dismissed EB-1A Case: Software Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: Office: TEXAS SERVICE CENTER Date: APR 2 8 2005 
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. 5 1 153(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. 
A Robert P. Wiemann, Director 
Administrative Appeals Ofice 
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 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 
the sciences. The director determined the petitioner had not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively the 
United States. 
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. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that 
the petitioner must show that he has earned sustained national or international acclaim at the very top level. 
This petition, filed on November 13, 2002, seeks to classify the petitioner as an alien with extraordinary 
ability as a software engineer. At the time of filing, the petitioner was working as a Senior Software Engineer 
with Supra Telecom of Miami, Florida. We note here that the statute and regulations require the petitioner's 
acclaim to be sustained. The record reflects that the petitioner has been residing in the United States since 
2000. Given the length of time between the petitioner's arrival in the United States and this petition's filing 
date, it is reasonable to expect the petitioner to have earned national acclaim in the United States during that 
time. The petitioner has had ample time to establish a reputation in this country. 
The regulation at 8 C.F.R. 8 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 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. The petitioner has submitted evidence that, he claims, meets the following criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted multiple award certificates and honorable diplomas (accompanied by English 
translations) that were presented to him during the 1980's in Kiev, Ukraine. Many of these certificates were 
pre-printed "form" documents with the petitioner's name entered into blank spaces. The record does not 
indicate how many engineers received these awards, but the existence of "form" certificates suggests multiple 
winners. Several awards refer to the petitioner as "The best young specialist of the branch" or indicate that he 
earned recognition at a "conference of young scientists and specialists." In regard to such awards, we note 
that the petitioner faced competition only from his approximate age group within his field, rather than from 
throughout his field. Such awards offer no meaningful comparison between the petitioner and the most 
experienced and practiced engineers in the field. It is further noted that many of the petitioner's awards were 
presented by the "'Mayak' Kiev Scientific and Industrial Association" or the "Scientific Research Institute of 
Electro Mechanical Instruments.'' Such awards are reflective of institutional or regional recognition, rather 
than national or international recognition. 
In response to the director's request for evidence, the petitioner submitted documentation showing that he 
received an "Inventor of the U.S.S.R." medal in 1988. The petitioner submitted no evidence showing the 
significance of this medal. 
The petitioner's response also included a letter indicating that he commenced employment with Lexar Media, 
Inc. in August 2003. In the JanuaryIFebruary 2004 issue of Photoelectric Imaging Magazine (circulation data 
not provided), Lexar Media was announced as winning that magazine's 2003 Cool2 Award for its "Data 
Recovery" application, Image Rescue 2.0. This evidence, however, came into existence subsequent to the 
petition's filing date. A petitioner must establish eligibility at the time of filing. 8 C.F.R. tj 103.2(b)(12); see 
Matter of Katigbak, 14 I&N Dec. 45 (Cornm. 1971). Aside from the issue of the date that this evidence came 
into existence, we note that the petitioner's name does not appear in the Photoelectric Imaging Magazine 
article. A letter from Neal Galbo, Senior Director, Advanced Product Group, Lexar Media, Inc., notes that 
the petitioner was "responsible for coding the Microsoft Windows version of. . . Image Rescue," but there is 
no indication that the petitioner was the leading force behind the data recovery aspect of the product (for 
which Lexar Media earned the award). 
The significance and importance of the award certificates, honorary diplomas, and "Inventor of the U.S.S.R." 
medal are not self-evident. The petitioner offers no supporting evidence showing that theses certificates 
constitute top honors in the engineering field at the national level. It should be emphasized that the petitioner 
must submit documentary evidence showing the degree of recognition accorded to his awards. The evidence 
provided does not indicate the total number of awards presented at each event, how many other individuals 
were similarly recognized, the criteria used in determining recipients, or the level of media coverage 
associated with the award presentations. We note here that section 203(b)(l)(A)(i) of the Act requires 
extensive documentation of sustained national or international acclaim. Pursuant to the statute, the petitioner 
must provide adequate evidence to establish that the certificates presented under this criterion enjoy 
significant national or international stature. Simply alleging that an award is nationally recognized cannot 
suffice to satisfy this criterion. In this case, the petitioner has not shown that his awards were significant 
beyond the context of the event where they were presented. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in thejeld for which classiJication is sought. Such evidence 
shall inclwle the title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this 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 level from a local publication. Some newspapers, such as the New York Times, 
nominally serve a particular locality but would qualify as major media because of significant national distribution, 
unlike small local community 
The petitioner submitted four articles appearing in the newspaper Peredovik during the 1980's. The petitioner 
states that this newspaper "had about 4,000 subscribers." Absent evidence of its significant national 
distribution, we cannot conclude that Peredovik qualifies as major media. It is further noted that the statute and 
regulations require the petitioner's acclaim to be sustained. The record contains no evidence showing that the 
petitioner has been the primary subject of major media articles published subsequent to the 1980's. 
