dismissed EB-1A Case: Computer Science

U.S. Department ofUomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
OC1 11 2U01Date:
PUBLIC COpy
identifyingdatadeletedtc>
preventclearlyunwarr~ted
invasionof personalpnvacy
LIN 05 026 50663
INRE:
PETITION:
Petitioner:
Bene;ficiary:
Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A)
ON BEHALF OF PETITIONER:
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.
~~~iefI Administrative Appeals Office
www.uscis.gov
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)(1)(A) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(l)(A), as an alien of extraordinary ability. The
director detennined the petitioner had not established the sustained national or international acclaim necessary to
qualify for classification as an alien of extraordinary ability.
On appeal, counsel argues that the petitioner "qualifies as an alien with extraordinary ability as a researcher,
particularly in the field of computer science under 8 C.F.R. Section 204.5(h)(3), as [he] meets at least three (3)
... of the ten (10) criteria."
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.
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). As used in this
section, the tenn "extraordinary ability" means 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. 8 C.F.R. § 204.5(h)(2). The specific
requirements for supporting documents to establish that an alien has sustained national or international
acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 c.P.R. § 204.5(h)(3).
The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner must show
that he has sustained national or international acclaim at the very top level.
Page 3
This petition, filed on November 3,2004, seeks to classify the petitioner as an alien with extraordinary ability
as a "Web Database Developer."! At the time of filing, the petitioner was pursuing a Ph.D. in Computer
Science at Belford University.2 The petitioner was also working for Lucky International Trading, Inc., where
he had been employed since 2001.
The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or
international acclaim through evidence of a one-time achievement (that is, a major, internationally recognized
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of
which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of
extraordinary ability. A petitioner, however, cannot establish eligibility for this classification merely by
submitting evidence that simply relates to at least three criteria at 8 C.F.R. § 204.5(h)(3). In determining
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in tenns of whether it is
indicative of or consistent with sustained national or international acclaim. A lower evidentiary standard
would not be consistent with the regulatory definition of "extraordinary ability" as "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." 8 C.F.R. § 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria.
Documentation ofthe alien's receipt oflesser nationally or internationally recognized pnzes or
awards for excellence in the field ofendeavor.
The petitioner submitted evidence showing that he was honored in 1998 as a collegiate "All-American
Scholar" by the United States Achievement Academy based on his academic achievements at Kansas City
Kansas Community College. The record includes an undated letter fro_ United States
Achievement Academy, stating:
It is my pleasure to infonn you that Ms. Sherri Neff [Assistant Director, Admissions and Records] of
Kansas City Kansas Community College has officially selected you to receive the Collegiate All­
American Scholar Award. Award Selection is based exclusively on academic achievement as
required by United States Achievement Academy Standards for Selection.
[The petitioner], you are a member of a select group of students who excel in all academic areas.
Ms. Sherri Neff considers you to be one of the top students at Kansas City Kansas Community
College.
* * *
To honor your accomplishments, the United States Achievement Academy will publish your
biography in the Collegiate All-American Scholar Yearbook, a publication that honors academically
outstanding college students nationwide.
I The petitioner holds a Master of Science degree in Computer Science from the University of Missouri­
Kansas City dated December 15,2000.
2The petitioner subsequently received his Ph.D. on June 24,2005.
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Since we have received your biography fonn, you will be featured with other students in the 1998 All
American Scholar Awards yearbook. This publication honors the accomplishments of students
nationwide ....
[Emphasis in original]
The record also includes a copy of the 1998 All-American Scholars Collegiate Directory which lists
thousands of students. The petitioner's brief entry appears on page 256. Page 5 ofthe yearbook states:
The United States Achievement Academy was founded on October 14, 1980 in Lexington, Kentucky
to recognize outstanding students in America's high schools. Since its inception, the Academy has
had the unique opportunity to honor America's outstanding, [sic] students and athletes and today
includes our nation's college and university students.
Sixteen years ago, only four high school categories of recognition comprised the United States
Achievement Academy in its first year of operation. Today the Academy recognizes more that 1.2
million students annually in 37 areas of achievement on the junior high, high school and collegiate
level.
Each student recognized by the USAA has been nominated by a teacher, counselor,· coach or
community leader as among the sponsor's top students.
* * *
Student Qualification Standards
The Criteria for Selection are:
• Academics • Citizenship • Leadership • Attitude • Dependability
* * *
From 1980-1998, more than 16.5 million students have participated in the USAA program.
