dismissed EB-1A Case: Computer Software

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 24, 2024 In Re: 33769918 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a computer software business, seeks to classify the Beneficiary, a senior director of 
professional services, 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 the Petitioner did not 
satisfy at least three of the initial evidentiary criteria. The matter is now before us on appeal pursuant 
to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 
203(b )(1 )(A) of the Act makes visas available to 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 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 a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award) or 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). 
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. 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). 
II. ANALYSIS 
Because the Petitioner has not indicated or established the Beneficiary 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). The Director concluded the Beneficiary fulfilled only two - judging 
under 8 C.F.R. § 204.5(h)(3)(iv) and leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii). On 
appeal, the Petitioner maintains the Beneficiary's qualification for four further criteria. Issues and 
prior eligibility claims not raised on appeal are waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330, 
336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). For the reasons 
discussed below, the Petitioner did not demonstrate the Beneficiary meets at least three categories of 
evidence. 
A. Evidentiary Criteria 
Documentation of the individual's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Petitioner argues that the Beneficiary meets this criterion based on: (I) his membership on the 
Advisory Board for the Customer Experience Certificate Program atl I 
I I Division of Continuing Education; and (2) his membership on the Advisory Board for the 
Digital Marketing Executive Education Program at the I I 
I I users determines if the association for which the person claims 
membership requires that members have outstanding achievements in the field as judged by 
recognized experts in that field. 1 The petitioner must show that membership in the association requires 
1 See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
2 
outstanding achievements in the field for which classification is sought, as judged by recognized 
national or international experts. 2 
The record contains membership invitation letters from ________ dated, respectively, 
2021 and 2022, which indicate the Beneficiary's acceptance by initialing and signing. The letters use 
identical language to state that "[ m ]embership on the board is by invitation only and is based upon 
[the Beneficiary's] personal and professional accomplishments." In addition, the letters provide that 
"[t]he board is comprised of a diverse, innovative, and extremely well-connected network of top 
executives." 3 
Further, as it relates toc=J Customer Experience Certificate Program Advisory Board, the Petitioner 
provided screenshots from the organization's website that indicate that"[ e ]xecutives around the nation 
are hand-picked for the board to provide students an exclusive group of individuals with diverse 
industry backgrounds to offer different points of view and distinctive leadership qualities, making up 
a team of accomplished experts who offer innovative advice and dynamic perspectives in their area of 
focus." However, based on the above limited descriptions of the membership criteria of these advisory 
boards, they do not appear to involve additional requirements or substantive review by national or 
international experts to determine whether a given applicant has demonstrated outstanding 
achievements. 
On appeal, the Petitioner states that membership on the above advisory boards "are only open via 
express invitation from experts and professors within these top tier universities," but this statement 
was not supported by the information provided in the record. Counsel's unsubstantiated assertions 
do not constitute evidence. See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in 
a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary 
weight"). Counsel's statements must be substantiated in the record with independent evidence. The 
record does not establish that the Beneficiary's membership on the Customer Experience 
Certificate Program Advisory Board or the I I Digital Marketing Executive Education 
Program Advisory Board satisfies 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 of the material, and any 
necessary translation. 8 C.F.R. § 204.5(h)(3)(iii). 
The Petitioner claims eligibility for this criterion based on an interview of the Beneficiary on The 
Agile Brand Podcast with Greg Kihlstrom. In order to fulfill this criterion, the Petitioner must 
demonstrate published material about the Beneficiary in professional or major trade publications or 
other major media, as well as the title, date, and author of the material.4 In evaluating whether a 
submitted publication is a professional publication, major trade publication, or major media, relevant 
2 Id. 
3 Further, the letters indicate that members must attend at three board meetings per year, provide feedback on the program's 
effectiveness, and register oneself or a colleague for the class with a provided discount, and may participate as a speaker, 
mentor, or panelist. 
