dismissed EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 3, 2025 In Re: 35367285 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a software developer and entrepreneur, seeks classification as an alien of extraordinary 
ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. 
§ l l 53(b )(1 )(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is in the small 
percentage at the very top of the field. The Director also concluded that the Petitioner had not 
established that his entry would substantially prospectively benefit the United States. The matter is 
now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b )( 1)(A) of the Act makes immigrant visas available to aliens with 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 . These aliens must seek to enter the United States to continue work in the 
area of extraordinary ability, and their entry into the United States will substantially benefit the United 
States. The term "extraordinary ability" refers only to those aliens in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
international recognition of their achievements in the field through a one-time achievement in the form 
of a major, internationally recognized award. Or the petitioner can submit evidence that meets at least 
three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x), including items such as awards, 
published material in certain media, and scholarly articles. If those standards do not readily apply to 
the alien's occupation, then the regulation at 8 C.F.R. § 204.5(h)(4) allows the submission of 
comparable evidence. 
Once a petitioner has met the initial evidence requirements, the next step is a final merits 
determination, in which we assess whether the record shows sustained national or international 
acclaim and demonstrates that the alien is among the small percentage at the very top of the field of 
endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (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). 
A petitioner must also establish that the alien's entry into the United States will substantially benefit 
prospectively the United States. Section 203(b)(l)(A)(iii) of the Act. 
IT. ANALYSTS 
The Petitioner seeks employment as the chief executive officer (CEO) ot1 Iwhich does 
business under the name IThe Petitioner earned a bachelor of engineering degree in 
2005. The Petitioner stated that he "has worked in leading technology firms in the area of [SAP] 
enterprise level technology and data modeling. . . . [W]hat stands out most [in his career] is his most 
recent use of this technology in the building of an ERP software platform for the cannabis industry." 
Since 2008, the Petitioner has worked intermittently in the United States in H-lB nonimmigrant status 
for different employers, most recently for 1 
A. Final Merits Determination 
The Petitioner initially claimed to have satisfied seven of the initial criteria at 8 C.F.R. § 204.5(h)(3), 
summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (iii), Published material about the alien in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director determined that the Petitioner had satisfied three of the criteria, pertaining to participation 
as a judge, authorship of scholarly articles, and a leading or critical role. 
1 The Petitioner is also the beneficiary of two previously approved innnigrant petitions, both filed by his then-cunent U.S. 
employers, seeking to classify him as a member of the professions holding an advanced degree. The first petition was filed and 
approved in July 2014; the second was filed in August 2017 and approved in June 2018. 
2 
Because the Petitioner submitted the required initial evidence, we evaluate whether he has 
demonstrated, by a preponderance of the evidence, his sustained national or international acclaim and 
that he 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 their 
successes are sufficient to demonstrate that they have extraordinary ability in the field of endeavor. 
See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 
1119-20. 2 In this matter, we agree with the Director's determination that the Petitioner has not 
established eligibility. 
The record shows that the Petitioner has written two textbooks about the use of SAP enterprise software. 
The books' publisher asserted that the Petitioner is among the publisher's bestselling authors, and that the 
Petitioner's books have sold about 5,900 copies. The Petitioner did not provide comparative data to show 
how the sales figures rank not only within one independent publishing company, but within the broader 
field as a whole. 
The Petitioner's initial submission included a letter froml Ioffering the Petitioner the position 
of CEO at a salary of $200,000 per year, effective January 2022. The letter identifies the Petitioner's 
spouse as the president ofl IThe Petitioner's resume indicates that he had worked for 
since 2019, but does not specify his title before 2022. Atl Ithe Petitioner developed 
a software platform focused on the cannabis industry. 
In the final merits determination, the Director acknowledged the Petitioner's "development of an SAP 
software program" and his establishment of The Director concluded that, although 
"the petitioner has developed a computer platform which has generated business interest and ... he has 
made contributions of merit," "the record does not differentiate the petitioner amongst other similarly 
advancing SAP computer platform developers/leaders to show that he has garnered a career of acclaimed 
work of such preeminence and distinction as to elevate him to that small percentage at the very top of the 
field of endeavor." 
The Director concluded that the Petitioner had not submitted "probative documentary evidence" to 
support the claim that "his SAP software programs are being utilized by other members of the farming 
industry." The Director acknowledged I I status as a vendor of another company's integration 
software, but the Director concluded that the Petitioner had not shown that this status as a vendor 
demonstrates sustained national or international acclaim or otherwise establishes extraordinary ability. 
On appeal, the Petitioner asserts that he has submitted sufficient evidence to show that his "work on the 
SAP/ERP platform has earned him sustained national acclaim within the U.S. and International 
agricultural sector." The Petitioner contends that the Director disregarded persuasive evidence and 
"focus[ed] too narrowly on comparisons" with others in his field. 
2 See generally 6 USC1S Policy Manual F.2(B)(2), https://www.uscis.gov/policy-manual (stating that USCIS officers 
should then evaluate the evidence together when considering the petition in its entirety to determine if the petitioner has 
established, by a preponderance of the evidence, the required high level of expertise for the immigrant classification). 