Evidence of the alien's original scientzjic, scholarly, artistic, athletic, or business-related 
contributions of major signzjicance in thejeld. 
The petitioner submitted evidence showing that he authored several patents in the U.S.S.R. during the 1980's. 
Of far greater relevance than the existence of an approved patent is the importance to the greater field of the 
petitioner's innovation. The granting of a patent documents that an innovation is original, but not every 
patented invention or innovation constitutes a significant contribution to one's field. The petitioner must 
show not only that his innovation is important to the institution that funded his work, but throughout the 
greater electrical engineering field. The record contains no evidence showing that that the innovations 
described in the petitioner's patents are being widely utilized on a national or international scale, or that his 
patented innovations were hailed by engineers throughout the industry as a major contribution. 
The petitioner also submitted several witness letters in support of the petition. 
Adnan Zejnilovic, Vice President of Information Technology and Chief Information Officer, Supra Telecom, 
states: 
' 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, cannot 
serve to spread an individual's reputation outside of that county. 
[The petitioner's] contributions to my department have been many and significant. Following are just a 
few examples of how his accomplishments are enabling Supra Telecom gain [sic] competitive edge in 
the telecom market: 
Designed both system and software architecture for Supra Telecom's next generation systems. . 
Lead the development of complex software programs using Visual C++, SQL Server, DCOM, and 
Java where he demonstrated remarkable technical knowledge. 
Evenor Ponce, Software Engineer, Supra Telecom, states: "[The petitioner's] algorithms and developed 
software increased system performance in Supra Telecommunications by at least ten times." 
Neal Galbo states: "I hired [the petitioner] during August 2001 as a software engineer, in response to our 
needs for an engineer with a strong software background and the experience and ability to write commercial 
grade application programs for Microsoft Windows based platforms and to assist other engineers in the 
group." 
Vitaliy Timkiv, Software Engineer, SaM Solution, Kiev, Ukraine, states that he has known the petitioner 
since 1996. He further states: "Some sample projects we worked on together were the Scheduling System for 
Delta Airlines, Media Face 2 for Neato LLC. . . . During these projects [the petitioner] showed strong 
knowledge of technologies and programming languages . . . ." 
Anatoliy Ksyunz, now a Senior Systems Engineer at Video King Gaming Systems, states: 
I know [sic] the petitioner since 1989 when he joined Information Signaling System department of 
Electronpribor Design Bureau (an avionics design company) as a System Architect and Team Leader. I 
held a position at Electronpribor Design Bureau at that time. 
In my opinion one of the most significant [of the petitioner's] achievements was ELS-218 project. This 
project was on the "cutting edge" (technologically and conceptually) in avionics design. . . . For the 
first time information technology was introduced to onboard systems. [The petitioner] was one of the 
five best engineers in the company . . . . 
The petitioner may have benefited various projects undertaken by his employers, but his ability to 
significantly impact the field beyond his employers' immediate projects has not been adequately 
demonstrated. 
Unlike the prior witnesses, two witnesses do not appear to have worked directly with the petitioner. 
Tom Archer, Archer Consulting Group, Inc., states: 
I can state with conviction that [the petitioner's] technical skills are extremely strong. [The petitioner] 
authored a very popular online article that illustrated how to perform a technical task that most people 
would have thought impossible. 
Based on his article and my many technical discussions with [the petitioner], I'd like to express my 
support . . . . 
