dismissed EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 7, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software developer, seeks classification as an individual of extraordinary ability in 
the sciences. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. 
§ 1153(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, Texas Service Center, denied the Form l-140, Immigrant Petition for Alien Worker, 
concluding that the Petitioner had not satisfied any of the initial evidentiary criteria, of which he 
must meet at least three. 
The matter is now before us on appeal. In his appeal, the Petitioner submits additional 
documentation and a brief stating that he meets a one-time achievement, as well as at least three 
criteria. 
Upon de novo review, we will dismiss the appeal. 
l. LAW 
Section 203(b) ofthe Act states in pertinent part: 
(1) Priority workers. -- Visas shall 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, 
(b)(6)
Matter ofT-K-
(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). 
Satisfaction of at least three criteria, however, does not, in and of itself~ establish eligibility for this 
classification. See Kazarian v. US CIS, 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), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); 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"). Accordingly, where a 
petitioner submits qualifying evidence of a one-time achievement or under at least three criteria, we 
will determine whether the totality of 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. 
II. ANALYSIS 
T.he Petitioner is a software developer who was last employed at On 
appeal, the Petitioner maintains that he won a major, internationally recognized award under 8 
C.F.R. § 204.5(h)(3) and satisfies at least three of the alternate regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). Specifically, the Petitioner indicates that he meets the awards criterion at 8 
C.F.R. § 204.5(h)(3)(i), the published material criterion at 8 C.F.R. § 204.5(h)(3)(iii), the original 
contributions criterion at 8 C.F.R. § 204.5(h)(3)(v), and the scholarly articles criterion at 8 C.F.R. 
2 
(b)(6)
Matter ofT-K-
§ 204.5(h)(3)(vi). 1 We have reviewed all of the evidence in the record of proceedings, and it does 
not support a finding that the Petitioner received a one-time achievement or fulfills the plain 
language requirements of at least three criteria. 
A. One-Time Achievement 
Given Congress' intent to restrict this category to "that small percentage of individuals who have 
risen to the very top of their field of endeavor," the regulation permitting eligibility based on a one­
time achievement must be interpreted very narrowly, with only a small handful of awards qualifying 
as major, internationally recognized awards. See H.R. Rep. 101-723, 59 (Sept. 19, 1990), reprinted 
in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. The House Report specifically cited to the 
Nobel Prize as an example of a one-time achievement; other examples which enjoy major, 
international recognition may include the Pulitzer Prize, the Academy Award, and (most relevant for 
athletics) an Olympic Medal. The regulation is consistent with this legislative history, stating that a 
one-time achievement must be a major, internationally recognized award. 8 C.F.R. § 204.5(h)(3). 
The selection of Nobel Laureates, the example provided by Congress, is reported in the top media 
internationally regardless of the nationality of the awardees, reflects a familiar name to the public at 
large, and includes a large cash prize. While an internationally recognized award could conceivably 
constitute a one-time achievement without meeting all of those elements, it is clear from the example 
provided by Congress that the award must be global in scope and internationally recognized in the 
field as one of the top awards. 
The Petitioner did not initially request the Director to make a determination regarding eligibility for 
a one-time achievement. On appeal, the Petitioner states his receipt of the at the 
satisfies the one-time achievement requirement. According to the Petitioner's 
submitted documentation, the is an innovation and entrepreneurship competition for 
overseas that is co-sponsored by the 
and is organized by the 
Furthermore, the competition is open to existing students, graduates, and working professionals who 
have overseas experience, at least a master's degree, and an innovative start-up project. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3) requires the one-time achievement to 
be "a major, international[ly] recognized award." Although the competition is restricted to overseas 
, the Petitioner did not establish that the from the is 
recognized outside of China as a major award. The Petitioner did not, for example, present evidence 
indicating that the competition or prize is widely reported when compared to other major, globally 
recognized awards such as Oscar or Olympic medal winners. Accordingly, the Petitioner has not 
1 
We note that the Petitioner also claims the Director engaged in "intentional misconduct" by mailing the decision to the 
wrong address so he could not file a timely appeal and by making errors in his decision. The record of proceedings 
indicates that the Petitioner timely filed the appeal, and he states he has since received a copy of the decision. With 
regard to the asserted errors in the Director's decision, we review issues of eligibility on a de novo basis. 
