dismissed EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
InRe : 13951115 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a computer software and hardware development business, seeks to classify the 
Beneficiary, a software development engineering manager, as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(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 
Beneficiary satisfied at least three of the initial evidentiary criteria, as required, the Petitioner did not 
show the Beneficiary's sustained national or international acclaim and demonstrate that he is among 
that small percentage at the very top of the field of endeavor. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203 (b )( 1 )( A) of the Act makes visas available to 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 in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
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 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 that 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.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. 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). 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 of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
A. Evidentiary Criteria 
Because the Petitioner has not claimed or established that the Beneficiary has received a major, 
internationally recognized award, the Beneficiary must satisfy at least three of the alternate regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Director determined that the Petitioner met four of the 
claimed evidentiary criteria relating to original contributions at 8 C.F.R. § 204.5(h)(3)(v), scholarly 
articles at 8 C.F.R. § 204.5(h)(3)(vi), leading or critical role at 8 C.F.R. § 204.5(h)(3)(viii), and high 
salary at 8 C.F.R. § 204.5(h)(3)(ix). 
Although we do not concur with the Director's decision regarding the high salary criterion, the record 
reflects that the Beneficiary satisfies three of the evidentiary criteria. 1 As such, we will evaluate the 
totality of the evidence in the context of the final merits determination below. 2 
1 The Petitioner claimed the Beneficiary's eligibility for the high salary criterion based on his current salary as a software 
development engineering manager. However, the Petitioner compared the Beneficiary's salary to the salaries of non­
managerial software developers and did not establish that the Beneficiary commands a high salaiy in relation to other 
managerial software developers. Both precedent and case law support this application of 8 C.F.R. § 204.5(h)(3)(ix). See 
Matter of Price, 20 l&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's earnings versus other 
PGA Tour golfers); see also Skokos v. US Dept. of Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding 
salary information for those performing lesser duties is not a comparison to others in the field); Grimson v. INS, 934 F. 
Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. 
Supp. 440, 444-45 (N. D. Ill. 1995) ( comparing salary of NHL defensive player to salary of other NHL defensemen). 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
2 
B. Final Merits Determination 
As the Petitioner submitted the requisite initial evidence, we will evaluate whether the Petitioner has 
demonstrated, by a preponderance of the evidence, the Beneficiary's sustained national or 
international acclaim, 3 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 beneficiary'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 )(1 )(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also 
Kazarian, 596 F.3d at 1119-20. 4 In this matter, we determine that the Petitioner has not shown the 
Beneficiary's eligibility. 
The record reflects that the Beneficiary received a bachelor of engineering from the University of 
I I in 2000 and a master of science froml I University in 2004. The Petitioner provided 
its original job offer letter showing the Beneficiary's starting position as an iOS location tech software 
engineer in January 2012 and another letter confirming the Beneficiary's promotion to a senior 
mana er in 2017. According to the Beneficiary's curriculum vitae, he has also been employed with 
as a senior engineer since August 2007. In addition, he worked as a software engineer 
at.__ __ ~---~---------' from 2004 - 2007 and held research assistant positions while 
attending .__ ___ ,___,niversity from 2000 - 2004. Besides the Beneficiary's authorship of a few 
papers over 15 years ago, the filing concentrates almost entirely on the Beneficiary's employment with 
the Petitioner for the past 6 years. The record, however, does not demonstrate that the Beneficiary 
enjoys a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-
723, 59 (Sept. 19, 1990). 
As discussed further below, the Beneficiary made contributions while working for the Petitioner and 
simultaneously performed in a critical role. In describing and summarizing the Beneficiary's 
contributions and roles, I I senior director of sensitivity and connectivity for the 
Petitioner, stated: 
The Positioning team [ for the Petitioner] was already well aware of the challenges 
plaguing 9-1-1. Starting in 2014, [the Beneficiary] led the development and 
commercialization of [the Petitioner's] I I 
technology.I luses on-device algorithms and sensors to compute an emergency 
caller's location on the user's device more accurately, quickly, and reliably than 
traditional carrier-network-centric approaches. [The Beneficiary] also worked closely 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 13 (Dec. 22, 2010). 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (providing that objectively meeting the regulatory 
criteria in part one alone does not establish that an individual meets the requirements for classification as an individual of 
extraordinary ability under section 203(b)(l)(A) of the Act). 
3 See USCTS Policy Memorandum PM 602-0005.1, supra, at 14 (stating that such acclaim must be maintained and 
providing Black's Law Dictionmy 's definition of"sustain" as to support or maintain, especially over a long period of time, 
and to persist in making an effort over a long period of time). 
4 Id. at 4 (instructing 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 
of the immigrant classification). 
3 
with the wireless carriers to demonstrate the superiority ofl I over the carriers' 
own solutions, and in 2015, a mere few months after the FCC's [Federal 
Communications Commission] order, launched I I in the United States .... 