4 See also 6 USCIS Policy Manual, supra, at F.2(B)(l). 
3 
factors include the intended audience (for professional and major trade publications) and the relative 
circulation, readership, or viewership (for major trade publications and other major media). 
Re ardin the interview, the Petitioner rovided a transcri t of the odcast interview titled, 
posted on the website 
Gregkihlstrom.com. The Petitioner, however, did not include the regulatorily required date and author 
of the material. In addition, the Petitioner did not demonstrate, as claimed, that The Agile Brand 
Podcast enjoys standing as a major trade publication or other major medium, nor did the Petitioner 
offer evidence relating to Gregkihlstrom.com. At initial filing, in response to the Director's request 
for evidence (RFE), and on appeal, the Petitioner referenced information contained in a screenshot it 
initially submitted from the Gregkihlstrom.com website that the podcast is "[t]he leading marketing 
technology podcast" and has more than 2 million downloads, and a letter from Mr. Kihlstrom asserting 
the podcast "has garnered more than 1.5 million downloads." 
Although the Petitioner asserts on appeal that "this podcast qualifies as a major trade publication or 
some other form of major media," it has not provided independent and objective evidence to support 
its claim of major audio coverage. As stated, counsel's unsubstantiated assertions do not constitute 
evidence. Nor will we rely on the self-promotional material of the publisher. See Braga v. Poulos, 
No. CV 06 5105 SJO (C.D. CA July 6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009) ( concluding that 
self-serving assertions on the cover of a magazine as to the magazine's status is not reliant evidence 
of a major medium). Even if we were to accept Mr. Kihlstrom's information, the Petitioner did not 
provide further evidence or information demonstrating the significance or relevance of the provided 
download figures to establish that the interview venue represents "a major trade publication or some 
other form of major media." Therefore, we need not address the Petitioner's arguments relating to 
whether the evidence qualifies as published material about the Beneficiary relating to his work in the 
field. 
For the reasons discussed above, the Petitioner did not show that the Beneficiary meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions ofmajor significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner maintains that the Beneficiary has made original contributions of major significance in 
the field of strategic management of Customer Experience Management (CEM) and Employee 
Experience Management (EEM) technology development and engagement, in his role within the 
petitioning company. In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), USCIS determines 
whether the person has made original contributions in the field. 5 USCIS then determines whether the 
original contributions are of major significance to the field. 6 Examples of relevant evidence include, 
but are not limited to: published materials about the significance of the person's original work; 
testimonials, letters, and affidavits about the persons original work; documentation that the person's 
original work was cited at a level indicative of major significance in the field; and patents or licenses 
deriving from the person's work or evidence of commercial use of the person's work. 7 The Director 
5 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
6 Id. 
7 Id. 
4 
found that the documentation submitted does not show that the significance of the Beneficiary's 
contributions rise to a level of major significance in the field of CEM and EEM technology 
development and engagement. 
On appeal, the Petitioner asserts it has demonstrated that the Beneficiary's work developing and 
managing its program and partnership ecosystem has led to decreased 
deployment costs and increased customer engagement and company revenue. The Petitioner contends 
these contributions were critical to the Petitioner's 2019 IPO, its 2021 acquisition by I I 
I I and its 2022 acquisition of I In addition, it argues that the submitted letters 
show that the Beneficiary's contributions have "influence beyond his employers, clients or 
customers," because his work for major corporate clients such as ____________ 
______ has resulted in the expansion of the Petitioner's technologies and offerings to 
these corporations' own customer/clients. 
The evidence referenced by the Petitioner, such as recommendation letters,8 indicates the 
Beneficiary's involvement in the Petitioner's projects with major corporate clients. However, the 
evidence does not show that such involvement rises to a level of major significance in the field. The 
significance of the Beneficiary's contributions has been limited to the projects in which the petitioning 
company conducted business rather than impacting or influencing the overall field in a major way. 
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). 