3 
It is the petitioner's responsibility on appeal to specifically identify erroneous conclusions of law and 
statements of fact. See 8 C.F.R. § 103.3(a)(l)(v). The relevant portion of the Petitioner's appellate brief 
contains few such details, which we will address below. 
The most specific detail in the appellate brief relates to documents in the record indicating that The 
had offered to acquirel I while retaining the Petitioner's services as chief 
technology officer at a salary of $200,000 per year. 
The Director took these materials into account in the denial notice, stating: "In 2021 the petitioner sold 
to for $ l million dollars [sic] and installed the petitioner as 
the Chief Technology Officer." 
The Petitioner had initially claimed that the proposed acquisition of I qualifies as a nationally 
or internationally recognized prize or award as described at 8 C.F.R. § 204.5(h)(3)(i). We will not discuss 
this aspect of the claim, except where necessary for context, because the issue before us on appeal 
concerns the final merits determination rather than the underlying evidentiary criteria. But we will 
consider the information about the proposed acquisition to the extent that it could reflect the Petitioner's 
national or international acclaim. 
The record does not indicate that the acquisition actually occurred. The Petitioner and his spouse, 
identified respectively as president and owner ofl I signed a March 2021 letter of intent 
regarding the proposed acquisition. The letter indicates that the arrangement "will automatically 
terminate ... on August 1, 2021" unless the parties execute the agreement before that date. 
The asset purchase agreement in the record would have transferred I I assets to I I in 
exchange for a 4% interest inl land a deferred payment ofup to $1 million, to be paid in four annual 
installments oncel I annual income exceeds the proposed payment amount. An email message 
from the CEO ofl Iclarified that I Iwould become eligible for these payments "once 
profitable" ( emphasis in original). But the submitted copy of the acquisition agreement is unsigned. The 
Petitioner did not submit evidence of the transfer of shares or payments from ItoI l and 
on appeal, the Petitioner refers to "the potential sale" and does not state that the sale took place. 
In a request for evidence (RFE), the Director stated: "USCIS has considered the merger payout amount 
and the self-petitioner's [ offered] compensation, but notes that no evidence has been provided to show 
that these amounts are greater than comparable mergers or acquisitions in the computer field for similar 
intellectual property." 
In response, the Petitioner asserted: 'There is nothing in the regulations or case law which show that such 
an award has to be compared with other such awards." The Petitioner's argument was focused on the 
requirements of the "award" criterion at 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner did not address the separate issue of how the terms of the proposed acquisition might relate 
to the extent ofthe Petitioner's acclaim and recognition. The Petitioner's RFE response statement devoted 
three paragraphs to "Part Two of the Two-Part [Kazarian] Analysis." This section of the RFE response 
did not discuss or address the proposed acquisition. 
4 
In the denial notice, the Director repeated the passage from the RFE indicating that the Petitioner had not 
established that the proposed acquisition terms demonstrate sustained national or international acclaim. 
On appeal, the Petitioner states that the Director "fail[ed] to acknowledge the significance of [the 
Petitioner's] role as Chief Technology Officer and the business success associated with the potential sale 
of to 
But, as explained above, the Petitioner did not establish the significance of the proposed acquisition when 
specifically asked to do so in the RFE. A comparison with other business transactions may, as the 
Petitioner asserted, be irrelevant within the context of the "awards" criterion, but in a final merits 
determination, the Petitioner must establish that the record as a whole establishes sustained national or 
international acclaim and places him at the very top of the field. 
The Petitioner did not establish that, or explain how, an offer of a 4% ownership interest and a contingent 
payment of $1 million is characteristic of the required acclaim and recognition. In terms of "the business 
success associated with the potential sale," the wording of the agreement and related documents indicate 
thatl I was not yet "profitable" at the time of the offer in 2021. The Petitioner has neither 
established that the acquisition took place nor explained why it did not occur. The Petitioner has not 
demonstrated that an expression of interest in purchasing the company at the terms stated, itself, 
demonstrates acclaim. 
Also on appeal, the Petitioner asserts that he had submitted "multiple letters from industry leaders, 
including those who are well-placed to comment on the broad significance of his contributions." The 
Director acknowledged these letters in the RFE and in the denial notice, concluding that they establish 
"business interest" in the Petitioner's software platform but do not establish that he is an acclaimed figure 
at the top of his field. 
The Petitioner's general assertion on appeal that he submitted "multiple letters from industry leaders" to 
show "the broad significance of his contributions" lacks specificity. The Petitioner has stated that he 
disagrees with the Director's conclusions but does not point to specific details that show those conclusions 
to be in error. Furthermore, the assertion that the letters are "from industry leaders" is, itself, a claim 
requiring evidentiary support rather than an uncontested fact. Statements in a brief, motion, or Notice of 
Appeal are not evidence and thus are not entitled to any evidentiary weight. Matter ofS-M-, 22 I&N Dec. 
