dismissed EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-K-B-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 21.2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
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)( 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 of the Nebraska Service Center denied the Form 1-140. Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied only tv~,o of the ten initial evidentiary criteria. of 
which he must meet at least three. 
On appeal, the Petitioner submits additional evidence and contends that he meets four criteria. 
Upon de novo 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 m 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 ofthe 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 two options for satisfying this classification's initial evidence 
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Matter of R-K-B-
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major. 
internationally recognized award). Alternatively, he or she must provide documentation that meets 
at least three ofthe ten categories of evidence listed at 8 C.F.R. ~ 204.5(h)(3)(i)-(x) (including items 
such as awards, memberships, and published material in certain media). 
Satisfaction of at least three criteria, however. does not, in and of itself: establish eligibility for this 
classification. See Kazarian v. USCJS, 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.O. Wash. 2011). aff"d. 683 
F.3d. 1030 (9th Cir. 2012); Matter qf Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) (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 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. 8 C.F.R. 
§ 204.5(h)(2)-(3). 
II. ANALYSIS 
The Petitioner is a software developer employed by as principal research engineer. 
As he has not established that he has received a major, internationally recognized award. he must 
satisfy at least three of the alternate regulatory criteria at 8 C.F.R. ~ 204.5(h)(3)(i)-(x). 
A. Evidentiary Criteria 
In denying the petition, the Director found that the Petitioner met the judging criterion at 8 C.F.R. 
§ 204.5(h)(3)(iv) and the authorship of scholarly articles criterion at 8 C.F.R. ~ 204.5(h)(3)(vi). The 
Director held that he had not met the contributions of major significance criterion at 8 C.F.R. 
§ 204.5(h)(3)(v) or the leading or critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii). We conclude 
that the evidence in the record indicates that he has reviewed manuscripts for several journals. 
authored articles that have appeared in professional publications. and performed a critical role f(Jr 
, an organization that has a distinguished reputation. Accordingly. the Petitioner has 
satisfied three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3 ). We will evaluate the totality of his 
documentary evidence in the context of the tina) merits determination below. 
B. Final Merits Determination 
As the Petitioner has submitted the requisite initial evidence, we will evaluate whether the Petitioner 
has demonstrated, by a preponderance of the evidence, that he has sustained national or international 
acclaim and is one of the small percentage at the very top of the Jield of endeavor. and that his 
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Matter of R-K-B-
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 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. In this matter, we determine that the Petitioner has not shown his eligibility. 
The 
record indicates that the Petitioner received his Ph.D. degree in mechanical engineering from the 
in 2008 and is employed as principal research engineer for He 
focuses on improving software which is used to predict how products 
will react to physical or environmental forces. As mentioned above, the Petitioner has revie\ved 
manuscripts, authored scholarly articles, and performed a critical role for an organization that has a 
distinguished reputation. However, the Petitioner has not demonstrated that his achievements are 
reflective of a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 
101-723,59 (Sept. 19, 1990). 
Regarding the Petitioner's participation as a judge of others· work, an evaluation of the significance 
of his judging experience is sanctioned under Kazarian. 596 F. 3d at 1121-11. to determine if such 
evidence is indicative of the extraordinary ability required for this highly restrictive classification. 
Participation in the peer review process does not automatically demonstrate that an individual has 
sustained national or international acclaim at the very top of his field. Here. the record indicates that 
the Petitioner has received and completed independent requests to review six papers for publication 
in the and the 
and six technical publications for 
technical conferences. The record indicates that these reviews took place in 2014 and 
2016. The Petitioner has not submitted evidence demonstrating that he has a consistent history of 
completing a substantial number of review requests relative to others in his field. In addition. the 
Petitioner states that he served as a judge of the work of others as the 
committee at the in 2014. but he has not established that 
his peer review experience places him among that small percentage at the very top of the field of 
endeavor. See 8 C.F.R. § 204.5(h)(2). The Petitioner has not shown that this level of judging 
experience reflects the required sustained national or international acclaim. See section 203(b)( 1 )(A) 
of the Act. 