For instance, the Petitioner provided letters from several of its own clients. P-S-, a vice president at 
the management consulting company states that his work with the Beneficiary's team converting 
I I proprietary solution into an application on the 
Petitioner's app development platform had "a substantial impact on multiple clients," including an 
American manufacturer of secure identity products and a German telecommunications company. 
N-M-, a vice president at the chemical company I I provides that the Beneficiary played "a pivotal 
role in the successful implementation of [the Petitioner's] Customer Experience Management 
software" forl Iin collaboration with He asserts that the Beneficiary's contributions to this 
project resulted in an 18.5% increase inl I (a measure of customer loyalty and 
satisfaction), made "a measurable impact on I I global business," and "significantly influenced 
how [ the Petitioner's and related technologies are perceived and utilized by ... our customers, 
clients, and competitors." Although the authors of the letters highly praise the projects in which they 
worked with the Beneficiary, they do not further elaborate and explain how those engagements 
translated into contributions of major significance in the field. 
In addition, while letters from representatives of the petitioning organization highly praise the 
Beneficiary's work in his position as a strategic management executive and on behalf of various 
customers, they do not explain how his contributions have been majorly significant in the field. 
Further, some of the letters make broad claims regarding his work. For instance, N-B-, the 
Beneficiary's direct manager, credits him with the development of the Petitioner's ______ 
8 While we discuss a sampling of letters, we have reviewed and considered each one in the record. 
5 
9 development of its Partner Relationship Management system that saved it "hundreds 
of thousands of dollars in 3rd party software cost;" deployment of IApp and 
__________ powered by the Petitioner's app and proprietary app development 
platform which "are critical towards enabling our wide partner ecosystem to leverage the entire spread 
of [the Petitioner's] advanced technologies; and contribution to the Petitioner's acquisition of 
I I a Mexican customer experience consulting firm, for implementation of the Petitioner's 
He asserts that the Beneficia 's work 
"was very critical to [the Petitioner's] recent acquisition by 2021." 
J-D-, the Petitioner's executive vice president and chief customer officer, provides that initiatives the 
Beneficiary developed for optimizing revenues and regional profitability for the Petitioner's East 
Coast Professional Services division were later used to drive similar improvements in profitability for 
the Petitioner's Professional Services as a whole, which were critical to the company's continued 
growth before and after its 2019 IPO. Further, he claims that"[ o ]ver 1000 companies from across the 
globe now subscribe to and utilize [the Petitioner's] SaaS products and services he has supported here" 
and that "[the Petitioner] and third party businesses built on and around [the Petitioner's] platform 
now employ several thousand employees, further illustrating [the Beneficiary's] leading positive 
impact on his fields and the SaaS sector as a whole." T-K-, the Petitioner's former general manager 
and vice president of the East Coast business, states that "the Beneficiary's original contributions in 
driving up the margins on the business through development of new enterprise-wide initiatives and 
best practices, working on multi-market accounts, and leveraging our Partner ecosystem through 
custom designed CEM Saas solutions and applications of[the Petitioner's] platform all have made a 
major significant positive impact on the field of [CEM] and [EEM] technologies as a whole." 
As evidenced above, the letters reflect how much the petitioning employer values the Beneficiary's 
contributions to its company. However, the letters do not explain what the Beneficiary has contributed 
in the field and how those contributions are considered to be of major significance in the field. In 
addition, the letters make general claims and point to the Beneficiary's impact on the individual 
companies rather than on the overall field. See Visinscaia, 4 F. Supp. 3d at 134-35. Moreover, the 
letters do not articulate how the Beneficiary's performance in his roles at the petitioning company 
somehow influenced or affected the field in a significantly major manner. 
Detailed letters from experts in the field explaining the nature and significance of the person's 
contribution may also provide valuable context for evaluating the claimed original contributions of 
major significance, particularly when the record includes documentation corroborating the claimed 
significance. 10 Submitted letters should specifically describe the person's contribution and its 
significance to the field and should also set forth the basis of the writer's knowledge and expertise. 11 
In this case, the letters lack specific, detailed information explaining how the Beneficiary has made 
original contributions of major significance in the field. USCIS need not accept primarily conclusory 
statements. 1756, Inc. v. The US. Att'y Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
9 In addition, although N-B- claims the Petitioner's I I is "a product offering that has billions of dollars' worth 
of addressable market potential," the fact that the program may impact the field at some point in the future does not 
demonstrate that the current impact of the Beneficiary's work rises to a level of"major significance" as required. 