3 
(b)(6)
Matter ofT-K-
demonstrated that he meets the requirements of a one-time achievement, and his 
at the will be addressed in the awards criterion below. 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
As discussed above, the Petitioner documented his receipt of the at the 
Because the record supports a finding that his prize is nationally recognized for excellence, the 
Petitioner 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 the fieldfhr which classification is sought. Such evidence 
shall include the title. date, and author qfthe material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The record reflects that the Petitioner presented screenshots of a video depicting an interview of him 
on that was also reproduced on In addition, the Petitioner submitted 
a screenshot of a video of him promoting his software application, on that 
. was also posted on The regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "published 
material" about the petitioner relating to his work. As video clips do not represent written or 
published material about the Petitioner, they do meet the plain language of this regulatory criterion. 
Moreover, the promotional video is about rather than about the Petitioner. Articles that 
are not about the petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 
2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a 
show are not about the actor). Further, although he listed the titles, dates, and authors of the material 
in his initial cover letter, the Petitioner's documentary evidence does not reflect these items. 
Similarly, the Petitioner provided a press release that was posted on and 
as well as a list of 25 websites that the Petitioner claimed reported on In 
response to the director's request for evidence, the Petitioner presented three additional screenshots 
that reflected the same press release. The press release does not contain the date and author of the 
material, as required, and it is regarding rather than about the Petitioner. 
The Petitioner also submitted a biographic page from a professional journal that provided 
information on the authors of a scholarly article. The article is about 
in commercial buildings and is not about the Petitioner. Moreover, the biographic page 
does not contain the title, date, and author. The submission of a biographic page that credits the 
authors of an article does not constitute published material about the Petitioner relating to his work 
2 
We will discuss those criteria the Petitioner has raised and for which the record contains relevant evidence. 
4 
(b)(6)
Matter ofT-K-
consistent with the plain language of this regulatory criterion. Accordingly, the Petitioner did not 
establish that he meets this criterion. 
Evidence of the alien's original scient(fic, scholarly, artistic. athletic. or business-related 
contributions o.fmajor sign(ficance in thefield. 8 C.F.R. § 204.5(h)(3)(v). 
On appeal, the Petitioner contends that he presented sufficient evidence showing that his software 
applications and systems· have been of major significance in the field. Specifically, the record 
indicates that the Petitioner presented evidence reflecting that his application had 3 743 
worldwide users and his website application had 2926 worldwide users. In addition, 
the Petitioner's article, ' 
was cited approximately 23 times by others. Moreover, his general 
was funded by the and his findings were 
published and presented at a conference. Finally, the Petitioner indicated that he created and 
refreshed software systems while employed at Based on a review of the record, 
the Petitioner has not established that his achievements amount to original contributions of major 
significance in the field consistent with the plain language of this regulatory criterion. 
Although he provided user statistics for his website applications, the Petitioner did not show that 
such 
usage is reflective of being majorly significant. Without evidence, for example, comparing the 
usage of other website applications to his work, the Petitioner did not demonstrate that his 
applications rise to the level of major significance. Moreover, as discussed under the published 
material criterion, the Petitioner submitted several press releases regarding The press 
releases, however, reflect promotional material for by the Petitioner rather than 
independent coverage of the application commenting on its significance in the field. 
Regarding the Petitioner's journal article, the Petitioner presented evidence from 
relating to his citations, two emails requesting additional information on the article, and samples of 
articles that cited to his own article. Generally, citations confirm that the field has taken some 
interest in one's work. A review of the sample articles and emails do not reflect that his work was 
singled out as particularly important. Rather, the Petitioner's article was utilized as background 
information to the authors' papers, and the emails requested a copy of the computer code and the 
name of the software he used. In this case, the Petitioner has not demonstrated that his citations and 
article, considered both individually and collectively, are commensurate with a contribution "of 
major significance in the field." 
Similarly, the Petitioner offers evidence of his presentation at the 
in Spain and invitations to attend two other conferences. Participation in 
conferences demonstrates that his findings were shared with others and may be acknowledged as 
original based on their selection for presentation. The record of proceedings, however, does not 
show that his presentations have been frequently cited by other researchers or have otherwise 
significantly impacted the field. Publications and presentations are not sufficient under 8 C.F.R. 