49, 51 (BIA 1998). 
The Petitioner submits two further letters on appeal, both from customers who state that the 
I I software platform has helped them to make their businesses more efficient and productive. The 
Petitioner also submits a contract and related documentation for another customer. These documents are 
not material to the appeal. The issue on appeal is not whether the Petitioner has developed useful 
software, but whether, in doing so, he has achieved sustained national or international acclaim that places 
him at the very top of his field. The letters on appeal do not show that the Petitioner has achieved national 
or international acclaim. 
The Petitioner contends that "the denial ... focused on the perceived lack of singularly extraordinary 
achievements rather than considering the cumulative impact of [the Petitioner's] career." As above, this 
is a broad and general statement. 
5 
In all cases, the petitioner must provide sufficient context to establish the person's extraordinary ability 
in the totality of the circumstances. This means that the petitioner must explain the significance of the 
submitted evidence, and how it demonstrates that the person has achieved sustained national or 
international acclaim and recognition in their field of expertise. See generally 6 USCIS Policy Manual 
F.2(B)(2), https://www.uscis.gov/policy-manual. Without more specific information, it cannot suffice 
for the Petitioner to assert, on appeal, that the Director did not consider "the cumulative impact of [the 
Petitioner's] career." The Petitioner must explain both what that impact has been, and how the record 
shows it. Here, the Petitioner has not done so. 
The Petitioner asserts that the "major significance ... [ of] his pioneering work with SAP/ERP software 
for the agricultural industry [is] evidenced by multiple citations, business achievements, and industry 
adoption in nine U.S. states." These assertions relate to the Petitioner's prior claim to have satisfied the 
requirements of 8 C.F.R. § 204.5(h)(3)(v), relating to original contributions of major significance in the 
field. The Director concluded that the Petitioner had not satisfied that criterion's requirements, and the 
satisfaction of a fourth initial evidentiary criterion would not establish acclaim in the final merits 
determination. 
In the context of the "original contributions" criterion, the Director addressed the citations, letters, and 
the proposed acquisition by I I devoting several paragraphs of the decision to explaining to 
conclusion that the evidence does not suffice to meet the regulatory requirements. The general assertion 
that the Director should have come to a different conclusion does not establish that the Director erred. 
In the context ofthe final merits determination, the Director stated that the Petitioner had not corroborated 
key assertions regarding the extent of the adoption of his software platform. For instance, the Petitioner 
stated that "his company has been approved by half a dozen states as an official METRC Integration 
vendor. This is a significant achievement that not many individuals or companies can achieve." 
The Petitioner's response to the RFE included press releases froml Iindicating that METRC 
approved the company as "a Validated Integration Vendor" in several states. METRC software assists 
cannabis businesses with state regulatory compliance. The Petitioner did not submit objective 
documentation to show that I Istatus as a vendor of this third-party software "is a significant 
achievement" that points toward the Petitioner's sustained national or international acclaim. 
On appeal, the Petitioner asserts: "it is not required that a petitioner demonstrate acclaim equal to that of 
globally recognized superstars in the field." The Director did not require "global" recognition in the 
denial notice. Rather, the Director noted that the regulation at 8 C.F.R. § 204.5(h)(2) requires an alien to 
be "at the very top of the field," and, as a result, the classification is "highly restrictive." 
The burden is on the Petitioner to establish that he is not only successful, but nationally or internationally 
acclaimed. The Petitioner, on appeal, has not shown that he has met that burden. 
B. Substantial Prospective Benefit 
The Director determined that the Petitioner had not established that his entry would substantially 
prospectively benefit the United States, because 
a core function of his business is to support the cannabis 
6 
industry, and cannabis remains a federally prohibited controlled substance. The Director concluded that 
the Petitioner had not established "that his employment would not contravene federal ... law." The 
Director also made the broader determination, aside from cannabis laws, the Petitioner did not "provide 
either details, facts or opinions which address exactly how the petitioner's work will provide a benefit to 
the U.S. prospectively." The Petitioner disputes this conclusion on appeal. 
We agree with the Director that the Petitioner has not established the necessary national or 
international acclaim in the final merits determination. This conclusion is sufficient, by itself, to 
determine the outcome of the appeal. Detailed discussion of the separate "prospective benefit" issue 
cannot change that outcome. Therefore, we reserve this issue. 3 
III. CONCLUSION 
The Petitioner seeks a highly restrictive visa classification, intended for aliens already at the top of 
their respective fields, rather than for those progressing toward the top. Here, the Petitioner has 
provided information about his business endeavors, but has not provided sufficient evidence to show 
a degree of recognition of his work that rises to the level of sustained national or international acclaim 
and demonstrate a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. 
No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) of the Act. Moreover, the record does 
not otherwise demonstrate that the Petitioner is one of the small percentage who has risen to the very 
top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
The Petitioner has not demonstrated eligibility as an alien of extraordinary ability. We will therefore 
dismiss the appeal. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessmy to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 
n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
7