dismissed EB-1A Case: Data Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 29, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software service, seeks to classify the Beneficiary, a data scientist who specializes 
in applied statistical modelling, as an individual of extraordinary ability in the sciences. 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, Nebraska Service Center, denied the. petition. The Director concluded that the 
Petitioner had not established that the Beneficiary enjoys the necessary sustained national or 
international acclaim. 
The matter is now before us on appeal. In its appeal, the Petitioner maintains that the Director 
incorrectly applied case law and erred in his final merits analysis of the evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority workers.-- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. --An alien is described in this subparagraph 
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, 
(b)(6)
Matter of B-T-, Inc. 
(i) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(ii) 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. 1 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 the 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). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 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. USCJS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), af['d, 683 
F.3d. 1030 (9th Cir. 2012); Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that 
the "truth is to be determined not by the quantity of evidence alone but by its quality" and that 
USCIS examines "each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true"). Accordingly, where a petitioner submits qualifying evidence under at 
least three criteria, we will determine whether the totality of 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. 
II. ANALYSIS 
The Beneficiary received his Ph.D. in Electrical and Computer Engineering from the 
at during which time he applied statistical models to automatic 
impaired 
speech recognition. While a Ph.D. student he also worked as an intern for 
Subsequently, at the Beneficiary developed statistical modeling solutions 
for the financial sector. According to the Beneficiary's curriculum vitae, he has worked for the 
Petitioner since October 2013 as a data product designer. 
The Petitioner initially offered exhibits relating to six criteria, namely the membership criterion, the 
judging criterion, the contributions of major significance criterion, the authorship of scholarly 
1 8 C.F.R. § 204.5(h)(2). 
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Matter of B-T-, Inc. 
articles criterion, the leading role criterion, and the high salary criterion. 2 The Director found that 
the Petitioner met the initial evidence requirements for three criteria, judging, contributions, and 
scholarly articles, but concluded in a final merits determination that the submissions were not 
commensurate with national or international acclaim. 
On appeal, the Petitioner maintains that once it submitted the necessary initial evidence, the burden 
shifted to the Director to show why the Beneficiary is not eligible for the classification sought. Also, 
the Petitioner states that the Director erred in conducting a final analysis of each item individually 
rather than in the aggregate. Finally, the Petitioner affirms that the Director erred in finding that the 
Beneficiary has not performed in a leading or critical role for an organization or establishment with a 
distinguished reputation. 3 For the reasons discussed below, we will review all evidence in the 
context of the final merits determination, concluding that the record is not indicative of the necessary 
level of acclaim and status in the field. 
A. Prior 0-1 Nonimmigrant Visa 
We note that U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Beneficiary. This prior approval, however, does 
not preclude USCIS from denying an immigrant visa petition based on a different, if similarly 
phrased, standard. There are instances when 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 Dep 't of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the Beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
B. Criteria 
The record supports the Director's findings regarding the judging and scholarly articles criteria. 4 
Specifically, the Beneficiary has reviewed manuscripts for peer-reviewed journals and authored 
2 8 C.F.R. § 2041.5(h)(3)(ii), (iv), (v), (vi), (viii), and (ix). 
3 8 C.F.R. § 204.5(h)(3)(viii). 
4 8 C.F.R. § 204.5(h)(3)(iv), (vi). 
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Matter of B-T-, Inc. 
scholarly articles relating to modelling techniques for recognition of impaired speech. While the 
Director concluded that the Beneficiary meets the contributions criterion, in the final merits 
determination the Director questioned whether the Beneficiary's contributions were of major 
significance, which is a requirement to meet the criterion. 5 Regardless, as that issue is a qualitative 
one and the Director's basis of denial was set forth in a final merits determination, we will, in this 
case, address it at that stage of our analysis. With respect to the leading or critical role criterion, 
· once a Petitioner satisfies at least three of the regulatory criteria, the analysis shifts to whether the 
evidence establishes that the Beneficiary has the necessary status and acclaim in the field. As the 
Director found that the Beneficiary meets three criteria, any items that might relate to other criteria 
are better considered under the final merits analysis. 
