dismissed EB-1A Case: Software Development

U.S. Department of fIomeland Security 
20 Mass. Ave., N.W.. Rni. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 07 800 06588 Office: TEXAS SERVICE CENTER Date: JUN I 0 2008 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~Uid D#lli.~C 
8 obert P. Wiemann, Chief 
A0 Administrative Appeals Office 
SRC 07 800 06588 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(A), as an alien of extraordinary ability in 
software development. The director determined that the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
On appeal, the petitioner argues that he qualifies for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shaIl 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 in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). As used in this 
section, the term "extraordinary ability" means 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. 8 C.F.R. 9 204.5(h)(2). The specific 
requirements for supporting documents to establish that an alien has sustained national or international 
acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. $ 204,5(h)(3). 
The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner must show 
that he has sustained national or international acclaim at the very top level. 
This petition, filed on February 15, 2007, seeks to classify the petitioner as an alien with extraordinary ability 
as a "Chief Architect for software for mobile phones and personal computers." The petitioner earned his 
Master of Science degree in software engineering from San Jose State University in 2003. At the time of 
filing, the petitioner was working as a Chief Architect and Senior Development Engineer for Bling Software 
in Pleasanton, California. 
SRC 07 800 06588 
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The regulation at 8 C.F.R. Q: 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of 
which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. A petitioner, however, cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three criteria at 8 C.F.R. 5 204.5(h)(3). In determining 
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is 
indicative of or consistent with sustained national or international acclaim. A lower evidentiary standard 
would not be consistent with the regulatory definition of "extraordinary ability" as "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." 8 C.F.R. 9 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria. 
Docu~nentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievernents of their members, as judged by recognized 
national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must show that 
the association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, proficiency certifications, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements do not 
constitute outstanding achievements. Further, the overall prestige of a given association is not determinative; 
the issue here is membership requirements rather than the association's overall reputation. 
The petitioner submitted a letter from the Institute of Electrical and Electronics Engineers (IEEE) thanking him 
for renewing his Computer Society "affiliation." The letter states: "If you apply for IEEE membership now, your 
affiliation fee will be credited towards your 2006 IEEE dues." There is no evidence showing that the petitioner's 
"2006 Society affiliation" is tantamount to IEEE membership. The petitioner also submitted documentation of 
his membership in the Association of Computing Machinery, the Mathematical Association of America, the San 
Jose State University Alumni Association, and the San Jose State University chapter of Tau Beta Pi. The record, 
however, includes no evidence (such as membership bylaws or official admission requirements) showing that 
the preceding organizations require outstanding achievements of their members, as judged by recognized 
national or international experts in the petitioner's field or an allied one. 
In light of the above, the petitioner has not established that he 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 thejeld for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
In order for published material to meet ths criterion, it must be primarily about the petitioner and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national or international distribution. An alien would not earn 
acclaim at the national or international level fi-om a local publication. Some newspapers, such as the New York 
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Tinzes, nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.' 
The petitioner submitted articles from January 2007 posted on MSNBC.com, webware.com, Mobile 
Marketing's internet site, BusinessWeek.com, and Ajax World Magazine's internet site. None of these 
articles specifically mention the petitioner. The plain language of the regulatory criterion at 8 C.F.R. 
9 204,5(h)(3)(iii), however, requires the published material to be "about the alien." As such, the petitioner has 
not established that he meets this criterion. 
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 alliedjield of specification for which classification is sought. 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary ability must 
be accompanied by evidence that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." Evidence of the petitioner's participation as a 
judge must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the 
criterion at 8 C.F.R. 4 204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates, 
reflects, or is consistent with sustained national or international acclaim at the very top of the alien's field of 
endeavor. A lower evidentiary standard would not be consistent with the regulatory definition of 
"extraordinary ability7' as "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." 8 C.F.R. 5 204.5(h)(2). For example, evaluating the 
work of accomplished professors on a national panel of experts is of far greater probative value than evaluating 
the work of students or trainees. 
