dismissed EB-1A Case: Machine Learning Software

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 31, 2023 In Re: 28086854 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an executive with expertise in machine learning software, seeks classification as an 
individual of extraordinary ability. See Immigration and Nationality Act (the Act) section 
203(b )(1 )(A), 8 U .S.C. § l 153(b )(1 )(A). This first preference classification makes immigrant visas 
available to those who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria , as required. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with 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. These individuals must seek to enter the United States to continue work in 
the area of extraordinary ability, and their entry into the United States will substantially benefit the 
United States. The term "extraordinary ability" refers only to those individuals in "that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204 .5(h)(2). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner 
can demonstrate international recognition of their achievements in the field through a one-time 
achievement in the form of a major, internationally recognized award . Or the petitioner can submit 
evidence 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. If those standards 
do not readily apply to the individual's occupation, then the regulation at 8 C.F.R. § 204.5(h)(4) allows 
the submission of comparable evidence. 
Once a petitioner has met the initial evidence requirements, the next step is a final merits 
determination, in which we 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. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
In his native Israel, the Petitioner was an officer in the Directorate of the Israel Defense 
Forces (IDF), leading its Upon leaving the IDF in 2012, the 
Petitioner co-founded....._ __________ _., later renamed I Ibased 
in I I Massachusetts, and he spent several years traveling between Israel and the United States. 
He most reel ntly Ttered the United States in 2020 as an L-1 nonimmigrant intracompany transferee 
to serve as vice president of research and development. The Petitioner claims to have 
"revolutionized the field of mineral discovery with his machine learning platform." Since June 2020, 
the Petitioner has served as the chief executive officer oti Ianother! !company 
he co-founded. Both I I use machine learning to identify likely locations of mineral 
deposits for the mining industry. 
Because the Petitioner has not indicated or shown that he received a major, internationally recognized 
award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). The Petitioner initially claimed to have satisfied six of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director concluded that the Petitioner had not satisfied any of the claimed criteria. On appeal, the 
Petitioner asserts that he meets four criteria, pertaining to prizes or awards; judging the work of others; 
original contributions; and leading or critical roles. The Petitioner does not contest the Director's 
conclusions regarding authorship of scholarly articles and high remuneration, and therefore we 
consider the Petitioner to have waived appeal on those two criteria. 1 
Upon review of the record, we agree with the Director's conclusions, as discussed below. 
1 See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived); see also Sepulveda v. US. AttJJ Gen., 401 F .3d 1226, 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at* 1, 9 (E.D.N.Y. Sept. 30, 201 l)(finding 
the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). 
2 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards jar excellence in the field ofendeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner states that he received three awards for his military service in Israel. 
The Petitioner documented his receipt of the 2005 Israeli lfrom Israel's Defense Ministry. 
The Petitioner submitted printouts of news articles about the prize, but these articles are from other years 
and do not discuss the Petitioner's receipt of the prize. The Petitioner did not submit evidence from the 
Defense Ministiy to explain why the Petitioner won the prize. That inf01mation would be relevant 
because the Petitioner must show that he received the prize for excellence in the field of endeavor that he 
intends to pursue in the United States. 
The Petitioner submitted letters from former IDF officers, but these individuals did not discuss the 
Beneficiaty's receipt of the Israeli Ior claim that they were in a position to know why the 
Petitioner received it. The letters focus, instead, in the Petitioner's work on defense strategy in the years 
after he received the award. 
The Petitioner claimed that he "received two commendations from [the] United States Southern 
Command and Special Operations Command," but his introductory statement included no further 
information about the claimed commendations or the circumstances under which he received them. A 
letter from a special activities advisor at the U.S. Depatiment of Defense indicates that the Petitioner 
participated in a collaboration between the U.S. and Israeli armed forces, but the letter does not mention 
any commendations. 
The Petitioner also submitted photographs of what appear to be two challenge coins. The legend on one 
coin reads "United States / Special Operations Command"; the other reads "USSOCOM / JS Strategy 
Plans and Policy." The photographed objects are not labeled as commendations and they do not show 
the Petitioner's name, and the Petitioner provided no other evidence relating to them. The photographs, 
by themselves, do not document the Petitioner's receipt of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor that he seeks to pursue in the United States. 