[Emphasis in original]
Being honored as a collegiate All-American Scholar does not constitute the petitioner's receipt of a lesser
nationally or internationally recognized prize or award "for excellence in the field of endeavor." The
preceding honor was intended to recognize student accomplishment rather than to recognize excellence
among those already active in the computer science field. According to the above evidence, the petitioner's
honor was based on his academic progress, citizenship, leadership, attitude, and dependability as assessed by
of Kansas City Kansas Community College. College study is not a field of endeavor, but
rather training for future employment in a field of endeavor. The petitioner cannot restrict his field to exclude
all those professionals who have long since completed their academic studies and therefore do not compete
Page 5
for collegiate All-American Scholar recognition. We cannot conclude that receipt of such an award limited to
students is an indication that the petitioner "is one of that small percentage who have risen to the very top of
the field of endeavor." 8 C.F.R. § 204.5(h)(2). Further, Ms. Sherri Neffs selection of the petitioner to
receive the Collegiate All-American Scholar Award is more consistent with local recognition r:ather than
national or international recognition. There is no evidence that the petitioner faced competition from students
outside of Kansas City Kansas Community College.
In response to the director's request for evidence, the petitioner submitted a June 24, 2005 "Award of
Excellence" from Belford University "[f]or performing all the duties diligently and enthusiastically for the
Computer Science Project." The petitioner also submitted a June 24, 2005 "Certificate of Distinction" from
Belford University "[i]n acknowledgement of exceptional performance in Computer Networks." The
petitioner received these awards subsequent to the petition's filing date. A petitioner, however, must establish
eligibility at the time of filing. 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Commr.
1971). Accordingly, the AAO will not consider these awards in this proceeding. Nevertheless, we note that
the awards from Belford University reflect institutional recognition rather than national or international
recognition.
In addressing the three awards submitted by the petitioner, the director's decision stated:
The Service finds that such awards are presented not to established individuals with active
professional careers, but rather to students in pursuit of an educational degree. .. The visa
classification sought by the petitioner is intended for aliens already at the top of their respective
fields, rather than for individuals progressing toward the top.
The Service finds no evidence to establish that the petitioner has received a nationally or
internationally recognized prize or award for excellence in the field of computer science.
We concur with the director's findings. Thus, the petitioner has not established that he meets this criterion.
Documentation of the alien's membership in associations in the field for which classification
is sought, which require outstanding achievements oftheir members, as judged by recognized
national or international experts in their disciplines orfields.
The petitioner submitted an October 21, 2004 letter reflecting his "associate membership" in Sigma Xi, The
Scientific Research Society. The petitioner also submitted material printed from Sigma Xi's internet site
stating: "Membership in Sigma Xi is by nomination. Those who have shown potential as researchers are
invited to join as associate members. Full membership is conferred upon those who have demonstrated
noteworthy achievements in research. Each year the Society initiates more than 5,000 new members." In
response to the director's request for evidence, the petitioner submitted a copy of Sigma Xi's bylaws. Lines
55 -59 of the bylaws state: "Associate membership is offered to encourage young investigators with promise
to continue careers in research. In making the nomination for such membership, both the nominator and the
seconder attest to the nominee's potential for future promotion to Member." The evidence submitted by the
petitioner reflects that "full membership" in Sigma Xi is a level above his "associate membership."
Moreover, we cannot conclude that simply having "shown potential" or "promise" as a researcher is
Page 6
commensurate with "outstanding achievements." The petitioner seeks a highly restrictive visa classification,
intended for individuals already at the top of their respective fields, rather than for individuals progressing
toward the top at some unspecified future time.
In light of the above, the petitioner has not established that he meets this criterion.
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 ofthe material, and any necessary translation.
The petitioner submitted a five-line entry from page 256 of the 1998 All-American Scholars Collegiate
Directory stating: "KANSAS CITY KANSAS CMTY CLG KANSAS CITY KS NEFF, SHERRI; American
Medical Association; Campus Computer Association; Chinese Karate Club; Chinese Students Association;
International Student Council; Speech Club; Student Activities Board; COMP INFO SYS & COMP SCI;
MA." According to the letter from_the preceding information was obtained from the petitioner's
"biography form." This brief entry in a directory of thousands of college students does not constitute
published material about the petitioner's work in the field of computer science. Further, the petitioner has not
established that this directory qualifies as a professional or major trade publication or other form of major
media. Moreover, the plain language of this regulatory criterion requires published material from more than
one publication or major media source.