10 See generally 6 USCJS Policy Manual, supra, at F.2(B)(l). 
11 Id. 
6 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that the Beneficiary has made original contributions of major significance in the field. 
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.F.R. § 204.5(h)(3)(ix). 
The Petitioner states that the Beneficiary qualifies for this criterion based on the pay he received with 
the petitioning company in 2021 and 2022. The Director found insufficient evidence to establish that 
the Beneficiary earned a high salary or other significantly high remuneration. USCIS determines 
whether the person's salary or remuneration is high relative to the compensation paid to others working 
in the field. 12 According to Form I-140, Immigrant Petition for Alien Workers, the Petitioner indicated 
the Beneficiary's proposed job title as "Senior Director, Professional Services," and his annual salary 
as $219,300. 13 In the initial cover letter, the Petitioner indicated it promoted the Beneficiary to his 
current position in November 2021 and that he also receives "generous stock and performance bonus 
incentives." 14 The record reflects that the Beneficiary received total compensation of $695,372 in 
2021 and $382,135 in 2022. 
The Petitioner argues it satisfies this criterion based upon submitted data from Glassdoor.com and 
Indeed.com that indicates that the range of base salaries for senior directors (all industries) in the 
Beneficiary's geographic area I I California) with 7 to 9 years of experience is $152,000 
to $215,000; the material from Indeed.com shows the high base salary for a senior director in the 
geographic area is $300,991. The wage information provided by Glassdoor and Indeed does not 
provide a description of the "senior director" occupation and specifies that "all industries" were 
included in the survey. Broad descriptions that include multiple occupations or multiple industries 
may not provide an accurate comparison to others in the field. See generally, 6 USCJS Policy Manual, 
supra, at F.2(B)(l). 15 The Petitioner has not demonstrated that the salary for "senior director (all 
industries)" is an appropriate basis for comparison. 
In addition, the Petitioner contends that it meets this criterion based on salary data it provided for 
computer and information system managers. Data from the Department of Labor's Foreign Labor 
Certification (FLC) Data Center indicates that computer and information system managers in the 
Beneficiary's geographic area earn a Level 4 Wage (fully competent) of $250,286. Occupational 
Employment and Wage Statistics for computer and information systems managers from the Bureau of 
Labor Statistics (BLS) shows a 90th percentile wage of $239,200 for the United States. Further, within 
its RFE response, the Petitioner provided information from Glassdoor.com and Indeed.com showing 
base salaries for computer and information system managers in the Beneficiary's geographic area. 
12 See generally 6 USCJS Policy Manual, supra, at F.2(B)(l). 
13 The Petitioner has employed the Beneficiary on an HIB (specialty occupation) visa since December 2014. 
14 The Petitioner's initial letter described the Beneficiary's job duties as including: build, optimize and enhance software 
solutions; manage teams of technical analysts working with enterprise grade database management systems; lead a 
complex software implementation program; lead design discussions with clients for Enterprise grade technology 
deployments; direct management and leadership of a Professional Services team to include recruiting, hiring, development, 
performance management and retention; collaborate with Marketing to understand client success stories, with the Product 
team to shape the platform road map, and with the Insights team to develop CEM best practices; and perform financial 
management and rep011ing, including profit and loss reporting. 
15 Further, the screenshots in the record from Glassdoor.com do not state how many users reported their salaries to make 
its findings, which limits the data's evidentiary value. 
