dismissed EB-1A Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 16666105 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 08, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an information technology manager, seeks classification 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 Nebraska Service Center initially approved the petition but later revoked the 
approval after issuing a notice of intent to revoke. The Director concluded that the Petitioner did not 
establish, as required, that he meets at least three of the ten initial evidentiary criteria for this 
classification. We dismissed the Petitioner's subsequent appeal of that decision. The matter is now 
before us on a combined motion to reopen and motion to reconsider. 
The burden of proof to establish eligibility for the benefit sought remains with the petitioner in 
revocation proceedings. Section291 of the Act, 8 U.S.C. § 1361 ;Mattera/Cheung, 12 I&NDec. 715 
(BIA 1968); and Matter of Es time, 19 I&N Dec. 450,452, n.1 (BIA 1987). Upon review, we will 
dismiss the combined motions. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R 
§ 103.5(a)(2) . A motion to reconsider must (1) state the reasons for reconsideration and establish that 
the decision was based on an incorrect application oflaw or U.S. Citizenship and Immigration Services 
(USCIS) policy, and (2) establish that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the initial decision. 8 C.F.R. § 103 .5(a)(3) . 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion. We cannot grant a motion that does not meet applicable requirements. See 
8 C.F.R. § 103.5(a)(4). 
II. LAW 
A. The Classification Sought 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to individuals with extraordinaiy 
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. 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 sustained acclaim and the recognition of their 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 they 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). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits detennination 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). 
B. Revocation of an Approved Petition 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he 
deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204. Such revocation shall be effective as of the date of approval of any such petition." 
Regarding the revocation of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter ofEstime ... , this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of record 
at the time the notice is issued, if unexplained and unrebutted, would warrant a denial 
of the visa petition based upon the petitioner's failure to meet his burden of proof The 
decision to revoke will be sustained where the evidence of record at the time the 
decision is rendered, including any evidence or explanation submitted by the petitioner 
in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582,590 (BIA 1988) (quotingMatter ofEstime, 19 I&N Dec. at 452). 
III. ANALYSIS 
As a preliminary matter, we note that by regulation, the scope of a motion is limited to "the prior 
decision" which, in this case, was our dismissal of the Petitioner's appeal. 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the issue in this matter is whether the Petitioner has submitted new facts supported by 
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documentary evidence sufficient to warrant reopening his appeal and/or established that our decision 
to dismiss the appeal was based on an incorrect application of law or USCIS policy. 
A. Prior AAO Decision 
We dismissed the Petitioner's appeal and affinned the revocation decision, concluding that the 
Petitioner did not establish that he could satisfy at least three of the ten initial evidentiary criteria at 8 
C.F.R. § 204.5(h)(3)(i)-(x). The Director determined that the Petitioner met only one criterion, at 8 
C.F.R. § 204.5(h)(3)(ii), which requires documentation of memberships in associations that require 
outstanding achievements of their members as judged by recognized national or international experts 
in the field. We disagreed with the Director and withdrew his determination that the Petitioner had 
satisfied this criterion. We also determined, upon de nova review of the record, that the Petitioner 
had submitted sufficient evidence to demonstrate that he satisfied the criteria at 8 C.F.R. § 
204.5(h)(3)(iv), which relates to judging the work of others in his field, and 8 C.F.R. § 204.5(h)(3)(vi), 
which relates to authorship of scholarly articles in professional publications. 
Finally, we agreed with the Director's determination that the record did not support the Petitioner's 
claims that he had made original contributions of major significance in his field or that he has 
commanded a high salary or other significantly high remuneration in relation to others in his field. 
See 8 C.F.R. § 204.5(h)(3)(v) and (ix). As we determined that the Petitioner did not meet the initial 
evidence requirements by satisfying at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), we 
did not proceed to a final merits determination. 
In addition to addressing the merits of the Petitioner's extraordinary ability claim, we considered the 
Petitioner's argument that the Director's notice of intent to revoke (NOIR) provided inadequate notice 
of the proposed grounds forrevocation. Specifically, the Petitioner claimed on appeal that "the Service 
based the majority of its analysis and reasons ofrevocation on their fraud or willful misrepresentation 
claim." He emphasized since the notice of revocation did not make any reference to fraud or material 
misrepresentation of a material fact, "there was not sufficient evidence of record at the time of the 
notice that would deem the intention to revoke 'good and sufficient cause."' 
