dismissed EB-1A Case: Cyber Security

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 18, 2024 In Re: 35063680 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a systems administrator specializing in cyber security, 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 that the Petitioner satisfied the initial evidence requirements for this classification, either 
through his receipt of a major internationally recognized award or, in the alternative, by meeting at 
least three of ten evidentiary criteria set forth in the regulations. 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify as a noncitizen with extraordinary ability, a petitioner must demonstrate that they: 
• Have "extraordinary ability in the sciences, arts, education, business, or athletics;" 
• Seek to continue work in their field of expertise in the United States; and 
• Through their work, would substantially benefit the country. 
Section 203(b )(l)(A)(i)-(iii) of the Act. The term "extraordinary ability" means expertise 
commensurate with "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). 
Evidence of extraordinary ability must initially demonstrate a noncitizen's receipt of either "a major, 
international recognized award" or satisfaction of at least three of ten lesser evidentiary criteria. 
8 C.F.R. § 204.5(h)(3)(i)-(x). 1 If a petitioner meets either standard, U.S. Citizenship and Immigration 
Services (USCTS) must then make a final merits determination as to whether the record, as a whole, 
establishes their sustained national or international acclaim and recognized achievements placing them 
among the small percentage at the very top of their field. 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 
Amin v. Mayorkas, 24 F.4th 383, 391 (5th Cir. 2022) (finding USCIS' two-step analysis of 
extraordinary ability "consistent with the governing statute and regulation"). 
II. ANALYSIS 
The Petitioner, who claims extraordinary ability in the fields of cybersecurity and computer science, 
has not indicated or shown that he has received a major, internationally recognized award. Therefore, 
the issue before us on appeal is whether he has established that he meets at least three of the ten initial 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
A. Evidentiary Criteria 
The 
Petitioner claimed he could meet three of the ten criteria, including 8 C.F.R. § 204.5(h)(3)(ii), (v), 
and (vi), based, respectively, on his submission of evidence of his memberships in associations in his 
field, his original contributions in his field, and his authorship of scholarly articles. 2 The Director 
concluded that the Petitioner satisfied the criteria at 8 C.F.R. § 204.5(h)(3)(v) and (vi) but did not 
demonstrate his membership in an association that requires outstanding achievements as judged by 
recognized national or international experts in the field. 
After reviewing all the evidence in the record, we conclude that the Petitioner has not established that 
he meets at least three of the ten evidentiary criteria. Accordingly, he has not established his eligibility 
for classification as an individual of extraordinary ability. 
1. Evidence of Membership in Associations 
The regulation at 8 C.F.R. § 204.5(h)(3)(ii) calls for "documentation of the [noncitizen's] membership 
in associations in the field for which classification is sought, which require outstanding achievements 
1 Additionally, if the criteria at 8 C.F.R. § 204.5(h)(3) do not readily apply to a petitioner's occupation, they may submit 
"comparable evidence" to establish their eligibility. 8 C.F.R. § 204.5(h)(4). 
2 
A cover letter from counsel, submitted at the time of filing, stated the Petitioner could meet the criterion at 8 C.F.R. 
§ 204.5(h)(3)(iv), which requires evidence of participation as a judge of the work of others in the same field or an allied 
field. However, the Petitioner did not submit evidence in support of this criterion, did not address it in his response to the 
Director's request for evidence, and does not contest the Director's determination that he did not satisfy the criterion. Any 
ground of ineligibility that is not raised on appeal is waived. See Matter o(O-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)). The Petitioner has not claimed he can meet the criteria 
at 8 C.F.R. § 204.5(h)(3)(i), (iii), (vii), (viii), (ix) and (x). 
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of their members, as judged by recognized national or international experts in their disciplines or 
fields." 
Here, the Petitioner claims eligibility under this criterion based on his membership in the International 
Systems Security Association (ISSA), noting that this association "has a stellar reputation and requires 
outstanding achievements of its members." 3 The Petitioner provided a copy of his ISSA membership 
card indicating that he is a general member of this association, along with a copy of the 2021 Annual 
ISSA International Report. 
In a request for evidence (RFE) the Director advised the Petitioner that the initial evidence did not 
demonstrate that ISSA requires outstanding achievements as a condition for membership and that 
prospective members' achievements are judged by recognized national or international experts in the 
field, as required by the plain language of the regulation. 
In response, the Petitioner reasserted his eligibility based on his ISSA membership and provided a 
copy ofISSA's "International Association Bylaws." Membership is addressed in the bylaws at article 
III, which states: 
Membership in the Association is based upon one having primary interest or active 
involvement in information systems security in the educational, private or public sector. 
In addition, membership is contingent upon interest in the purposes and objectives of 
the Association as stated in Article II and observance of the Code of Ethics as a 
prerequisite for and as a condition of continued affiliation with the Association. 
Membership is defined in policy by the Board of Directors, is subject to the provisions 
of the Articles oflncorporation and Bylaws and is not transferable or assignable. 
