dismissed EB-1A Case: Software Architecture

MATTER OF S-N-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software architect, seeks classification as an "alien 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, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
did not submit sufficient initial evidence, when evidence meeting at least three of the criteria listed at 
8 C.F.R. § 204.5(h)(3)(i)- (x) is required. 
The Petitioner appeals the matter to us. He submits additional evidence and a brief. He indicates 
that he has satisfied at least three initial evidence criteria and has shown that h~ has extraordinary 
ability as a software architect. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
The Petitioner may demonstrate his extraordinary ability through sustained national or international 
acclaim and achievements that have been recognized in his field through extensive documentation. 
Specifically, section 203(b)(1)(A) of the Act states: 
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 in the area of 
extraordinary ability, and 
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(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
(i) 
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.P.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 the 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.P.R. § 204.5(h)(3)(i)- (x). If the criteria do not_ readily apply 
to the occupation, a petitioner may submit comparable evidence to establish eligibility. 8 C.F .R. 
§ 204.5(h)(4). 
Satisfaction of at least three criteria or submission of comparable evidence, however, does not, in 
and of itself, establish eligibility for this classification. See Kazarian v. USCIS, 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. USCIS, 772 F. Supp. 
2d 1339 (W.D. Wash. 2011); Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that 
the "truth is to be determined not by the quantity of evidence alone but by its quality" and that U.S. 
Citizenship and Immigration Services (USCIS) examines "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"). 
II. ANALYSIS 
The Petitioner is a software architect who works as a consultant to companies and governments. He 
has a master of technology degree in computer science and engineering from the 
in India. The Director found the Petitioner did not submit the necessary 
initial evidence because he did not demonstrate his receipt of a major, internationally recognized 
award or provide documentation satisfying at least three of the criteria listed at 8 C.P.R. 
§ 204.5(h)(3)(i)- (x). Upon de novo review, we agree that the Petitioner has not submitted 
sufficient initial evidence, either directly or through comparable evidence. 
A. Evidentiary Criteria 
The Petitioner does not claim he has received a major, internationally recognized award. He states 
that he has submitted evidence satisfying the four evidentiary criteria discussed below. 
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Evidence of the individual 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The Director found that, although the Petitioner provided reference letters, they addressed only the 
Petitioner's abilities and his performance on particular projects. The Director noted that the letters 
do not explain how the Petitioner's contributions have affected the field as a whole. The Director 
also acknowledged evidence indicating that the Petitioner has presented at conferences, but 
concluded that the documentation did not show that these presentations constitute original 
contributions of major significance in the field. 
On appeal, the Petitioner emphasizes letters of support that speak to his abilities and experience in 
successfully handling software architecture projects. We agree with the Director that the letters 
effectively corroborate the Petitioner's employment and experience, but do not articulate an original 
contribution of major significance to the field. Having a diverse skill set is not a contribution of 
major significance in and of itself. Rather, this criterion requires evidence that a petitioner has 
already used those unique skills to impact the field at a significant level in an original way. 
Regardless, the regulatory language requires substantiated impacts beyond one's collaborators, 
employer, clients, or customers. See Visinscaia, 4 F. Supp. 3d at 134-35. Here the Petitioner has not 
established the requisite impact. 
Several of the letters speak about the Petitioner's work in successfully devising solutions for client 
companies. Major significance in the field necessarily requires influence beyond those with whom 
one comes in immediate contact. The reference letters list the Petitioner's contributions, 
responsibilities, and accomplishments in working with the projects. None of the letters contains, 
however, an explanation of how the Petitioner's work has impacted the larger industry .. Neither the 
letters nor other documents in the record provide examples of the Petitioner's methods or strategies 
being employed or noticed by others in the field. Without specific evidence addressing the plain 
language of this criterion, the Petitioner's reputation as a skilled worker is not sufficient. 
The Petitioner indicated that he worked on projects for state and municipal governments, and dealt 
with computer systems that handle large government programs, such as Dealing with 
large systems does not inherently translate to making contributions of major significance in the field. 
