dismissed EB-1A Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
In Re: 16025413 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 17, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a cybersecurity firm, seeks to classify the Beneficiary 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 Texas Service Center denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Beneficiary has sustained national or international acclaim and is an individual in 
the small percentage at the very top of the field. 
The Petitioner then filed a combined motion to reopen and reconsider. The Director dismissed both 
motions. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to individuals 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 m 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 
international recognition of the beneficiary's 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 it 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 beneficiary 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 
The Beneficiary worked as an applications engineer forl I in India before earning a master's degree 
atl I university. The Petitioner hired him in 2014, first as a chief software architect and, since 
2018, as a chief scientist. 
The Director initially denied the petition in March 2020. The Petitioner filed its combined motion in May 
2020, and the Director dismissed both motions in August 2020. The matter on appeal before us is the 
August 2020 motion dismissal, not the March 2020 denial of the underlying petition. In the August 2020 
decision, the Director did not affirm the prior denial. Rather, the Director concluded that the motion did 
not meet the applicable requirements. Therefore, the question before us on appeal is whether the Director 
erred in dismissing the motion. Although the March 2020 denial notice is not before us, we will refer to 
portions of that decision for context. 
A. Motion to Reopen 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
The Petitioner initially claimed that the Beneficiary satisfied six of ten initial evidentiary criteria at 
8 C.F.R. § 204.5(h)(3), summarized below: 
• (ii), Membership in associations that require outstanding achievements; 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; 
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• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director concluded that the Petitioner submitted sufficient evidence to meet the criteria numbered 
(iv), (v), and (vi), but not the other three claimed criteria. In a final merits determination, the Director 
cited four grounds, discussed below, for concluding that the Petitioner had not established that the 
Beneficiary has earned sustained national or international acclaim. The Petitioner addressed each of 
these grounds in the motion to reopen. 
1. Membership in Associations 
The regulation at 8 C.F.R. § 204.5(h)(3)(ii) calls for documentation of a beneficiary's membership in 
associations in the field, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. The Petitioner initially asserted 
that the Beneficiary meets this requirement as a senior member of the Institute of Electrical and 
Electronics Engineers (IEEE). The Director discussed this membership under the individual criteria at 
8 C.F.R. § 204.5(h)(3), but also asserted that, given the regulation's wording, the regulations were also 
relevant at the final merits determination. The Director concluded that the membership requirements do 
not reflect sustained national or international acclaim. 
On motion, the Petitioner asserted: "Senior membership is regarded as a significant achievement because 
less than 2% of the overall IEEE members are elevated to the senior member status globally each year." 
The record shows that senior member status in the IEEE requires "at least ten years" "in professional 
practice," with "significant performance over ... at least five of those years." As the Director noted, there 
is a higher level of membership, "Fellow." IEEE members can apply for senior member status, but fellow 
status is "conferred by the Board of Directors upon a person with an outstanding record of 
accomplishments" that "have contributed importantly to the advancement or application of engineering, 
science and technology." The Director concluded that fellow status is more indicative of acclaim than 
senior membership in the IEEE. 
Also on motion, the Petitioner submitted new evidence of the Beneficiary's membership in Sigma Xi, 
described as a "Scientific Research Honor Society." The membership certificate indicates that the 
Beneficiary "was duly elected ... in the year 2020." Sigma Xi's bylaws require "noteworthy achievement 
as an original investigator in a field of pure or applied science," but do not specify the nature of such 
achievement beyond stating that the evidence can take the form of "publications, patents, written reports 
or a thesis or dissertation." 
In dismissing the motion, the Director concluded that the Petitioner had not shown that the Beneficiary's 
membership in either IEEE or Sigma Xi meets the regulatory requirements. 
On appeal, the Petitioner repeats the assertion that "[l]ess than 2% of the overall IEEE members are 
elevated to the senior member status globally each year," and that a panel reviews applications for senior 
membership, but this information does not establish that IEEE senior membership meets the requirements 
of 8 C.F.R. § 204.5(h)(3)(ii), or - more relevant to a final merits determination - that senior member 
status either results from, or results in, sustained national or international acclaim. The "2%" figure does 
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not establish that those promoted to senior member status are in the top 2% of the field; requirements 
such as ten years of experience restrict eligibility in ways unrelated to achievement or recognition. 
The Petitioner also repeats the assertion that Sigma Xi "induct[ ed the Beneficiary] as a full member 
2020." Because this induction took place after the petition's December 2019 filing date, this new 
evidence cannot establish eligibility as of the petition's filing date as required by 8 C.F.R. § 103.2(b)(l). 