The 2021 Annual ISSA International Report, which the Petitioner resubmitted in response to the RFE, 
describes the association's "Fellows and Distinguished Fellows Program" which honors "established 
cyber professionals with demonstrated success and contributions to the industry." The annual report 
mentions that an ISSA Fellow must have 8 years of membership in the association, 12 years ofrelevant 
professional experience, and 5 years of "significant performance in the profession," while an ISSA 
Distinguished Fellow must have 12 years of association membership, 16 years of professional 
experience in the field, 10 years of documented exceptional service to the security community and a 
"significant contribution to security posture or capability." As noted, the Petitioner's membership 
card indicates his "general membership" in the ISSA. 
The Director concluded the Petitioner did not demonstrate he meets the plain language of the criterion 
because the evidence provided, including the ISSA bylaws, did not demonstrate that this association 
requires outstanding achievement of members as judged by recognized national or international 
experts in their fields. 
3 At the time of filing, the Petitioner also provided a certificate indicating he was admitted as a member of "ISACA" in 
July 2023. However, he did not submit any supporting evidence about this association or reference this membership in his 
statement addressing the criterion at 8 C.F.R. § 204.5(h)(3)(ii). 
3 
On appeal, the Petitioner asserts that the recent United States Supreme Cout decision in Loper Bright 
Enterprises v. Raimondo, 144 S.Ct. 2244 (2024) "means that the USCIS must take a more literal 
interpretation of criteria in the [ extraordinary ability] process" and "places a much tighter leash on a 
federal agency's ability to interpret laws." 
In his brief: the Petitioner also highlights a portion of the Kazarian decision in which the court 
determined that the AAO improperly imposed a novel evidentiary requirement when evaluating 
evidence submitted under the criterion at 8 C.F.R. § 204.5(h)(3)(iv). The Petitioner asserts: 
Please keep in mind that generating merely two (2) scholarly articles legally satisfies 
the Scholarly Articles criterion. Also, merely "reviewing 'diploma works' for fellow 
students at one's own university" as Dr. Kazarian did in the landmark Kazarian case 
satisfies the "Service as a Judge criterion. Both of these standards are remarkable [sic] 
low. These two standards are almost comically law [sic]. No other legal interpretation 
is reasonably or legally acceptable. 
The Petitioner maintains that the criterion at 8 C.F.R. § 204.5(h)(3)(ii) "should also be adjudicated in 
a similar legal manner" and that "[ t ]he difficulty of satisfying the Membership in Association criterion 
must be of equal ease as 'scholarly articles' and 'serving as a judge."' He contends that "under a proper 
adjudication in line with both Kazarian and Loper, and taking into account all the evidence submitted 
with his case, [he] has satisfied the 'Membership in Associations' criterion." 
The Petitioner's assertions are not persuasive. First, the Petitioner has not addressed the specific 
evidence he submitted in support of the membership criterion and why he believes it demonstrates his 
eligibility, nor has he contested the Director's stated reasons for finding that evidence to be insufficient 
to meet the criterion. The record supports the Director's conclusion that the ISSA bylaws and annual 
report do not establish, by a preponderance of the evidence, that one must have outstanding 
achievements, as judged by recognized national or international experts, to be admitted to the ISSA as 
a general member. The Director did not, as implied by the Petitioner, impose a novel evidentiary 
requirement by requiring the Petitioner to satisfy the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii). 
The record reflects that membership in the ISSA "is based upon one having primary interest or active 
involvement in information systems security in the educational, private or public sector" and is 
"contingent upon interest in the purposes and objectives of the Association." Nothing in this language 
indicates or implies that a prospective member must demonstrate "outstanding achievements" in the 
field of information systems security to be admitted to the ISSA. Further, the submitted evidence does 
not address the !SSA's process for admitting new members and therefore does not demonstrate that 
this process involves review by recognized national or international experts in the field who judge the 
achievements of prospective members. 
Second, the Petitioner's assertion that Loper requires USCIS to "re-examine its adjudication" of the 
criteria found at 8 C.F.R. § 204.5(h)(3)(i)-(x) misinterprets the reach of the Supreme Court's decision. 
Loper overturned Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984), ruling 
that federal courts need not defer to agencies' reasonable interpretations of ambiguous federal laws. 
Rather, Loper provides the judiciary with the sole prerogative to "say what the law is," stating: "Courts 
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must exercise their independent judgment in deciding whether an agency has acted within its statutory 
authority." Loper, 144 S. Ct. at 2257, 2273. 
Loper affects federal courts, not federal agencies. A federal court reviewing our interpretation of an 
ambiguous statute must follow Loper. But Loper does not change how we interpret such laws or 
mandate, as the Petitioner suggests, an immediate change in how USCIS adjudicates immigrant 
petitions for noncitizens of extraordinary ability. 
