dismissed EB-1A Case: Sensor Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-K-B-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sensor engineer and system architect, seeks classification as an individual of 
extraordinary ability in the sciences. See Immigration and Nationality Act (the Act) section 
203(b)(1)(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 although the 
Petitioner met the regulatory requirement of satisfying three evidentiary criteria, he did not show 
sustained national or international acclaim and demonstrate that he is among the small percentage at 
the very top of the field of endeavor. 
On appeal, the Petitioner submits an additional recommendation letter and a brief, arguing that he 
has sustained the required acclaim and has risen to the very top of his field. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes visas available to qualified 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 m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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Matter of H-K-B-R-
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 two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). Alternately, he or she must provide 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. USCJS, 596 F.3d 1115 (9th Cir. 201 0) 
(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. USCJS, 772 F. Supp. 2d 1339 
(W.O. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a lead hardware and production engineer with As the 
Petitioner has not indicated or established that he has 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). 
A. Evidentiary Criteria 
The Director found that the Petitioner met the following three criteria: original contributions under 
8 C.F.R. § 204.5(h)(3)(v), scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi), and high salary under 
8 C.F.R. § 204.5(h)(3)(ix). The Petitioner's documentary evidence indicates that he has authored 
articles that have appeared in professional publications and earns a high salary at his current 
employer. The record also contains an article about the Petitioner relating to his work printed in 
thereby qualifying for the published material criterion under 8 C.F.R. 
§ 204.5(h)(3)(iii). Accordingly, the Petitioner satisfied three of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3). Although we find the record does not support the Director's determination that he has 
made original contributions of major significance in the field, we will evaluate the totality of his 
documentary evidence in the context of the final merits determination below. 
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Matter of H-K-B-R-
B. Final Merits Determination 
As the Petitioner has submitted the requisite initial evidence, we will evaluate whether the Petitioner 
has demonstrated, by a preponderance of the evidence, that he has sustained national or international 
acclaim and is one of the small percentage at the very top of the field of endeavor, and that his 
achievements have been recognized in the field through extensive documentation. In a final merits 
determination, we analyze a petitioner's accomplishments and weigh the totality of the evidence to 
determine if his successes are sufficient to demonstrate that he has extraordinary ability in the field 
of endeavor. See section 203(b)(l)(A)(i) ofthe Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 
· 596 F.3d at 1119-20. In this matter, we determine that the Petitioner has not shown his eligibility. 
The record indicates that the Petitioner received a bachelor of technology and master of technology 
at the (India) in 2005 and a master in science at 
in 2010. The Petitioner has previously worked as a physical verifier and manufacturing 
engineer for automation and surgical 
businesses, and he has also worked as a hardware design lead 
for an electronic gaming company. Currently, the Petitioner is a lead hardware and production 
engineer for As mentioned above, the Petitioner has been covered in the press, authored 
scholarly articles, and commands a high salary. The Petitioner has not demonstrated that his 
achievements, however, are reflective of a "career of acclaimed work in the field'' as contemplated 
by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 
The Petitioner satisfied the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii) based on a 
2015 article in which featured the Petitioner discussing futuristic 
hardware. In addition, the Petitioner submitted two 20 15 articles posted on www. 
and www that discuss the Petitioner and his work on current projects. 
Further, the record contains screenshots from www. and www from 
2004 and 2016 in which the Petitioner provided a quote for each article, but they were not about him. 
Here, the Petitioner did not demonstrate that his media coverage of three articles relating to him and 
his work are indicative of a "career of acclaimed work in the field'' as contemplated by Congress. 
H.R. Rep. No. at 59. Moreover, as all three articles about the Petitioner were published in 2015, 
they do not demonstrate the required sustained national or international acclaim for this highly 
restrictive classification. See section 203(b )(1 )(A) of the Act. 
In addition, the Petitioner met the scholarly articles criterion under 8 C.F.R. § 204.5(h)(3)(vi) by 
presenting evidence that he published three articles in professional journals. The record reflects that 
two articles were published in 2016 and one article was published in 2007. The Petitioner has not 
established that this publication record is consistent with being among the small percentage at the 
top of the field or having a "career of acclaimed work." H.R. Rep. No. at 59. In addition, as there is 
a nine-year gap between the Petitioner's publications and two of the three articles were published 
within a year of the filing of his petition, he has not demonstrated that his publications reflect the 
required sustained national or international acclaim. See section 203(b )( 1 )(A) of the Act. The 
commentary for the proposed regulations implementing section 203(b)(l)(A)(i) of the Act provides 
that the "intent of Congress that a very high standard be set for aliens of extraordinary ability is 
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Matter of H-K-B-R-
reflected in this regulation by requiring the petitioner to present more extensive documentation than 
that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991 ). 
As authoring scholarly articles is inherent in the scientific field, the citation history or other evidence 
of the influence of his articles is an important indicator to determine the impact and recognition that 
his work has had on the field and whether such influence has been sustained. For example, 
numerous independent citations for an article authored by the Petitioner would provide solid 
evidence that his work has been recognized and that others have been influenced by his work. Such 
an analysis at the final merits determination stage is appropriate pursuant to Kazarian. 596 F. 3d at 
1122. On the other hand, few or no citations of an article authored by the Petitioner may indicate 
that his work has gone largely unnoticed by his field. Here, the Petitioner offered evidence that his 
2016 article in has been cited 12 times, his 2016 article in 
has been cited 2 times, and his 2007 article presented at the 
on has been cited 6 times. Although the citation of the 
Petitioner's work shows some interest, he did not establish that such citation rate is sufficient to 
demonstrate a level of interest in his field commensurate with sustained national or international 
acclaim at the top of his field. 