In a request for evidence (RFE), the Director requested documentation to show the criteria for the claimed 
prizes and to explain why he received them. The Petitioner's response did not address this issue. 
The Director denied the petition, stating that the Petitioner had not submitted requested evidence and 
information necessary to show that he satisfied this criterion. On appeal, the Petitioner asserts that he 
received the "extraordinarily prestigious" Israel I l"[fJor his brand-new intelligence and 
analytics methodologies," and he repeats the claim that he received "commendations" from the two 
named U.S. military commands. But the Petitioner has not submitted any first-hand documentation from 
Israel's Defense Ministiy to explain why he received the Israeli prize, or from the U.S. Department of 
Defense to show that he received the challenge coins as "commendations," and to explain the basis for 
those commendations. 
The Petitioner has not documented his receipt ofnationally or internationally recognized prizes or awards 
for excellence in his intended field of endeavor. 
3 
Evidence ofthe alien's original scientific. scholarly. artistic, athletic. or business-related 
contributions ofmajor significance in the field. 8 C.F.R. ~ 204.5(h)(3)(v). 
The Petitioner stated that he "is responsible for bringing search and find machine learning methodologies 
to the mining industry. These patent-pending methods are fifty times more effective at mineral discovery 
than traditional means, having a major impact on the industry, as confirmed by field experts." A U.S. 
patent application filed in 2018 names the Petitioner as one of three inventors of 'I I 
I I 
The Petitioner's initial submission included three letters discussing his machine learning platform. One 
is fromLJ chief executive officer (CEO), a co-inventor of the technology. The Petitioner stated that 
the second letter is from "a global expert in the field of machine learning," and the third is from "a global 
~in the field of mineral discovery." Both of those individuals - a professor of computer science at 
l__JUniversity and a professor of geology at College - were actively collaborating with the 
Petitioner at the time of filing, as technical advisors to The three submitted letters, therefore, all 
present the perspectives of individuals associated with 
D CEO stated: 
In business, one will come across many innovative ideas, but few are ever translated into 
real-world applicability. [The Petitioner] has accomplished this feat, introducing "Search 
& Find" methods to mining exploration . 
. . . Considering that each exploration attempt costs roughly two-to-five million dollars, 
this method holds the potential to save untold amounts of time and money in bottom line 
expenditures. Most impressively, [the Petitioner's] application of "Search & Find" 
machine learning methods is only in its initial stage, with untold practical applications still 
to be implemented .... 
. . . [The Petitioner's] expertise has positioned us as a forerunner in the mining exploration 
industry. 
The Petitioner did not submit documentary evidence to establishc=]position "as a forerunner in the 
mining exploration industry," or to show that practical application of the technology has borne out 
expectations of its "potential to save untold amounts of time and money." 
TheLJprofessor stated that the mining industry requires "[t]he abi{ity tol more accurately find metals 
such as copper, zinc, and cobalt, and to do so with precision," and that technology "is transforming 
the mining industry." She asserted: "in a recent blind test, [the Petitioner's methodology] performed 50 
times more accurately than the current industry standard (for discovering economically viable deposits)." 
She provided no further details, and the record does not document this test. 
The I I College professor stated that he has served "as a senior technical consultant for I...._ __, 
mineral discovery platform," but did not otherwise discuss that platform or its significant in the field. 
Instead, he devoted most of his letter to discussing a "postdoctoral research project" on which both he 
4 
and the Petitioner served "on the steering committee." The professor provided few additional details, 
stating that "the results of the research are currently subject to the terms of a confidentiality agreement." 
This confidentiality means that the research results have not yet been disseminated to the wider field. The 
Petitioner does not claim that, or explain how, his advisory role on a graduate student's research project 
amounted to an original contribution by the Petitioner. 
