dismissed EB-1A Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 14274123 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 5, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a designer and manufacturer ofl I vehicles , seeks to classify the Beneficiary , a 
I I engineer, as an alien of extraordinary ability. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(A) , 8 U.S.C . § 1153(b)(l)(A) . This first preference classification makes immigrant 
visas available to those who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the Beneficiary 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 )(1 )(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 endeav or." 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, internationally 
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. 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). 
II. ANALYSIS 
The Petitioner has employed the Beneficiary asl I engineer since 2018. Because the Petitioner 
has not indicated or established that the Beneficiary has received a major, internationally recognized 
award at 8 C.F.R. § 204.5(h)(3), he must meet 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 determined that the Beneficiary satisfied only two of the initial 
evidentiary criteria, judging at 8 C.F.R. § 204.5(h)(3)(iv) and scholarly articles at 8 C.F.R . 
§ 204.5(h)(3)(vi). On appeal, the Petitioner maintains the Beneficiary's eligibility for two additional 
criteria. After reviewing all of the presented evidence, the record does not reflect that the Beneficiary 
meets the requirements of at least three criteria . 
A. Evidentiary Criteria 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
In order to satisfy the regulation at 8 C.F.R . § 204.5(h)(3)(v), a petitioner must establish that not only 
has the Beneficiary made original contributions but that they have been of major significance in the 
field. 1 For example, a petitioner may show that the contributions have been widely implemented 
throughout the field, have remarkably impacted or influenced the field, or have otherwise risen to a 
level of major significance in the field. 
The Petitioner did not initially claim the Beneficiary's eligibility for this criterion based, in part or in 
full, on citation numbers. Instead, the Director conducted his own Google Scholar search and found 
"no profile associated with the beneficiary's name" and requested "what, if any additional Google 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 8-9 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (finding that although funded and published work may 
be "original," this fact alone is not sufficient to establish that the work is of major significance). 
2 
Scholar profile and labels are associated with the beneficiary's publications." In response, the 
Petitioner argued about the accuracy and reliability of citation counts. In denying the petition, the 
Director referenced figures "from the Google Scholar database revealed the profile associated with the 
beneficiary's name" and compares the Petitioner's cumulative citations to "other published experts in 
the beneficiary's field of endeavor" to "show[] that scientists who have risen to the very top of the 
beneficiary's field have garnered citations numbered in the thousands." 2 
Neither the statute nor the regulations require the Petitioner to submit citatory evidence for this 
criterion. As guidance, examples of original work that constitutes major, significant contributions 
include, but not limited to, peer-reviewed presentations at academic symposia or peer-reviewed 
articles in scholarly journals that have provoked widespread commentary or received notice from 
others working in the field, or entries (particularly a goodly number) in a citation index which cite the 
individual's work as authoritative in the field. 3 Generally, citations can serve as an indication that the 
field has taken interest in an individual's research or written work. In addition, citatory evidence may 
contain probative value in corroborating statements in recommendation letters or supporting other 
documentation in establishing the significance of the contributions. If the Petitioner provides citatory 
evidence, the burden remains with the Petitioner to show the accuracy, reliability, and relevance of 
those figures and explain how they demonstrate original contributions of major significance in the 
field. 
The comparison of a beneficiary's cumulative citations to others in the field is often more appropriate 
in determining whether the record shows sustained national or international acclaim and demonstrates 
an individual who is among that small percentage at the very top of the field of endeavor in a final 
merits determination. See Kazarian 596 F.3d at 1115. Again, the issue for this criterion is whether a 
beneficiary has made original contributions of major significance in the field rather than how the 
citations reflect a beneficiary's national or international acclaim or where the cumulative citations rank 
among other renowned scientists in the field. However, a comparison of citations of a beneficiary's 
individual article to a particular scientific article that the field views as being majorly significant may 
be probative to establish a citation baseline for majorly significant scientific articles in the field. 
