dismissed EB-1A Case: Construction Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 6130989 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 5, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a construction manager , seeks classification as an alien 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 denied the petition , concluding that the record did not establish that the Petitioner has 
received a major, internationally recognized award or met the requirements of at least three of the ten 
evidentiary criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). On appeal, the Petitioner submits additional 
evidence and asserts that in addition to the two evidentiary criteria that the Director found he met, he 
meets an additional three criteria and has sustained national or international acclaim. 
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 de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) 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 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). 
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). 
II. ANALYSIS 
The evidence indicates that the Petitioner currently serves as Vice President (Engineering) fo~~-- ..... 
'----~-~--~----' in China, and has served as a construction project manager for that 
company and his previous employer. It further indicates that he is also a co-founder of a real estate 
investment company based in Southern California. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or 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). The Director found that the Petitioner met two of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to media about him and his work and his leading or critical 
role for organizations with a distinguished reputation. On appeal, the Petitioner asserts that he also 
meets the evidentiary criteria relating to lesser nationally or internally recognized awards, 
contributions of major significance to the field, and a high salary relative to others in his field. After 
reviewing all of the evidence in the record, we find that he does not meet the requisite three 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 submitted certificates which indicate that ~be I I I 
.__ _________________ ____. received a [ I prize for "National High-Quality 
Construction" as a participant in the construction of three projects, in 1995, 1997 and 2002. The 
Petitioner also submitted photographs of three trophies, including plaques with text which was not 
translated into English, as well as photographs of him holding the certificates and trophies. 
The plain language of the regulations for this criterion require that it is the alien who must have 
received the award. Here, the certificates name a codpany js the recipient of these awards. In 
addition, the notice of a revised selection method for th prize, which was issued by the China 
Construction Industry Association (CCIA), explains that it is "construction enterprises" who may 
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"voluntarily declare projects for thel I Prize." In its response to the Director's request for 
evidence (RFE), the Petitioner submitted a decision issued to a different petitioner in an unrelated 
case, in which we considered whether that petitioner was so integral to his employer's receipt of an 
award that he could be considered a de facto recipient. We note that this decision was not published as 
a precedent and therefore does not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). 
Non-precedent decisions apply existing law and policy to the specific facts of the individual case, and 
may be distinguishable based on the evidence in the record of proceedings, the issues considered, and 
applicable law and policy. In this case, the inconsistencies in the evidence relating to which entity 
received the award, and the Petitioner's role in the winning construction projects, do not support a finding 
that he may be considered to be a recipient of any of the three I I prizes. 
We first note that there are discrepancies within the record regarding the Petitioner's employment by the 
i;nanv named on2ertificates. His own resume indicates that he was rniployed by thel I 
from October 1994 to December 2007, and this is also the company name used 
by~----~ general manager of the company, in his reference letter. While a certificate entitled 
'job offer" was submitted which indicates that the Petitioner was hired by I I in the month of 
October 1994, rather than a s ecific date in that month, an or anizational chart included at Exhibit 41 of 
the record shows tha is one of three subsidiaries o but that the Petitioner was employed 
by a different subsidiary,~---------------' In addition, the Petitioner submitted 
printed webpages from a website, http://www.smelx.com which indicate that those same awards were 
granted to a third different company, the~ ______________ ___,company, in 1997 
and 2000. The Petitioner has not resolved these discrepancies in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
More importantly, despite the evidence which clearly indicates that it is companies which receive the 
I I prize, several reference letters submitted by the Petitioner refer to his receipt of the thre~ I 
prizes noted above. I I, who indicates that he hired the Petitioner and worked with him, describes 
the Petitioner's role in all three projects as that of "project manager" with "the leading construction 
management role." He describes all three of the prize-winning construction projects, and writes that in 
each one, the Petitioner was the "only manager," "organiz[ ed] hundreds of workers," "was in charge of 
ascertaining load, power and structural requirements," and "was responsible for analyzing the building 
and system prototypes submitted by his architectural team," among other com lex tasks. However, while 
I I does not provide the dates of the Petitioner's employment wit,,_,__,..................,..,Petitioner' s resume 
indicates that he began employment with the company months before the 1995 ~-~prize was awarded, 
and logically even fewer months before (or after) the project was completed and submitted for 
consideration for the award. It is therefore not credible that he could have performed the role described 
byl I regarding the construction of the 1995 award-winning project, some of which includes 
design and engineering duties which would have taken place prior to construction. As with the evidence 
regarding the name of the company which received thq lprizes, the Petitioner has not resolved these 
discrepancies in the record. Ho, 19 I&N Dec. 582, 591-2. Further, this unresolved discrepancy regarding 
the project in 1995 leads us to question the reliability and sufficiency of the evidence and assertions 
regarding the other two projects which the Petitioner claims to have managed. Id. 
