Petitioner then filed a combined motion to reopen and motion to reconsider, which we dismissed as 
untimely. 
The matter is now before us on a second combined motion to reopen and reconsider. On motion, the 
Petitioner seeks reconsideration of our decision to dismiss the prior motion as untimely filed. She also 
submits new evidence in support of her motion to reopen. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will grant the motion to reconsider, in part, 
and dismiss it in part , and we will dismiss the motion to reopen. The dismissal of the Petitioner's 
appeal will not be disturbed, and the petition will remain denied. 
I. LAW 
Section 203 (b )( 1 )(A) of the Act makes visas available to immigrants with extraordinary ability if an 
individual 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. Section 203(b)(l )(A)(i) of the Act. 
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 a multi-part analysis. First, a petitioner can demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). If a petitioner does not submitthis evidence, then they must 
provide sufficient qualifying documentation that meets atleastthree of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)- (x) (including items such as awards, published material in certain media, and 
scholarly aiiicles ). Where a petitioner meets these initial evidence requirements, we then consider the 
totality of the material provided in a final merits detennination 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. USCIS, 596 F.3d 1115 (9th Cir. 
2010). 
II. MOTION REQUIREMENTS 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must (1) 
state the reasons for reconsideration and establish that the decision was based on an incon-ect 
application oflaw or U.S. Citizenship and Immigration Services (USCIS) policy, and (2) establish that 
the decision was incorrect based on the evidence in the record of proceedings at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See8 C.F.R. § 103.5(a)(4). 
III. ANALYSIS 
The issue in this matter is whether the Petitioner has submitted new facts supported by documentary 
evidence sufficient to warrant reopening the previous motion and/or established that our decision to 
dismiss that motion was based on an incorrect application oflaw or USCTS policy. 
A. Procedural History 
The Director of the Nebraska Service Center denied the petition concluding that the record did not 
establish, as required, that the Petitioner meets at least three of the ten initial evidentiary criteria at 8 
C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claimed to meet four criteria, relating to memberships in 
associations that require outstanding achievements, judging the work of others in her field, original 
contributions of major significance, and authorship of scholarly articles. See 8 C.F.R. § 
204.5(h)(3)(ii), (iv), (v), and (vi). The Director determined that the Petitioner met the criteria relating 
to judging and authorship of scholarly articles but did not satisfy either of the other two criteria. We 
dismissed the Petitioner's appeal on May 2 7, 2020, afterreachingthe same conclusion. The Petitioner 
filed her previous combined motion to reopen and reconsider on July 29, 2020, 63 days after we issued 
our decision. 
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The applicable regulations state that a motion on an unfavorable decision must be filed within 33 days 
of the date USCIS mails the decision. See 8 C.F.R. §§ 103.S(a)(l), 103.8(b). During the coronavirns 
(COVID-19) pandemic, USCIS issued guidance that Form I-290B, Notice of Appeal or Motion, would 
be accepted if filed within 60 days of the unfavorable decision. We dismissed the Petitioner's prior 
motion as untimely in accordance with 8 C.F.R. § 103.2(a)(2)(v)(B)(l) because it was not filed within 
60 days of the issuance of our decision on May 27, 2020. 
On motion, the Petitioner asserts that, since our decision dismissing the appeal was served by mail, 
the deadline for filing the motion should have included three additional days beyond the 60 calendar 
day deadline set forth in USCIS' guidance, in accordance with the regulation at 8 C.F.R. § 103.8(b). 
Specifically, she states "the guidance issued by USCIS in recognition of the corona virus pandemic 
made absolutely no mention 8 C.F.R. § 103 .8(b) was invalidated or not going to be recognized." The 
Petitioner therefore maintains thathermotion, received 63 days after we issued our appellate decision, 
should be considered timely filed. 
The Petitioner's assertions regarding the timeliness of her prior motion are persuasive. We will 
therefore grantthe motion to reconsider, in part, to address the merits ofherprevious combinedmotion 
to reopen and reconsider. With the cunentmotion, the Petitioner also submits new evidence, discussed 
below. The Petitioner has not, however, submitted new evidence that overcomes the grounds for 
dismissal of her appeal, nor has she demonstrated that our decision dismissing the appeal involved an 
inconect application of the law or USCIS policy. 
B. Motion to Reopen 
The Petitioner's motion to reopen includes the following evidence related to the membership criterion 
at 8 C.F.R. § 204.5(h)(3)(ii): 
• Evidence that she was elevated to the grade of Senior Member in the Institute of Electrical and 
Electronics Engineers (IEEE) in I O 12020; 
• Evidence that she was elected as a Full Member in Sigma Xi in 2020; 
• An email confirming her approval for membership as a Scientific and Technical Committee & 
Editorial Review Board member of the World Academy of Science, Engineering and 
Technology inl I 2020; and 
• A letter, dated November 5, 2020, welcoming her to the International Research Conference 
(IRC) Scientific and Technical Committee & Editorial Review Board on Computer and 
Information Engineering. 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of filing and continuing through adjudication. 8 C.F.R. § 103 .2(b )(1 ). While 
the referenced evidence is new, it relates to her recent professional achievements as of 2020. 
Therefore, this evidence cannot establish that the Petitioner had a qualifying membership in an 
association that requires outstanding achievements in her field when she filed this petition in August 
2018. At the time of filing, the Petitioner provided evidence that she was a professional member of 
the IEEE. She does not contest our determination that she did not satisfy the requirements of 8 C.F.R 
§ 204.5(h)(3)(ii) based on that membership. 