We acknowledged that the Director raised concerns regarding the authenticity of the recommendation 
letters in the record in the NOIR. However, we observed that Director also explained in detail why 
the documentation in the record at the time the NOIR was issued did not satisfy at least three of the 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), and addressed each of the claimed criteria 
independently. In addition, we determined that the notice of revocation explained the reasons for 
revocation, that it provided support for the conclusions reached regarding the Petitioner's eligibility 
based on the evidence of record, and that the Petitioner had adequate notice and an opportunity to 
respond prior to the written notice ofrevocation, as required by 8 C.F.R. § 205.2(b) and (c). 
B. The Petitioner's Combined Motion 
On motion the Petitioner, asserts that, based on the record before us at the time of the appeal, we 
incorrectly determined that he did not satisfy the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii). 
He also submits additional evidence relating to this criterion. In addition, he submits new evidence in 
support of the criterion at 8 C.F.R. § 204.5(h)(3 )(ix), and asserts that, with this new evidence, he has 
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now demonstrated that he commands a high salary in relation to others in his field. We will address 
these two evidentiary criteria below. 1 
Before turning to the evidentiary criteria, we note that the Petitioner also repeats his previous claim 
that the Director did not have good and sufficient cause to revoke the approval of the petition. He 
asserts that the suspected fraudorwillfulmisrepresentation mentioned in the Director's NOIR "f 01med 
the entire basis for the NOIR" and maintains that the Director should not have revoked the approval if 
there was ultimately no finding of fraud or willful misrepresentation of a material fact. 
As discussed above, the Petitioner made this argument on appeal and we addressed the merits of his 
claim in our prior decision. Specifically, we determined that the NOIR provided the Petitioner with 
adequate notice of the deficiencies that formed the grounds for revocation and afforded him the 
opportunity to respond to those deficiencies as required by 8 C.F.R. § 205 .2(b) and ( c ). The record 
does not support the Petitioner's claim that any suspected fraud or willful misrepresentation "formed 
the entire basis for the NOIR." 
To meet the requirements for a motion to reconsider, the Petitioner must establish that we incorrectly 
applied the law or USCIS policy in our decision dismissing the appeal. Here, the Petitioner simply 
repeats his claims that the Director did not have good and sufficient cause to revoke the approval of 
his petition, rather than addressing the specific conclusions we reached in our appellate decision with 
respect to this issue. In fact, the Petitioner does not acknowledge that we addressed this issue in our 
decision. Accordingly, he has not established with the current motion that we incorrectly applied the 
law or USCIS policy in concluding that the Director complied with the regulations governing 
revocation of an approved immigrant petition. 
C. Evidentiary Criteria 
In our decision dismissing the Petitioner's appeal, we determined that he met only two of the ten initial 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3 )(i)-(x) and therefore did not meet the initial evidentiary 
requirements for this classification. On motion, he asserts that he can meet the two criteria discussed 
below. 
Documentation of the individual's membership in associations in the jieldjor which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines orfields. 
8 C.F.R. § 204.5(h)(3)(ii) 
1 The Petitionerdoesnotpursuehis previous claim that he can satisfy the criterion related to originalcontributions of major 
significanceat8 C.F.R. § 204.5(h)(3)(v) and we consider this claim to be waived. See, e.g.,MatterojM-A-S-,24I&NDec. 
762, 767 n.2 (BIA 2009). See also Sepulveda v. US. Att'y Gen., 40 I F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011WL471 1885 at* I, *9 (E.D.N.Y. Sept. 30, 2011 )(the court determinedtheplaintiff's 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
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To satisfy this criterion, a petitioner must submit documentation of their membership in associations 
in the field for which classification is sought, which require outstanding achievements of their 
members as judged by recognized national or international experts in their disciplines. 