On appeal, in arguing the unreliability and inaccuracy of using Google Scholar labeling data, the 
Petitioner provides cumulative citations from Google Scholar for other scientists depending on various 
labels and submits the Beneficiary's Google Scholar individual article citations showing that his 
highest cited article received 35 citations. Although the Petitioner does not contend using citatory 
evidence to establish the Beneficiary's eligibility, the record does not reflect that the citation figures 
for any of the Beneficiary's individual articles demonstrate contributions of major significance in the 
field as the Petitioner did not offer evidence explaining the relevance of the citation numbers. 
Moreover, as previously discussed, comparing cumulative citations to other scientists is more 
appropriate in a final merits determination where the probative nature of the evidence would be best 
addressed. Given that the Petitioner does not argue the Beneficiary's eligibility based on citatory 
evidence and the Director's improper application of comparing the Beneficiary's cumulative citations 
2 The Director included screenshots of the Beneficiary's Google Scholar profile under the labels'-----,,---,..,...---' 
I I and .__ ____ __.' screenshots of other individuals' Google Scholar cumulative citations, and a 2014 
Scientometrics a11icle relating to citation percentiles. 
3 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8. 
3 
to other scientists to show his acclaim or overall placement in the field for this criterion, we will not 
further consider the Google Scholar data. 
The Petitioner argues that the Beneficiary "is the named inventor on two patents for._l __ _. 
technologies assigned tq I." In general, a patent generally recognizes 
the originality of an invention or idea but does not necessarily establish a contribution of major 
significance in the field. The Petitioner claims that is "has demonstrated the major significance of 
these original contributions by providing evidence of the commercialization of these technologies and 
of their impact on the field" and broadly lists exhibits. However, the Petitioner did not specifically 
identify the evidence and explain how it supports its assertions. The majority of the exhibits relate to 
recommendation letters that make no mention of the Petitioner's patents or describe how the 
commercialization of the patents resulted in widespread usage, signifying a contribution of major 
significance in the field. In fact, only three of the letters even referenced his patents, which were only 
briefly mentioned. For example, "[ the Beneficiary] is the author of two patents regarding! I I t' -~----------'' and "[i]n addition to his many patent and research 
publications, [the Beneficiary] has also served as a valuable source for the scientific community"LJ 
I ~ Neither letter elaborates nor explains the significance of the patents in the field. 
Moreover,! I stated he collaborated with the Beneficiary on two patents and ~ is 
set to apply these systems to thei~ !vehicles in the near future," indilatinJ potential usa e 
but does not show the influence in the overall field beyond the testing stages at 4 Similar! 
I ~ndicated that " t he al orithms he developed have been tested and validated b ~-----' 
engineers on th_._~---~------' further confirming the important timing and relevance of 
his work." Again,~--~ does not describe the overall impact of the Beneficiary's algorithms 
beyondDs testing and validating stages. 
The Petitioner also contends that the Beneficiarr's "patented techniques have been cited in subsequent 
patents assigned t-,.__ ________ _,, LI I and 
more" and submits screenshots from patents.google.com. However, as the Petitioner did not make 
these claims and submit these documents before the Director, either at the time it filed the petition or 
in response to the Director's request for evidence, we will not consider these claims and documents in 
our adjudication of this appeal. See Matter o_f Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing 
that if "the petitioner was put on notice of the required evidence and given a reasonable opportunity 
to provide it for the record before the denial, we will not consider evidence submitted on appeal for 
any purpose" and that "we will adjudicate the appeal based on the record of proceedings" before the 
Chief); see also Matter of Obaigbena, 19 I&N Dec 533 (BIA 1988). 
In addition to the letters discussed above, some of them reference the Beneficiary's research and 
contributions in terms of ros ective im act or influence. For instance, the Beneficiary's research on 
th modeling "can reflect the aging process ot1, I' 
, "the accurate information provided by this method can protec~ _ I --------~-----., I I, "this method can be utilized to develop the 
4 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9; see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-35 
(D.D.C. 2013) (upholding a finding that a ballroom dancer had not met this criterion because she did not corroborate her 
impact in the field as a whole). 
