dismissed EB-1A Case: Software Engineering

(b)(6)
DATE: NOV 1 3 2013 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., 
N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
·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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~(~ ;;-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition on April 19, 2013. The petitioner, who is also the beneficiary, appealed the decision to 
the Administrative Appeals Office (AAO) on May 22, 2013. The appeal will be dismissed. 
According to parts 2 and 6 of the September 6, 2012, petition, the petitioner seeks classification as 
an alien of extraordinary ability in the sciences, specifically, as a software engineer, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). 
The director determined that the petitioner has not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability as a software 
engineer. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section§ 203(b)(1)(A)(i) of the 
Act; 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel files a two-page letter and additional supporting documents. Counsel asserts that 
the petitioner meets the nationally or internationally recognized prizes or awards criterion under the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), the published material about the alien criterion under 
8 C.F.R. § 204.5(h)(3)(iii), the original contributions of major significance criterion under the 
regulation at 8 C.P.R. § 204.5(h)(3)(v), the authorship of scholarly articles criterion under the 
regulation at 8 C.P.R. § 204.5(h)(3)(vi), the leading or critical role criterion under the regulation at 
8 C.F.R. § 204.5(h)(3)(viii) , and the high salary or other significantly high remuneration criterion 
under the regulation at 204.5(h)(3)(ix). 
For the reasons discussed below, the petitioner has not established his eligibility for the exclusive 
classification sought. Specifically, the petitioner has not submitted qualifying evidence under at 
least three of the ten regulatory criteria set forth in the regulations at 8 C .F.R. § 204.5(h)(3)(i)-(x). 
As such, the petitioner has not demonstrated that he is one of the small percentage who are at the 
very top in the field of software engineering or that he has sustained national or international 
acclaim. See 8 C.P.R. §§ 204.5(h) (2), (3). Accordingly, the AAO will dismiss the petitioner's 
appeal. 
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I. THE LAW 
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 into the United States will substantially benefit 
prospectively the United States. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very high 
standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 
101st Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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 regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement, that is a major, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld 
the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of the 
evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Kazarian, 596 F.3d at 1121-
22. 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and (vi) . 
. ·- ---·--- ·-·----·------ --·- -- - --------------
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The court stated that the AAO's evaluation rested on an improper understanding ofthe regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper 
conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Kazarian, 
596 
P.3d at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this case, the AAO affirms the 
director's finding that the petitioner has not satisfied the antecedent regulatory requirement of 
presenting at least three types of evidence under the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x), and 
has not demonstrated that he is one of the small percentage who are at the very top in the field of 
software engineering, or has achieved sustained national or international acclaim. See 8 C.P.R. 
§§ 204.5(h) (2), (3). 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Under the regulation at 8 C.P.R. § 204.5(h)(3), the petitioner can establish sustained national or 
international acclaim and that his achievements have been recognized in the field of endeavor by 
presenting evidence of a one-time achievement that is a major, internationally recognized award. In 
this case, the petitioner has not asserted or shown through his evidence that he is the recipient of a 
major, internationally recognized award at a level similar to that of the Nobel Prize. As such, the 
petitioner must present at least three of the ten types of evidence under the regulations at 8 C.P.R. 
§ 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.P.R. § 204.5(h)(3)(i). 
Counsel asserts for the first time on appeal that the petitioner meets this criterion. In his two-page 
letter, counsel does not point to specific evidence in the record establishing that the petitioner meets 
this criterion. The petitioner filed documents for the first time on appeal showing that conference 
organizers selected the petitioner to attend the _ 
Counsel does not explain how this evidence, or any other evidence of record, constitutes nationally 
or internationally recognized prizes or awards for excellence (in the plural). 
Regardless, the AAO will not consider counsel's assertion that the petitioner meets this criterion. In 
his request for evidence (RPE), the director requested that the petitioner submit evidence showing he 
2 The petitioner does not claim that he meets the regulatory categories of evidence not discussed in this decision. 
(b)(6)
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PageS 
meets this criterion. In the response to the RFE, neither the petitioner nor counsel submitted such 
evidence, or even asserted that the petitioner meets this criterion. A petitioner may submit anything 
in support of an appeal, including new evidence; however, where a Service Center has requested 
specific evidence in a request for evidence, and the petitioner did not comply with the request, the 
AAO will not consider that particular evidence on appeal. In other words, where the director has 
placed a petitioner on notice of a deficiency in the evidence and gave the petitioner an opportunity to 
respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. 