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The Petition~r's prior motion to reopen also included a July 2020 letter from her employerJ I 
.__ ____ _.JUniversity, indicating that she had recently been promoted and received tenure "as a 
result of her strong performance in the areas of teaching, scholarship and service." The letter describes 
a "rigorous vetting process" that included evaluations by peers and department colleagues, review by 
the university's Professional Practices Committee, and approval by the university's Board of Control. 
The Petitioner indicates that she is submitting the evidence for consideration under the evidentiazy 
criterion related to original contributions of major significance at 8 C.F.R. § 204.5(h)(3 )(v). She states 
that her promotion provides evidence of "additional recognition of [her] major significant 
contributions to her field" and "supports the notion that [her] original scientific work has been of major 
significance in her field." 
Although this evidence, like the evidence related to the membership criterion, is new, it cannot 
establish the Petitioner's eligibility at the time she filed the petition, as her promotion occuned neady 
two years later. Nevertheless, the letter from her employer does not adequately support her claim that 
she received the promotion based on recognition for her original contributions of major significance 
in the field. The letter indicates that she was promoted based on her "strong performance" in 
"teaching, scholarship and service." 
For the reasons discussed, the new evidence submitted on motion does not establish that the Petitioner 
satisfied either the membership criterion or the original contributions criterion at the time she filed the 
petition. Accordingly, she has not overcome the grounds for dismissal of her appeal, and we will 
dismiss the motion to reopen. 
C. Motion to Reconsider 
In her brief in support of the prior motion to reconsider, the Petitioner argues that "the AAO has erred 
in concluding that [her] original scientific work has [not] made contributions ofma·or si ificance in 
the field." She contends that we "mistakenly overlooked a significant portion o s 
expert opinion letter" regarding that original work, "specifically the proposed.,-!======;--~ 
I !solution she created." The Petitioner quotes a partial paragraph of one o_..___ _ ____.s letters 
in which he describes this I !solution and notes that her "[ e ]xtensive simulation results 
showed that thel !solution exhibits a superior performance over existing methods." 
In dismissing the appeal, our analysis of the evidence the Petitioner submitted under the original 
contributions criterion at 8 C.F.R. § 204.5(h)(3)(v) included a full-page discussion of a letter provided 
b~ lwho had previously served as the Petitioner's Ph.D. advisor. While we did not quote 
directly from the portion of the letter emphasized by the Petitioner on motion, our decision reflects 
that we considere~ Is statements regarding the Petitioner's development of I 
techniques and h~r publiytion of this work in conference proceedings in 
her field. Specifically, we acknowledged tha described the work in technical detail, indicated 
that the work was original and that it has generated some interest from others in the field as evidenced 
by the Petitioner's invitations to present it at conferences. However, we concluded that his letter did 
not demonstratJ bow 1r,e Petitioner's work has already impacted or influenced the field. We 
emphasized tha ___ _.~eferred in general terms to the promise and potential of the research and how 
it might be of future benefit. On motion, the Petitioner has not specifically addressed how we 
misapplied the law or USCIS policy in our analysis ofi f s letterorotherexpe1iopinion testimony 
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submitted in support of the original contributions criterion, or how we failed to give adequate 
consideration to this evidence. 
The Petitioner also maintains on motion that "because [her] scientific contribution is not a physical or 
patented discovery, where someone would specifically require her consent to utilize, it is quite difficult 
to obtain evidence to cmroborate that someone is actively utilizing the solution she created to solve 
theirl I issues." She also states that since "there is no readily available evidence to prove ... 
[her] work is actively being implemented or utilized in her field, the fact that her work was presented 
at least four prestigious conferences ... is a clear indicator that this major discovery warranted being 
shared with her peers." 
In our decision dismissing the appeal, we considered evidence that the Petitioner had been invited to 
present her work at conferences, as well as evidence of her publication and citation record from Google 
Scholar. We noted that journal and conference publications alone are not sufficient to satisfy the 
original contributions criterion at 8 C.F.R. § 204.5(h)(3)(v) absent evidence that the research the 
Petitioner published and presented was demonstrated to be of "major significance." While the 
Petitioner claimed that her record of five publications and 23 total citations provided "direct evidence 
that her original scientific/scholarly work is a contribution in her field," we emphasized that she did 
not provide comparative evidence to show that any of her published aiiicles is highly cited by others 
in the field, or otherwise shown the work has had an influence or impact consistent with an original 
contribution of major significance. Although the Petitioner emphasizes her conference presentations 
again on motion, she does not argue that we overlooked this evidence or contend that we misapplied 
the law or USCIS policy in our evaluation of it. 
For the reasons discussed, the Petitioner has not established that our previous determination with 
respect to the original contributions criterion was incorrect based on the evidence of record at the time 
of our decision, or that it involved an incorrect application of the law or USCIS policy to the facts 
presented. Accordingly, the Petitioner has not established grounds for reconsideration of our decision 
dismissing her appeal. 
IV. CONCLUSION 
We have granted the Petitioner's motion to reconsider, in part, in order to evaluate the merits of her 
initial combined motion to reopen and reconsider. We have also considered new evidence submitted 
in support of the instant motion to reopen. For the reasons discussed, the Petitioner has not shown 
proper cause for reopening or reconsideration of our appellate decision or otherwise established 
eligibility for the immigration benefit sought. The dismissal of the Petitioner's appeal will not be 
disturbed, and the petition will remain denied. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is granted in part and dismissed in part. 
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