The petitioner submitted a January 23, 2007 memorandum fro, Professor and Director of 
the Master of Science in Engineering program, College of Engineering, San Jose State University, stating: 
[The petitioner] was a student in our Master of Science in Engineering (MSE) program at San Jose 
State University . . . . After graduation he returned to serve as industry advisor for a team of MSE 
students completing their project entitled "Web Base Management Tool," during academic year 2005- 
2006. His experience in [the] software industry, technical, economic and managerial[,] led to the 
successful delivery of the product. He provided technical supervision for the project from conception 
to the delivery. . . . [The petitioner's] guidance on this industrial-based project is evidence of his 
innovative skills and his willingness to give back to the community. 
Advising students and providing technical supervision for an academic project are not tantamount to the 
petitioner's participation, either individually or on a panel, as a judge of the work of others in his field. Further, 
the evidence submitted by the petitioner does not indicate the means through which his alma mater selected him 
to participate or that his participation was consistent with sustained national or international acclaim at the 
very top of his field. 
' Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
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On appeal, the petitioner submits material printed fiom the World Wide Web Consortium (W3C) internet site 
indicating that he served on the program committee for a Workshop on Mobile Ajax held on September 28,2007. 
This material states: "To participate in the Workshop, you must submit a position paper to team-mobileaiaxws- 
submit(ci)w3.org by 15 August 2007." The petitioner's participation on this program committee occurred 
subsequent to the petition's filing date. A petitioner, however, must establish eligibility at the time of filing. 
8 C.F.R. $$ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Accordingly, 
the AAO will not consider this evidence in this proceeding. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
The petitioner submitted several reference letters in support of the petition. 
[The petitioner] is responsible for the architecture, design and development of software for mobile 
phones which requires exceptional skills and ability with advanced knowledge of mobile phones, 
embedded software. 
[The petitioner] designed and developed [the] industry's first Ajax based Mobile Bling Player for 
mobile phones. He developed a Weather Application in Java ME for mobile phones which displays 
graphical images and the current weather information of a city based on zip code and dynamically 
fetches, parses the weather information from an rss feed based on any zip code entered in the United 
States. 
[The petitioner] developed Barry Bond's (famous professional athlete) and Jay-Z's (famous recording 
artist) 40140 club applications for the mobile phones. He also developed MOM extension classes in C 
programming language for the Bling Player Software Development Kit. 
[The petitioner's] work was displayed at the CTIA [Cellular Telephone and Internet Association] 
wireless show (http:l/www.ctiawireless.com) which is the most important technology event of the 
year and is attended by the industry leading companies of wireless and mobile content. CTIA . . . is 
the international organization that represents all sectors of wireless communications - cellular, 
personal communication services and enhanced specialized mobile radio. As a nonprofit membership 
organization founded in 1984, CTIA represents service providers, manufacturers, wireless data and 
Internet companies and other contributors to the wireless universe. 
[The petitioner's] work was displayed at DEMO and cited by the famous sports celebrity Mr. Barry 
Bonds (ht~:llwww.den~o.com/demonstratorsidemo00711272.php) held on January 30 - Feb. 1'' 
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2007 which was widely reported in various leading domestic and international press. DEMO is the 
launch pad for emerging technology and is selected based on innovation. DEMO is the premier 
launch venue for new products, technologies and companies. For more than 16 years, DEMO has 
established a reputation for identifying and presenting to an elite audience the products most likely to 
have a significant impact on the marketplace and market trends in the coming year. Each product is 
carefully screened and selected by DEMO'S Executive Producer, Chris Shipley, one of the top trend 
spotters in the personal technology product industry. DEMO is held two times a year; one in 
February, and one in September. 
