dismissed EB-1A Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC . 12, 2023 In Re: 28981666 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an artificial intelligence and natural language processing technology business, seeks to 
classify the Beneficiary, a software engineer, as an individual 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 the Petitioner did not 
establish the Beneficiary satisfied at least three ofthe initial evidentiary criteria. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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)(l)(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 achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award) or 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). 
II. ANALYSIS 
Because the Petitioner has not indicated or established the Beneficiary 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). Although the Petitioner claimed the Beneficiary met five criteria, the 
Director determined the Petitioner did not fulfill any of them. On appeal, the Petitioner maintains the 
Beneficiary qualifies for three categories of evidence. 1 
A. Evidentiary Criteria 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions ofmajor sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), USCIS determines whether the person 
has made original contributions in the field. 2 USCIS then determines whether the original 
contributions are of major significance to the field. 3 Examples of relevant evidence include, but are 
not limited to: published materials about the significance of the person's original work; testimonials, 
letters, and affidavits about the persons original work; documentation that the person's original work 
was cited at a level indicative of major significance in the field; and patents or licenses deriving from 
the person's work or evidence of commercial use of the person's work. 4 
The Petitioner claims it demonstrated the Beneficiary's eligibility for this criterion based on the 
submission of reference letters and patent information. The record reflects the Petitioner presented 
1 We consider the Petitioner's prior eligibility claims not contested on appeal to be abandoned. An issue not raised on 
appeal is waived. See, e.g., Matter ofO-R-E-, 28 T&N Dec. 330,336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 T&N 
Dec. 657, 658 n.2 (BIA 2012)). 
2 See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
3 Id. 
4 Id. 
2 
several letters from individuals who worked with the Beneficiary. Although the letters indicate 
projects in which the Beneficiary collaborated or developed, the letters do not show how they resulted 
in original contributions of major significance in the field. Instead, the letters briefly describe the 
Beneficiary's projects without detailing the significance of the work in the field. For instance, "[the 
Beneficiary] worked as a Software Engineer on a project developing a single, universal solution for 
cardiac device patient management that meets the in-office needs of clinicians and the emerging and 
changing needs of remote patients" (O-B-); "[the Beneficiary] was responsible for a project that 
developed a clinical trial management system for pharmaceutical and biotechnology companies"; and 
"we've done a few projects related to upgrades of OpenStack-based clouds, performance testing of the 
different scenarios live-migrations that are relevant in the enterprise environments" (V-N-). Here, 
none of the letters farther elaborate and describe whether the Beneficiary's projects or work has 
influenced or impacted the field in a major way. Similarly, although B-C- claimed the Beneficiary 
"had a tremendous impact on the [A-] product," the letter does not farther explain or justify how the 
Beneficiary "had a tremendous impact." Moreover, B-C-'s vague claim refers to the limited impact 
on the employer rather than the overall field. 
Detailed letters from experts in the field explaining the nature and significance of the person's 
contribution may also provide valuable context for evaluating the claimed original contributions of 
major significance, particularly when the record includes documentation corroborating the claimed 
significance. 5 Submitted letters should specifically describe the person's contribution and its 
significance to the field and should also set forth the basis of the writer's knowledge and expertise. 6 
In this case, the letters lack specific, detailed information explaining how the Beneficiary has made 
original contributions of major significance in the field. USCIS need not accept primarily conclusory 
statements. 1756, Inc. v. The US. Att'y Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Regarding the patents, the Petitioner offered a letter from O-R- who stated the Beneficiary 
"contributed to the design architecture of our entire solution by applying his knowledge and skills in 
maintaining scalable, high-loaded Web applications" for P-. In addition, O-R- briefly described two 
patents in which the collaborated and stated "[t]his was a novel solution to the technical problem faced 
by systems for matching electronic activities to CRM system," and "[t]his invention ... represents a 
novel and original contribution to the development of information technology platforms for large­
scale, complex enterprise revenue intelligence systems." Again, O-R- did not farther elaborate and 
explain how the patents resulted in being majorly significant in the field. The letter, for example, does 
not show how the patents have impacted or influenced the field in a major manner. Furthermore, 
although O-R- listed five patents "where [the Beneficiary] has filed for patents to protect inventions," 
the letter does not indicate whether any of the patents have been commercialized or utilized by P- or 
has otherwise garnered widespread attention from the field. 