Further, while citations are not the only way to gauge the importance or recogmtwn of an 
individual's work, the record does not otherwise demonstrate that the Petitioner's work has been 
considered significant and garnered wide acclaim in the field. The Petitioner presented evidence 
regarding two projects that he is currently involved with at and 
The submitted documentation indicates that the projects are still under development, and the 
Petitioner has not demonstrated that the projects have been completed, implemented, or otherwise 
have significantly influenced the field. For instance, the Petitioner submitted a recommendation 
letter from vice president of who claimed that 
"will bring consumers the world's first 'smart' jacket" in 2017. Further, in the recommendation 
letter from director at he indicated that in regards to 
"[t]he potential impact of this invention is tremendous." While the Petitioner provided 
screenshots of articles discussing the prospective release of the projects and his recommendation 
letters reflect enthusiasm for the projects' possibilities, the Petitioner did not establish that his 
contributions have already been of major significance and that he has garnered attention at a level 
among that small percentage at the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2). 
Similarly, the record includes a letter from technical program lead at 
who discussed the Petitioner's roles in the projects and indicated that the technology in 
was so original that it was not defined under the U.S. Federal Communications Commission (FCC). 
In addition, stated that the Petitioner proposed and 
implemented a device test plan that 
resulted in being incorporated into FCC's proposed rulemaking. Again, the 
_ _ involves conductive textiles that turn everyday objects into interactive surfaces, and 
touchless interface that control devices with gestures. See recommendation letter from 
president at 
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uses a 
former vice 
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Matter of H-K-B-R-
record indicates that the impact of either project has yet to be determined, and the Petitioner did not 
establish how his contributions to the projects have 
garnered him acclaim or place him among that 
small percentage at the very top ofthe field of endeavor. See 8 C.F.R. § 204.5(h)(2). 
In addition, the Petitioner submitted documentation reflecting that he has three provisional patent 
applications that were filed in May 2016 for inventions he agreed to assign to In general, a 
patent recognizes the originality of an individual's invention but does not necessary demonstrate that 
it has been of major significance in the field. In the case here, the Petitioner's documentation does 
not establish that his patent applications have been approved, and that he has received national or 
international acclaim from his inventions or patents. See section 203(b )(1 )(A) of the Act. 
The Petitioner's recommendation letters from and also described his role 
as a lead hardware and production engineer and explain why they hired him for the 
group. stated that "to even be selected to join 
means that the employee is already a proven, recognized leader in the field with unmatched 
expertise." However, did not support her statement with examples showing that the 
Petitioner is viewed as a "recognized leader" or is considered to be at the very top of the field of 
endeavor. See 8 C.F.R. § 204.5(h)(2). Moreover, the record does not demonstrate that the 
Petitioner's employment with has brought him sustained national or international acclaim. 
See section 203(b)(l)(A) ofthe Act. 
As it pertains to the high salary criterion under 8 C.F.R. § 204.5(h)(3)(ix), the Petitioner submitted a 
2014 letter from offering the Petitioner an annual salary of $180,000, with opportunities to 
earn bonuses. In addition, the Petitioner's income tax documentation indicates that he earned over 
$220,000 in 2015. Further, the Petitioner presented a letter from manager of talent 
acqUisition at , who stated that the average salary in the area, where the 
Petitioner is employed, is about $165,500 and the top 1% makes $215,200. also 
supported his letter with statistics from which compares salary information from job 
surveys. Based on the provided spreadsheets, the data reflects that there are five grades higher than 
the Petitioner's grade in his geographic area, and the highest ranges from $242,200 to $387,900. 
Although the Petitioner demonstrated that he earns a high salary, he has not shown his earnings are 
at a level reflecting national or international acclaim. 
In addition, as indicated above, the Petitioner previously held physical verifier, manufacturing 
engineer, and lead hardware designer positions at other companies prior to his employment with 
The Petitioner, however, did not show his salary or compensation with these businesses. 
Accordingly, he did not demonstrate that he has consistently commanded a high salary but instead 
that he only recently earned a high salary based on his employment with The submission of 
his latest salary is not reflective of a "career of acclaimed work in the field" as contemplated by 
Congress and indicative of sustained national or international acclaim. See section 203(b )( 1 )(A) of 
the Act; H.R. Rep. No. at 59. 
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Matter of H-K-B-R-
In this case, the Petitioner has had some press coverage, has authored scholarly articles, and 
commands a high salary. However, 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). While the Petitioner need not establish that there is no one more 
accomplished than him to qualify for the classification sought, we find the record insufficient to 
demonstrate that he has the requisite sustained national or international acclaim. See section 
203(b)(l)(A)(i) ofthe Act. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility as an individual of 
extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-K-B-R-, ID# 579467 (AAO Oct. 25, 2017)