In light of the above, the petitioner has not established that he meets this criterion.
Evidence ofthe alien's participation, either individually or on a panel, as ajudge ofthe work of
others in the same or an alliedfield ofspecificationfor which classification is sought.
In addressing this criterion, the director's decision stated:
The petitioner did not initially claim to meet this criterion. In response to the Service's request for
additional evidence[,] the petitioner went on record to claim status as a journal reviewer for the
Journal ofthe American Society for Information Science and Technology and as a software reviewer
for CdrInfo. However, the record is completely lacking documentary evidence to corroborate the
petitioner's claim. While the record contains information regarding these two entities[,] there is no
evidence that the petitioner has conducted any type of review for either of them.
We concur with the director's findings. The plain language of this criterion requires "[e]vidence of the alien's
participation, either individually or on a panel, as a judge of the work of others." 8 C.F.R. § 204.5(h)(3)(iv).
The record includes no such evidence. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec.
158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr.
1972». The petitioner does not challenge the director's findings on appeal. Thus, the petitioner has not
established that he meets this criterion.
Page 7
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions ofmajor significance in the field.
Pages 3 through 6 of the director's decision include a thorough analysis of the petitioner's initial evidence as
it relates to this criterion. We concur with the director's findings.
In response to the director's request for evidence, the petitioner submitted two additional letters of support. A
May l, 2005 letter from James Talent, United States Senator for Missouri, states:
[The petitioner] tells me that he has completed a Master of Computer Science degree at the University
of Missouri-Columbia and has recently become a Ph.D. candidate focusing on management and
organizational leadership at the University of Phoenix Online. He further states that his "cutting-edge
research in software design for the Chinese language . . . make(s) information in databases more
useful, which will open up the possibility for billions in commercial value each year." Additionally, I
understand he was awarded the United States Achievement Academy's All-American Scholar Honors
Program for his work as a student at the Kansas City Kansas Community College.
Given the above information, please show [the petitioner] all possible consideration for the approval
of his 1-140 ....
Senator Talent's letter repeats information provided to him by the petitioner, but it does not state that the
petitioner has made original scientific, scholarly, or business-related contributions of major significance in the
computer science field. The assertion that the petitioner's research will someday "open up the possibility for
billions in commercial value each year" is not an indication that his work has already resulted in a
contribution of major significance in his field. A petitioner cannot file a petition under this classification
based on the expectation of future eligibility. See Matter of Katigbak, 14 I&N Dec. at 49. Individuals
seeking employment-based immigrant classification must possess the necessary qualifications as of the filing
date of the visa petition. Id. Further, contrary to the statements contained in Senator Talent's letter, the
evidence of record reflects that the petitioner earned his Master of Science degree in Computer Science from
the University of Missouri-Kansas City (rather than the University of Missouri-Columbia) and pursued his
Ph.D. studies at Belford University (rather than the University of Phoenix). The AAO may, in its discretion,
use as advisory opinion statements submitted as expert testimony. However, where an opinion is not in
accord with other information or is in any way questionable, the AAO is not required to accept or may give
less weight to that evidence. Matter ofCaron International, 19 I&N Dec. 791, 795 (Commr. 1988).
A July 20, 2005 letter from IAssociate Professor in the Department of Computer Science and
Electrical Engineering at the University of Missouri-Kansas City, states:
[The petitioner] took two of my courses at the graduate level, the directed reading and the thesis
courses, in 2000. I was the Chairman of the Committee of the Master's Degree in Computer Science
for [the petitioner] at UMKC.
* * *
Page 8
While his study [sic] at University in China, Kansas City [Kansas] Community College, UMKC, and
his working at Lucky International Trading Inc., [the petitioner] was involved with web security
related application. In his work, he discovered and widely disseminated the secret data collection
mechanisms and the analysis data schema through searching the data stored in the database to monitor
online users 'activities. The design of secured structure schema of the WEB application also enabled
the applications to automatically keep track [of] the users' suspicious behaviors on a twenty-four X
server base. Therefore, his work has made the WEB e-commerce system and the Web-enabled
database much safer and more efficient. He is the first researcher to have collected the information
about the user's browsing behaviors into the design of a secured online application. Therefore, [the
petitioner's] research and practice in Internet Web security area has had a significant impact on the e­
commerce structural design and application implementation field.
