dismissed EB-1A Case: Embedded Systems Software Engineering

U.S. Department of Homeland Security 
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Washington, DC 20529 
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FILE: EAC 02 2 18 50538 Office: VERMONT SERVICE CENTER Date: ]1 8 2005 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. L 
h@~~hhsW- 
k~obert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 218 50538 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermo~~t Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(,A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(A), as an alien of extraordinary ability in the 
sciences and business. The director determined that the petitioner had not established the sustained national or 
international acclaim requisite to classification as an alien of extraordinary ability. 
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, 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. tj 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. $ 204.5(h)(3), or under 8 C.F.R. 9 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" as "a level of expertise indicating that the individual is 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). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the sciences and business 
as an embedded systems software engineer and entrepreneur. Finding that the evidence initially submitted did 
not establish that the petitioner had achieved the requisite sustained acclaim, the director issued a Request for 
Evidence (RFE) on August 6, 2004 to which the petitioner timely responded on November 3, 2004. On appeal, 
the petitioner submits a brief and additional evidence. The petitioner's claims and the evidence submitted on 
appeal do not overcome the deficiencies of the petition and the appeal will be dismissed. We address the 
evidence submitted and the petitioner's contentions In the following discussion of the regulatory criteria relevant 
to the petitioner's case. The petitioner does not claim eligibility under any criteria not discussed below. 
EAC 02 218 50538 
Page 3 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavor. 
On appeal, the petitioner states that in the commercial technology business, prizes are only rarely "awarded to 
particular products, not the individuals that helped create them." He further contends that most of the I-egulatory 
criteria at 8 C.F.R. tj 204.5(h)(3) "do not readily apply to professions that operate in a corporate entironment, 
where financial remuneration takes the place of publicity and awards, and the corporate identity is emphasized 
well above individual contributions" and requests that awards granted to his past company, BitBand, and 
products that he worked on be considered as comparable evidence of his eligibility under this categoqr pursuant 
to 8 C.F.R. 4 204.5(h)(4). 
In his letter submitted with the petitioner's RFE response, Junichiro Hamaguchi, Senior Project Manager at 
Konica Minolta who formerly worked with the petitioner, states, "Unlike the traditional computer industry, 
embedded software makes [sic], companies and individuals alike, live in relative obscurity, and do not get the 
same amount of attention from trade and financial press, and are seldom given any fame, except within the 
small circles of peer professionals." Even if we accept this explanation as sufficient justification to invoke 
the comparable evidence provision of 8 C.F.R. tj 204.5(h)(4), the record does not demonstrate that the 
petitioner has contributed to award-winning companies or products in a manner consistent with sustained 
national or international acclaim. 
The record shows that from 1999 to 2001, the petitioner was the founder and Chief Technology Officer 
(CTO) of BitBand Incorporated (BitBand) in Israel. On appeal, the petitioner claims that BitBand has won 
several awards, but the record documents only one honor accorded to the company after the petitioner's 
departure. The petitioner submitted evidence that BitBand was chosen for the 2004 Tornado Insider Top 100 
List of best-performing and innovative high-tech private companies in Europe and Israel. We cannot 
consider this evidence because it arose after the petition was filed. The petitioner must establish eligibility at 
the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new 
set of facts. See 8 C.F.R. tj 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornrn. 1971). Moreover, 
even if this honor had been granted prior to filing, it would still not be creditable to the petitioner. The 
petitioner states that after his departure from BitBand in 2001, he was still an advisor and shareholder of the 
company. Yet BitBand's 2004 honor cannot be attributed to the petitioner given his limited and indirect role 
with the company at that time. 
Similarly, the honor accorded to Wind River Systems Incorporated (Wind hver) in 2001 cannot be amibuted to 
the petitioner. The record contains a press release dated November 30, 2001 and printed from Wind River's 
website, which states that the company was "named the leading embedded software development tools vendor 
by Gartner Dataquest in the research firm's recent worldwide market analysis of the embedded sofware tools 
market." The petitioner's resume states that he left Wind River in January 1999. The record does not establish 
that the petitioner's work significantly contributed to the company's designation as a leading vendor in its field 
two years after the petitioner's departure. 