Apart from statements from individuals employed by or working with0the only initial evidence that 
the Petitioner cited as evidence of the si ificance of his contributions is a blog post on Medium, entitled 
" The article discusses 12 
' The article devotes one paragraph to ~--------------------~ reproduced in full below: 
Born out of the Israeli high-tech community in 2013,.....____________ __. 
is a private~funid exploration company focused on identifying tier 
1, world class assets. Based in and a member of the MIT Computer Science and 
Artificial Intelligence Laborat01y describe their approach as a Discove1y Platfo1m; 
an end-to-end discovery and resources definition package, which combines expert 
knowledge and data science. Known in the market for the applicability of their approach 
to identify large porphyry copper depositsOemphasise that their platform is applicable 
for a range of mineral deposits at a variety of scales and in a range ofjurisdicti~ 
also collaborate with a range of leading universities and research groups such asL_J 
College,! I 
The article does not comment on the significance ofthe Petitioner's platform. Rather, it paraphrasesD 
own description and evaluation of the platform. The article does not indicate or establish that the 
Petitioner has made an original contribution of major significance. The article indicates that D is 
"[k ]nown in the market for the applicability of their approach to identify large porphyry copper deposits," 
but "applicability" is not synonymous with majr sijificance in the field. In the absence of further details 
and corroboration, this vague statement that technology can be used to identify some copper 
deposits is not sufficient to establish the major significance of the Petitioner's original contributions. 
The Petitioner asserted that the Medium article shows that ' 
~-----~' But while the article profiles several companies usrg jachine learning, it does not 
indicate that rivals are "following I I lead" or that was the first company in its 
field to use machine learning in the manner described. 
In the RFE, the Director requested "[o ]bjective, documentary evidence of the significance of the 
beneficiary's contribution to the field" and "[o]bjective, documentary evidence that people throughout 
the field currently consider the beneficiary's work important." The Director also requested evidence of 
the Petitioner's "work being implemented by others." 
In response to tl1e RFE, tl1e Petitioner stated that he "launched a machine learning revolution in tl1e mining 
industry" "[w]ith [his] platform's debut in 2013." The Petitioner stated: '~-------~ 
formed a partnership with ~-------~ to explore for copper deposits in several highly 
5 
prospective areas of northern Chile. This shows that [the Petitioner] made an original contribution to the 
industry that was adopted by the industry leader in gold and copper mining." 
To support this claim, the Petitioner submitted a 2015 press release from~I___.I which usesDformer 
name and reads, in part: 
Thus we have formed a strategic partnership with.______________ __. to 
explore for copper deposits in a number of highly prospective areas of northern Chile . 
. . . c=]is pioneering a new, multidisciplina1y approach to exploration. The company 
has built a world-class team of experts who have a proven track record of copper 
discoveries and expertise in machine learning and big data analysis, among other 
disciplines. Their internal R&D lab uses proprietary technology to develop new strategies 
and tools designed to increase the probability of discovery, faster than conventional 
approaches and at lower costs. They combine world-class technical expertise with cutting­
edge computer science, and they bring in learning from other industries to develop non­
traditional approaches. 
The quoted language is complimenta1y towardD staff and technology, but there is no recognizable 
reference specifically to technology that the Petitioner developed. The latent application submitted with 
the petition dates from July 2018, more than three years afterl press release, and therefore it is 
not evident that the vague phrase "cutting-edge computer science" refers to the technology described in 
the patent application. 
The press release states that I I technology represents an improvement over "conventional 
approaches," but does not establish that this improvement has major significance in the field. We note 
that the press release lppears rannounce the beginrng or the partnership betweenl I and 
does not indicate that had yet implemented technology or that the technology had ah-eady 
improved yields. We also note that the partnership withl lbegan nearly five years before the 
Petitioner filed the petition, but his initial filing did not mention this partnership at all. The record is, 
therefore, silent as to the results of the collaboration. 
~--~I general mention ofLJtechnology in its own press release does not show that the Petitioner's 
machine learning contributions have "provoked widrpread f°mmentary" in the field. See generally 
6 USCIS Policy Manual, supra, at F.2 appendix. The press release does not suffice to establish 
the major significance of the Petitioner's original contribution. 
