dismissed EB-1A Case: Sciences

identifying data deleted to 
prevent ck:~.1 iDwarranted 
invasion of pe.-sonal privacy 
Pfml.TC COpy 
DATE: JAN 1 0 2012 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
lJ.S. Department or Homeland Sc('urit~ 
U.S. Citizenship and immigration Sen' ice" 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)( I )(A) of the Immigration and Nationality Act, 8 U.s.c. § IIS3(b)(I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to rcopen. The 
specific require.ments for filing such a request can be found at 8 C.P.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion. 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
rtf
o~dflCiv 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the sciences. pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(I)(A). 
The director determined the petitioner had not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(I)(A)(i) of the 
Act; H.R. 723 lOIS! Cong., 2d Sess. 59 (1990); and 8 C.F.R. § 204.5(h)(3). The implementing 
regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement of a major, internationally 
recognized award. Absent the receipt of such an award, the regulation outlines ten categories of 
specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must submit 
qualifying evidence under at least three of the ten regulatory categories of evidence to establish the 
basic eligibility requirements. 
On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed 
below, the AAO upholds the director's ultimate determination that the petitioner has not established 
his eligibility for the classification sought. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph 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 III the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10 I 5\ Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's 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 or fields; 
(iii) 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; 
(iv) 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 classification is 
sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work m the field at artistic exhibitions or 
showcases; 
Page 4 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 I 0). Although 
the court upheld the AAO's decision to deuy the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion. I With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evideuce submitted to meet those two criteria, those 
concerns should have been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 C.F.R. § 204.S(h)(3)). The court also explained the "final merits determination" as the 
corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor." 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary ability" 
visa. 8 U.s.c. § l1S3(b)(l)(A)(i). 
Id. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or 
evidentiary requirements beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 
C.F.R. § 204.S(h)(3)(vi). 
Page 5 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review. the AAO will 
conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(l )(iv); 
Soltane v. DO], 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States. 229 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de 
novo authority). 
II. Analysis 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally recognized pri~es or 
awardsfor excellence in thejield o/endeavor. 
This criterion contains three evidentiary elements the petitioner must establish. The first derives 
from the clear regulatory language; that the alien be the recipient of the prizes or the awards (in the 
plural). The next element is that the evidence establishes that the prizes or the awards have received 
national or international recognition. The final requirement relates to the criteria required to receive 
the award, which would indicate if the issuing entity bases their award selection on excellence in the 
petitioner's field of endeavor. The petitioner must submit evidence satisfying all of these elements 
to meet the plain language requirements of this criterion. 
claims one prize or award; 
This is confirmed within his 
the 1""ltltUtlt::1 claims an 
additional award, 
petitioner claims a 
that the petitioner failed to meet requirements of this criterion. 
Regarding the claimed 
appeal. the 
m,p"1"," determined 
evidence submitted on appeal indicates it was awarded to a project (the 
Computer Aided Design System) as well as to the petitioner's employer, 
•• iII ••••••• The petitioner claims the director erred in his decision when he stated, "To 
be considered in this category [lesser prizes or awards] the award should be in the alien's name." 
The petitioner responds by stating, "Nowhere in the regulations is such a requirement explicitly 
enumerated. USCIS may not unilaterally impose novel substantive or evidentiary requirements 
beyond those set forth in 8 C.F.R. § 204.5(h)(3)(i)." The petitioner's appeal brief claims that due to 
the petitioner playing a critical role in the project that received the award, that it is appropriate to 
consider that he is, in essence, the recipient. The AAO does not subscribe to this assertion. The 
regulation governing the prizes and awards criterion requires, "Documentation of the alien's receipt 
, The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 6 
of lesser nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor" (emphasis added). 8 C.F.R. § 204.5(h)(3)(i). Therefore, it is clearly within the plain 
language of the regulation that the named recipient of the award must be the alien. To read the 
regulation in any other manner would be a deviation from the clear and plain language of the 
regulatory text. "rA] basic tenet of statutory construction, equally applicable to regulatory 
construction, lisJ that [a textJ should be construed so that effect is given to all its provisions, so that 
no part will be inoperative or superfluous, void or insignificant, and so that one section will not 
destroy another unless the provision is the result of obvious mistake or error." Silverman v. Eastrich 
MUltiple Investor Fund, L.P., 51 F. 3d 28, 31 (3n\ Cir. 1995) quoted in APWU v. Potter, 343 P.3d 
619,626 (2nd Cir. Sep 15, 2003). The AAO may not depart from the clear regulatory text as the 
petitioner suggests. Additionally, the AAO's interpretation of this regulatory criterion is supported 
in a recent district court decision providing that to meet the plain language requirements the lesser 
prizes or awards criterion, the alien I petitioner in the present case I must be the named award 
recipient establishing he was officially credited with, or given the award. See Hristov v. Roork. 09-
CY-2731, 2011 WL4711885, at *1, *7 (E.D.N.Y. Sept. 30, 2011). 