Alexander Pavlovsky, Founder and Vice President of Hardware Engineering at Ranch Networks, explains that 
he worked with the petitioner when the petitioner was employed at RST Software Industries Limited (RST) and 
that he formerly led the development of "the Cajun switches" at Lucent Technologies (Lucent). Mr. Pavlovsky 
explains that he collaborated with the petitioner on the "'Cajun' Ethernet switch family, which was awarded in 
EAC 02 218 50538 
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[sic] Las Vegas Interop + WorldCom International exhibition. Also the 'Cajun' switches received award [sic] 
from Mier Communication Group." Accompanying Mr. Pavlovsky's letter is a printout from Lucent's website 
with a press release dated February 14, 2000 announcing that the company's Cajun P333T Switch earned a 
"NetWORKS As Advertised award in the stackable 10/100/1000 megabits per second Ethernet switch category 
fi-om Mier Communications. A second Lucent press release dated May 15, 2000 states that Lucent's Cajun 
Campus Switching Series was a finalist in the Gigabit Ethernet Solution category of the 2000 Well-Connected 
Awards of Network Computing. The record show that the petitioner was the owner and general manager of RST 
from 1992 to 1997, but contains no corroborative evidence that he collaborated with Mr. Pavlovsky on the 
"Cajun" switch technology that was later used by Lucent. Even if the petitioner's contributions were adequately 
documented, the record contains no independent evidence of Lucent's NetWORKS As Advertised award, the 
significance of the award, or evidence that the award is nationally or internationally recognized. 
The record contains no evidence of nationally or internationally recognized awards or prizes granted prior to 
filing and accorded to companies or products to which the petitioner directly contnbuted and which are thus 
ambutable to the petitioner. Accordingly, the petitioner does not meet this criterion. 
(iii) 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. 
On appeal, the petitioner requests that 
all publications about BitBand, Inc. be considered equivalent to publications about the beneficiary - 
clearly, without the beneficiary's vision and labor, the company would not come to exist. Moreover, 
since the beneficiary has clearly been the technolog~cal innovator driving this company, the press 
covering the technical merits of the company's products should be directly contributed [sic] to the 
beneficiary by the AAO. 
Even if we accepted the submitted articles as comparable evidence of the petitioner's eligbility, they would not 
satisfy this criterion. The record contains six articles that discuss or mention BitBand. Four of these articles 
were published after the petition was filed and consequently cannot be considered. The petitioner must establish 
eligbility at the time of filing. See 8 C.F.R. 8 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. The remaining two 
articles were submitted as printouts fi-om the website of PR Newswire. The record contains no evidence that PR 
Newswire is a professional, major trade publication or another form of major media. In fact, the article entitled 
"BitBand Names Jeff Dykan Chairman and CEO" states that it was "[dlistributed by PR Newswire on behalf of 
BitBand Inc." Press releases, paid advertisements or other promotional material from an alien, his employer, 
agent or other representative do not meet this criterion. Individuals who have achieved sustained national or 
international acclaim are generally the subject - not the source - of published material about themselves and 
their work. Accordingly, the petitioner does not meet this criterion. 
(v) Evidence of the alien 's original scientzjic, scholarly, artistic, athletic, or business-related contributions of 
major signzficance in the field. 
The petitioner, through prior counsel, initially claimed to meet this criterion through his work at BitRand and 
RST. On appeal, the petitioner reiterates this claim and cites the submitted recommendation letters. The record 
contains six letters from professionals who have worked with the petitioner. While such letters provide relevant 
EAC 02 218 50538 
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information about an alien's experience and accomplishments, they cannot by themselves establish the alien's 
eligibility under this criterion because they do not demonstrate that the alien's work is of major significance in 
his field beyond the limited number of individuals with whom he has worked directly. Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition cany less weight than 
preexisting, independent evidence of major contributions that one would expect of an alien who has achieved 
sustained national or international acclaim. Accordingly, we review the letters as they relate to other evidence 
of the petitioner's contributions. 