§ 204.5(h)(3)(v) absent evidence that they were of "major significance." Kazarian v. USCIS. 580 
5 
(b)(6)
Matter ofT-K-
F .3d 1030, 1036 (9111 Cir. 2009), afl'd in part, 596 F .3d 1115. ln 2010, the Kazarian court reatlirmed 
its holding that we did not abuse our discretion in our adverse finding relating to this 
criterion. 596 
F.3dat 1122. 
With regard to the , the record includes a letter from 
professor at the who stated that the Petitioner made independent 
discoveries regarding algorithms. Furthermore, indicated that he is "not allowed to 
disclose application details of his work and contributions." Although claims that the 
Petitioner's work has made a "significant research impact and economic impact," there is 
insufficient information in his letter to support his claims or show that the Petitioner's work has been 
of major significance in the field. 
As it pertains to the Petitioner submitted a letter from the 
company's lead quality assurance engineer, who stated that he collaborated with the Petitioner to 
create and maintain information services. In addition, indicated that the Petitioner was 
selected for the company's for his proposaL which was later implemented, to 
develop a novel internal The letter, however, does not establish that the Petitioner's 
influenced the field rather than having an impact that was limited to 
See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met this 
criterion because she did not corroborate her impact in the field as a \\"hole). 
The record of proceedings also contains other reference letters that discuss the Petitioner's original 
work. Although the letters praise his work, they do not explain how the Petitioner's contributions 
are "of major significance in the field." Specifically, the letters describe the Petitioner's 
contributions without showing how his work has significantly impacted or influenced the field, so as 
to establish that he has made original contributions of major significance. Instead, the letters discuss 
the potential impact that his applications may have on the field in the future. For instance, 
president of stated that the Petitioner's "new app platform will adopt the 
validated concept of sharing economy and connect millions of people," and "there is no doubt that 
this new app platform will promote education and career assistance and create millions of jobs for 
U.S." A petitioner cannot establish eligibility under this criterion based on the expectation of future 
significance. Given the descriptions in terms of future applicability and determinations that may 
occur at a later date, the actual impact on the field has yet to be determined. Eligibility must be 
demonstrated at the time of filing. 8 C.F .R. §§ 103 .2(b )(I), (12); Matter of Katigbak, 14 I&N Dec. 
45,49 (Reg'l Comm'r 1971). · 
Ultimately, letters that repeat the regulatory language but do not explain how a petitioner's 
contributions have already influenced the field are insufficient to establish original contributions of 
major significance in the field. Kazarian, 580 F.3d at 1036, aff'd in part, 596 F.3d at 1115. In 2010, 
the Kazarian court reiterated that the USCIS' conclusion that the "letters from physics professors 
attesting to [the petitioner's] contributions in the field" were insunicient was "consistent with the 
relevant regulatory language." 596 F.3d at 1 122. The letters considered above primarily contain 
attestations of the Petitioner's status in the field without providing specific examples of how those 
6 
(b)(6)
Matter ofT-K-
contributions rise to a level consistent with major significance in the field. Repeating the language 
of the statute or regulations does not satisfy a petitioner's burden of proof. Fedin Bros. Co:. Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), af('d, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). Moreover, 
USCIS need not accept primarily conclusory statements. 1756, Inc. v. The U.S Att 'y Gen., 745 F. 
Supp. 9, 15 (D.C. Dist. 1990). For these reasons, the Petitioner has not met his burden of showing 
that he has made original contributions of major significance in the field. 
Evidence of the alien's authorship ol scholarly articles in the .field. in prqfessional or major 
trade publications or other 
major media. 8 C.P.R. § 204.5(h)(3)(vi). 
As discussed above, the Petitioner authored an article that was published m 
Accordingly, the Petitioner meets this criterion. 
C. Summary 
The record only satisfies two of the regulatory criteria. As a result, the Petitioner has not submitted 
the required initial evidence of either a one-time achievement or documents that meet at least three 
of the ten criteria listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
Had the Petitioner satisfied at least three evidentiary categories, the next step would be a final merits 
determination that considers all of evidence 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.P.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. 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 
For the foregoing reasons, the Petitioner has not shown that he qualifies for classification as an 
individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-K-, ID# 237817 (AAO Mar. 7, 2017)