The Petitioner claims that he can satisfy this criterion based on his admission as a "Senior Member" 
of the Institute of Electrical and Electronics Engineers (IEEE). He submitted proof of his membership 
as well as excerpts from the IEEE bylaws which address the requirements for Senior Members. 
According to the bylaws, "a candidate shall be an engineer, scientist, educator, technical executive or 
originator in IEEE-designated fields ... The candidate shall have been in professional practice for at 
least ten years and shall have shown significant performance of a period of at least five of those years." 
The bylaws further specify that "significant performance" can take the form of "[p ]ublication of 
papers, books, or inventions." 
In dismissing the appeal, we determined that the IEEE's stated requirements for admission as a Senior 
Member (ten years of relevant experience and "significant performance" consisting of publication of 
papers, books or inventions) do not rise to the level of"outstandingachievements" consistent with this 
regulatory criterion. We also observed that the evidence indicated that the IEEE has a "Fellow'' 
membership grade that appears to align more closely with the regulatory language at 8 C.F.R. § 
204.5(h)(3)(ii). Specifically, we noted that, according to the submitted IEEE bylaws, Fellow 
membership requires "an outstanding record of accomplishments" that have "contributed importantly 
to the advancement or application of engineering, science and technology." In addition, we noted that 
one can apply for the Senior Member grade, whereas elevation to Fellow requires nomination and 
election at the highest levels of the association. 
On motion, the Petitioner argues that we misconstrued the IEEE Senior Member requirements, 
asserting that it "does not just require '10 years of relevant experience in a particular field' and 
'publication of papers, books and inventions.'" He emphasizes that "much more is required," and that 
he also had to demonstrate "professional maturity," "significant performance of at least 5 years," and 
provide three references from "other IEEE elite members." The Petitioner emphasizes some of his 
own professional achievements and asserts that the IEEE judging panel would have considered his 
professional positions, his publication in journals with international reputation, and his peer review 
service in determining his qualifications for senior membership. He maintains that only 9% ofIEEE's 
428,000 members reach the Senior Member level and that it is "an extremely elite group." 
The Petitioner further argues that we placed undue weight on the phrase "significant performance," in 
the IEEE bylaws, "insinuating that 'significant' cannot mean the same type of achievement as that 
which USCIS calls 'outstanding."' He emphasizes that "the actual Senior Member requirements, 
when looked at together, demonstrate that a member must have 'outstanding achievements' as used 
by USCIS." Further, the Petitioner notes that the examples of "significant performance" in the IEEE 
bylaws are not exhaustive and that judging panels "perform a rigorous review of a professional' s entire 
record, looking at everything together, to determine if the individual has met the requirements to be 
allowed into the elite membership group." 
The Petitioner also objects to our reference to the IEEE's stated requirements for Fellow membership, 
arguing that "[t]o suggest that Senior Member grade does not meet the requirements of this criteria 
because there is another membership class would take away from an objective analysis of the 
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requirements for the particular membership which the individual holds." He notes that, despite our 
observation that Fellow membership in the IEEE requires a nomination rather than an application, the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii) contains no nomination requirement. The Petitioner maintains 
that "Senior Membership clearly does require outstanding achievements and it is not for AAO to guess 
as to why the IEEE has created additional membership grades." 
In addition, the Petitioner submits additional evidence in suppmi of his claim that his Senior 
membership in IEEE satisfies this criterion, including e-mail correspondence froml~------~ 
the IEEE's~-------------~ and a screenshot of the "Requirements for IEEE 
Senior Member Grade" from the association's website. 
~---~ts e-mail describes the application process for the Senior Member grade, noting that 
applicants must have three references from current IEEE members who have a grade of Senior 
Member or higher. He explains that applications are evaluated by a Senior Member Panel (usually 
local IEEE section members who have a Senior Member grade or higher) of at least two panelists, 
who evaluate applications to determine if an applicant meets the 10 years of Professional Experience 
and 5 years of Significant Performance requirements. He refers to the IEEE website for additional 
information regarding what constitutes "significant perfonnance." 