Also, the Petitioner does not establish that Sigma Xi's requirement of"noteworthy achievement" equates 
to the "outstanding achievements" demanded by the regulation. 
The Petitioner states that the IEEE "is the world's largest technical professional society" and "Sigma Xi 
is the world's largest scientific honor society," but the large size of these associations implicitly argues 
against restrictive membership requirements. 
The Director concluded that the Beneficiary's memberships in Sigma Xi and the IEEE do not establish 
sustained national or international acclaim in the field. For the reasons discussed above, we conclude that 
the Petitioner has not overcome this conclusion on appeal. 
2. Reviewing and Judging 
In the March 2020 denial decision, the Director acknowledged that the Beneficiary's "participation in 
Technical Program Committees, Panels and Presentations" technically satisfies the criterion at 8 C.F.R. 
§ 204.5(h)(3)(iv), pertaining to judging the work of others, but the Director concluded that this activity 
was "very limited," and that the Petitioner had not shown that the Beneficiary had received invitations to 
judge "on the basis of his extraordinary ability." 
On motion, the Petitioner submitted invitations to review manuscripts submitted for publication in various 
journals. In dismissing the motion, the Director noted that these invitations took place after the petition's 
December 2019 filing date. 
On appeal, the Petitioner states that the Beneficiary was "invited to participate in research panels at 
international conferences and workshops." The Petitioner lists four such panels that occurred between 
201 7 and 2019. In the context of the final merits determination, the key question is whether the 
conference organizers invited the Beneficiary to participate in the panels owing to his acclaim in the field, 
rather than because he cleared a substantially lower threshold such as subject matter expertise. The 
Petitioner cites no evidence on appeal that answers this question. 
The Petitioner has not overcome, or directly addressed, the Director's conclusions from the August 2020 
decision dismissing the motion. 
3. Scholarly Articles 
In the March 2020 denial notice, the Director concluded that the Beneficiary's scholarly writings meet 
the technical requirements of 8 C.F.R. § 204.5(h)(3)(vi), but that the Petitioner did not establish that those 
articles had contributed to sustained acclaim. The Director stated that the Beneficiary's published work 
took the form of a small number of minimally cited conference proceedings and patents, rather than 
articles "in reputed national or international scientific journals." 
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On motion, the Petitioner showed that some of the Beneficiary's articles appeared in journals prior to the 
filing date. The Petitioner also submitted patent filings from 2020. The Petitioner stated that "the 
beneficiary's patents have been cited 39 times as of May 2020," but did not establish that this citation rate 
demonstrates sustained acclaim or otherwise indicates a commensurate degree of influence in the field. 
The Petitioner also asserted that the Beneficiary "has been ... publishing detailed technical reports" from 
his work "with some of the world's largest communication companies." We note that the cover pages of 
these reports in the record are marked "CONFIDENTIAL - RESTRICTED ACCESS," with the 
instruction that they "shall not be disclosed outside of' the clients that commissioned the reports. Because 
publication entails dissemination, confidential reports do not qualify as published scholarly articles. 
In the August 2020 decision dismissing the motion, the Director noted that some of the motion evidence 
relates to a period after the filing of the petition. 
On appeal, the Petitioner states that the Director "did not consider the Journal publications and wrongly 
[asserted that] no articles were published in the international journals." The Petitioner discusses two 
journal articles and a patent published prior to the filing date. 
The Petitioner is correct that the Director's August 2020 decision did not address the Petitioner's pre­
filing publications. Nevertheless, it remains that, in the March 2020 decision, the Director acknowledged 
that"[ t ]he beneficiary did meet this criterion" for the purposes of the initial evidentiary requirements. For 
the final merits determination, the issue is not whether the Beneficiary's articles exist, but whether the 
industry's response to those articles amounts to sustained acclaim placing him at the top of the field. The 
Petitioner has shown that the Beneficiary has produced published work, and unpublished confidential 
reports for clients, but the existence of such material does not establish acclaim. On appeal, the Petitioner 
does not establish that its motion to reopen established that acclaim. 
The Petitioner has not overcome this issue on appeal. 
4. Leading or critical roles 
The regulation at 8 C.F.R. § 204.5(h)(3)(viii) calls for evidence that the individual has performed in a 
leading or critical role for organizations or establishments with a distinguished reputation. In the March 
2020 denial, the Director concluded that the Petitioner had not established the distinguished reputations 
of the organizations for which the Beneficiary had performed in such roles. Apart from not satisfying the 
requirements of the criterion, the Director stated: 'This is also a contributing factor to conclude that the 
beneficiary did not meet the final merits determination." 