On appeal, the petitioner provides new evidence reflecting that he is the recipient of this award. The 
translation of this evidence is consistent with the previously submitted evidence in that 
of this National Gold Award for the above awarded project." This evidence sufficiently establishes 
the petitioner as a named recipient of this award. 
The petitioner also provides evidence on appeal of this award's national recognition. As the award 
is issued by the central Chinese government on a nationwide basis, it qualifies as a nationally 
recognized award. The evidence also provides the criteria that award recipients must meet and that 
the award is issued based on excellence in the field of endeavor. This new evidence, not availahle to 
the director, establishes that the petitioner is the recipient of a nationally recognized award for 
excellence in his field. 
The documents acc:on1paln 
evidence related to the 
authority, the purpose, scope award winners. 
Nonetheless, the petitioner has not provided evidence that he was the recipient of this award in 1996 
or in any other year. As evidence of this award, the offers evidence on Ul'lKd.l, 
which indicates the award's recipient was a project 
not the petitioner. As previously AAO will not cor,,"i 
which the petitioner is not the named recipient. See 8 C.P.R. § 204.5(h)(3)(i). See also See Hris/Ol' 
v. Roork, 2011 WL 4711885, at *7, 
In regard to the award being issued for excellence in the field of endeavor, on appeal the petitioner 
provides a document, which is titled, Official Document of 
Corporation. This is a foreign language document with an English translation. 8 C.F.R. 
§ 103.2(b)(3) requires that, "Any document containing foreign language submitted to USC IS shall 
be accompanied by a full English language translation which the translator has certified as complete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English" (emphasis added). The document is not a full English translation of 
the accompanying original foreign language document. Of the 33 "articles" which comprise this 
document, 11 of the "articles" bear no translated information. The sole text accompanying these 
insufficient "articles" is simply "N/A." This is considered to be a summary translation. As this 
translation is not a full English translation, the AAO cannot determine whether it supports the 
petitioner's claims and consequently, it will not satisfy the plain language requirements of this 
regulatory criterion. 
Within the appeal brief the petitioner claims an award which he had not previously requested the 
director consider, even after receiving the RFE; the "Science and Technology Progress Prize" from 
The petitioner did not identify this award in the initial 
filing, on the petitioner's resume, or in response to the RFE. The sole form of evidence relating to 
awards submitted with the initial filing did contain an award with a similar title; the "Science and 
Technology Prize" (initial filing) vs. the "Science and Technology Progress Prize" (appeal brief). 
However, the petitioner failed to provide the director with any discussion related to this award and 
did not request that this award be considered under any regulatory criteria. The translation on appeal 
indicates the petitioner is the award's recipient establishing that he is the named recipient of this 
award. 
The evidence the petitioner submits relating to this award's national or international recognition is an 
article from China Petrochemical News. However, there is no evidence in the record to establish the 
circulation or distribution data of this publication which might establish this published material has a 
national rather than a local or regional reach within China. It is incumbent on the petitioner to 
provide the evidence to establish his claimed awards have received national or international 
recognition. As a result, the petitioner has not established that this award qualifies under the plain 
language requirements of this criterion. 
The petitioner has established that he is the recipient of one award that qualifies under this regulatory 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of 
"prizes" and "awards" in the plural, which is consistent with the statutory requirement for extensive 
evidence. Section 203(b)(I)(A)(i) of the Act; 8 U.S.c. * I 153(b)(I)(A)(i). Significantly. not all of 
the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 
C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high 
salary. When a regulatory criterion wishes to include the singular within the plural, it expressly does 
so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form 
of "letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has 
meaning. In a different context, federal courts have upheld USCIS' ability to interpret significance 
from whether the singular or plural is used in a regulation. See Mummjaya v. USCIS. Civ. Act. No. 
Page 8 
06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff; 2006 WL 
3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
Based on the foregoing evidence, the petitioner has not established that he meets the plain language 
requirements of this criterion 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trude 
publications or other major media. 
This criterion contains two evidentiary elements the petitioner must establish. The first is that the 
petitioner is an author of scholarly articles (in the plural) in his field in which he intends to engage 
once admitted to the United States as a lawful permanent resident. Scholarly articles gcnerally 
report on original research or experimentation, involve scholarly investigations, contain substantial 
footnotes or bibliographies, and are peer reviewed. Additionally, while not required, scholarly 
articles arc oftentimes intended for and written for learned persons in the field who possess a 
profound knowledge of the field. The second element is that the scholarly articles appear in one of 
the following: a professional publication, a major trade publication, or in a form of major media. 