Finally, the Petitioner's resume indicates that at the time the Petitioner joinedD he had earned a high 
school diploma and had no experience in the management of construction projects, as an engineer or 
architect, or in the construction industry at all. The evidence does not establish that at the time of his 
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hiring in October 1994 he could have performed the complex and high-level responsibilities described in 
I I's letter, and others, without the education and experience those responsibilities require. 1 The 
record therefore does not include documentary evidence to support the claims mat by re Petitioner and 
in the reference letters regarding his leadership of large construction projects for or his role in his 
employer's or an affiliate's receipt of any awards or prizes. Accordingly, the Petitioner does not meet 
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) 
Based solely upon the article in the record appearing in The China Press, we agree with the Director 
that the Petitioner has met this criterion. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
In order to satisfy this criterion, a petitioner must establish that not only has he 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. 
On appeal, the Petitioner asserts that the Director did not provide sufficient reasoning for her decision 
to not grant this criterion, and reiterates his claim to have led the implementation of external wall 
insulation methods which were later incorporated into government regulations. The Petitioner refers 
to several reference letters which describe his role in increased use of this construction method in 
China. However, we note that depending on the specificity, detail, and credibility of a letter, we may 
give the document more or less persuasive weight in a proceeding. The Board oflmmigration Appeals 
(the Board) has held that testimony should not be disregarded simply because it is "self-serving." See, 
e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, 
however: "We not only encourage, but require the introduction of corroborative testimonial and 
documentary evidence, where available." Id. If testimonial evidence lacks specificity, detail, or 
credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter of Y-B­
' 21 I&N Dec. 1136 (BIA 1998). Given the inconsistencies between statements in reference letters in 
the record and other documentary evidence, as has already been noted above, we find that the reference 
letters do not support the Petitioner's assertion. 
For example.I [ Deputy Director oflr-------,. ____________ .....11 
writes that the Petitioner's "leading role on the1._ _____ ___.I wall insulation design was also well 
1 While we recognize that education and employment standards vary by country, we note that the U.S. Bureau of Labor 
Statistics, in the most recent edition of the Occupational Outlook Handbook, indicates that construction firms typically 
require a bachelor's degree in a related field and practical construction experience when hiring a construction manager, 
while some may qualify through extensive construction experience. https://www.bls.gov/ooh/management/construction­
managers.htm#tab-l. The evidence does not indicate that the Petitioner had similar education and experience at the time 
of hiring bye=] or that he later continued his education or participated in internships or other training programs. 
4 
acknowledged by the Chinese government, and provided a practical basis" for the 2008 regulations 
concerning its installation. He states that he recommended the Petitioner's methods to the government 
body which promulgated the reF,ulations, and that they "implemented his design and method" into the 
regulations. Althoughl suggests, as do the writers of other letters in the record, that it was the 
Petitioner who designed this type of insulation as well as methods for its installation, other evidence 
does not support this assertion. Most importantly, the regulations themselves note that the 2008 
revisions are based upon "extensive investigation and study, earnestly summarizing the practical 
experience, referring to the relevant international standards and foreign advanced standards, and based 
on extensive solicitation of opinions." This statement in the foreword of the regulation text indicates 
that rather than adopting the Petitioner's design and installation methods, as suggested in the reference 
letters, the drafting team referred to existing international standards as well as practice and experience 
throughout the industry. Any role the Petitioner may have had in responding to "the solicitation of 
opinions" aside, the direct and substantial contribution asserted in the reference letters is not supported 
by technical drawings, the submission of formal proposals to the drafting government body or related 
correspondence, patent or other intellectual property applications, or other documentation in the record 
to link the Petitioner to this revision to the regulations. 
Further, other reference letters in the record refer to the Petitioner's installation ofl lwall 
insulation on specific building projects, but do not support the originality of this contribution or its 
significance to the field of construction mTagemrt. For instance, I I Deputy Director 
in writes about the Petitioner's role in one project 
~a_n_d_h_i_s _r_e-co_m_m_e_n_d_a_t-io_n_r-eg_a_r_d-in_g_t_h_e~installation o±1 I wall insulation. While I 
O 
I 
expresses satisfaction with the performance of the insulation, his opinion relates to this single project 
involving the installation of an existing product, and does not demonstrate the originality or 
significance of the Petitioner's work. 