Edward Gadziemski, Managing Partner, SoftGee LLC, also comments on an online article posted by the 
petitioner. He states: "I'd like to give my support to [the petitioner] for the incalculable amount of time his 
article saved my firm on a software development project. In fact, [the petitioner's] article proved an 
inspiration for the series of articles I personally wrote about how to use OLE DB with WTL." 
Articles authored by the petitioner fall under the "authorship of scholarly articles" criterion. Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate criteria 
exist for published work and contributions, Citizenship and Immigration Services (CIS) clearly does not view 
the two as being interchangeable. If evidence sufficient to meet one criterion mandated a finding that an alien 
met another criterion, then the requirement that an alien meet at least three criteria would be meaningless. We 
will fully address the petitioner's authorship of articles under the next criterion. 
Only two of the above individuals have not worked with the petitioner. The absence of substantial 
independent testimony raises doubt as to the extent of the petitioner's reputation. In order to qualify for the 
classification sought, the petitioner must demonstrate that he is acclaimed and respected not only by those 
close to him, but throughout the national or international software engineering community as a whole. With 
regard to the personal recommendation of individuals from institutions where the petitioner has worked, the 
source of the recommendations is a highly relevant consideration. These letters are not first-hand evidence 
that the petitioner has earned sustained acclaim for his contributions outside of his affiliated institutions. If 
the petitioner's reputation is limited to those institutions, then he has not achieved national or international 
acclaim regardless of the expertise of his witnesses. An individual with sustained national or international 
acclaim should be able to produce ample unsolicited materials reflecting that acclaim. Without extensive 
documentation showing that the petitioner's work has been unusually influential or acclaimed at the national 
or international level, we cannot conclude that it constitutes a contribution of major significance. 
Evidence of the alien's authorship of scholarly articles in the$eld, in professional or major trade 
publications or other major media. 
The petitioner submitted evidence of his authorship of six journal articles from 1984 to 1990 and several 
internet articles posted online via the internet. We do not find, however, that the publication or internet 
posting of a scholarly article is presumptive evidence of sustained national or international acclaim; we must 
also consider the greater field's reaction to that article. When judging the influence and impact that the 
petitioner's work has had, the very act of publication is not as reliable a gauge as is the citation history of the 
published works. Publication alone may serve as evidence of originality, but it is difficult to conclude that a 
published article is important or influential if there is little evidence that other researchers have relied upon 
the pethioner's findings. Frequent citation by independent engineering researchers, however, would 
demonstrate widespread interest in, and reliance on, the petitioner's work. If, on the other hand, there are few 
or no citations of an alien's work, suggesting that that work has gone largely unnoticed by the greater field, 
then it is reasonable to conclude that the alien's work is not nationally or internationally acclaimed. In the 
present case, there is no evidence showing that the petitioner's articles are widely cited in software 
engineering literature. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
In response to the director's request for evidence, the petitioner notes that his work has been presented at 
technical conferences and trade shows. We have consistently found, however, that this particular criterion 
applies to the visual arts rather than scientific or engineering research. In the fields of science and 
engineering, acclaim is generally not established by the mere act of presenting one's work at a conference or 
trade show. The record contains no documentation demonstrating that the presentation of one's work is 
unusual in the petitioner's field or that the invitation to present at conferences and trade shows where the 
petitioner spoke was a privilege extended to only a few top software engineers. Many professional fields 
regularly hold conferences and symposiums to present new work, discuss new findings, and to network with 
other professionals. These conference4 are promoted and sponsored by professional associations, businesses, 
educational institutions, and government agencies. Participation in such events, however, does not elevate the 
petitioner above almost all others in his field. The record contains no evidence showing that the petitioner's 
conference and trade show presentations commanded an unusual level of attention in comparison to other 
participants or that the petitioner has served as a keynote speaker at a national or international software 
engineering conference. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim, is one of the small percentage who has risen to 
the very top of the field of endeavor, and that the alien's entry into the United States will substantially benefit 
prospectively the United States. The petitioner in this case has failed to demonstrate that he meets at least three 
of the criteria that must be satisfied to establish the sustained national or international acclaim necessary to qualifL 
as an alien of extraordinary ability. 
Review of the record does not establish that the petitioner has distinguished himself as a software 
engineerlsoftware architect 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 the 
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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.