The petitioner presents only an abstract of one article of which he is the author titled, 
, which appeared in 
The director determined that the petitioner failed to meet the 
requirements of this regulatory criterion. More specifically, the director determined the petitioner's 
article failed to satisfy this criterion because "evidence of publications must be accompanied by 
documentation of consistent citation by independent experts or other proof that the petitioner" s 
publications have had a significant impact in their field." On appeal, the petitioner asserts that this is 
a deviation from the plain language requirements of the regulation. The AAO agrees that the 
director based his determination on issues beyond the scope of the regulation. Although the AAO 
will withdraw the director's specific finding as it relates to this single article, it will uphold the 
director's ultimate determination regarding this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires evidence of "authorship 
of scholarly articles" in the plural, which is consistent with the statutory requirement for extensive 
evidence. Section 203(b)(1)(A)(i) of the Act; 8 U.S.c. § 1153(b)(1)(A)(i). As previously noted, the 
AAO can infer that the plural language in the regulatory criteria has meaning and that federal courts 
have upheld USCIS' ability to interpret significance from whether the singular or plural is used in a 
regulation. See Marumjnyn v. USCIS, at * 12; Snnpnnmes.com Inc. v. Chertoff' at ]0. As a result, 
even if the petitioner's article met this criterion's regulatory requirements of a scholarly article in a 
qualifying publication, which it does not, he would still fail to meet the plain language requirements 
of this criterion for only submitting one al1icle. Thus, the petitioner has failed to establish that he 
meets the plain language requirements of this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations (lr 
establishments that have a distinguished reputation. 
The petitioner submits that he performed in a critical role for _. The director determined that 
the petitioner meets the plain language requirements of this criterion. The AAO withdraws the 
director's eligibility determination related to this criterion. 
Although the petitioner provides evidence that he performed in a critical role for _ and that 
this organization enjoys a distinguished reputation, he fails to identify performing in a leading or 
critical role for any other organization or establishment. The plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(viii) requires evidence of performing "in a leading or critical role for 
organizations or establishments" in the plural, which is consistent with the statutory requirement for 
extensive evidence. Section 203(b)(1)(A)(i) of the Act; 8 U.S.c. § IIS3(b)(l)(A)(i). As previollsly 
noted, the AAO can infer that the plural language in the regulatory criteria has meaning and that 
federal courts have upheld users' ability to interpret significance from whether the singular or 
plural is used in a regulation. See Maramjaya v. US CIS, at * 12; Snapnames.com Inc. v. Cherloff' at 
* 10. As a result, although the petitioner has established he performed in a critical role for_ 
which enjoys a distinguished reputation, he still fails to meet the plain language requirements of this 
criterion for only claiming a leading or critical role for one organization or establishment. 
As a result, the petitioner has failed to establish that he meets the plain language requirements of this 
criterion. 
Evidence that the alien has commanded a high salary or other significantly high remullCrafilll1jilr 
services, in relation til others in the ficld. 
The petitioner submits his Form W-2 Wage and Tax Statements (W-2) from 2008 and 2009, and a 
salary survey for a software engineer in the Houston, Texas area reported on January 16, 20 I O. The 
director determined that the petitioner meets the plain language requirements of this criterion. The 
AAO withdraws the director's eligibility determination related to this criterion. 
The petitioner's Forms W-2 indicate his monetary compensation for 2008 and 2009 was 
$103,892.74 and $104,773.30 respectively. According to the petitioner's resume, his position when 
he filed the petition was a Senior Software Engineer. The petitioner relies on a salary survey from 
the Economic Research Institute (ERr) relating to software engineers in his residential area. Not 
~ geographically limited as it only reflects that a "software engineer" in thc _ 
__ compensation of $92,242, but it also fails to provide information regarding the 
compensation of others within the petitioner's field of senior software engineers. This salary survey 
also states the following related to the methodology used to calculate this figure, "The sllmmary data 
provided here is an estimation of the mean values reported by ERI's Salary Assessor database and 
may vary from the actual values reported by up to two percent." The mean value is an average of 
Page 10 
"n" numbers computed by adding some function of the numbers and dividing by some function of 
"n".) In simple terms, the mean value is the average of the spectrum of possible values (software 
engineer salaries). 
This spectrum encompasses those with little or no experience to those with a high level of 
experience. An average salary established by ERI is not a proper basis for comparison. The 
petitioner must submit evidence showing that he has earned a high salary or other signific(JIllh' high 
remuneration in relation to others in his field (senior softwar~ply a salary that is 
above the average level for software engineers or limited ___ The petitioner's 
attempt to use average local salary levels and to exclude the salaries of senior software engineers 
throughout his field does not allow for an appropriate basis for comparison in determining a high 
salary "in relation to others in the field." See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Comm'r 1994) (considering a professional golfer's earnings versus those of the top earners in the 
United States Professional Golfers' Association Tour). The petitioner has failed to establish that his 
compensation is high relative to others in his field. 
Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of 
the evidentiary categories for which evidence must be submitted to meet the minimum eligihility 
requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will 
review the evidence in the aggregate as part of our final merits determination. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the next step is a final merits determination that considers 
all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a "level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or 
international acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
As noted above, the petitioner provides evidence that he is the recipient of one nationally recognized 
award for excellence in his field of endeavor, which is not sufficient to meet the regulatory 
requirements. However, he did establish that three projects in which he participated, received 
awards for excellence. Being the recipient of one qualifying award and taking part in projects that 
receive awards is not characteristic of being within that small percentage who have risen to the very 
top of their field of endeavor. 
3 See http://www.w('bslcr-dictionary.org/dcfinition/mcan%20v,1l~_~ [accessed on November 8, 2011 and 
incorporated in the record of proceeding.] 
Page II 
The petitioner has provided no evidence that his single article was aimed at computer software 
engineers. The petitioner submits evidence of the publication's intended audience through a January 
19, 2010, web site printout of the International Data Group, a technology media company that owns 
the The evidence submitted reflects the target audience is both 
enterprise technology and consumer technology. However, a more specific audience description 
from this web site printout states, "Our readers include high-level government officials; operation. 
financial, technical, marketing and sales executives; senior technicians; and marketing and sales 
personnel." This evidence fails to establish that the intended audience is computer softwarc 
engineers. More importantly, the petitioner's article appeared in this publication in 1994, however. 
he provides no evidence related to this publication from this time period. The petitioner asks that the 
AAO assume the publication's operations and intended audience have not changed over the last 17 
years. The petitioner also fails to provide evidence that his article has received any attention from 
'-V.L11L'Ul'~' software the fact that a letter from a senior member of the 
System (the system that the petitioner's article reported on) computer """L'", 
the 1990s. Pursuant to the reasoning in Kazarian, 596 F.3d at lI22, however, the field's response to 
this article may be and will be considered in our final merits determination. Scholarly articles can be 
expected to have gained the attention of other experts in the petitioner's field who cite to his work 
lending his article some credence within the field and showing his field's reliance on the contents of 
his article. A single article, not written with other experts in the field as the audience, that fails to 
generate attention from other experts in the petitioner's field is not symbolic of sustained acclaim in 
the petitioner's field. It is also not emblematic of onc who has attained the status as one of that small 
percentage who have risen to the very top of their field of endeavor. 
, 
The petitioner established the critical role he performed for _ on the. project. 
which after the petitioner's contributions, improved this product, and became one 01'_ 
fastest growing product lines. While this is a noteworthy accomplishment, it is but one example of 
performing in a critical role for an organization. The petitioner's performance in a critical role is 
limited to a single organization and he has failed to provide evidence of the impact of his 
performance beyond the organization itself. Additionally, not every noteworthy accomplishmcnt 
will serve to establish the petitioner's sustained national or international acclaim or that he has 
attained the status as one of that small percentage who have risen to the very top of their field of 
endeavor. 
Regarding the petitioner'S salary, the evidence submitted shows the average local salary of software 
engineers. This is a geographically limited comparison of two fields of endeavor. It compares his 
salary to software engineers with various levels of experience; it does not compare the petitioner's 
salary to other senior software engineers throughout the United States, which is a more appropriate 
measure of his acclaim within his field of endeavor. Sec Matter of Price, 20 I&N Dec. at 954. 
Additionally, the petitioner must submit evidence showing that his salary places him among that 
small percentage at the very top of the field rather than simply in the top half on a different field on 
regional basis. See 8 C.F.R. § 204.5(h)(2). As a result, the evidence on record is not indicative of 
Page 12 
sustained national or international acclaim or that the petitioner has attained the status as one of that 
small percentage who have risen to the very top of their field. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. The petitioner, a senior software 
engineer, relies on one qualifying award and awards issued to either projects in which he participated 
or to his employer, one article that he has not established is scholarly in nature which has failed to 
garner any recognition from experts within his field through citations in their own works, performing 
in a critical role for one organization, and that his salary is above average when compared with 
commonplace software engineers in an alternative field. While this may differentiate him from other 
senior software engineers, it does not indicate the petitioner's eligibility for the requested immigrant 
classification. Accordingly, it appears that the highest level of the petitioner's field is far above the 
level he has attained. 
III. Conclusion 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
senior software engineer to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The evidence 
indicates that the petitioner shows promise, but is not persuasive that the petitioner's achievements 
set him significantly above almost all others in his field. Therefore, the petitioner has not estahlished 
eligibility pursuant to section 203(b)(l )(A) of the Act and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. The burden of proof in visa petition proceedings remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that 
burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.