See Matter of Soriano, 19 I&N Dec. 764, 766-67 (BIA 1988); see also Matter of Obaigbena, 19 I&N 
Dec. 533, 537 (BIA 1988). The petitioner's opportunity to submit the evidence was in response to 
the director's request for evidence. !d. 
Accordingly, the petitioner has not submitted documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner 
has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(i). 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
On appeal, counsel asserts that the petitioner meets this criterion. Counsel's basis of appeal is as 
follows: 
[I]n making reference to "professional publications," the law does not require that 
such publications be "major." The plain meaning of the relevant regulations 
distinguishes "professional publication" from "major trade publications" and "major 
media." The evidence submitted clearly shows that the publications in which the 
petitioner/beneficiary has published, and in which the petitioner/beneficiary has been 
featured, are geared towards his fellow professionals, and have been identified by 
title, date and author. This is all the law requires. 
In his response to the director's RFE, counsel stated: 
Attached as Exhibit 9 is a selection of media coverage that the beneficiary has 
received over the course of his work in his field. The coverage has come from media 
outlets as diverse as and has 
discussed topics such as advertising revenue for published apps; the ways apps can be 
rejected by , and the beneficiary's particular apps. 
The evidence in the record does not establish that the petitioner meets this criterion. First, with the 
exception of the the petitioner has not shown that the published material was 
published in a qualifying publication. The petitioner has submitted published material, including 
material published on 
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_ _ Neither the petitioner nor counsel has 
submitted sufficient evidence relating to any of the above publications, such as circulation of any 
online or in print publication or the intended audience of the publication. This is evidence the 
director requested in the RFE. Although Founder and Software Engineer of 
states in his December 11, 2012 letter that and 
are "some of the most widely read blogs among iOS developers," he does not provide any 
specific information relating to these websites in support of his conclusory statements. USCIS need 
not accept primarily conclusory assertions. See 1756, Inc. v. United States Att'y Gen., 745 F. Supp. 
9, 17 (D.C. Dist. 1990). 
On appeal, counsel files a June 13, 2013 letter from Co-Founder and Chief 
Executive Officer of According to Ms. "(w]hile [the] publications are not 
necessarily household names outside the computer software development field, [she] can attest that 
they are important and influential." Ms. however, does not provide any specific information, 
such as circulation and readership reach, relating to these publications in support of her conclusory 
statements. As noted, USCIS need not accept primarily conclusory assertions. See 1756, Inc., 745 
F. Supp. at 17. On appeal, counsel files an online printout from which notes that 
according to the is one of five best sites for garners. This 
evidence relates to status as a site for garners. It does not establish that the 
website is a professional or major trade publication for other software engineers, or show that the 
website constitutes major media. In addition, the petitioner has not provided a copy of the 
article. Rather, he has provided a printout from_ _ website that includes an 
excerpt from the article. As such, the director correctly concluded that the petitioner has not shown 
that the above material submitted was published in professional or major trade publications or other 
major media. 
Second, the articles are not about the petitioner relating to his work as a software engineer, as 
required by the plain meaning of the criterion. The petitioner has provided articles that mention the 
petitioner, but they are not about him as relating to his work. For example, in ' 
petitioner's opinion of In" 
and' 
mentions the petitioner's conclusion that 
' posted on " the article mention's the ,, ' 
the article 
is not as lucrative as claimed. Although the article 
', posted on both and 
is about the petitioner, relating to his work, as discussed above, the petitioner has not 
shown that the article is published in a professional or a major trade publication, other major media. 
Third, the director concluded in his decision that although the remaining article in the 
constitutes published material in maior media, the petitioner has not shown that the article, 
entitled is about him relating to his work, as required by the 
plain language of the criterion. The director found that "the overarching theme and purpose of the 
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article are not focused on the [petitioner] as an individual," rather "the article is about the thoughts 
and impressions of several developers, one of which was the [petitioner]." On appeal, counsel has 
not specifically challenge this aspect of the director 's finding. Accordingly, the petitioner has 
abandoned this issue, as he did not timely raise it on appeal. Sepulveda v. United States Att'y Gen., 
401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the United States District Court found the plaintiffs 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
Fourth, on appeal, counsel files a number of articles. All but one of them postdates the filing of the 
petition on September 6, 2012. It is well established that the petitioner must demonstrate eligibility 
for the visa petition at the time of filing. See 8 C.P.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Reg'l Comm'r 1971). As such, they do not support the petitioner's eligibility for 
the exclusive classification sought. The remaining article filed on appeal, entitled ' 
_ . .. ," is published on August 25, 2010 in the 
It is not about the petitioner as relating to his work. In fact, the article does not mention the 
petitioner by name. 