We cannot ignore 's statement that the DEMO technology show "has established a 
reputation for identifying and presenting . . . products most likely to have a significant impact on the 
marketplace and market trends in the coming year." The record, however, includes no evidence showing that 
the software applications developed by the petitioner have already had "a significant impact on the 
marketplace and market trends" such that they can be considered original contributions of major significance 
in his field. Display of mobile phones utilizing the petitioner's software applications at the DEMO 
technology show and the CTIA wireless show demonstrate that his applications were introduced to 
consumers, but there is no sales data or other evidence establishing that his software applications qualified as 
contributions of major significance in his field as of the petition's filing date. A petitioner, however, must 
establish eligibility at the time of filing. 8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 
45, 49. A petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. Id. 
er, Associate Dean, College of Engineering, San Jose State University, states: 
[The petitioner] was employed at the Human Automation Integration (HAIL) laboratory, which is 
part of the College of Engineering at San Jose State University from Jan. 1, 2001 to December 3, 
2001. He was responsible for developing the software to connect two simulation models AIR MIDAS 
(Air Man Machine Design and Analysis System developed by HAIL) and RFS (Reconfigurable 
Flight Simulator developed by Georgia Tech) using Java and High Level Architecture (HLA /RTI- 
Software of Defense Modeling and Simulation Office, U.S. Defense). 
[The petitioner] worked with several others in the laboratory team in this development and performed 
his software development duties adequately. 
- 
, Senior Director, Oracle Business Activity Monitoring, Oracle Corporation, states: 
I was the most recent manager of [the petitioner] at Oracle Corporation. He worked for me as a 
member of the Oracle BAM development team through March 2006 as Software Engineer 11. 
[The petitioner's] development responsibilities included an object oriented, multi-threaded event 
engine. He worked on the design and development of a new rule XML definition for rules and the 
rule parser, which defines the grammar for the constraints and the corresponding actions for the event 
engine. In addition, he also developed new unit tests. The programming languages used were 
C#I/.NET Framework and JavalJ2EE. 
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he petitioner's former Software Manager at BEA Systems, Inc., states: 
While employed as a Software Engineer, [the petitioner] performed various job duties, including 
designing, developing, testingIQA, and implementing software. Specifically, he worked on the 
development and testing of BEA LiquidData product. [The petitioner] developed JSP pages to 
validate the JSP taglib, developed and wrote Xqueries, and mapped the source scheme to target 
schema. He wrote the Xquery to test the Contivo Analyst product. [The petitioner] worked with 
JUnit framework, developing JUnit test cases. He also worked with different databases such as 
Oracle, MS SQL Server, and Sybase. Additionally, as part of the WLI CQE team, [the petitioner] 
developed and executed tests, reported results, and verified bug fixes. He developed automated tests 
using ant, Java, J2EE, SQL, scripting languages, contributing to the development of the framework 
on WebLogic Integration product which is comprised of business process management, B2B 
Integration, and Application Integration. 
During [the petitioner's] employment at BEA Systems, he designed, developed, testedlQA, and 
implemented software utilizing Java and SQL computer programming languages. 
This is to confirm that [the petitioner] worked with Aspect Communications Corp. in the position of 
Systems Integrity Intern from May 2001 to June 2002. 
I would like to take a moment and acknowledge [the petitioner's] significant contributions to Web 
Interaction and IP Contact Server projects, working on updating test procedures, performing 
validation and assisting in lab setup. 
While the preceding letters discuss the petitioner's job duties and work experience, they fail to establish that 
specific work attributable to him represents original contributions of major significance in his field. 
According to the regulation at 8 C.F.R. $ 204.5(h)(3)(v), an alien's contributions must be not only original but 
of major significance. We must presume that the phrase "major significance" is not superfluous and, thus, 
that it has some meaning. While the petitioner's software development skills are admired by his current and 
former employers, there is nothing in the record to demonstrate that he has made original contributions of 
major significance in his field consistent with sustained national or international acclaim. 