Analysis under this criterion focuses on whether the person's original work constitutes major, 
significant contributions to the field. 7 Evidence that the person's work was fonded, patented, or 
published, while potentially demonstrating the work's originality, will not necessarily establish, on its 
own, that the work is of major significance to the field. 8 Evidence that the person developed a patented 
5 See generally 6 USCTS Policy Manual, supra, at F.2(B)(l ). 
6 Id. 
7 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
8 Id. 
3 
technology that has attracted significant attention or commercialization may establish the significance 
of the person's original contribution to the field. 9 Here, the Petitioner did not show how any of the 
patents involving the Beneficiary have been widely implemented throughout the field, has remarkably 
impacted or influenced the field, or has otherwise risen to a level of major significance in the field. 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown the Beneficiary has made original contributions of major significance in the field. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Beneficiary received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved 0-1 nonimmigrant visa 
petitions filed on behalf of the Beneficiary, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). Furthermore, our authority 
over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is comparable 
to the relationship between a court of appeals and a district court. Even if a service center director has 
approved a nonimmigrant petition on behalf of an individual, we are not bound to follow that finding 
in the adjudication of another immigration petition. See La. Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). 10 
III. CONCLUSION 
The Petitioner did not establish 
the Beneficiary satisfies the criteria relating to original contributions. 
Although the Petitioner also claims the Beneficiary's eligibility for the leading or critical role criterion 
under 8 C.F.R. § 204.5(h)(3)(viii) and high salary under 8 C.F.R. § 204.5(h)(3)(ix), we need not reach 
these additional grounds because the Beneficiary cannot fulfill the initial evidentiary requirement of 
three criteria under 8 C.F.R. § 204.5(h)(3). We also need not provide the type of final merits 
determination referenced in Kazarian, 596 F.3d at 1119-20. Accordingly, we reserve these issues. 11 
Nevertheless, we have reviewed the record in the aggregate, concluding it does not support a 
conclusion that the Petitioner has established the Beneficiary's acclaim and recognition required for 
the classification sought. 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. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) 
( concluding that even major league level athletes do not automatically meet the statutory standards for 
classification as an individual of "extraordinary ability,"); Visinscaia, 4 F. Supp. 3d at 131 (internal 
quotation marks omitted) (finding that the extraordinary ability designation is "extremely restrictive 
9 Id. 
10 See generally 6 USCIS Policy Manual, supra, at F.2(B)(3). 
11 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
4 
by design,"); Hamal v. Dep 't ofHomeland Sec. (Hamal II), No. 19-cv-2534, 2021 WL 2338316, at *5 
(D.D.C. June 8, 2021), ~ff'd, 2023 WL 1156801 (D.C. Cir. Jan. 31, 2023)(determining that EB-1 visas 
are "reserved for a very small percentage of prospective immigrants"). See also Hamal v. Dep 't of 
Homeland Sec. (Hamal I), No. 19-cv-2534, 2020 WL 2934954, at * 1 (D.D.C. June 3, 2020) ( citing 
Kazarian, 596 at 1122 (upholding denial of petition of a published theoretical physicist specializing 
in non-Einsteinian theories of gravitation) (stating that "[c]ourts have found that even highly 
accomplished individuals fail to win this designation")); Lee v. Ziglar, 237 F. Supp. 2d 914,918 (N.D. 
Ill. 2002) (finding that "arguably one of the most famous baseball players in Korean history" did not 
qualify for visa as a baseball coach). Here, the Petitioner has not shown the significance of 
Beneficiary's work is indicative of the required sustained national or international acclaim or it is 
consistent with 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 the Beneficiary has garnered national or international acclaim in the field, and 
he 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 record does not contain sufficient evidence 
establishing the Beneficiary among the upper echelon in his field. 
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. 
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