dismissed EB-1A Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
In Re : 22726984 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 26, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an entrepreneur and researcher in the field of cybersecurity, seeks classification as an 
individual of extraordinary ability . See Immigration and Nationality Act (the Act) section 203(b )( 1 )(A), 
8 U.S .C. § l 153(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 Texas Service Center denied the petition , concluding that the Petitioner had 
satisfied only two of the ten initial evidentiary criteria , of which he must meet at least three . 
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)(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 regu lation 
at 8 C.F.R. § 204 .5(h)(3) sets forth a multi -part analysis. First, a petitioner can demonstrate recognition 
of his or her achievements in the field through a one-time achievement (that is, a major, internationa lly 
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 criteria listed at 8 C.F.R . 
§ 204.5(h)(3)(i) - (x) (including items such as awards , published material in certain media , and 
scholarly 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. USCJS, 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 
The Petitioner is an entrepreneur and researcher who is currently working in the United States in the 
field of cybersecurity on his 0-1 nonimmigrant visa. 
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). In denying the petition, the Director found that the Petitioner met only two of the 
initial evidentiary criteria, scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi) and high salary under 
8 C.F.R. § 204.5(h)(3)(ix). 
On appeal, the Petitioner maintains that he meets two additional criteria, published material under 
8 C.F.R. § 204.5(h)(3)(iii) and leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii). The 
Petitioner does not pursue his initial claim that he meets the original contributions criterion at 8 C.F.R. 
§ 204.5(h)(3)(v) and does not contest the Director's determination that he did not submit evidence that 
meets this criterion. Therefore, we deem this issue to be waived and will not further address it in this 
decision. See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
We have reviewed all of the evidence in the record and conclude that it does not support a finding that 
the Petitioner satisfies the plain language requirements of at least three criteria. 
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). 
In order to satisfy this criterion, the Petitioner must demonstrate published material about him in 
professional or major trade publications or other major media, as well as the title, date, and author of 
2 
the material. 1 The record contains several articles pertaining to the Petitioner. Articles published in 
Dark Horse, Toms Guide, SC Magazine, SP AMfighter News, and The Register mention the Petitioner 
and his role as co-founder and researcher for a cyber security intelligence company, and quote 
him regarding vulnerabilities inl I products and a tool that I I was producing to combat 
such threats. The Petitioner also submits other articles, including a 2009 article from Dark Reading 
identifying the Petitioner as a researcher with I and 2011 articles published in Global Security 
Magazine and Info Security Magazine that identify the Petitioner as a researcher witH I These 
articles also briefly quote the Petitioner regarding the projects each of his respective employers were 
undertaking at the time. 
The Petitioner did not demonstrate, however, that the aforementioned articles reflect published 
material about him relating to his work. For example, the articles appearing in Toms Guide and SC 
Magazine articles quote the Petitioner re ardin vulnerabilities discovered in the _____ 
produced by companies such as and The Info Security Magazine 
article quotes the Petitioner regarding the rise of attacks a ainst banks and other 
institutions. The Global Security Magazine article, entitled 
I interviews the Petitioner but focuses primarily about the differences between 
I !attacks versus ______ attacks, rather than material about him. 
Articles that are not about a petitioner do not fulfill this regulatory criterion. See, e.g., Negro-Plwnpe 
v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles 
regarding a show are not about the actor). 
The Petitioner argues on appeal that the articles are explicitly about him and his work. Although we 
acknowledge that several articles consist of interviews of the Petitioner, and identify him and his 
employer, they do not include details about his career history or accomplishments. ile the Petitioner 
is briefly interviewed in each article in his capacity as researcher for I and I and 
discusses the companies' efforts to combat I I and vulnerabilities in __ products, the 
submitted documentation does not discuss the merits of the Petitioner's work, his standing in the field, 
any significant impact that his work has had on the field, or any other information so as to be considered 
published material about the Petitioner as required by this criterion. The submitted articles are about the 
threat of I and the vulnerabilities and defects inl I products. The published material itself 
is not about the Petitioner. The regulation requires that the published material be "about the alien" and 
"relating to the alien's work in the field." It is insufficient that the Petitioner be mentioned within 
published material appearing in one of the three regulatory required publication types. The inclusion of 
the phrase "about the alien" is not superfluous and, thus, it must have some meaning. Silverman v. 
Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 
F.3d 619,626 (2nd Cir. Sep 15, 2003). According to the plain language at 8 C.F.R. § 204.5(h)(3)(iii), the 
relevant criterion in this matter, the published material must be both about the Petitioner and relating to 
his work in the field. 
Although he is referenced, the articles are not about the Petitioner and do not otherwise meet this 
regulatory criterion. Here, again, the Petitioner provided articles only about his work instead of articles 
1 See 6 USCIS Policy Manual F.2 appendix, https://www.uscis.gov/policy-manual. 
3 
about him relating to his work. For these reasons, the Petitioner did not demonstrate 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). 
To qualify under this criterion, a petitioner must show that they played a leading or critical role for an 
organization or establishment , and that that organization or establishment has a distinguished 
reputation. When evaluating whether a role is leading, we look at whether the evidence establishes 
that the person is or was a leader within the organization, or a department or division thereof. A title, 
with appropriate matching duties, can help to establish that a role is or was leading. 2 For a critical 
role, we look at whether the evidence establishes that the person has contributed in a way that is of 
significant importance to the outcome of the organization or establishment 's activities or those of a 
division or department of the organization or establishment. 3 
The Petitioner claimed that he perfonned in a leading or critical role for two companies, I and 
I I In his decision, the Director detennined that the Petitioner had not established that these 
companies enjoyed a distinguished reputation as required by this criteria. 4 On appeal, the Petitioner 
asserts that the Director's determination was erroneous . 