With regard to the Petitioner's authorship of scholarly articles, he presented evidence showing that 
he authored 12 articles from 2003 to 2014. The Petitioner also submitted an 
report to demonstrate how his citation count compares to others in the field. 
While the Petitioner appears to have commendable publication levels within the computer science 
field for 2008 and 2009, the Petitioner's publication record and citation evidence in the years that 
follow do not establish sustained national or international acclaim. Section 203(b )( 1 )(A) of the Act: 
8 C.F.R. § 204.5(h)(3). 
The Petitioner states that in a request for evidence the Director compared his citation level to that of 
a leading researcher at whose work has received 1. 981 citations. In the 
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Matter of R-K-B-
Director's decision, he stated that the number of citations to the Petitioner's work do not substantiate 
contributions of major significance in the field when compared with leading scientists in the field. 
whose publications according to Google Scholar are in the thousands. The Petitioner states that a 
comparison of his citations to those of is unreasonable due to the differences in their fields 
of research. The record includes a letter from in which he explains the differences 
between his position and that of the Petitioner and offers this as a reason why the two should not be 
compared. states that the Petitioner's field of simulation software development ''is 
geared towards 
creating new software capabilities for improved use by others and does not lend 
itself to frequent publication or a level of citation in the l.OOOs. ·· 
asserts that his level of citations should not be compared to that of the Petitioner because 
field is "visualization and user interface" which is a broader field that attracts more 
interest, including from the academic community, and lends itself more to publishing. He also states 
that his work in academia as a guest professor contributes to publishing more than working solely in 
the industry. While we acknowledge that the Petitioner's citations should not be compared against 
those of with an expectation that he have citations in the thousands, we find that the 
citations to the Petitioner's work do not demonstrate that he has sustained national or international 
acclaim under 8 C.F.R. § 204.5(h)(3). In addition, the Petitioner offers evidence on appeal 
demonstrating that his number of citations is higher than 14 other researchers at but he 
has not shown that this internal comparison places him in the small percentage of those who have 
risen to the very top of the field under 8 C.F.R. § 204.5(h)(2). 
While the Petitioner established that he has a critical role in an organization with a distinguished 
reputation, the record does not demonstrate how this has led to sustained national or international 
acclaim or placed him at the very top of his field. The record contains a letter from who 
describes the beginnings of with the specialization of Computer Aided Design (CAD) 
development. He explains that currently "CAD innovation and demand is plateauing and can no 
longer be exploited as a growth strategy for further states that "'the current 
trajectory for the company's growth is centered on the continued development and enhancement of 
and that the Petitioner "is relied upon by in the development of our Company"s 
primary growth strategy.'' This demonstrates a critical role within organization. but the 
record does not establish that the Petitioner's role in is commensurate \vith sustained 
national or international acclaim and that he is one of that small percentage who have risen to the 
very top of the field. Section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2)-(3). 
With respect to the Petitioner's original scientific contributions in the field. he submitted letters from 
representatives from two of customers. researchers in the field, and 
professionals and managers. For example, the Petitioner provides a letter from 
the Founder and Chief Technology Officer of stating that the Petitioner 
"developed a technique for accurate and efficient computation of view factors tor simulating cavity 
radiation problems." He further indicates, "Problems that would take several hours to complete 
simulation now take less than an hour with [the Petitioner's] technique. thereby improving the 
productivity of engineers." adds that "prior to [the Petitioner's] research, the 
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Matter of R-K-B-
package lacked the support of pyramid shape finite elements'' which are '·pm1icularly 
important for simulating the structural behavior of rubber-like materials due to their incompressible 
nature and behavior which is difficult to accurately predict." 