On motion, the Petitioner submitted letters from various clients, and stated that these client letters 
establish the Petitioner's distinguished reputation. In dismissing the motion, the Director acknowledged 
these letters but did not state any conclusions regarding them. On appeal, the Petitioner asserts that the 
Director did not give due consideration to the letters. Therefore, we will discuss them below. 
In separate letters, officials atl t I ] and I I each stated that the Petitioner "is 
an industry recognized cybersecurity research and analysis organization." Officials atl ., I ::i.nd 
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I I each stated that the Petitioner "is an industry recognized cybersecurity research and analysis 
firm." An official o-A I ,-tated that the Petitioner "is a distinrished cybersecurity research and 
analysis company with industry recognition," while an official of 1 • I 
I I stated that the Petitioner "is a recognized cybersecurity and cyber risk services organization." 
Other clients described the services that the Petitioner performed for them but did not directly address the 
company's reputation. 
Vague, general references to the Petitioner's reputation do not suffice to establish a distinguished 
reputation. Merely repeating the language of the statute or regulations does not satisfy a petitioner's 
burden of proof FedinBros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d Cir. 1990). 
We emphasize that, in the initial March 2020 denial notice, the Director concluded that the Petitioner had 
satisfied three of the initial evidentiary criteria; the denial resulted from the final merits determination. 
The argument that the Petitioner satisfied a fourth initial criterion would not establish acclaim in the final 
merits determination. 
In the context of the Beneficiary's acclaim, it is significant that the letters submitted on motion focused 
on the services that the Petitioner provided. Some letters did not mention the Beneficiary at all; others 
did so only to identify him as a member or leader of the team providing those services. The following 
examples illustrate the point: 
• I I "Led by [the Beneficiary], the [Petitioner's] security team has been working 
with our security and architecture teams to identify and mitigate platform security issues." 
• I l"Led by [the Beneficiary], the [Petitioner's] team has been working closely with our 
security and architecture teams to secure our platform services." 
• I I "Led by [the Beneficiary], the [Petitioner's] team has worked closely with our product 
engineering team in certifying data security and compliance ofl lcloud-based information 
services." 
These letters amount to testimonials from satisfied clients; they do not show that the Beneficiary has 
earned sustained national or international acclaim in his field. 
For the above reasons, the Petitioner has not established that the Director reached erroneous conclusions 
with respect to the motion to reopen. 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and establish that the decision was 
incorrect based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
In its motion to reconsider, the Petitioner stated: "When considering all the newly submitted evidence 
along with what was previously submitted, we believe that [the Beneficiary] ... has a degree of expertise 
significantly above that ordinarily encountered in the sciences." A motion to reconsider must establish 
that the prior decision was incorrect based on the evidence of record at the time of that decision. See 
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8 C.F.R. § 103.5(a)(3). Therefore, "newly submitted evidence" cannot support a motion to reconsider, 
and is properly considered, instead, in the context of a motion to reopen ( already addressed above). 
In the motion to reconsider, the Petitioner alleged no specific error in the March 2020 denial notice except 
to note that the Director referred to I I University" instead of I I University." The 
Petitioner acknowledged: "we believe that [the Director] just made a typographical error," rather than a 
substantive error that affected the outcome of the decision. 
Apart from the misspelling of I , I' the Petitioner contended more generally that the Director did 
not "explain the specific reasons" for the denial. The Director, however, devoted two full pages of the 
March 2020 decision to the final merits determination (not counting the space devoted to the initial 
evidentiary criteria). The Petitioner tailored its motion to reopen to several of the points the Director 
raised in that discussion ( and which we discussed above). The record does not support the Petitioner's 
claim on motion that the March 2020 decision lacked "specific reasons" for the denial. 
On appeal, the Petitioner focuses on the evidence submitted in the motion to reopen. The Petitioner does 
not establish that the Director should have granted the concurrent, but procedurally separate, motion to 
reconsider. 
III. CONCLUSION 
As explained above, the Petitioner has not shown that the Director should have granted its motions to 
reopen and reconsider. Because the Petitioner has not overcome the Director's August 2020 decision 
dismissing those motions, we will not directly address the March 2020 denial or the merits of the 
underlying petition. 
ORDER: The appeal is dismissed. 
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