dismissed EB-1A Case: Mobile Application Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 4655136 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 19, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a[ n] provider of chronic care management products and services seeks to classify the 
Beneficiary 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 Petitioner had 
not established that the Beneficiary satisfied any 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)(l) 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 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 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 
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 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). 
II. ANALYSIS 
At the time of filing the Petitioner, a provider of chronic care management products, employed the 
Beneficiary as its senior mobile applications developer. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must demonstrate that he satisfies at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Beneficiary had not 
met any of the evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). On appeal, the Petitioner asserts 
that the Beneficiary meets seven of the evidentiary criteria, as discussed below. After reviewing all 
of the evidence in the record, we find the Petitioner has not established that the Beneficiary satisfies 
three of the criteria, as required. 
Documentation of the alien 's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or .fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Petitioner asserts that the Beneficiary meets this criterion because several "prestigious groups in 
healthcare have ... sought to work with [the Petitioner] and want to develop applications with [the 
Beneficiary.]" It lists several healthcare providers and universities as examples of these groups, and 
the record reflects the Petitioner's business relationship with these and other entities. 
However, the criterion requires that the Beneficiary, not the Petitioner, be a member of the association 
or organization. Here the Petitioner does not submit evidence, such as bylaws or other documentation, 
demonstrating that these organizations extend membership to individuals. It further does not provide 
materials showing how the Petitioner's partnerships equate to the Beneficiary's membership in these 
entities, or how its partners' desire to develop applications with the Beneficiary constitutes 
membership or otherwise establishes that the Beneficiary holds such a membership. Even had the 
record included this information, the Petitioner does not provide evidence showing that these 
organizations require outstanding achievements of their members, as judged by recognized national 
2 
or international experts in the field of applications development. For these reasons, the Petitioner has 
not demonstrated that the Beneficiary meets this criterion. 
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. 8 C.F.R. § 204.5(h)(3)(iii) 
The Director concluded that the Petitioner had not established the Beneficiary's eligibility for this 
criterion as it provided published material about it, rather than about the Beneficiary related to his 
work. On appeal, the Petitioner argues that the Director erred by "failing to recognize that any 
publication documenting the success of [ the Petitioner] is by necessity praising the abilities and 
contributions of [the Beneficiary]." 1 
Here the record contains numerous articles about the Petitioner, its products, and its business 
activities. 2 For example, the articles ' " 
~hed online at www.hughhuffaker.com
3 
and ~-----------------~ 
L__J' published at www.thesiliconreview.com, focus on the Petitioner and contain interviews with 
its chief executive officer. The record also includes articles about its products, such as the article 
I published in JMIR mHealth and uHealth and 1 I 
t oublished on 
I 
www.cobioscience.com. '-t In addition, the marketwatch.com article I I 
relates to the Petitioner's business activities. However, in order to 
establish eligibility for this criterion, the published material should be about the Beneficiary relating 
to his work in the field, not just about his employer. 5 Articles that are not about a petitioner do not 
meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *l, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles regarding a show are not about the actor). 
Therefore, the Petitioner has not demonstrated the Beneficiary's eligibility for this criterion. 
1 We note briefly the Petitioner's appellate argument that the Director erred in failing '"to acknowledge the extensive 
documentation of the circulation of online articles submitted in support of the petition." While the record includes online 
circulation statistics for most but not all. of the publications' websites, the Petitioner does not provide comparative online 
statistics establishing that they are high relative to others, or otherwise demonstrating that they rise to the level of major 
media. 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 ADJ 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (noting that evidence of published material about the 
alien in major media should establish that the circulation ( on-line or in print) is high compared to other circulation 
statistics.). 
2 While we discuss a sampling of the articles here, we have reviewed the record in its entirety. 
3 The Petitioner does not provide evidence regarding www.hughhuffaker.com, such as online circulation statistics, or other 
materials, which may establish that its circulation is high relative to others, or otherwise demonstrating that it qualifies as 
a major medium. See USCTS Policy Memorandum PM 602-0005. l, supra, at 7. 
4 The Petitioner does not provide additional information about J_J,1/R mHealth and uHealth or about cobioscience.com 
which may establish that either is a professional publication or major trade publication or a major media publication. 
5 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 7. 
3 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The Petitioner claims that the Beneficiary meets this criterion as he "has served on several panels 
judging new technological innovations and the application developments associated with different 
telehealth products." However, the Petitioner does not submit evidence corroborating this assertion, 
such as correspondence confirming the Beneficiary's participation as a judge, materials identifying 
him in such a role, or other relevant documentation. The Petitioner therefore has not established that 
the Beneficiary participated, either individually or on a panel, as a judge of the work of others in the 
field of application development as required. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
The Petitioner asserts that as the Beneficiary's work was displayed at numerous conventions and 
conferences, he meets this criterion. The record reflects that the Petitioner has artici ated in 
numerous conferences and conventions includin the s 15th 
Annual Pow Wow and the.__ ___________ __, Investor Conference. However, the 
Petitioner does not provide evidence, such as information on displays, conference materials, or other 
relevant documentation, showing that the Beneficiary displayed his work at these events. 
Moreover, the evidence in the record reflects that these conferences were primarily commercial in 
nature. For example, an article about the Pow Wow states that it is "designed to provide a 
'------------~ update to community primary care providers sur eons s ecialists as 
well as medical oncologists & radiologists." A press release about.__~ __________ .,.. 
Investor Conference notes that its focus is on "opportunities in the areas of.__ _________ _, 
health." However, this criterion requires evidence that the Beneficiary's 
.__w_o_r_k_b_e_d-is_p_l-ay_e_d_a_t_a_rt_i__,stic exhibitions or showcases. 6 For these reasons, the Petitioner has not 
established the Beneficiary's eligibility for this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
The Director, in determining that the Beneficiary did not meet this criterion, noted "there is no 
supporting financial documentation ... demonstrating the beneficiary's actual earnings for any period 
of time." On appeal, the Petitioner asserts that it provided financial documentation in the form of the 
Beneficiary's paystubs both with its initial submission and in response to the Director's September 
2018 request for evidence (RFE) that "demonstrate that [the Beneficiary] earns $122,000 compared to 
other Mobile Application Developers who earn an average of $55,000 to $60,000 annually." 
Upon review of the record, we note that while both the brief submitted with the initial petition and 
with the RFE list paystubs as part of the included documentation, this financial documentation is not 
contained therein. Absent verifiable evidence of his earnings, the Petitioner has not established the 
6 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 9. 
4 
amount of the salary commanded by the Beneficiary. We note farther that even had the record 
demonstrated the Beneficiary's salary or other remuneration, it lacks evidence, such as geographical 
or position-appropriate compensation surveys, 7 establishing that his salary is high relative to other 
mobile application developers, as required. The Petitioner, therefore, has not shown that the 
Beneficiary meets this criterion. 
As discussed above, we find that the Petitioner has not established that the Beneficiary meets the five 
criteria relating to membership, published material, judging, artistic display, and salary. Although on 
appeal the Petitioner also claims that the Beneficiary meets criteria related to leading or critical role 
and original contribution, we need not reach these issues. We reserve them as the Beneficiary cannot 
meet the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(h)(3). 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 of L­
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). 
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 finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
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. USCIS 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 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)(l)(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)(l)(A) of the Act and 8 C.F.R. § 
204.5(h)(2). 
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. 
7 See USCIS Policy Memorandum PM 602-0005 .1, supra, at 11. 
5