4 
I systems for different I 7" I I, and ""[the 
._B-en_e_f~1c~i-ary_'_s ]_r ..... esearch regarding the I ~n drastically reduce the cost of a 
and modeling that [the Beneficiary] developed can be used to predict 
1------~---_.protect ~---~' and reduce the .__ ________ ~replacement" 
.__ ___ __, ( emphasis added). Here, the letters hypothesize on the effect of the Beneficiary's research 
and work at some undetermined time in the future. The letters do not show that the significant nature 
of his research has already been realized or has been implemented or utilized in a manner consistent 
with major significance. 
M oreover, e e ers ISCUSS th 1 tt d. th f d. em mgso e ene 1crnry s researc fth B fi . WI OU h ·th t furth 1 . . h er exo ammg ow 
the work has resulted in contributions of major significance. For exampleJ 
indicated findings from the Beneficiary's master thesis relating to a I 
I 
I' and his design of a 1 
I I' However,! ldid not 
elaborate and describe how this work has somehow affected the field in a significant manner. 
Likewise stated that the Beneficiary's "research has built a critical bridge between the 
,,__ ________ ..,_e;:.;n=i;;;:n:..::.e.=.cer::.;:i;;;;:n=-:;m;;;;:o.:::....::;dels" and his algorithm estimates are 'I I 
L..---~---~----------' ' Although he opines on the importance of the Beneficiary's 
findings....._ __ __, did not expand upon the impact or influence in the wider field. 
Here, the letters do not contain specific, detailed information explaining the unusual influence or high 
impact that the Beneficiary's research or work has had in the overall field. Letters that specifically 
articulate how a beneficiary's contributions are of major significance to the field and its impact on 
subsequent work add value. 5 On the other hand, letters that lack specifics and use hyperbolic language 
do not add value, and are not considered to be probative evidence that may form the basis for meeting 
this criterion. 6 Moreover, USCIS need not accept primarily conclusory statements. 17 5 6, Inc. v. The 
US. Att'y Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that the Beneficiary has made original contributions of major significance in the field. 
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). 
Regarding a critical role, the evidence must demonstrate that an individual contributed in a way that 
is of significant importance to the outcome of the organization or establishment's activities. It is not 
the title of a role, but rather the performance in the role that determines whether the role is or was 
critical. 7 
5 See USCTS Policy Memorandum PM 602-0005.1, supra, at 8-9. 
6 Id. at 9. See also Kazarian, 580 F.3d at 1036, aff'd in part, 596 F.3d at 1115 (holding that letters that repeat the regulatory 
language but do not explain how an individual's contributions have already influenced the field are insufficient to establish 
original contributions of major significance in the field). 
7 Id. 
5 
The Petitioner argues that the Beneficiary performed in a critical role and references two 
recommendation letters. Specifically,! ~ in cha,._r ... e::........;os:...f...._..,.._ ________ __, 
I I for the Petitioner, described the Beneficiary's role as ,__ __ _.engineer, such as "[the 
Beneficiary] works with the Department to design and create._! _____ __. 
I I that will maximiz ensure safety standards, offer optimal performance and 
handling, and reduce consumer cost." listed other responsibilities, such as establishing 
novel designs for systems; developing and designing testing, modeling, and 
assessing of,___~ systems; creating the software for the I I system; and 
collaborating with anld providrg hands-on support to other engineers during production, assessment, 
and deployment of systems. Moreover.I I stated that the Beneficiary's 
"extraordinary skills offer us a great strategic advantage and he plays an essential role in perfecting 
[the Petitioner'sj , I design." 
Instead of describing how the Beneficiary has significantly contributed to the Petitioner's outcomes 
and activitiesl I offered a general job description and duties of the position. I I 
did not provide specific information, explaining how the Beneficiary has performed in a critical role. 8 
He did not, for example, detail the Beneficiary's contributions and show how his role a~ I 
engineer resulted in successes or achievements for the company, signifying a crucial or essential role. 