The Petitioner also asserts on appeal that the three I I prizes discussed above show that those 
projects "set industry benchmarks across the country, which is by definition a national impact." 
However, as we have determined that those awards were neither granted to the Petitioner nor can be 
attributed to him, we need not consider whether they demonstrate that the Petitioner had the asserted 
national impact upon the construction industry. Accordingly, the Petitioner has not established that 
he meets this criterion. 
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) 
onse to the Director's RFE the Petitioner asserts that he has served in a 
r'-1"""!.l.U.Ll.-......l.!JL....l..LJL.U.l<J,LL....Ll,,~~---------.....---------=d....1,.----__J D and 
~------------....--~--------· Regarding '------1 while the Petitioner 
submitted a letter from.__ __ ........ who writes that he is the company's general manager, the record 
otherwise includes onl a copy of a website describing a different company named I I 
L..._ _ __,.----,_ ___ ____J ( emphasis added.) Here as with the other, previously analyzed reference 
letters,.__ __ _____,' s letter lacks specificity and is not supported by corroborative documentary evidence. 
This evidence is therefore insufficient to establish the existence or operational history ofl I its 
corporate ownership and organizational structure, the Petitioner's status as a co-founder and 
consultant, or the nature of its reputation. 
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Turning to the Petitioner's role withe=] he relies upon the reference letter from I I to 
establish his leadership within the company. However, as previously discussed under the criterion 
relating to lesser awards, I I's statements regarding his work as lead project manager for three 
award-winning projects contains factual inconsistencies related to the receipt of the awards, his 
involvement in at least one of those projects, and his qualification to perform the duties described. It 
is therefore insufficient to establish that the Petitioner played a leading or critical role forD 
Finally, the Petitioner's role with~videnced by a reference letter from I O O I 
general manager of the company. 2L___J indicates that after his hiring in 2008, the Petitioner rose 
to the position of vice general manager of the company, and "participated in the investment and 
construction" of several projects. This letter, together with another letter written by I I is 
sufficient to establish the Petitioner's leading role for this organization. 
However, the evidence does not establish that thel I enjoys a distinguished reputation in the 
construction industry. I I indicates that the company has earned a AAA credit rating and is 
"certified through ISO9001:2000 quality system standard and ISO14001:2004 environmental 
management system certification." This information is repeated on the company's website. In 
response to the Director's request for evidence, the Petitioner submitted evidence regarding the 
meaning of these ratings and qualifications. Pages from the website www.investopedia.com state that 
a AAA credit rating "is the highest possible rating assigned to an issuer's bonds," and that "a high 
credit rating lowers the cost of borrowing for an issuer." Information about the referenced 
certifications from the International Organization for Standardization (ISO) was also submitted, with 
its website pages stating that the 9001:2001 certification is awarded where an organization 
"demonstrate[ s] its ability to consistently provide product that meets customer and applicable 
regulatory requirements" and "aims to enhance customer satisfaction through effective 
implementation of the [ quality management] system." Regarding the 14001 :2004 certification, the 
evidence states that "specifies requirements ... to enable an organization to develop and implement a 
policy and objectives which take into account legal requirements ... " This evidence indicates that a 
AAA credit rating indicates that the company "can easily meet its financial commitments," but it does 
not demonstrate that companies possessing such a rating have a distinguished reputation in their 
respective industries. Similarly, the ISO certifications indicate that an organization has developed and 
implemented internal systems to provide quality, customer satisfaction, and compliance with 
environmental requirements, but the evidence does not demonstrate that they do serve ~icator 
of that organization's reputation. Therefore, the Petitioner has not established thatL__J has a 
distinguished reputation. 
For all of the reasons given above, we disagree with the Director's decision regarding this criterion 
and withdraw that portion of his decision. 
2 
He refers to the name of the company as ~--------------~' which is referred to as a 
subsidiary of an unnamed company in other evidence in the record. 
6 
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) 
In order to satisfy the requirements of this criterion, the Petitioner must establish that his salary, or 
total remuneration, is high or significantly high, respectively, based on a comparison with others in 
his field in similar positions and geographic locations. 3 The Petitioner submitted evidence in the form 
of an employment verification letter stating that in his employment withl lin the position of vice 
president, he earned an annual salary of RMB 600,000, and that in the years 2012 through 2016 he 
earned project bonuses of between RMB 600,000 and RMB 1,600,000. 