The record, however, includes no evidence of this impact consistent with an original contribution of major
significance in the field. For example, there is no evidence showing that the petitioner's online monitoring
application has been successfully marketed at the national or international level or that it has been licensed by
leading companies in the software industry. While the petitioner's research is no doubt of value, it can be
argued that any research must be shown to be original and present some benefit if it is to receive funding and
attention from the scientific community. Any Ph.D. thesis or scientific research, in order to be accepted for
graduation, publication or funding, must offer new and useful information to the pool of knowledge. It does
not follow that every researcher who performs original research that adds to the general pool of knowledge
has inherently made a contribution of major significance in the field. According to the regulation at 8 C.F.R.
§ 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. In this
case, there is no evidence that the petitioner's original research contributions have been recognized outside of
the educational institutions he attended. Without substantive evidence that the field of computer science has
somehow changed as a result of petitioner's work or other evidence showing the impact of his work
consistent with sustained national or international acclaim, we cannot conclude that he has made original
contributions of major significance in the field.
The director's decision correctly noted that the experts offering letters of support regarding the petitioner's
research contributions were limited to individuals from Kansas City Kansas Community College and the
University of Missouri-Kansas City. The opinions of experts in the field, while not without weight, cannot
form the cornerstone of a successful extraordinary ability claim. CIS may, in its discretion, use as advisory
opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. at 795.
However, CIS 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; CIS 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 experts' 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 researcher who has sustained national
or international acclaim.
In light of the above, the petitioner has not established that he meets this criterion.
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Evidence ofthe alien sauthorship ofscholarly articles in thefield, in professional or major trade
publications or other major media.
On May 11, 2005, the director issued a notice requesting the petitioner to provide "[e]vidence of [his]
authorship of scholarly articles in the field, in professional or major trade publications or other major media."
The petitioner, however, failed to submit evidence showing that he meets the requirements of this regulatory
criterion.
In addressing this criterion, the director's decision stated:
In response to the Service's request for additional evidence[,] the petitioner asserts that he has
published four articles in scholarly journals in his field. However, the petitioner has not submitted a
copy of any published articles. The record contains only a copy of the petitioner's thesis and one
article without any evidence that either of these have been published in professional or major trade
publications or other major media.
On appeal, the petitioner submits a publication entitled Internet Techniques and Applications, a "2151 Century
Computer Science - College Study Guide."] The petitioner also submits a publication entitled Solid Works:
Study Guide to the Basics and Applications. Pursuant to 8 C.F.R. § 103.2(b)(3), any document containing
foreign language submitted to CIS 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 translations accompanying the preceding
publications 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 showing that the preceding college study guides qualify as professional or major
trade publications or other major media.
The director put the petitioner on notice of the required evidence on May 11,2005 and gave him a reasonable
opportunity to provide it for the record (twelve weeks) before the visa petition was adjudicated. The
petitioner failed to submit the requested evidence and now submits it on appeal. However, the AAO will not
consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of
Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding
before the director. If the petitioner had wanted the college study guides to be considered, he should have
submitted them initially or in response to the director's request for evidence.
In light of the above, the petitioner has not established that he meets this criterion.
In his appellate brief, counsel argues that the director's request for evidence "did not give [the petitioner]
enough time to get some of the documents translated, nor did it provide for an option to do so." Counsel's
argument is without merit. As discussed previously, any document containing foreign language submitted to
CIS shall be accompanied by a full English language translation. 8 C.F.R. § 103.2(b)(3). The director's May
3 The uncertified translation submitted by the petitioner identifies ._as the author and the petitioner
as the editor of this publication.
11, 2005 request for evidence afforded the petitioner" 12 weeks to respond" as provided by the regulation at
8 C.F.R. § 103.2(b)(8). This regulation further states that "[a]dditional time may not be granted."
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 sustained national or international acclaim necessary to qualify as an alien of extraordinary
ability. The conclusion we reach by considering the evidence to meet each criterion separately is consistent
with a review of the evidence in the aggregate. 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 and earned
sustained national or international acclaim.
The petitioner has not established eligibility pursuant to section 203(b)(I)(A)(i) of the Act and the petition may
not be approved.
The burden of proof in visa petition proceedings remains entirety with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.