In his RFE response, the Petitioner cited "his current endeavor as a chief executive atl [" 
but he did not establish! I until June 2020, three months after he filed the petition. The initial petition 
did not indicate that the Petitioner sought to establish such a company. Rather, the initial filing was 
predicated on his continued involvement with[] which employed him at the time of filing. A petitioner 
must meet all eligibility requirements at the time of filing. See 8 C.F.R. § 103.2(b)(l). If the Petitioner 
was not already eligible at the time of filing, then he cannot become qualified later under a new set of 
facts while retaining the priority date of the same petition. See Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
6 
In the denial notice, the Director acknowledged the Petitioner's patent application, but concluded that the 
Petitioner had not shown "that the patent has been licensed and/or resulted in significant commercial 
sales, or had an impact on researchers or individuals in the field." The Director stated that the submitted 
letters do not establish the major significance of the Petitioner's contributions. The Director observed 
that~-----~did not exist until after the petition's filing date, and thatl Ipress release 
"does not discuss the petitioner or his contributions." 
On appeal, the Petitioner revisits p1ior claims, already addressed above. The Petitioner also states: 
[The Petitioner] is a top-tier researcher in the field of business who has developed and 
deployed new Search & Find methodologies to discover and extract military intelligence, 
as well as to discover minerals. . . . His methodology, which resulted in significant 
classified discoveries by the Israel Defense Forces (IDF), earned [the Petitioner] the Israel 
I I 
We have already discussed the award. Before the appeal, the Petitioner had not claimed that his military 
work included contiibutions of major significance. A retired Israeli milita1y officer stated that the 
Petitioner had served on a "multidisciplinary team of senior IDF operational officers" whose work 
included "the application of ... Intelligence 'Search-and-Find' methodologies," but he did not elaborate, 
stating only that "a majority of this taskforce's work remains classified," and thus unavailable for wider 
dissemination. He did not state or imply that the Petitioner's work with '"Search-and-Find' 
methodologies" led to his receipt of the Israel~-----~ Rather, he stated that the 
"multidisciplinary team" was active "[ d]uring the years 2008-2009 ," several years after the Petitioner 
received the Israel I lin 2005. As discussed above, the Petitioner has not documented the 
reason why he received that award. 
The Petitioner, on appeal, has not shown that the Director erred in concluding that the Petitioner has not 
established the major significance of the original contribution identified in the petition. 
In light of the above conclusions, the Petitioner does not meet the initial evidentiary requirement of 
three criteria under 8 C.F.R. § 204.5(h)(3). Detailed discussion of the remaining two criteria, relating 
to leading or critical roles and judging, cannot change the outcome of this appeal. Therefore, we 
reserve those issues. 2 
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 lesser 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 acclaim and recognition required for the classification sought. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 
n.7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
7 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. U.S. Citizenship and 
Immigration Services has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994). Here, the Petitioner has not shown recognition of his work that indicates 
sustained national or international acclaim or demonstrates 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 Petitioner 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). 
The Petitioner served on a decorated team while working for IDF, but the record does not show that he 
earned national or international acclaim as a result. He submitted publicity materials about the Israel 
I I but has not shown that he was publicly named as a winner. Whatever valid reasons there 
may have been for not publicizing the Petitioner's name, the Petitioner has not established that his receipt 
of the prize contributed to, or resulted in, national or international acclaim. Also, he has not shown the 
extent to which the prize relates to the field of endeavor in which he claims extraordinary ability. Some 
of the Petitioner's military service involved machine learning software that could be similar to what he 
now applies to the mining industty, but the Petitioner has not established a more direct connection 
between his military and civilian work. 
Praise in the record for the Petitioner's machine learning platform has come from individuals connected 
withO and entities that were funding or doing business with D It is generally expected that one 
whose accomplishments have garnered sustained national or international acclaim would have received 
recognition for his or her accomplishments well beyond the circle of his or her personal and professional 
acquaintances. See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). Published material about the 
Petitioner's platform consists largely of promotional press releases from entities that have business 
relationships withO and a blog post on Medium. The Petitioner's name does not appear in most of 
these published pieces, which limits the individual acclaim that could result from them. Discussion of 
the Petitioner's machine learning platform centers on tests described in general terms and expectations 
regarding the platform's anticipated future performance, rather than evidence that commercial use of the 
system has already yielded results that have had a significant impact on the mining industry. 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. We will 
therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
8