Through 2016 and 2017, [the Beneficiar and his team were instrumental in enablin 
the successful launches ~o~f ====-.=======;- the first mass-market 
I II I and....._ ______ __,the first 
mass-market connect1v1ty. In addition to bringing the 
benefits of DI I, and to these products, [the Beneficiary] 
and his team also contributed to [the Petitioner's..______.feature, which allows callers to 
reach emergency services and share their location with public safety and designated 
emergency contacts, even when they are unable to physically dial an emergency 
number .... 
In 2018, [the Beneficiary's] team launched~-----------_, to bring 
the benefit of [the Petitioner's JI I technology to emergency callers in the United 
~m, New Zealand, and 5 other European countries. Today,c=J is available on 
L___J andl I in over 16 countries and provides life-saving location data for 
over 200,000 calls daily. 
In that same year, [the Beneficiary's] team also developed! 0 , 
I I which uses a Next Generation 9-1-1 data pipeline froml l a New York 
startup, to make accurate I ldata available quickly and securely to the 9-1-1 center 
handling the call .... 
Also in 2018, [the Beneficiary] and his team worked closely witH LI land 
17teams at [the Petitioner to define thel I experience on thel I 
~ When enabled, the can detect a "hard fall" and automatically call 
emergency services. Based on~------~ team's inputsJ I Watch is 
designed to play an automated "voice over" message informing the 9-1-1-
telecommuter of the nature of the call and the caller's precise location .... 
[The Beneficiar leveraged his deep knowledge of I l emergency 
services, and · · structure and protocols, to devise a novel mechanism to 
convey the precis _~-~ location from a user's device to the network even before an 
emergency call is connected. This technique, called~------------.,,..........-­
enables carrier networks to use the caller's exact location, instead of the remote location 
4 
of a connected cell-tower, to instantaneously route the call to the relevant 9-1-1 
center .... 
[The Beneficiary] has also tirelessly championed the use of precise! I location to 
route emergency text messages, often referred to as I I, to the 
appropriate 9-1-1 center. This capability is particularly relevant to the Accessibility 
community and to users who might be unable to verbally request assistance .... 
The record also includes recommendation letters from others echoing I ~ s praises of the 
Beneficiary's achievements for the Petitioner. For instance,! I director of regulatory 
engineering and technology devllopmenyorl I detailed that the Beneficiary "was critical in the 
development of [ the Petitioner's] technology," and "[ the Beneficiary] and his team were also 
able to dramatically reduce the typical response time for many emergency location sessions to under 
10 seconds." Further,! I director of technology and compliance for indicated 
~e Beneficiary] led the team that worked closely withl b to prepare~----~ 
L___J which allows carrier networks to use the caller's exact location to determine the most relevant 
9-1-1 call center to route the user's voice call or text messa e to." In addition, ~------~ 
CEO for theL_ ______________ r----,..J stated that "[the Beneficiary] and his 
team worked with the national U.S. carriers to make~-~ available on [the Petitioner's] devices 
starting in 2015, and have since proven its ability to meet, and in some cases exceed, the 2021 
horizontal location requirements in independent industry tests." 
Although the letters praise the Beneficiary's recent work, the Petitioner did not establish how they 
demonstrate the Beneficiary's sustained national or international acclaim. See section 203(b )(1 )(A)(i) 
of the Act and 8 C.F.R. § 204.5(h)(3). The letters focus on the Beneficiary's immediate work without 
showing that the Beneficiary has enjoyed a career of acclaimed work in the field, placing him among 
that small percentage at the very top of the field of endeavor. See H.R. Rep. No. 101-723 at 59 and 8 
C.F.R. § 204.5(h)(2). The record is void of the Beneficiary's professional accomplishments with any 
other employers even though his employment in the field spans approximately 20 years. The 
commentary for the proposed regulations implementing section 203(b )(1 )(A)(i) of the Act provide that 
the "intent of Congress that a very high standard be set for aliens of extraordinary ability is 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). 
Likewise, the Petitioner also provided documentation showing: the Beneficiary and others listed as 
inventors on nine patents from 2016-2019, the Beneficiary's attendance at al[ ~ 
~ I Forum 2019, and a request for a presentation at the O • 
I.working Group Australia New Zealand in 2017. The Petitioner, however, did not 
demonstrate that the Beneficiary garnered significant or widespread attention from these events or 
explain how they reflect the Beneficiary's sustained national or international acclaim, indicating an 
individual in the upper echelon of his field. See section 203(b )(1 )(A)(i) of the Act and 8 C.F .R. 
§§ 204.5(h)(2) and (3). The Petitioner, for example, did not compare the Beneficiary's patents to 
others in the field or show how attending a single forum or speaking at a solo working group 
establishes the recognition of the Beneficiary as among that small percentage who has risen to the very 
top of the field. See 8 C.F.R. § 204.5(h)(2). 