Accordingly, the petitioner has not submitted published material about him in professional or major 
trade publications or other major media, relating to his work in the field for which classification is 
sought. The petitioner has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(iii). 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.P.R.§ 204.5(h)(3)(v). 
On appeal, counsel asserts that the petitioner meets this criterion. Specifically, counsel's basis of 
appeal is as follows: 
. . . [T]he submitted evidence shows that the petitioner/beneficiary has been 
instrumental to the success of a company that has attracted considerable attention as a 
success story unusual even by the standards of Accordingly, the 
petitioner/beneficiary's contributions to this company are properly considered 
significant contributions to his field. 
The evidence in the record supports counsel's assertion that the petitioner has made contributions to 
In her March 11, 2013 letter, Ms. states that the petitioner is one of the "top 
developers" and "his achievements have been widely recognized for their 
importance in the field." The letter further provides that the petitioner 
"designed 
platform from the 
ground up," "wrote the 'software development kit' that 
platform relies on to allow companies to insert code into their games to communicate with 
servers," "designed the infrastructure for handling transactions and purchases 
between game publishers," and "created the algorithm by which publishers can target the consumers 
most likely to be receptive to their games." In her June 13, 2013 letter, Ms. states that the 
petitioner was chosen to give a presentation at the program "due to his 
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expertise in issues including backend development and protection against piracy." In his February 
14, 2013 letter, a Partner at states that the petitioner's "original ad 
marketQlace and ad targeting algorithm . 
. . alone has realized millions of dollars in revenue for 
'' The letter further notes that the ' is now integrated on apps spanning over 
500 million mobile devices." While these contributions might be significant to one company, the 
petitioner has not shown that they constitute "contributions of major significance in the field" as a 
whole, as required by the plain language of the criterion. Although the evidence indicates that 
is a successful company in the field, the evidence does not indicate that 
contributions made to one company in a field that encompasses many companies copstitute 
contributions of major significance in the field as a whole. Specifically, the record contains no 
evidence that the petitioner's work fm has impacted the field beyond that company. 
The evidence also shows that the petitioner was involved with the development of 
two popular apps. Specifically, in his January 25, 2013 letter, 
Engineering Manager for states that the petitioner "was responsible for a 
number of contributions that were part of the success of 
"was the first iteration of what ultimately became one of the best-selling video game franchises of all 
time" and "achieved a number of critical milestones in the mobile gaming industry." According to a 
June 10, 2013 letter from , Product Manager of the 
petitioner's "was downloaded and updated approximately 500,000 times, it is 
approximately I 0 times more popular than a typical App Store app." The letter further provides 
that 
the petitioner "was able to monetize this app at a particularly high rate - in the neighborhood of 
$100,000. Considering that very few apps realize any kind of significant profit at all, this is a 
remarkable achievement." The petitioner has not shown that his contributions to these apps, which 
are two of many successful and popular apps in the field, constitute contributions of major 
significance in the field as a whole. Specifically, the record contains no evidence of the impact of 
the petitioner's apps on other app developers. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board has also held, however, "[w]e not 
only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." !d. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner 
to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). Vague, solicited 
letters from colleagues or associates that do not specifically identify contributions or provide specific 
examples of how those contributions influenced the field are insufficient. Kazarian v. USCIS, 580 
F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d 1115 (9th Cir. 2010).3 The opinions of 
experts in the field are not without weight and have been considered. USCIS may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. See Matter of Caron Int'l, 19 
3 
In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the 
alien's] contributions in the field" were insufficient was "consistent with the relevant regulatmy language." 596 F.3d at 1122. 
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I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; USCIS may, as this 
decision has done above, evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that 
expert opinion testimony does not purport to be evidence as to "fact"). USCIS may even give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Matter of Caron Int'l, 19 I&N Dec. at 795; see also Matter of Soffici, 22 I&N Dec. 