The Petitioner contends that he has performed in a leading role for The record contains a letter 
froml II I chief executive officer, who states tha is "a cybersecurity compa
that offers al I protection platfonn agains _____ attacks." According to 
the Petthe Petitioner co-founded ! I in Israel in 2014 and served as its vice president of 
research from 2014-2017 before assuming the same role in the United States for I 
which was founded in 2015. I !indicates that the Petitioner initially managed the l I 
research team before ultimately managing the day-to-day operations of this team and the which 
team. Upon review, the record supports the Petitioner's claim that he performed in a leading 
role for 
The Petitioner, however, has not established that I I has a distinguished reputation, with 
"distinguished" defined as "marked by eminence, distinction, or excellence or befitting an eminent 
person." 5 In response to the Director's request for evidence, the Petitioner submitted documentation 
pertaining to reco nition received by l I The Petitioner submitted evidence demonstrating that 
won th Award in 2016, 2017, and 2018, an award the Petitioner claims highlights 
"the most startups from Asia, Europe and the Americas." The Petitioner also submitted 
evidence demonstrating that I I was listed among the top three vendors in I I 2018 
Group Test. According to the Petitioner, I I "is 
recognized global1y as the most trusted source for independent, fact-based c bersecurity guidance ." 
The Petitioner also documented ! l naming tol 201 List as among 
I lnoting that is the top technology news and 
2 See 6 USCIS Policy Manual, supra , at F.2 appendix. 
3 See id. 
4 The Director did not specifically render a determination regarding whether the Petitioner performed in a leading or critical 
role for each of these organizations . 
5 See 6 USCIS Policy Manual, supra , at F.2 appendix. 
4 
infonnation source for solution providers, IT channel partners, and value-added resellers (V ARs)." 
Finally, the Petitioner submitted documentation o 2019 19 acquisition an American 
multinational company described as "a leading provider o _____ security." 
Although the Petitioner presented evidence of receipt of various awards which denote 
!recognition in its field, he did not sufficiently demonstrate their significance or relevance . 
Nor did he submit sufficient evidence portraying! ! standing in the field. The Petitioner did not 
include evidence, for example, showing the field's view of the organization, how its reputation 
compares to similar organizations, or how its successes or accomplishments relate to others, signifying 
a distinguished reputation consistent with the regulatory criterion. 
The Petitioner also submitted information aboutl I subsequent acquisition by in 2019 
from its website, but this information is not sufficient to demonstrate thatl now has a 
distinguished reputation in the cybersecurity field. U.S. Citizenship and Immigration Services 
(USCIS) need not rely on self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO, affd 
317 Fed. Appx. 680 (C.A.9). While we note the submission of key data for stock from 
www.forbes.com, this is simply a general overview of corporate and financial data and does not 
demonstrate how this organization has a distinguished reputation . There is insufficient corroborating 
evidence ofl l orl I standing in the field to establish that they are recognized as having 
a distinguished reputation "marked by eminence, distinction or excellence." 
The Petitioner also contends that he has performed in a leading or critical role forl as a I 
researcher and team lead from 2010-2012. A letter froml co-founder and 
chief technology officer, describes the company as "a cyber security company delivering application 
and data security products," and discusses the Petitioner's role as a team lead for research 
and the results he achieved for the company while employed in that position. The record demonstrates 
that the Petitioner performed in a critical role for The Petitioner, however, has not 
established that has a distinguished reputation . 
The Director determined that the evidence of awards received by I I was insufficient to 
demonstrate that the company was an organization or establishment with a distinguished reputation. 
The Petitioner submitted evidence of the company's receipt of several awards, such as th A ward 
for Best I Solution from I in 2017 the Award in Best 
Solution at the Awards in 2017 for its and the 
Award Testing Award b an independent division of 
in 2016. The Petitioner also submitted an independent analysis of the market 
conducted by I demonstrating that !"provides a number of advanced security 
technologies and flexible deployment models to protect customers' Web applications against the 
broadest range of threats." 
As with I I awards, discussed above, the Petitioner did not sufficiently demonstrate the 
significance or relevance of I awards. While the awards demonstrate thatl I garnered 
recognition in its field, the Petitioner did not include evidence showing the general field's view of the 
company, how its reputation compares to similar organizations, or how its products and processes 
relate to other companies, signifying a distinguished reputation consistent with the regulatory criterion. 
5 
Moreover, while the Petitioner relies on the analysis of the market, which 
resulted inl I receipt of the 2014 Leadership Award after a detennination that 
I I achieved a leadership position in the market in 2013, these accolades do not 
demonstrate that has a distinguished reputation, which is marked by eminence, distinction, or 
excellence. Here, the Petitioner did not submit sufficient evidence portraying ! I standing in 
the field, nor did it objectively demonstrate thatl I has a distinguished reputation. Accordingly, 
the Petitioner has not demonstrated that he fulfills this criterion . 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the Petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form I-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C . 2003); 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. at 1108, aff'd, 905 F. 2d at 41. Furthermore, our authority over the USCIS service centers, 
the office adjudicating the nonimmigrant visa petition, is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of an individual, we are not bound to follow that finding in the adjudication of 
another immigration petition. See La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, 
at *2 (E.D. La. 2000) . 6 
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. For the 
foregoing reasons, the Petitioner has not shown that he qualifies for classification as an individual of 
extraordinary ability. 
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. USC IS 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 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). 
6 See also 6 USCIS Policy Manual, supra, at F.2(B)(3) . 
6 
Although the Petitioner has experience in the field of cybersecurity, the record does not contain 
sufficient evidence establishing that he is among the upper echelon in his field. 
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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