dismissed EB-1A Case: Quality Assurance Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 27, 2024 In Re: 32654341 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a quality assurance engineer who seeks classification as an alien of extraordinary 
ability. See Immigration and Nationality Act (the Act) section 203(b )( 1 )(A), 8 U.S.C. § 1153(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 Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the record did not establish that the Petitioner had a major, internationally 
recognized award, nor did she demonstrate that she met at least three of the ten regulatory criteria. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
To qualify under this immigrant classification, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b)(l)(A)(i)-(iii) of the Act. 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-step analysis. In the first 
step, a petitioner can demonstrate international 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 move to the second step to 
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, 
1121 (9th Cir. 2010) ( discussing a two-step 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 Amin v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
The Petitioner is a senior quality assurance engineer for an information technology company in the 
real estate industry. Because the Petitioner has not indicated or established that she has received a 
major, internationally recognized award, she must satisfy at least three of the alternate regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). Before the Director, the Petitioner claimed she met four of 
the regulatory criteria but the Director decided that she did not satisfy any of them. On appeal, the 
Petitioner reduces her claims to three criteria, and those relate to judging, leading or critical role, and 
a high salary. After reviewing all the evidence in the record, we conclude she has not demonstrated 
she is eligible for this restrictive immigrant classification. 
Evidence ofthe alien's participation, either individually or on a panel, as a judge ofthe work 
of others in the same or an allied field of specification for which classification is sought. 
8 C.F.R. § 204.5(h)(3)(iv). 
Within the appeal, the Petitioner does not raise any potential errors in the Director's decision. Instead, 
she implies that there is some confusion with her affiliation with I I and she clarifies that they 
are not her employer. Rather, she indicates they sought her expertise to mentor students. A review of 
the Director's request for evidence (RFE) reflects they mentioned this organization as her employer 
in addition to notifying the Petitioner that the record did not contain evidence demonstrating she 
actually participated in judging the work of others. 
But the Petitioner's RFE response made no mention that I I was not her employer and she 
resubmitted the same evidence in that response that was already part of the record, and that the Director 
informed her was inadequate. It is only now in the appeal that the Petitioner presents the claim that 
is not her employer. 
The evidence relating tol I only reflects the organization is a bootcamp where students learn 
software quality assurance, and that the Petitioner worked for them for more than two years as a 
coordinator for "meetups" and as a mentor for bootcamp students. The record lacks adequate and 
probative evidence to demonstrate the Petitioner's responsibilities atl las a mentor constitutes 
serving in a judging capacity as anticipated by the regulation. The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of the alien's participation, either individually or on a 
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panel, as a judge of the work of others in the same or an allied field of specification for which 
classification is sought." 
Serving as a mentor as part of one's normal responsibilities does not equate to participation as a judge 
of the work of others in the field. The regulation cannot be read to include every common instance of 
mentoring bootcamp students. There is insufficient evidence in the record demonstrating that the 
Petitioner actually served "as a judge of the work of others." And finally, the Petitioner provides no 
explanation describing how judging the performance of bootcamp students constitutes judging "the 
work of others in the same or an allied field." 
While the Director's decision did include some language about this company being the Petitioner's 
employer, their decision under this criterion was not wholly based on this aspect. Both the RFE and 
the denial informed the Petitioner that the evidence she offered did not meet this criterion's 
requirements. As such, the Director's indication thatl lwas the Petitioner's employer amounts 
to a harmless error. 
It is not enough to demonstrate errors in an agency's decision; a petitioner must also establish they 
were prejudiced by the mistakes. Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Molina-Martinez v. 
United States, 578 U.S. 189, 203 (2016). As the Petitioner has not demonstrated she was prejudiced by 
the Director's error, such a lapse in propriety is harmless and is insufficient grounds upon which to base 
this appeal. Errors can be overlooked when they had no bearing on the substance of an agency's 
decision. Aguilar v. Garland, 60 F.4th 401, 407 (8th Cir. 2023) ( citing Prohibition Juice Co. v. United 
States Food & Drug Admin., 45 F.4th 8, 24 (D.C. Cir. 2022)). The party that "seeks to have a judgment 
set aside because of an erroneous ruling carries the burden of showing that prejudice resulted." 
Shinseki, 556 U.S. at 409 (quoting Palmer v. Hoffman, 318 U.S. 109, 116 (1943)); Molina-Martinez, 
578 U.S. at 203. 
Because the Director's RFE notified the Petitioner that her claims and evidence were inadequate but 
she offered nothing new in response, and the sole issue she raises in the appeal amounts to a harmless 
error on the Director's part, she has not demonstrated that she can fulfill this criterion's requirements. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
The Director discussed the evidence submitted for this criterion and found that the Petitioner did not 
establish her eligibility. On appeal, the Petitioner does not contest the Director's findings for this 
criterion or offer additional arguments. Therefore, the Petitioner has abandoned or waived her 
eligibility claims under this criterion. E.g., Matter ofZhang, 27 I&N Dec. 569, 569 n.2 (BIA 2019) 
(finding that an issue not appealed is deemed as abandoned). 
Turning to the two remaining criteria, we conclude that although the Petitioner claims she meets three 
criteria, because her arguments fail on the judging criterion discussed above, that means she cannot 
numerically meet the required number of criteria and it is unnecessary for us to make a decision on 
these additional grounds. As the Petitioner cannot fulfill the initial evidentiary requirement of three 
criteria under 8 C.F.R. § 204.5(h)(3), we reserve these the remaining issues of her leading or critical 
role and her high salary. Patel v. Garland, 596 U.S. 328, 332 (2022) ( citing INS v. Bagamasbad, 429 
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U.S. 24, 25-26 (1976) (finding agencies are not required to make "purely advisory findings" on issues 
that are unnecessary to the ultimate decision)); see also Matter ofM-R-M-S-, 28 I&N Dec. 757, 764 
(BIA 2023) (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 do not need to 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 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 that goal. 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 the significance of their 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). Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and they are one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b)(l)(A) and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her 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. 
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