The petitioner initially submitted four letters. 
dd 
Software Research and Development 
Engineer at ECI-telecom, simply states that she atten e a "training program about vxWorks O/S ant1 Tornado 
environment" conducted by the petitioner in 1997 where he "demonstrated an amazing knowledge of those 
subjects plus some extra information, and gave us very good advice about problems that specifically interested 
us." ~&ir Fuhrmann, owner of Sphinx Technologies, states that he has known the petitioner since 1986. Mr. 
letter is unsigned and incomplete. The letter concludes, "Leonid is most innovative and creative. 
He has initiated activities that turned into successful companies. Leonid is a worldwide known authority on the 
[sic][.]" chairman of Tenta Technology states that he has known the petitioner since 
1990 when he supervised the petitioner at Applied Materials. letter is also unsigned. Dr. 
states that while at Applied Materials, the petitioner dd ' provi e some unique technical solutions for 
real time control systems for the Semiconductor Equipment market. Those solutions were 
implemented successfull and commercialized in Applied Materials Inc (US) equipment." Another unsigned 
letter is attributed tohief Executive Officer of Tenta Technology. tates that he has 
known the petitioner for about 15 years and explains that in 1986 when he was a field service engineer at E&M 
~ngineering in Israel. he gained valuable knowledge and advice fi-om the ~etitioner as a "UNIX systems expert." - - 
tates that he again depended on the petitioner's professional assistance and expertise when 
as employed by Applied Materials. These letters indicate the petitioner's expertise and valuable e assistance provided to these four individuals, but they do not document any original, major contributions that the 
petitioner made to his field. 
With his WE response, the petitioner submitted an additional three support letters. f ~onica 
Minolta, states 
It is quite natural that not many people outside the embedded software industry have heard of Leonid 
and his work, but I can testify to the fact that a very large number of embedded programmers have come 
across his name, and many more are using the fruits of his labor, to produce innovative, life changing 
and at times life saving devices and instruments. 
At Wind River, Leonid was primarily involved with the embedded system storage technologies and 
products, and has contributed to the advancement of the entire Wind River product line with his file 
system products, including the then revolutionary DosFs 2.0 components, which is [sic] to this day, an 
integral part of the award winning ~ornado@ product line. . . . 
I can disclose at confidence [sic] that many of Konica Minolta's office automation products are based 
on Wind River's Tornado, and depend on the management of embedded storage, handled by DosFs 2.0, 
which has proven to be one of the most reliable and economical solution [sic] of this kind in the 
industry, and provides my company's products with some critical differentiating features. 
EAC 02 218 50538 
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I also am aware of several digital camera manufacturers who use Leonid's work, namely DosFs 2.0 in 
their cameras to manage the assorted Flash-memory based digital storage media. 
In addition to discussing his collaboration with the petitioner on the "Cajun" Ethernet switch family, Mr. - 
also states that at RST, the petitioner developed and executed "business programs for wide 
of VxWorks in Israel, by that he became one of the top Israeli business expert [sic] in Hi-Tech [sic] - - 
area. In fact, he was choisen [sic] as a senior advisor by the. Sequoia Venture to participate in the selection of 
Israeli Start-up companies to invest in." The record corroborates the petitioner's work for RST, but does not 
document his service as a senior advisor to Sequoia Venture states that the petitioner "is 
nationally acclaimed and his achievements have been community." 
Michael Delimann III, Chief Engineer of Operating Systems for several NASA projects, states that he worked 
with the petitioner at Wind River. He explains: 
Leonid authored both file systems and file system repair tools for Wind River's Real Time Operating 
system. . . . To balance the design of such a system requires an extremely high level of slull, a level I 
would guess that fewer than one tenth of one percent of software engineering professionals display. 