5 
Regarding his publication history, the Petitioner presented evidence showing that the Beneficiary 
authored five papers during his graduate work atl I University from 2003 - 2004. However, 
the Petitioner did not demonstrate that the Beneficiary's publication record of five articles over 15 
years ago is consistent with having a career of acclaimed work and sustaining national or international 
acclaim. 5 The Petitioner did not submit evidence showing the significance of the Beneficiary's 
authorships or how his overall publications compare to others who are viewed to be at the very top of 
the field. See H.R. Rep. No. at 59, section 203(b)(l)(A)(i) of the Act, and 8 C.F.R. § 204.5(h)(3). 
Without evidence that sets the Beneficiary apart from others in his field, such as evidence that he has 
a consistent history of publishing articles in prestigious journals, the Petitioner has not shown that the 
Beneficiary's publications reflect being among the small percentage at the very top of his field. See 8 
C.F.R. § 204.5(h)(2) and 56 Fed. Reg. at 30704. 
Moreover, the citation history or other evidence of the influence of the Beneficiary's written work can 
be an indicator to determine the impact and recognition that his publications have had on the field and 
whether such influence has been sustained. For example, numerous independent citations for an article 
authored by the Beneficiary may provide solid evidence that his work has been recognized over a 
period of time. Such an analysis at the final merits determination stage is appropriate pursuant to 
Kazarian, 596 F. 3d at 1122. The Petitioner submitted evidence indicating that others have cited to 
his articles 22 times. While the citation of the Beneficiary's written work shows that a few have 
noticed it, the Petitioner has not established that such citations are sufficient to demonstrate a level of 
interest in the field commensurate with sustained national or international acclaim. See section 
203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(3). In addition, the Petitioner has not demonstrated 
that the limited citations to the Beneficiary's work represent attention at a level consistent with being 
among that small percentage at the very top of his field. See 8 C.F.R. § 204.5(h)(2) and 56 Fed. Reg. 
at 30704. 
Beyond the three criteria that the Beneficiary satisfied, we consider additional documentation in the 
record in order to determine whether the totality of the evidence demonstrates eligibility. For the 
reasons discussed below, the evidence does not establish that the Beneficiary has sustained national 
or international acclaim and is among the small percentage of the top of his field. 
The Petitioner indicated that the Beneficiary received! l's "President Award for Commitment to 
I !Industry" in 2019. Besides letters explaining wh~ I bestowed the award upon the 
Beneficiary, the Petitioner did not demonstrate the recognition or significance of the recent award on 
a national or international scale, contributing to the Beneficiary's sustained national or international 
acclaim. See section 203(b )(1 )(A) of the Act and 8 C.F.R. § 204.5(h)(3). Further, the Petitioner did 
not establish that the Beneficiary's immediate receipt of a single award reflects a career of acclaimed 
work in the field, placing him among that small percentage at the very top of the field of endeavor. 
See H.R. Rep. No. 101-723 at 59 and 8 C.F.R. § 204.5(h)(2). 
Finally, as previously indicated, the Petitioner did not establish that the Beneficiary commanded 
earnings commensurate with sustained national or international acclaim. See section 203(b)(l)(A) of 
5 See also USCIS Policy Memorandum PM 602-0005.1, supra, at 13 (providing that publications should be evaluated to 
determine whether they were indicative of being one of that small percentage who has risen to the very top of the field of 
endeavor and enjoying sustained national or international acclaim). 
6 
the Act and 8 C.F.R. § 204.5(h)(3). The Petitioner did not show that the Beneficiary's wages are 
tantamount to an individual who is among that small percentage at the very top of the field of endeavor. 
See 8 C.F.R. § 204.5(h)(2). For example, the Petitioner did not demonstrate how the Beneficiary's 
salary compared to others at the very top of his field, or that he received notoriety or attention based 
on his earnings separating himself from others in the field or placing him in the upper echelon. In 
addition, the Petitioner did not document the Beneficiary's high earnings from other employers, 
showing a consistent history and recognition from the field of the Beneficiary's extraordinary ability. 
See 56 Fed. Reg. at 30704. 
The record as a whole, including the evidence discussed above, does not establish the Beneficiary's 
eligibility for the benefit sought. Here, the Petitioner seeks a highly restrictive visa classification for 
the Beneficiary, intended for individuals already at the top of their respective fields, rather than those 
progressing toward the top. Even major league level athletes do not automatically meet the statutory 
standards for classification as an individual of "extraordinary ability." Price, 20 I&N Dec. at 954. 
While the Petitioner need not establish that there is no one more accomplished to qualify for the 
classification sought, the record is insufficient to demonstrate that the Beneficiary has sustained 
national or international acclaim and is among the small percentage at the top of his field. See section 
203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(2). 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's eligibility as 
an individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
7