Moreover, Loper involved an agency's interpretation of a statute. Loper, 144 S.Ct. at 2254-56. The 
Director's denial of this petition, and our adjudication of this appeal, rest on a determination of whether 
the Petitioner met his burden to demonstrate that he meets at least three of the ten regulatory criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x); it is not based on the agency's interpretation of a statute. Even if the 
regulations are ambiguous, our interpretation of them would merit deference under Auer v. Robbins, 
519 U.S. 452 (1997), which Loper did not reverse. See, e.g., United States v. Boler, 115 F.4th 316, 
322 n.4 (4th Cir. 2024) (declining to apply Loper to an issue involving an agency's interpretation of 
its own regulations). 
Finally, we acknowledge the Petitioner's claim that there is a "low bar" for meeting certain criteria 
under 8 C.F.R. § 204.5(h)(3)(i)-(x), specifically, the criteria pertaining to publication of scholarly 
articles and participation as a judge of the work of others. In this regard, agency policy guidance 
recognizes that, based on the plain language of the regulations, some of the criteria have multiple 
elements and/or clear qualitative requirements and some do not. For example, participating as a judge 
of the work of others in the same or an allied field of specialization alone, regardless of the 
circumstances, should satisfy the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(iv). See generally 6 
USCIS Policy Manual F.2(B), https://www.uscis.gov/policy-manual. 
The Petitioner suggests that there should be a similarly "low bar" for meeting the membership criterion 
at 8 C.F.R. § 204.5(h)(3)(ii) but overlooks the multiple elements that must be met based on the plain 
language of that regulation. An individual cannot satisfy this criterion simply by providing evidence 
of their membership in an association in their field. Rather, a petitioner must submit evidence 
demonstrating that they are a member of an association in their field that requires outstanding 
achievements as judged by recognized national or international experts. As noted, the Director did not, 
as suggested by the Petitioner, improperly impose a novel evidentiary requirement that is not found in 
the plain language of the membership criterion. 
The submitted evidence is insufficient to meet the Petitioner's burden to demonstrate that he meets all 
elements of the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). Although the Petitioner 
established that he is a member of ISSA, the Director properly concluded that the submitted ISSA 
bylaws and annual report do not show that recognized national or international experts judged the 
Petitioner as having attained outstanding achievements in his field as a condition for admitting him as 
a general member. Accordingly, the Petitioner has not demonstrated that he meets this criterion. 
2. Evidence of Authorship of Scholarly Articles 
The regulation at 8 C.F.R. § 204.5(h)(3)(vi) calls for "[e]vidence of the [noncitizen's] authorship of 
scholarly articles in the field, in professional or major trade publications or other major media." 
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We withdraw the Director's determination that the Petitioner met this criterion. The Petitioner 
submitted several papers and one presentation slide deck in support of this criterion. However, the 
record does not demonstrate whether or where these articles and presentation were published and 
therefore does not contain evidence that they were published in professional or major trade 
publications or other major media, as required by the regulations. Rather, the identifying information 
on the submitted papers and presentation indicate that they were written by the Petitioner to fulfill his 
graduate program course requirements at I I 
The Director noted this evidentiary deficiency in the RFE and requested additional documentary 
evidence "to establish that the publications in which the articles appear are professional publications, 
trade publications or other major media." In response to the RFE, the Petitioner emphasized that the 
previously submitted papers qualify as "scholarly articles" based on the guidance and examples 
provided for adjudication of this criterion in the USCIS Policy Manual. However, the RFE response 
did not include evidence demonstrating that any of the submitted papers had been published in a 
professional publication, such as a peer reviewed journal, a major trade publication, or other major 
media. Therefore, the record does not support the Director's determination that the Petitioner satisfied 
this criterion. 
B. Summary and Reserved Issue 
Because the Petitioner has not demonstrated that he meets 
two of the three claimed evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), he cannot satisfy the initial evidence requirements for this 
classification. As such, we need not provide the type of final merits determination referenced in 
Kazarian, 596 F.3d at 1119-20 and further addressed at 6 USCIS Policy Manual at F.2(B)(2). Further, 
we need not address the Petitioner's contention that "the new 'Loper' case also means that the AAO 
must put an end to the extra-statutory 'Final Merits Determination" in adjudicating extraordinary 
ability cases." Because the Applicant/Petitioner is ineligible for the benefit sought, we need not reach, 
and therefore reserve, these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) 
(holding that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision). 
III. CONCLUSION 
The Petitioner has not shown that he received a major, internationally recognized award or that he 
satisfied at least three of ten initial regulatory criteria, and therefore has not demonstrated his eligibility 
as an individual of extraordinary ability. Moreover, the Petitioner seeks a highly restrictive visa 
classification, intended for individuals already at the top of their respective fields. USCIS has long 
held that even athletes performing at the major league level do not automatically meet the 
"extraordinary ability" standard. Matter ofPrice, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). 
Although we are not required to conduct a final merits determination, we nevertheless note that the 
Petitioner has not shown that the significance of his work to date 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 sustained national or international acclaim in the field, and that he is one of the small 
6 
percentage who have 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). 
ORDER: The appeal is dismissed. 
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