C. Final Merits Analysis 
On appeal, the Petitioner maintains that the Director misapplied Kazarian, 596 F. 3d at 1119-20 and 
should have, instead, looked to the reasoning in Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 
1994). According to the Petitioner, this case held that the burden shifts to USCIS once the necessary 
initial evidence is produced. First, we note that in contrast to the broad precedential authority of the 
case law of a United States circuit court such as the 2010 decision in Kazarian, we are not bound to 
follow the published decision of a United States district court in cases arising within the same 
district.6 The reasoning underlying a district judge's decision will be given due consideration when 
it is properly before us; however, the analysis does not have to be followed as a matter of law. 7 
Buletini, a district court decision from 1994, stated that once USCIS determines that the evidence is 
sufficient to meet three of the criteria listed in the regulation, it must deem the foreign national to 
have extraordinary ability unless it "sets forth specific and substantiated reasons for its finding that 
the [beneficiary], despite having satisfied the criteria, does not meet the extraordinary ability 
standard."8 While the court expressed the requirement that USCIS explain its reasons, it does not 
suggest the overall burden of proof shifts to USCIS. 9 
In the final merits determination, as noted in the appellate brief, we consider the totality of the record 
to determine if a petitioner has demonstrated, by a preponderance of the evidence, that he has 
sustained national or international acclaim, and that his achievements have been recognized in the 
field through extensive documentation, 10 making him one of the "small percentage who have risen to 
5 8 C.F.R. § 204.5(h)(3)(v). 
6 See Matter ofK-S-, 20 I&N Dec. 715 (81A 1993). 
7 !d. at 719. 
8 860 F.Supp. at 1234. 
9 See also Muni v. INS, 891 F. Supp. 440,443 (N.D. Ill. 1995) (including a "Totality of the Evidence" section that, like 
Buletini, requires USCIS to explain why evidence that meets three criteria does not establish eligibility, while not 
suggesting the burden shifts to USCIS). Finally, even in revocation proceedings, the final burden remains on the 
petitioner and is not discharged until issuance of the visa. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 
1305, 1308 (9th Cir. 1984). 
10 While the statute requires extensive documentation, eligibility is to be determined not by the quantity of the filings 
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Matter of B- T-, Inc. 
the very top of the field of endeavor." We consider the entire record, including submissions that do 
not meet any of the enumerated criteria. 
With respect to the Petitioner's concern that the Director did not consider the evidence in the 
aggregate in his final merits analysis, it is appropriate to first discuss and analyze the foreign 
national's accomplishments as a framework to perform an overall, final determination. We then 
weigh all of the filings together to determine if his successes are sufficient to demonstrate that he has 
extraordinary ability in the respective field of endeavor. 11 
The Petitioner documented the Beneficiary's full membership in which reqmres 
"noteworthy achievements in research." The honor society defines noteworthy achievements as 
primary authorship of two papers, for which an earned doctoral degree may be substituted. On 
appeal, the Petitioner does not contest the Director's finding that this entity does not require 
outstanding achievements of its members as judged by national or international experts. 12 We agree 
that the listed requirements for membership do not constitute the type of outstanding achievements 
contemplated by the regulation . Similarly, the Beneficiary's membership in is based 
on class ranking rather than outstanding achievements in the field. Regardless, for purposes of the 
final merits determination, the record does not confirm that his selection for these honor societies at 
the school where he was studying is indicative of or consistent with recognition beyond that school. 
The Beneficiary reviewed an article for the and 
one for The nature of the Beneficiary's judging 
experience is a relevant consideration as to whether the evidence is indicative of the Beneficiary's 
national or international acclaim. 13 On appeal, the Petitioner points to information offers 
contributors. The materials note that reviewers and editors are the authors' peers, with comparable 
standing in the same research field. Given this statement, the Petitioner extrapolates from the 
statement that editors have "specialized understanding and prior distinguished accomplishments in 
the subfield of acoustics," that the reviewers, as their peers, have similar accomplishments. The item 
goes on, however, to state that editors "seek advice from reviewers who are knowledgeable in the 
general subject of the paper." We do not read this section to imply that every reviewer has 
distinguished accomplishments. Ultimately, scientific journals are peer reviewed and rely on many 
scientists to review submitted articles. Thus, peer review is routine in the field; not every peer 
reviewer enjoys international recognition. The record does not contain information that either 
journal relies on a small number of distinguished, credited reviewers that would garner the reviewer 
name recognition. Without responsibili~ies that set the Beneficiary apart from others in his field, 
such as evidence that he has reviewed manuscripts for a journal that credits a small, elite group of 
alone but by their quality . Chawathe, 25 J&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77,80 (Comm'r 1989)). 
We "examine each piece of evidence for relevance , probative value, and credibility , both individually and within the 
context of the totality of the evidence." !d. 
11 See§ 203(b)(l)(A)(i) ofthe Act; 8 C.F.R. § 204 .5(h)(2), (3); see also Kazarian, 596 F.3d atlll9-20 . 
12 8 C.F.R. § 204.5(h)(3)(ii) . 