7 
The information from Glassdoor.corn indicates that the range of base salaries for computer and 
information system managers (all industries) with 7 to 9 years of experience is $85,000 to $152,000; 
the material from Indeed.corn shows the range of base salaries for computer and information system 
managers is $58,811 to $182,597. 16 
While the Petitioner argues that the Beneficiary's total compensation is considerably higher that the 
base salary figures reported by the BLS, FLC, Glassdoor, and Indeed resources, we note that the 
Petitioner did not provide supporting evidence that would allow a comparison between the 
Beneficiary's total remuneration and that of other similarly employed workers in his geographic area. 
Therefore, the evidence does not establish that he receives total remuneration that is "significantly 
high." 
Finally, the Petitioner submitted the average household income of residents in the 
California area; however, this regulatory criterion requires that an individual commands a high salary 
in relation to others in the field rather than comparing the wages to the overall workers in the 
geographic area. For the reasons discussed above, the Petitioner has not established the Beneficiary 
has commanded a high salary or other significantly high remuneration in relation to others based on 
his earnings with the Petitioner. 
B. Final Merits Determination 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documentation showing that the Beneficiary meets at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). As a result, we need not provide the type of final merits determination referenced 
in Kazarian, 596 F.3d at 1119-20. Accordingly, we reserve the final merits determination. 17 
Nevertheless, we have reviewed the record in the aggregate, concluding it does not support a 
conclusion that the Beneficiary has established the acclaim and recognition required for the 
classification sought. 
The Petitioner seeks a highly restrictive visa classification for the Beneficiary, intended for individuals 
already at the top of their respective fields, rather than those progressing toward the top. Matter of 
Price, 20 I&N Dec. 953,954 (Assoc. Cornrn'r 1994) (concluding that even major league level athletes 
do not automatically meet the statutory standards for classification as an individual of "extraordinary 
ability,"); Visinscaia, 4 F. Supp. 3d at 131 (internal quotation marks omitted) (finding that the 
extraordinary ability designation is "extremely restrictive by design,"); Hamal v. Dep 't ofHomeland 
Sec. (Hamal 11), No. 19-cv-2534, 2021 WL 2338316, at *5 (D.D.C. June 8, 2021), aff'd, 2023 WL 
1156801 (D.C. Cir. Jan. 31, 2023) (determining that EB-1 visas are "reserved for a very small 
percentage of prospective immigrants"). See also Hamal v. Dep 't ofHomeland Sec. (Hamal 1), No. 
16 The information from Indeed shows that only nine salaries were reported for this survey. This relatively small sample 
size limits the data's evidentiary value. See generally 6 USCIS Policy Manual, supra, at F.2(8)(1) (stating that some 
websites that rely on user-reported salary data may not provide a valid comparison if, for example, too few users reported 
their salaries, which may impact the reliability of the data). 
17 See INS v. Bagamashad, 429 U.S. 24, 25-26 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessmy to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternative issues on appeal where an applicant is othe1wise ineligible). 
8 
l9-cv-2534, 2020 WL 2934954, at* l (D.D.C. June 3, 2020) ( citing Kazarian, 596 at 1122 (upholding 
denial of petition of a published theoretical physicist specializing in non-Einsteinian theories of 
gravitation) (stating that "[c]ourts have found that even highly accomplished individuals fail to win 
this designation")); Lee v. Ziglar, 237 F. Supp. 2d 914,918 (N.D. Ill. 2002) (finding that "arguably 
one of the most famous baseball players in Korean history" did not qualify for visa as a baseball 
coach). 
Here, the Petitioner has not shown the significance of the Beneficiary's work is indicative of the 
required sustained national or international acclaim or it is consistent with a "career of acclaimed work 
in the field" as contemplated by Congress. H.R. Rep. No. l O 1-723, 59 (Sept. 19, 1990); see also 
section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate the Beneficiary 
has garnered national or international acclaim in the field, and he is one of the small percentage who 
has risen to the very top of the field of endeavor. See section 203(b )(l )(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). The record does not contain sufficient evidence establishing the Beneficiary among the 
upper echelon in his field. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's eligibility as 
an individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
9