As evidence of comparative salaries in his field, the Petitioner submitted several salary surveys as well 
as excerpts from the annual reports of two large construction companies in China which included the 
salaries of their top executives. The first such salary survey, produced by the National Bureau of 
Statistics (China) and reviewing a wide range of salaries for 2017, provides national average salaries 
for "middle-level managers and above," among other categories of workers, for several industries, 
including architecture and real estate. However, the definition of this occupation type appears to 
include managers at organizational levels both above and below the Petitioner's. Further, the salary 
figures provided are averages, and take into account the salaries of managers throughout China. This 
survey therefore does not provide data that is sufficiently specific to form a basis for comparison to 
the Petitioner's earnings. 
The remaining comparative salary evidence in the record is summarized in the table below, with all 
figures in RMB: 
SOURCE INDUSTRY JOB LOCAL OR AVG. MIN. MAX. 
(YEAR) TITLE NATIONAL SALARY SALARY SALARY 
Kelly Serv. Real Estate Constr. National ------------ 500K 860K 
(2017) Manager 
Kelly Serv. Real Estate Engineering National ------------ 600K 1.lM 
(2017) Director 
Michael Page Property & Corp. RE Beijing 1.150M 800K 1.5M 
(2018)* Construction Senior 
Commercial 
Michael Page Property & Investment Beijing 1.275M 900K 1.65M 
(2018)* Construction Senior 
Investment 
Michael Page Property & Constr. Beijing 650K 500K 800K 
(2018)* Construction Mngmt. 
Landlord Senior 
Michael Page Property& Project Beijing 900K 600K 1.2M 
(2018)* Construction Mngmt. 
3 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14. at 11 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html, noting that it the petitioner's burden to provide 
geographical and position-appropriate evidence to establish that a salary is relatively high. 
7 
Landlord Senior 
Hays (2018)# Civil Sr. Project Mainland ------------ 400K 
Construction Manager China 
Hays (2018)# Building Sr. Project Mainland ------------ 600K 
Construction Manager China 
China State Construction Director & National ------------ 684K 
Constr. Engr. Vice 
Corp.@ Presidents 
Shanghai Construction Director & Shanghai ------------ 749K 
Constr. Vice 
Comp. Presidents 
(2017)(GJ 
*Notes that figures are generally total remuneration excluding bonus/incentive schemes 
#Low and high figures described as "typical salary range" 
800K 
lM 
lM 
1.52M 
@Salaries are 'Total pretax rewards received from the Company during the report period," but shares 
are listed separately 
We note that while the Petitioner highlights job titles relating to construction management, D I Is two letters describe his position as involving administrative, operational and strategic 
investment duties, and he states that the Petitioner has "participated in the investment and 
construction" of several projects since 2008. We have therefore included data from similar 
positions involving those types of duties in the table above. 
In reviewing the data in the chart, we first note that the data from the Michael Page report 
specifically indicates that the figures provided do not include bonuses and incentives of the 
type listed inl ~ s employment verification letter. Two of the four minimum salaries 
listed from that source exceed the Petitioner's base salary of RMB 600K, and three of the four 
maximum salaries at least double his base salary. In addition, we note that the excerpts 
included in the record from the Kelly Services and Hays reports do not provide information on 
the basis of the figures presented, which is most likely explained elsewhere in those reports. 
Since the figures from those two reports generally fall within the same range as those in the 
Michael Page report, they appear to provide the same type of salary-only data. Therefore, 
based on a comparison of the Petitioner's base salary with those reported in these three salary 
surveys, the Petitioner has not established that his salary is high when compared to those of 
similarly-situated professionals in his field. 
Regarding the executive salaries from the two Chinese construction companies, we note that while the 
maximum "total eetax awards" for most fall below the Petitioner's total average earnings as reported 
in the letter from I the evidence indicates that several of those executives received shares of 
stock in the company as part of their compensation package. Since the value of this stock would have 
figured in the calculation of their total annual remuneration, just as the Petitioner's bonuses do with 
his, the lack of that value figure in the evidence diminishes its usefulness as a basis of comparison. 
Accordingly, we agree with the Director and find that the Petitioner has not established that he meets 
this criterion. 
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III. CONCLUSION 
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 that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
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. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that 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). 
For the reasons discussed above, the Petitioner has not demonstrated his 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. 
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