13 See Kazarian, 596 F.3d at 1122. 
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(b)(6)
Matter of B- T-, Inc. 
referees, received independent requests from a substantial number of journals, or served in an 
editorial position for a distinguished journal, the Petitioner cannot establish that the Beneficiary's 
judging experience is commensurate with national or international recognition. 
The Petitioner offered several letters discussing the Beneficiary's original contributions to applied 
statistical research. On appeal, the Petitioner maintains that the Director gave insufficient weight to 
these letters. We consider them below. The submission of letters from experts supporting the 
petition, however, is not presumptive evidence of eligibility; USCIS may, as this decision will do 
below, evaluate the content of those letters as to whether they support the foreign national's 
eligibility. 14 
The first group of letters relate to the Beneficiary's master's and doctoral work on speech 
recognition at a professor of electrical and computer 
engineering and the Beneficiary's advisor at that institution, summarizes his research on spoken 
assistive technology there. explains the challenges of this project, including 
the large amounts of data necessary from those who find it tiring to speak for long periods of time 
and the difference in speech production between those with speech disorders and those with 
unimpaired speech. According to the de facto statistical models for 
unimpaired speech recognition are The Beneficiary first 
demonstrated the inability of both phone- and word-based to recognize impaired speech with 
high accuracy. He then performed the first researchon applying the 
model adaption technique to the problem of recognition of impaired speech achieving a higher 
recognition accuracy using only a small amount of impaired speech data. 
further states that the Beneficiary expanded on this work for his Ph.D. dissertation, conceptualizing 
and developing a new statistical model adaptation algorithm, 
with "larger improvements than concludes that the 
Beneficiary collaborated with experts in clinical speech and hearing and that his studies open up new 
research opportunities in statistical modeling. 
vice president of emerging technologies for who was previously a 
team manager at discusses the Beneficiary's two projects as an intern at the lab. 
In the first project, the Beneficiary used talker-dependent values to extract speech features that 
provided significant improvement in sound class detection performance relating to a speaker's 
profile (male or female) for learning systems. With respect to his second project, the 
Beneficiary investigated ways to improve the performance of the speech-feature-to-sound-category 
mapping process. The Beneficiary's variance-sensitive algorithm offered substantial gains in 
classification accuracy for sound class detection. concludes that the Beneficiary's work 
exceeded the company's expectations for senior researchers. 
14 See Matter ofCaron lnt 'l, 19I&N Dec. 791 , 795 (Comm'r 1988); see also Matter ofV-K- , 24 I&N Dec. 500, n.2 (BIA 
2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). · 
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(b)(6)
Matter of B- T-. Inc. 
Two independent references also address the Beneficiary's work with for speech recognition. 
is a· scientist at the an assistant professor at the 
and the founder and chief executive officer of He 
characterizes the Beneficiary's research on the application of statistical modeling to automatic 
recognition of disordered/impaired speech as "pioneering." concludes that the 
Beneficiary's study, one of the earliest in this area, "serves as a benchmark of these techniques' 
ability to model the production of speech in individuals diagnosed with motor speech disorders." 
notes that the Beneficiary 
presented his findings in this area at two conferences. While 
confirms that this work benefits scientists in the field of spoken assistance technology 
such as himself, he does not explain how he or any other independent researcher has utilized the 
Beneficiary's findings. · 
a professor at the expresses his excitement over the 
Beneficiary's innovation with providing a "significant increase in accuracy for speech 
recognition in the data-scarce scenario." confirms that the Beneficiary's technique "has 
potential 
applications in tackling statistical modelling challenges in speech synthesis as well." While 
offers an example, he does not suggest that the Petitioner 's technique is already in use in 
other areas. Rather, he concludes that the Beneficiary's methods "hold great promise for not just 
data-scarce speech recognition, but also data-scarce speech synthesis." 
Also discussing the Beneficiary's work at a senior research engineer 
with and a fellow former student, describes his work for two courses. In these projects, 
he attests, the Beneficiary made significant accuracy gains in the automatic recognition of nasal 
vowels and showed that articulatory dynamics improve the accuracy of speech recognition systems. 
Finally, addresses the Beneficiary 's participation in 2008 
which reached the final round. 
confirms that the Beneficiary's statistical models were instrumental to the team's success. 
All of the Beneficiary's citations relate to his speech recognition work. On appeal, the Petitioner 
correctly notes that the Director incorrectly calculated the average number of 'Citations for these 
articles. More relevant than the average number are the highest numbers received by individual 
articles. Three of his articles garnered moderate citation. While these numbers are higher than the 
average in computer science, as identified in the Director's decision, they are not representative of 
the type of national or international acclaim required for this classification. We acknowledge that 
the number of citations is not, by itself, determinative. The Petitioner must, however, offer some 
documentation of his acclaim beyond the Beneficiary's circle of colleagues. The Petitioner did not 
provide examples of the citing articles to show the extent they relied on the Beneficiary's work. 