The IEEE' s website states that "[ m ]any prospective applicants make the mistake of assuming that 
'significant performance' requires special awards, patents, or other extremely sophisticated technical 
accomplishments, but that is not the case." The IEEE's description of significant performance 
indicates that"[ s ]ubstantialjob responsibilities such as team leader, task supervisor, engineer in charge 
of a program or project, engineer or scientist performing research with some measure of success 
(papers) or faculty developing and teaching courses ... are all indications of significantperfmmance." 
The new evidence submitted on motion does not support the Petitioner's claim that admission as a 
Senior Member in IEEE requires outstanding achievements as judged by recognized national or 
international experts in the field. The additional evidence sheds additional light on what the IEEE 
regards as "significant performance" but does not demonstrate that the IEEE's standards for meeting 
that threshold rise to the level of "outstanding achievements" as contemplated by the plain language 
of 8 C.F.R. § 204.5(h)(3)(ii). While this membership level does not appear to be available to all 
professionals with 10 years of experience in the field, we cannot conclude that holding a team leader 
position, a project manager position, a faculty position, or a research position that results in 
publications amounts to exhibiting "outstanding achievements" in one of the IEEE-designated fields. 
These are certainly noteworthy professional accomplishments and some persons who are elevated to 
Senior Member likely exceed the minimum requirements. However, to demonstrate that his 
membership satisfies the requirements of this criterion, the Petitioner must establish that IEEE requires 
Senior Members to have "outstanding achievements" as an essential condition of membership. 
As noted by the Petitioner, we observed in our prior decision that the IEEE has another membership 
level, Fellow Member, which requires "unusual distinction" and an "outstanding record of 
accomplishments." We agree with the Petitioner that the existence of this higher-level membership 
grade does not automatically lead to a conclusion that the Senior Member grade does not satisfy this 
criterion. However, the evidence contained in the IEEE bylaws provides useful contextregardinghow 
the association views a prospective member's qualifications. The existence of two different elevated 
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levels of membership with different stated requirements indicates that the IEEE does not consider the 
"significant performance" required for Senior membership to be equivalent to the "outstanding 
accomplishments" required for Fellow membership. As discussed above, the additional information 
from the IEEE website regarding what it deems to be "significant performance," does not support a 
conclusion that "significant performance" in an IEEE-designated field equates to "outstanding 
achievements" in the field as contemplated by 8 C.F.R. § 204.5(h)(3)(ii). 
Further, based otj ts description of the application review process for Senior membership, 
the record does not establish that prospective Senior Members are admitted only after having their 
achievements judged by "recognized national or international experts in the field" as required by 8 
C.F.R. § 204.5(h)(3)(ii). The only stated requirement for participation in a Senior Member Panel is to 
be a Senior Member of the IEEE. While the Petitioner refers to Senior Members as an "elite group," 
the record does not establish that admission to a Senior Member grade is reserved solely for expe1ts 
who are recognized at the national or international level. 
For all the reasons discussed above, the Petitioner has not established that we incorrectly applied the 
law or USCIS policy in determining that he does not meet the membership criterion, nor does the new 
evidence submitted on motion establish that he meets this criterion. 
Evidence that the individual has commanded a high sala,y or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
To satisfy the requirements of this criterion, the Petitioner must establish that his salary, or total 
remuneration, is high or significantly high, respectively, based on a comparison with others in his field 
in similar positions and geographic locations. 2 
The Petitioner documented his earnings for the years 2013 and 2016. Specifically, he provided 
evidence that he received an annual salary of $101,923 for al !Minnesota-based position 
as a "Systems Accounting Manager," in 2013. In addition, he provided evidence that he received an 
annual salary of $115,000 while working as an "ERP functional business manager" inl I 
Florida in 2016. In dismissing the appeal, we observed that the Petitioner did not provide position­
appropriate comparative wage evidence to establish that his salary in one or both years was high in 
relation to others in the same geographic area and occupation. Specifically, we noted that he provided 
screenshots from the O*Net online database and Foreign Labor Certification Data Center (FLCDC) 
for "Computer Occupations, All Other," but did not provide comparative wage data applicable to his 
occupational title as a manager in the IT field. 