The Petitioner claims extraordinary ability in software architecture. As a result, to satisfy this 
criterion, he must show that he made original contributions in software architecture that have been of 
major significance in that field. Again, the Petitioner has not articulated how the work he performed 
for any project has had an impact beyond its immediate application. 
In addition to his work as a consultant, the Petitioner also points to his participation and presentation 
in conferences sponsored by the 
Many professional fields regularly hold meetings and symposia to 
allow participants to present new work, discuss new findings, and to network with other 
professionals. Participation in such events, however, does not equate to original contributions of 
major significance in the field. There is no documentary evidence showing that any of the 
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Petitioner's specific conference presentations are frequently cited by other researchers, have 
significantly impacted the field, or otherwise rise to the level of contributions of major significance 
in the field. While the Petitioner's presentations demonstrate his knowledge in software 
architecture, he has not established the impact or influence of his presentations. For these reasons, 
the Petitioner has not met this criterion. 
Evidence of the individual's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 
The Director found the Petitioner did not satisfy this criterion because he did not provide 
documentation showing a published article. The Director acknowledged that the Petitioner provided 
a copy of his Master's thesis and PowerPoint presentations from conferences; however, he 
concluded that neither of these satisfied the plain language of the criterion. 
On appeal, the Petitioner states that he "provided proof that [he] has indeed published his influential 
Master's thesis." The record contains a photocopy of a bound version of the Petitioner's thesis 
entitled ' 
Regardless of the final format or appearance of the Petitioner's thesis, 
the relevant issue for purposes of meeting this criterion is whether the article appeared in a 
professional or major trade publication or other major media. The Petitioner does not identify a 
publication or major media that published his thesis. The record similarly does not contain material 
otherwise suggesting that the Petitioner meets this criterion. 
On appeal, the Petitioner states that his thesis was cited in an article that appeared in an 
conference proceeding publication. The Petitioner 
provided a copy of this article. Upon review, we find that the article does not contain a citation to 
the Petitioner's thesis, as he states. Even if it did, however, the plain language of this criterion 
necessitates that the Petitioner's scholarly article itself appeared in a professional or major trade 
publication or other major media. A citation to the Petitioner's thesis, even if demonstrated, would 
not comply with the plain language of this criterion. 
Lastly, the Petitioner notes that he has made presentations at conferences. On appeal, the Petitioner 
indicates that he has "made a number of well-received presentations at the 
and other venues on complex topics." The Petitioner has provided conference 
pamphlets and copies of PowerPoint presentations. Again, however, the plain language of this 
criterion requires "authorship of scholarly articles in the field, in professional or· major trade 
publications or other major media" The Petitioner does not address how his presentations satisfy 
the plain 
language of this criterion and he therefore has not met his burden of proof. 
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Evidence that the individual has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The Petitioner did not previously claim this criterion. On appeal, he refers to a letter from 
an operations support manager at who attests to the Petitioner's 
competency and skillset in serving as a Java Technical Architect for the 
The Petitioner does not specify whether his leading or critical role was for 
or for the 
A leading role should be apparent by its position in the organizational hierarchy and the role's 
matching duties. A critical role is apparent by its overall impact on the organization or 
establishment. The letters provided discuss the Petitioner's exemplary work on projects. They do 
not address, however, the Petitioner's relative position within the organizations or his overall impact 
on the establishments. The reference letters referring to the projects list the Petitioner's 
responsibilities and achievements, but do not indicate that he played a particularly leading or critical 
role within the projects themselves. The Petitioner operated as an individual working on large 
projects that were themselves small relative to the overall operations of either the company or the 
State. The Petitioner does not provide the reasoning for considering his role within either 
organization to be leading or critical. As a result, he has not submitted sufficient evidence to satisfy 
the plain language of this criterion. 
Evidence that the individual has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The Director noted that, although the Petitioner submitted evidence of his salary and the average 
amounts received in related occupations, he did not give documentation regarding compensation for 
those at the top of the field. On appeal, the Petitioner refers to prevailing wage information showing 
the Level 4 rate for Computer and Information Research Scientists is $58.56 per hour or $121,805 
annually. He noted a letter from a human resources specialist at stating that the 
Petitioner's annual salary from April 2011 to December 2012 was $107,712. He also points to a 
consultant agreement showing that sent him to work at in March of 2012 at 
the rate of $68 per hour. 