Similarly, the letter froml I previously discussed, reflects the nature of the role rather than 
how the Beneficiary has performed in a critical role for the Petitioner. Specifically] I stated 
that "[the Beneficiary's] essential role asl I developer [for the Petitioner] involves applying his 
expertise in I ~ systems to develop a strategy to find the 
balancing point between thd t and "[t]his is an absolutel[i necessity 
for [the Petitioner's] vehicle to surpass its competition and improve thel industry." 
Again.I I does not describe what contributions the Beneficiary made in his role asl . I 
engineer for the Petitioner and how those contributions resulted in the successful outcomes or activities 
of the company. I I for instance, did not identify the Beneficiary's! I 
strategy and how it impacted the business. 
In addition, the Petitioner initiall claimed that the Beneficiary met this criterion "through his post­
doctoral tenure at " S ecificall , the Petitioner stated that I I 
.__ __ -:-------:---;:::::======='.....:1:.:.:n===::;--:-----' Program, one of the world's leading 
research programs m has partnered with I I to advance the 
development of L-_ _,----,. ____ ~ _____ __J vehicles," and "[ d]uring his doctoral and 
post-doctoral tenure at the Beneficiary] played a critical role in leading key research for this 
program." As it related to the Petitioner provided documentation regarding the university's 
ran~ings, rd media articles reporting onD's "notable accolades for research" and collaboration 
wit In res onse to the Director's RFE the Petitioner contends that the Beneficia " la ed a 
ivotal role in th 
project." Further, the Petitioner stressed the ' and ,__ ______ _. ._ ___________ __. 
8 See USCTS Policy Memorandum PM 602-0005.1, supra, at 10 (stating that letters from individuals with personal 
knowledge of the significance of a petitioner's leading or critical role can be particularly helpful in making this 
determination as long as the letters contain detailed and probative information that specifically addresses how the role for 
the organization or establishment was leading or critical). 
6 
,....t.._h..,.ec.i.1--,-----.:::,----------c------,JJ' and stated that '~I -~I is a highly ranked research university in 
,__I _ ___.I c:nada." 
On appeal, the Petitioner no longer argues the Beneficiary's role withOoverall. Instead, the 
Petitioner changes its claim and narrows the Beneficiary's role to.__ _____________ _. 
I t and submits additional documentation. As the Petitioner did not make this claim and 
present these documents before the Director, either at the time it filed the petition or in response to the 
Director's request for evidence, we will not consider this claim and documents in our adjudication of 
this appeal. 9 Soriano, 19 I&N Dec. at 766; see also Obaigbena, 19 I&N Dec at 533. Furthermore, 
although the Petitioner references testimonial letters froml I, I I andl I 
they do not discuss how the Beneficiary's role with thel I project constituted a critical 
role forD The letters do not indicate or explain how the Beneficiary's contributions to the project 
resulted in essential or crucial outcomes or activities fore=] 
Accordingly, the Petitioner did not demonstrate that the Beneficiary satisfied this criterion. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Beneficiary 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 Beneficiary, 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 1-140 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. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 F. 2d 41 (2d. Cir. 1990). 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). 
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 conclusion that the 
Petitioner has established the Beneficiary's acclaim and recognition required for the classification 
sought. 
The Petitioner seeks a highly restrictive visa classification for the Beneficiary, intended for individuals 
already at the top of their respective fields, rather than for individuals progressing toward the 
top. USCIS has long held that even athletes performing at the major league level do not automatically 
9 In order to meet this criterion, the Petitioner would also have to establish the distinguished reputation oft~-~ 
7 
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 the Beneficiary's 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 )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate 
that the Beneficiary 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 )(1 )(A) of 
the Act and 8 C.F.R. § 204.5(h)(2). Although the Beneficiary has judged some journal and conference 
papers and authored a few scholarly articles, the Petitioner did not establish that he is among the upper 
echelon in his field. 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's 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. 
8