dismissed EB-1A Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 30, 2023 In Re: 28580471 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a software engineer and 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. 
§ l 153(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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner satisfied the initial evidence requirements for this classification by 
demonstrating his receipt of a major, internationally recognized award or by meeting at least three of 
the ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3). 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa '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 may demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). Absent such an achievement, the petitioner must provide 
sufficient qualifying documentation demonstrating that they meet at least three of the ten criteria listed 
at 8 C.F.R. § 204.5(h)(3)(i) - (x). 
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. USCJS, 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. USCJS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner, a software engineer and developer, provided evidence to establish his eligibility under 
seven of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i) - (v), (viii), and (ix). 1 The Director 
concluded he met the judging criteria at 8 C.F.R. § 204.5(h)(3)(iv) and we agree. On appeal, the 
Petitioner limits his claims to the criteria at 8 C.F.R. § 204.5(h)(3) (ii), (iii), (viii) and (ix). 2 
Evidence of membership in associations in the field for which classification is sought, 
which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204. 5 (h)(3 )(ii) 
The Petitioner relies on his membership inl Ito satisfy this criterion. The Director concluded that 
..____ _.I is a networking site created to connect companies that contract their work with potential 
freelancing software engineers rather than a professional association, and that the evidence was 
insufficient to show that the organization requires outstanding achievements of its members. 
On appeal, the Petitioner asserts that I lis "an elite network for the world's best" software 
developer talents, servilg morel than 10,000 clients, including Fortune 500 companies. Furthermore, 
he argues that because gets more than 100,000 applications and uses a rigorous selection 
process in which less than three percent of applicants are chosen, the organization requires outstanding 
achievements of its members. 
1 As the Petitioner did not claim to meet the remaining criteria , we will not address them here. 
2 We, therefore, consider the criteria at 8 C.F.R. § 204.5(h)(3)(i) and (v) to be waived. See, e.g., Matter ofO-R-E-, 28 I&N 
Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)) (standing for the 
proposition that an issue not raised on appeal is waived.) 
2 
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The Petitioner provided an article about I I founder titled, "Dropout turned entrepreneur helps 
find talent amid engineer squeeze," explaining that he founded the company to create a "network that 
connects fl the wlorld's top talent with tech companies globally, on demand." He goes on to explainl 
that with he has created a "cloudl Iwhere the talent caliber is that of1 
lor even Israeli talent, but it is virtual." Furthermore, he explains that he aims through his 
company to match employers to those talented "engineers ... who live in a small city ... [and] allow[] 
them to stay at home but get the big jobs anyway." In essence,! lis an employment agency and 
the Petitioner has not established that such an agency, regardless of the caliber of the talent, qualifies 
as a professional association. 3 
According to the Petitioner,! I"[ c ]andidates must be able to read, write, and speak English 
extremely well" and be "passionate and driven individuals who are hands-on and folly engaged in 
their work." They "are then assessed for technical knowledge and problem-solvTg skills, and only 
candidates with 'exceptional results' are accepted." While we acknowledge that 1selection 
process appears to be strenuous and that the company is attracting high skilled information technology 
(IT) professionals, it is insufficient to establish that I I selection process requires "outstanding 
achievements of their members." Matter of Chawathe, 25 I&N Dec. at 375-76. The Petitioner 
provides his I I profile which emphasizes his years of experience, portfolio, location, and specifies 
the multiple IT languages and technologies he uses. While the Petitioner's skillset is extensive and 
impressive, I I profile does not highlight any "outstanding achievements" of his or appear to 
require any particular achievements beyond his selection and marketable job skills for employment in 
the IT field. Additionally, because the nature of the Petitioner's relationship with I lis that of an 
agent-talent, and not as a "member" in a professional association, the evidence is insufficient to meet 
the plain language of the criterion. Id. 
We note that although the Petitioner's selection byl lis not sufficient to meet this criterion, his 
selection could be considered in a final merits determination under the second step in Kazarian 's 
analytical framework, where we consider whether the totality of the evidence demonstrates he has 
sustained national or international acclaim and that he is among the small percentage at the very top 
of the field of endeavor. Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 2010). 
Evidence of published material about the individual in professional or major trade 
publications or other major media, relating to their work in the field for which 
class[fication is sought. Such evidence must include the title, date, and author of the 
material, and any necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
On appeal, the Petitioner asserts that the online news article appearing inl lmeets this criterion 
because the article was about him andl I ualifies as ma·or media. We acknowled e that this 
article 
is about the Petitioner. However, the article does not meet the plain language of~------~ the regulation, which requires that the published material include the title, date, and author of the 
material. See 8 CFR § 204.5(h)(3)(iii). While the article has a date and title, there is no identified 
author. 
3 For example, a scientific society dedicated to artificial intelligence, would likely qualify as a professional association. 
See 6 USCIS Policy Manual, 2.B(l)(criterion 2), https://www.uscis.gov/policymanual. 
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Evidence that the person has commanded a high salary or other sign[ficantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204. 5(h)(3 )(ix) 
To meet this criterion, a petitioner must demonstrate that their salary or remuneration is high relative 
to others working in the field. See 6 USCIS Policy Manual 2.B(l )( criterion 9), 
https://www.uscis.gov/policy-rnanual. Furthermore, relevant caselaw has confirmed that "in relation 
to others in the field" should be interpreted as allowing comparisons to those employed in the same 
occupation at a similar level. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Cornrn'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 defensernen). 
The Petitioner asserts that his 2022 wages of $144,800 (which is equivalent to 25,629,600 Argentine 
pesos) as a consultaT is higl in relation to other IT developers in Argentina. He provides an online 
article published on .corn, which cites to a report published by the Ministry of Economic 
Development and Production for the city of1 Istating that in Argentina, the average salary 
for IT developers in general is 315,612 Argentine pesos and the market average is 209,309 Argentine 
pesos. Although the article cites to salary information from a government report, the report itself has 
not been provided, and therefore, we are unable to ascertain the basis for the salary information, its 
validity, and the specific occupation(s) it covers. Without this relevant information, the evidence 
remains insufficient to meet this criterion. Matter ofChawathe, 25 I&N Dec. at 375-76. 
Evidence that the person has performed in a leading or critical role/or organizations 
or establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
We decline to reach and hereby reserve the Petitioner's appellate arguments regarding this criterion 
because he has not demonstrated his eligibility under at least two other criteria and is therefore unable 
to reach the requisite minimum of at least three criteria under step one of Kazarian 's analytical 
framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to 
make findings on issues the decision of which is unnecessary to the results they reach"); see also 
Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
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. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate and conclude that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. The 
Petitioner seeks a highly restrictive visa classification. USCIS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" 
standard. Matter ofPrice, 20 I&N Dec. 953,954 (Assoc. Cornrn'r 1994). Here, the Petitioner has not 
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shown that the significance of his work is indicative of the required sustained national or international 
acclaim or that 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 that the Petitioner has garnered national or 
international acclaim in the field, and that he is one of the small percentage who has risen to the very 
top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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