On motion, the Petitioner submits an O*Net Online Summary Report for the occupation of 
"Information Technology Project Manager," as well as O*Net Online local wage reports for this 
occupation for thd I Minnesota and I I Florida metropolitan areas. The Petitioner 
emphasizes that this new evidence demonstrates that the Bureau of Labor Statistics (BLS) includes 
the "Inf mmation Technology Project Manager" occupation under "Computer Occupations, All 
2 Sec 6 USCIS Policy ManualF.2 appendix, https://www.uscis.gov/policy-manual(notingthatit is the petitioner's bunien 
to provide geographical and position-appropriate evidence to establish that a salary is relatively high). 
7 
Other," and therefore the evidence he submitted previously did in fact provide an appropriate basis for 
companson. 
The evidence does not establish, however, that all managerial occupations in the information 
technology field are "project managers" that fall under the "Computer Occupations, All Other" 
category. In fact, the "IT project manager" is the only managerial title that falls under this category, 
which also includes web administrators, geographic infonnation systems (GIS) technicians, 
information security engineers, and document management specialists. 3 For example, Computer and 
Information Systems Managers are classified separately, with separate wage data reported by BLS. 4 
As noted, the Petitioner provided evidence that he earned an annual salary of $101,923 in 2013 for the 
position of "Systems Accounting Manager" while working forl I in 
I I The new evidence submitted on motion shows that, according to BLS 2019 wage data, 
the median salary for an "IT Project Manager" inl I is $84,940, the 7 5th percentile wage is 
$113,130, and the 90th percentile wage for this occupation is $135,680. He also provides a document 
labeled "May 2013 OES Estimates" for "Computer Occupations, All Other," showing estimated 
statewide Minnesota wages for 2013. This document indicates a mean annual salary of $74,230, a 
75th percentile salary of $92,020, and a 90th percentile salary of $113,500. 5 
The record does not contain a description of the duties the Petitioner performed as "Systems 
Accounting Manager," so we cannot determine to what extent his duties were consistent with those of 
an "IT Project Manager" as described in the O*Net summary report. Even assuming that this is the 
appropriate occupational classification, his 2013 earnings fell somewhere between 7 5th and 90th 
percentile when com ared to estimated statewide figures for Minnesota for 2013, which were likely 
lower tha wages. While his 2013 salary is also above the median when compared 
to.__ _______ __.figures for 2019, demonstrating that his salary is above the mean or median 
salary in the geographic area of employment is not sufficient to establish that he commanded a "high 
salary." 
In 2016, the Petitioner eam,d a base annual salry of $i115,000 as an "ERP functional business 
manager" while working for lin the Florida region. On motion, he submits 
evidence that, in 2019, the median salary for an ''Information Technology Project Manager" in this 
region was $65,680, the 75th percentile wage was $82,530, and the 90th percentile wage was $98,340. 
Because the Petitioner seeks to rely on his earnings from 2016, the relevant comparative data would 
be data from that year. With respectto that data he states, "[l]ooking at historical BLS data from 2016 
in Florida, we find thatfor"ComputerOccupations, All Other" the mean annual salary for the relevant 
region was actually higher at $74,91 O." He provides a link to the source of this information, but the 
source does not include any additional data from 2016. While it appears that his salary was higher 
than the 2016 average salary for an "Information Technology Project Manager," the regulation 
3 Sec Summary Report for 15 .1299.00 - Computer Occupations, All Other, https://www.onetonline.org/link/summary/15-
1299 .00, lastaccessedon Jul. 7, 2021. 
4 See Summary Report for 11-3021.00-Computerand Information Systems Managers, https://www.onetonline.org/link/ 
summary/11-3021.00, last accessed on Jul. 7,2021. 
5 The record reflects that in 2019, the Minnesota statewide salaries reported on O*Net Online were lower than those 
reported forthq I region. 
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requires that the Petitioner demonstrate a "high salary" rather than an "above average" salary. There 
is insufficient evidence to support his claim that his salary was high in relation to others. 
Accordingly, the new evidence submitted on motion does not establish that the Petitioner meets the 
criterion at 8 C.F.R. § 204.5(h)(3)(ix). 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the grounds for dismissal of his appeal. The motion to reopen and motion to 
reconsider will be dismissed for the above stated reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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