The Petitioner's annual salary of $107,712 in 2012 is lower than the prevailing wage for a Level 4 
individual, $121,805. The Petitioner notes the rate of $68 per hour cited on the consultant agreement 
and compares it to the Level 4 prevailing wage hourly rate of $58.56. However, the amount of $68 
per hour appears to be the billing rate for the services, rather than the amount the Petitioner received. 
In addition, the consultant agreement is for a period during which he received an annual salary of 
$107,712. According to the Level4 prevailing wage figures, the rate of$58.56 per hour corresponds 
to a much higher median annual salary of $121,805, again suggesting that either $68 per hour was 
not the amount the Petitioner received, or that this rate was not consistent over the course of the year. 
Regardless, we agree with the Director that the prevailing wage levels that the Petitioner submitted 
do not provide insight into the salaries made at the upper end of the field's pay scale. As a result, 
even if we accepted the $68 per hour rate as the Petitioner's salary and compared it to the $58.56 
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quoted, we would not conclude it necessarily represented a high salary without more information 
about the range of remuneration typical for his occupation. 
The Petitioner also provided a Service Certificate indicating that he worked as a Senior Technical 
Associate for in India from 2008 to 2009 and made an annual salary of eight 
lakh rupees. He submitted an article regarding the median salary of software engineers in India, 
which states that "a good software programmer ... can fetch up to 12 lakhs per year easily." A table 
indicates that this rate is average for someone with ten or more years of experience. However, the 
statement that those who are good can easily make 12 lakhs per year suggests that the Petitioner's 
annual income of 9 lakhs was not a "high salary or other significantly high remuneration for 
services." For these reasons, the Petitioner has not satisfied this criterion. 
B. Comparable Evidence 
On appeal, the Petitioner states that: 
It is rare for individuals in the field of software architecture to be able to acquire the 
same kinds of evidence as might be collected and presented by academic researchers 
in the context of an Extraordinary Ability Alien petition. However, the regulations 
permit comparable evidence to be submitted. We believe that the combination of 
comparable evidence and evidence that directly satisfies the legal requirements for an 
Alien of Extraordinary Ability sufficiently demonstrates that he has applied 
extraordinary ability to tackle highly complex technical problems that only a few of 
his peers have the ability to address. 
The Petitioner does not, however, identify which criteria do not readily apply to his occupation, or 
provide support to show why they do not readily apply. Similarly, he does not state what evidence is 
comparable to which criteria or provide evidence or reasons to support finding any particular 
evidence comparable. It is the Petitioner's burden of proof to establish eligibility. Section 291 of 
the Act. Without more, the Petitioner has not demonstrated that he submitted comparable evidence 
for any of the criteria, as contemplated under 8 C.F.K § 204.5(h)(4). 
C. Summary 
As indicated above, we find that the Petitioner did not satisfy any of the initial evidence criteria 
listed at 8 C.F.R. § 204.5(h)(3)(i)- (x) or present comparable evidence under 8 C.F.R. § 204.5(h)(4). 
Had the Petitioner satisfied at least three evidentiary categories or offered comparable evidence, the 
next step would be a final merits determination 
that considers all of the filings in the context of 
whether or not the Petitioner has demonstrated: (1) a "level of expertise indicating that the 
individual is one of that small percentage who have risen to the .very top of the field of endeavor," 
and (2) that the individual "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)(2), (3); see also 
Kazarian, 596 F .3d at 1119-20 (discussing a two-part review where the evidence is first counted and 
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then, if satisfying the required number of criteria, considered in the context of a final merits 
determination). Although we need not provide the type of final merits determination referenced in 
Kazarian, a review of the record in the aggregate supports a finding that the Petitioner has not 
established the level of expertise required for the classification sought. 
III. CONCLUSION 
The Petitioner has not provided the requisite initial evidence to establish extraordinary ability, as 
required by regulation. The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. In visa petition proceedings, it is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-N-, ID# 17460 (AAO Aug. 9, 2016)