On appeal, the petitioner submits a March 23, 2007 from 
 , Chief Technology Officer, 
BarryBonds.com, stating: 
[The petitioner] architected and developed Barry Bonds application and 4040 club applications using 
the Ajax Bling Player for the mobile phones. The Barry Bonds application from the mobile phone 
connects to barrybonds.com website fetches [sic] journal entries and videos of Barry Bonds and 
displays it on the phone. The user has the option to select to play a video of a home run from a list of 
dated videos or read the journal entries from a list of dated journals of Barry Bonds, which was well 
received by the fans of Barry Bonds. 
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The letter from 
 goes on to discuss the display of the petitioner's work at the DEMO 
technology show. This discussion is identical to the fifth paragraph in Roy Satterthwaite's letter. It is not 
clear who is the actual author of the duplicative text in their letters of support, but it is highly improbable that 
these two individuals independently formulated the exact same wording. While it is acknowledged that these 
individuals have lent their support to this petition, it remains that one of them did not independently prepare a 
significant portion of his letter. As such, we find the duplicative statements to be of limited probative value. 
Regardless, there is no evidence showing that the software application the petitioner developed for 
BarryBonds.com qualifies as an original contribution of major significance in software engineering. 
In this case, the letters of support from the petitioner's current and former superiors are not sufficient to meet 
this criterion. The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful extraordinary ability claim. CIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comrnr. 1988). 
However, CIS is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; CIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796. Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation are important considerations. .Even when written by independent experts, letters solicited 
by an alien in support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance that one would expect of a software development engineer who 
has sustained national or international acclaim. Without evidence showing that the petitioner's work has been 
unusually influential, highly acclaimed throughout his field, or has otherwise risen to the level of 
contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence of the display of the alien 's work in theJield at artistic exhibitions or showcases. 
The petitioner submitted evidence showing that mobile phones using his software applications were displayed 
at the DEMO technology show and the CTIA wireless show, but there is no evidence establishing that such 
venues garnered him sustained national or international acclaim at the very top of his field. Nevertheless, the 
petitioner's field is not in the arts. The plain language of this regulatory criterion indicates that it applies to 
visual artists (such as sculptors and painters) rather than to software development engineers. The ten criteria 
in the regulations are designed to cover different areas; not every criterion will apply to every occupation. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has peflormed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted letters discussing his work experience for various employers. The record, however, 
includes no evidence showing that the companies for which the petitioner worked had distinguished 
reputations. With regard to the positions held by the petitioner, there is no evidence demonstrating how his role 
differentiated him from others 
 (such as other software development engineers), let alone 
more senior executives (such as 
 CEO, or Mike Uomoto, Vice President of Products, Bling 
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Software). The evidence submitted by the petitioner is not adequate to demonstrate that he was responsible for 
his employers' success or standing to a degree consistent with the meaning of "leading or critical role" and 
indicative of sustained national or international acclaim. 
In light of the above, the petitioner has not established that he meets this criterion. 
Eviclence that the alien has commanded a high salary or other signlJicantly high re~nuneration 
for services, in relation to others in the$eld. 
The February 19, 2007 letter from e states: "[The petitioner] commands a high salary for the 
mobile software development in the region employed. His compensation is $95,000.00 per annum apart from 
the shares in the company." On appeal, the petitioner submits a November 30, 2006 "Support Fee" receipt to 
Bling Software from GoTV Networks, Inc. in the amount of $12,500 for software developed by him. The 
plain language of this regulatory criterion, however, requires the petitioner to submit evidence showing that 
he has commanded a high salary "in relation to others in the field." The petitioner offers no basis for 
comparison showing that his compensation was significantly high in relation to others in his field. There is no 
indication that the petitioner has earned a level of compensation that places him among the highest paid chief 
software architects in the United States or any other country. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized award, or 
that he meets at least three of the criteria at 8 C.F.R. 8 204.5(h)(3). 
Review of the record does not establish that the petitioner has distinguished himself 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 is not persuasive that the petitioner's achievements set him 
significantly above almost all others in his field at a national or international level. Therefore, the petitioner 
has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be 
approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 9 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.