Weather [sic] Leonid knows of this or not, his file system has been used in satellites, medical scanners, 
and intelligent munitions systems, as his implementation of the DOS file system is very robust and fast. 
These are life-critical and mission-critical systems, meaning if the systems fail, someone who relies on 
them will likely die as a result. A few examples would include pacemakers made by Pacesetter, medical 
scanners made by G.E., intelligent munitions used by the Department of Defense, and satellites 
deployed by NASA. 
The record contains a printout of an electronic mail message from Mr. Delimann telling the petitioner "your 
name is now almost ready to start wallung across Mars, and your dosFsChkLib is very much a piirt of the 
picture." 
As discussed above under the first criterion, the petitioner has been involved with companies and technology 
that won honors after his involvement ended. The record does not persuasively document his exact contribution 
to the "Cajun" switch technology, for which Lucent was later honored. On appeal, the petitioner contends that 
his "innovations have resulted in the acquisition of his first private company by the world leading company in 
embedded systems software - Wind River Systems, Inc." The record shows that the petitioner was the general 
manager and owner of RST, which was later acquired by Wind River. Yet Wind River was not named the 
leading embedded software development tools vendor until 2001, four years after its acquisition of RST. 
Similarly, although the petitioner was the founder and CTO of BitBand, that company was not honored until 
three years after the petitioner's departure and two years after this petition was filed. On appeal, the petitioner 
contends that BitBand "was initially funded with $4 million by one of the world's most prominent venture 
capital firm [sic]: Sequoia Capital (Menlo Park, CA), the same venture firm that founded Cisco Systems, Yahoo, 
Inc. and other highly successful technology powerhouses. Thais [sic] should be viewed as the ultimate proof of 
the beneficiary's technological innovation ability." BitBand's company profile and the 2001 article from PR 
Newswire state that BitBand is a private company "in which Sequoia Capital Seed Fund (jointly owned by 
Sequoia Capital and Cisco Systems) has invested." The record contains no documentation that this investment 
was worth four million dollars and the petitioner submitted no corroborative evidence of the reputation of the 
Sequoia Capital Seed Fund. Yet even ~f the record established these facts, they alone would not demonstrate 
EAC 02 218 50538 
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that the petitioner's work at BitBand constituted a major scientific or business related contribution to his field. 
Investment in a company by a prominent venture capital firm demonstrates the company's promise for future 
financial success. Such investment does not demonstrate the invested company's established achievements or 
show that the company has made original scientific or business related contributions of major significance to its 
field of endeavor. 
The letters o ndicate that the 
engineer whose work has contributed to several Important products. We have not 
observation that embedded software engineers do not receive public recognition for 
be aware of the products in which their work is,eventually incorporated. However, the record contains no 
evidence to corroborate the relative obscurity of the petitioner's profession as described b 
addition, the record doe document the petitioner's exact contributions an t elr signi lcance to 
his field. For example 
In 
a printout of an electronic mail message submitted with his letter, 
explains that anyone who has worked at Wind River over the last decade was involved in the NASA Mars 
Pathfinder, Rover, space probes and other related projects. petitioner's individual 
contribution is unclear from the evidence submitted. In fact, essage suggests that the 
work has not yet been incorporated into a Mars project. Mr. 