In his letter, the Engineering Manager for 
the Petitioner developed techniques to improve performance in 
"resulted in a 300% increase in the speed of finite clement calculations ... 
Petitioner "also developed a technique for parametric optimization in 
that "tremendously reduces the time required for a design cycle, thereby 
design the best possible mechanical components quickly and efficiently:· 
indicates that 
that 
states that the 
enabling engineers to 
The record also contains a letter from Product Manager - for 
who asserts that the Petitioner "was the first researcher to develop an 
evolutionary algorithm able to properly characterize the physical properties of injection molded 
plastic materials." He states that the Petitioner ''used his evolutionary algorithm to create the 
... which allows for injected tiber materials to be 
parameterized and sent over to the system for full structure calculations 
under different loading conditions." concludes that this development is .. highly 
significant as a wide variety of mechanical components are built with plastic materials such as 
automobile engines that use thermoplastic components.'' 
It is unclear how the authors of these letters, as end users of products. know the specific 
details regarding the Petitioner's contributions to products and how they are 
independently attributed to him instead of others on the development team. In his letter, 
Senior Product Manager over the Inventor Product Line, states that 
"research contributions in our industry are not publicly attributed to the individual, but rather the 
company and the company's products as a whole... Accordingly. we find that the letters from 
and do not demonstrate the extent of the Petitioner's original 
contributions as indicative of being among that small percentage at the very top of the field with 
sustained national or international acclaim. 
The Director concluded that the information from engineering websites about the developments in 
products does not have probative value because the Petitioner is not named in them. 
While also states that the media coverage about the company's products "is a result 
of [the Petitioner's] many original contributions towards topology optimization 
technology," the record does not demonstrate how the Petitioner's contributions to these products are 
directly attributable to him apart from the other developers at Therefore, the evidence in 
the record does not demonstrate that the Petitioner's contributions rise to the level of sustained 
national or international acclaim. 
The record also contains letters from two researchers in the field regarding the Petitioner· s work 
outside of the Director of 
and the Co-Director of the at the 
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Matter of R-K-B-
asserts that the Petitioner "'developed a technique for that 
provides an automated approach for design engineers to study and predict the performance of 
crankshafts." In addition, a Senior Member of Technical Staff in the 
at in He indicates 
that the Petitioner "developed a novel computer program that can design crankshafts of varying 
dimensions, then create finite elements along them.'' further notes that the Petitioner"s 
computer program "automated the time-consuming first step of for crankshaft design. making 
him one of the top researchers in the field of enhancing when he was just a master"s student." 
Neither letter, however, establishes what impact the Petitioner's contribution has had on the field. 
The Petitioner submits a letter from the Vice President of 
who states that "is a major client that relics on !the 
Petitioner's] improved stress response computation techniques for the 
software to transition from metal to composite materials without sacrificing strength and durability 
in airplane parts." also indicates that an oil and gas industry supplier 
based in Norway, relies on the Petitioner"s stress response improvements in the 
software. However, the record does not specify to what extent the Petitioner contributed to the 
and software and what aspects can be fully attributed to him as 
opposed to other developers. Furthermore, the record does not contain evidence from 
or about their reliance upon this software. uncorroborated 
statement does not establish the impact of the Petitioner's work on the tield. 
The Petitioner seeks a highly restrictive visa classification. intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. users has long 
held that even athletes performing at the major league level do not automatically meet the 
"extraordinary ability" standard. Matter qf Price, 20 I&N Dec. 953.954 (Assoc. Comm"r. 1994). 
While the Petitioner need not establish that there is no one more accomplished than him to qualify 
for the classification sought we find the record insufticient to demonstrate that he 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; 8 C.F.R. § 204.5(h)(2). 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility as an individual of 
extraordinary ability under section 203(b)(l)(A) ofthe Act. 
ORDER: The appeal is dismissed. 
Cite as Matter (?{R-K-B-, ID# 658750 (AAO Nov. 21, 2017)