158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). In this case, as discussed, the reference letters submitted do not establish 
that the petitioner has made any original contribution of major signficance in the field as a whole. 
Accordingly, while the petitioner has made contributions to and original 
contributions in the development of two apps, the petitioner has not presented evidence of his 
original scientific, scholarly, artistic, athletic, or business-related contributions of major significance 
in the field of software engineering. The petitioner has not met this criterion. See 8 C.P.R. § 
204.5(h)(3)(v). 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.P.R. § 204.5(h)(3)(vi). 
On appeal, counsel asserts that the petitioner meets this criterion.4 As supporting evidence, counsel 
points to the petitioner's January 18, 2011 article entitled' 
published on and a number of articles published on 
the petitioner's blog. According to Ms. the petitioner "is a top contributor to 
_] blog" and that the "most significant article that was ever published on [the] blog 
was written by [the petitioner]." Although the petitioner has authored these articles, he has not 
shown that the articles were published in professional or major trade publications or other major 
media. Indeed, the petitioner has provided insufficient evidence showing that 
blog constitutes a professional or major trade publication or other 
media. The record lacks evidence relating to the nature, the reach or readership of these websites 
from an objective source. The online printout relating to chartboost.com's online traffic that the 
petitioner filed on appeal, is insufficient to show that its blog constitutes a professional or major 
trade publication or other major media. Similarly, the online printout from showing 
anonymous individuals discussing the petitioner's article _ _ 
posted on blog is insufficient to show that the blog constitutes a professional or 
major trade publication or other major media. 
4 
In his decision, the director stated the reasons why the petitioner's evidence does not met this criterion. The director 
appears to have made a typographic error when stating, "As such, the submitted evidence meets this criterion." 
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On appeal, counsel files a letter from Mr. The letter states that the petitioner's blog 
"has had 68,511 visits; 56,930 unique visitors; and 84,019 pageviews .... These 
numbers are very significant in that of the literally hundreds of millions of blogs in existence, only a 
small percentage have a readership outside of a small handful of people who have close relationships 
to the blogger." The letter further provides that the petitioner's other blog "has had 
170,468 unique visitors; 200,483 visits; and 276,745 pageviews .... " According to Mr. 
these numbers "are even more impressive." Mr. concludes that "[i]t is clear from these 
statistics that [the petitioner's] blogs are significant publications, and rank him well above average 
among others who operate similarly in his field." Neither the letter nor any other evidence in the 
record provides the source(s) of these statistics. USCIS need not accept primarily conclusory 
assertions. See 1756, Inc., 745 F. Supp. at 17. Moreover, although Mr. states that the 
petitioner's blogs constitute significant publications, neither his letter nor any other evidence in the 
record establishes that the blogs also constitute professional or major trade publications or other 
major media, as required under the plain language of the criterion. 
In addition, the petitioner has not shown that his written work posted on his blogs constitutes 
scholarly articles in the field of software engineering, as required by the plain language of the 
criterion. 8 C.F.R. § 204.5(h)(3)(vi). Unlike scholarly articles that are published in professional or 
major trade publications, the written work posted on the petitioner's blogs represent his opinions that 
are not subject to peer review. Also, unlike scholarly articles, material posted on blogs does not 
have footnotes, endnotes, or a bibliography, and rarely includes graphs, charts, videos, or pictures as 
illustrations of the concepts the petitioner expressed. As such, the petitioner has not shown that his 
written work posted on his blogs meets this criterion. 
Finally, the record includes a printout from indicating that the petitioner has 
authored a writing entitled on the website. The petitioner 
has not provided a copy of the article. As such, the petitioner has not shown that the article 
constitutes a scholarly article in the field. Furthermore, the petitioner has not provided any evidence 
showing that hackermonthly.com constitutes a professional or major trade publication or other 
media. In his letter, Mr. states that hackermonthly.com "is among the most read for the 
very few print magazines circulated among iOS developers" and that is an "extremely 
popular generalist blog." Mr. however, has not provided any specific information or data 
relating to these websites in support of his conclusory statements. USCIS need not accept primarily 
conclusory assertions. See 1756, Inc., 745 F. Supp. at 17. As such, the petitioner has not shown that 
either website constitutes a professional or major trade publication or other major media. 