Moreover, while the Petitioner did supply letters from those who have not previously worked with 
the Beneficiary, neither author details how his own work has been influenced by the Beneficiary. 
For these reasons, the Beneficiary's research contributions pertaining to speech recognition, an area 
he is no longer pursuing, are not indieative of national or international acclaim. 
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Matter of B- T-, Inc. 
After graduating from the Beneficiary applied his methodologies in a different area. 
senior director of software engineering at and the Beneficiary's project 
manager at that company, states that the Beneficiary was the only new hire added to 
a new internal initiative. During his time there, he worked on two major applied 
research projects. First, according to the Beneficiary developed a methodology for 
designing mathematical functions to score or classify financial instruments, for example to clarify 
the liquidity of corporate bonds, a subjective notion with no direct correlate of liquidity. The 
Beneficiary not only developed a flexible scoring framework that is applicable to any scenario with 
subjective, hard to quantify attributes, but also offered recommendations on how and when to use it. 
then discusses the Beneficiary's second research endeavor aimed at developing language 
models to drive natural search interfaces for the company's data platform used to retrieve financial 
data on corporate entities. He simplified the existing multi-step search process to a single search 
query that a user could enter as a question and showed how a user could use the system to perform 
rule-based investment research, such as a query for all private companies in North America with a 
specific net income range. While the Beneficiary benefited his employer, the record does not reflect 
that his work at has influenced the wider field at a level consistent with national or 
international acclaim. 
Finally, while the Beneficiary has been working for the Petitioner since 2013, the company has not 
detailed what contributions the Beneficiary has made while working there. Rather, the initial letter 
includes a list of projects without an explanation of their significance in the field. Accordingly, the 
Petitioner has not established any recent contributions. In light of the discussion above, the 
Petitioner has not documented original contributions whose significance in the field is commensurate 
with national or international acclaim. Rather, he has produced promising methodologies with 
applicability in the field. 
The Petitioner documented that the Beneficiary authored several scholarly articles relating to his 
Ph.D. research area. It is appropriate to consider the field's response to these articles in this final 
merits determination. 15 As discussed above with respect to the Beneficiary's contributions, the 
Beneficiary has only garnered a moderate level of citation, has not shown the extent to which those 
authors relied on his findings, and has offered letters from independent experts who do not detail 
their reliance on his work. For these reasons, the Petitioner has not demonstrated that the 
Beneficiary's publication history is indicative of or consistent with national or international acclaim. 
On appeal, the Petitioner relies on the Beneficiary's roles for and the Petitioner to 
show eligibility. According to the Beneficiary improved the accuracy and workability 
of the company's data platforms. does not detail how widely the Beneficiary's project is 
used at the company or its ultimate impact there. Even assuming this role was a critical one for the 
organization and that the organization enjoys a distinguished reputation, the record lacks evidence 
showing that selected the Beneficiary based on his national or international acclaim 
or that the Beneficiary garnered such acclaim based on his impact there. As noted above, the record 
15 Kazarian, 596 F.3d at 1122. 
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Matter of B- T-, Inc. 
contains little information about the Beneficiary's role for the Petitioner, such as how he fits within 
the overall hierarchy of the company or his impact there. For these reasons, the Petitioner has not 
demonstrated that the Beneficiary's roles are commensurate with national or international acclaim. 
Finally, the Petitioner initially relied on the wage it was paying the Beneficiary. The Director noted 
that the salary was below the top 1Oth percentile for computer and information research scientists. 
The Petitioner does not contest that conclusion on appeal. We find that the Beneficiary's salary is 
not indicative of or consistent with national or international acclaim. 
Ultimately, the evidence in the aggregate does not distinguish the Beneficiary as one of the small 
percentage who has risen to the very top of the field of endeavor. The record establishes that the 
Beneficiary is an experienced data scientist with academic honors who, while studying for his Ph.D. 
worked on important projects with promising results that have been referenced in other published 
articles. He participated in the widespread process of manuscript review, successfully completed his 
assigned projects that improved the accuracy and usefulness of his employer's data platforms, and 
earned a salary above the median but less than the top 10 percent. The Petitioner, however, has not 
met its burden of demonstrating that these accomplishments, even in the aggregate, are 
commensurate with sustained national or international acclaim in the Beneficiary's field. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-T-, Inc., ID# 17969 (AAO Aug. 29, 2016) 
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