is dated January 12, 2004 and states that the petitioner's name "is almost ready to start 
Mars." The record thus indicates that the petitioner is a highly slulled expert in his field whose 
work is valued by the authors of his recommendation letters. Yet the evidence submitted does not establish that 
he has made original scientific or business related contnbutions of major significance to his field in a manner - 
consistent with the requisite sustained acclaim. Accordingly, he does not meet this clterion. 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The record contains copies of promotional materials, presentations and a programing manual purportedly 
written by the petitioner. Work products such as these are not scholarly articles published in professional, major 
trade publications or other major media. The petitioner also submitted a copy of an article co-authored by him 
entitled, "CONSIP A Concurrent Network Simulation Package for Local Area Networks." This article was 
included in a book published 16 years before this petition was filed. The petitioner submitted no evidence that 
this article was and continues to be consistently cited or otherwise recognized in his field. On appeal, the 
petitioner submits evidence that his paper, "TOOLweb Sensors Data Collection Principles," was accepted for 
online publication by Solid State Technology on March 17, 2005. This evidence does not support the 
petitioner's eligibility under this criterion because his paper was not published (let alone accepted for 
publication) prior to the filing of this petition. The petitioner must establish eligibility at the time of filing. See 
8 C.F.R. 8 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
On appeal, the petitioner claims that his writings posted on the electronic forums "VxWorks Exploder" and 
"VxWorks FAQ" meet this criterion. He submits evidence that the first forum has over 1,000 subscnbers and 
that the second internet site was accessed 2,486 times in the month preceding the filing of this petition. The 
record contains printouts of numerous electronic mail messages written by the petitioner between I988 and - 
technical advice and directions in response to questions posted on the VxWorks 
forum. ffirms that "[tlhrough his contributions on the Internet-based forums, [the petitioner] 
and researchers all around the world with their most critical issues, and 
EAC 02 218 50538 
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enabled their success." This evidence shows that. the petitioner has shared his valuable expertise with many 
individuals. Yet his electronic mail messages are not scholarly articles. 
On appeal, the petitioner contends that he "is part of a deeply technical community that has adopted the Internet 
as their main venue for publishing and sharing knowledge, and hence most of the beneficiary [sic] published 
articles appear on several Internet sites." We do not dispute that some forms of electronic media may constitute 
professional, major trade publications or other major media given evidence of their wide dissemination and 
readership, yet that proposition is an ancillary issue in this case. The crucial question here is whether or not the 
petitioner's electronic mail messages are scholarly articles. The evidence submitted shows they are not. The 
petitioner's messages provide valued technical expertise and advice, but they are not scholarly articles that 
discuss and analyze substantive issues in the petitioner's field in depth. Moreover, the petitioner submits no 
evidence to corroborate his implication that such messages are the functional equivalent to scholarly articles in 
his field and hence, should be so considered under the comparable evidence provision of 8 C.F.R. 3 204.5(h)(4). 
Accordingly, the petitioner does not meet this criterion. 
(viii) Evidence that the alien has pe$ormed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
The record documents the petitioner's leading and critical role for BitBand. As discussed above under the first, 
third and fifth criteria, the evidence submitted shows that BitBand did not achieve significant recognition in the 
field until after the petitioner resigned from his leading and critical roles for the company. Moreover, the 
submitted articles about BitBand from PR Newswire appear to have been published at the company's own 
instigation and hence do not reflect national or international acclaim. As was also discussed under the first, 
third and fifth criteria, the petitioner contributed to acclaimed products and companies. Yet those honors 
occurred after the petitioner's departure from the companies or are not otherwise clearly attributable to him. 
Accordingly, the petitioner does not meet this criterion. 
(ix) Evidence that the alien has commanded a high salary or other signzjicantly high remuneration for 
services, in relation to others in thefield. 
The record contains evidence of the petitioner's 2003 income, U.S. and California income tax returns for 2003, 
and his income from the first half of February 2005. While we understand that the petitioner submitted these 
documents in response to the director's request in the RFE, we cannot consider this evidence because it arose 
after the petition was filed. The petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. ji 
103.2(b)(12), Katighak, 14 I&N Dec. at 49. The record contains no evidence that at the time of filing the 
petitioner's income or other remuneration was significantly higher than other embedded software engineers or 
comparable to such engneers at the very top of their field in Israel or the United States. Accordingly, he does 
not meet this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is a successful embedded software engineer, but the record does not 
establish that he had achieved sustained national or international acclaim placing him at the very top of his field 
EAC 02 218 50538 
Page 9 
at the time of filing. He is thus ineligble for classification as an alien with extraordinary ability pursuant to 
section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), and his petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. fj 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.