Accordingly, the petitioner has not submitted evidence of his authorship of scholarly articles in the 
field, in professional or major trade publications or other major media. The petitioner does not meet 
this criterion. 8 C.F.R. § 204.5(h)(3)(vi). 
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Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
In his April 19, 2013 decision, the director concluded that the petitioner has met this criterion. The 
record does not support this finding. The AAO conducts appellate review on a de novo basis. 
Soltane v. Dep't of Justice, 381 F.3d 143, 145-46 (3d Cir. 2004). The AAO may deny an application 
or petition that does not comply with the technical requirements of the law even if the Service Center 
does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003). 
The evidence in the record shows that the petitioner has performed in a critical role for 
Ms. stated in her March 11, 2013 letter that the petitioner was first 
software engineering employee, designed the company's platform and is "an indispensable 
performer, leading the development of the software that ensures continued 
success." According to Mr. the petitioner's "contributions are absolutely critical to the 
success of because this platform is the company's sole product." 
According to a March 4, 2013 article entitled ' _ 
"helps game 
developers by handling the challenges of distribution and 
marketing. It runs a network where games can advertise in other games." The article further 
provides that , has grown from 800 developers to 12,000 in two years and raised $19 
million from According to Mr. "is well on its way to 
achieving great success, and is in fact ]:JOised to take its place among the upper echelon of startup 
companies in which has] invested." Mr. states in his letter that 
is well-known, and its accomplishments have [] been reported in popular blogs like 
" 
Although the evidence shows that the petitioner has performed in a critical role for 
the plain language of the criterion requires evidence of the petitioner performing a leading or critical 
role for organizations or establishments, in the plural, that have a distinguished reputation, consistent 
with the statutory requirement for extensive documentation. See section 203(b)(1)(A)(i) of the Act. 
Even if the petitioner's role in constitutes a single example of his role in a 
qualifying organization or establishment, the record lacks evidence showing that he has performed a 
leading or critical role for a second qualifying organization or establishment. 
The record does include evidence of the petitioner's involvement in the development of an app, 
Specifically, according to Mr. the petitioner "was responsible for a number 
of contributions that were part of the success of _ _ _ ' Mr. further states 
"[d]ue in part to [the petitioner's] programming contributions, Tap 
Tap Revenge 4 not only matched 
the success of earlier editions, but also surpassed them" and that the petitioner "played an integral 
part in ensuring the continued success of the franchise." Similarly, according to 
Mr. "riln part as a result of [the petitioner's] contributions , was a huge 
success .... " is a game developed by which has been acquired by 
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The evidence shows that the petitioner performed a critical role in the 
development of one version of a game for one company, specifically, _ _ of the 
franchise for The petitioner, however, has not shown that he has 
performed either a leading or critical role for ' as a whole, as required by the plain 
language of the criterion. 
Accordingly, the petitioner has not presented evidence that he has performed in a leading or critical 
role for organizations or establishments that have a distinguished reputation. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
Counsel asserts for the first time on appeal that the petitioner meets this criterion. As supporting 
evidence, counsel files an online printout from the United States Bureau of Labor Statistics relating 
to software developers' salary and a June 13, 2013 letter trom Ms. . stating that the petitioner's 
total compensation "clears this figure" of"a[n] annual salary of over $133,110." 
The AAO will not consider counsel's assertion that the petitioner meets this criterion. In his request 
for evidence (RFE), the director requested that the petitioner submit evidence showing he meets this 
criterion, including evidence relating to the petitioner's salary and information relating to 
compensation in the field. In the RFE response, neither the petitioner nor counsel submitted such 
evidence, or even asserted that the petitioner meets this criterion. A petitioner may submit anything 
in support of an appeal, including new evidence; however, where a Service Center has requested 
specific evidence in a request for evidence, and the petitioner failed to comply with the request, that 
particular evidence will not be considered on appeal. In other words, where a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. at 766-67; see also Matter ofObaigbena, 19 I&N Dec. at 537. 
Accordingly, the petitioner has not submitted evidence that he has commanded a high salary or other 
significantly high remuneration for services, in relation to others in the field. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(ix). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
"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 alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top 
of the field or sustained national or international acclaim, the AAO need not explain that conclusion 
in a final merits determination. 5 Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of presenting three types of evidence. Kazarian, 
596 F.3d at 1122. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 381 
F.3d 143, 145 (3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see also INA 
§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is 
the sole authority with the jurisdiction to decide visa petitions).