dismissed EB-1A Case: Software Engineering

.puBuc COPY 
U.S. Department of Homelancl Security 
20 Mass. Ave., N.W.. Rrn. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 149 52408 Office: VERMONT SERVICE CENTER Date: SEP 1 6 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. 8 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
thezffice that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
L 
EAC 03 149 52408 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont 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 that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. $204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. If those criteria do not readily apply to the alien's occupation, the 
petitioner may submit comparable evidence to establish the beneficiary's eligibility pursuant to 8 C.F.R. 
8 204.5(h)(4). 
In her discussion of four of the regulatory criteria relevant to this case, the director noted that the record did not 
reflect the requisite sustained acclaim. On appeal, counsel claims that the director's decision thus "betrays a 
lack of understanding of the regulations. . . . To require that the evidence demonstrate national or international 
acclaim in each category is tantamount to saying that the three of ten rule is irrelevant." We do not read the 
director's decision as misinterpreting the regulation. Although satisfaction of at least three of the regulatory 
criteria will establish the requisite sustained acclaim, the weight given to evidence submitted to fulfill the 
criteria at 8 C.F.R. 9 204.5(h)(3), or under 8 C.F.R. $ 204.5(h)(4), must depend on the extent to which such 
evidence demonstrates, reflects, or is consistent with sustained national or international acclaim at the very 
top of the alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "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. tj 204.5(h)(2). 
EAC 03 149 52408 
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In this case, the petitioner seeks classification as an alien with extraordinary ability in the sciences, specifically 
in the field of component based software engineering for financial institutions. The record indicates that the 
petitioner is currently employed by Goldman, Sachs and Company ("Goldman"). The petitioner initially 
submitted supporting documents including his academic credentials, five letters of recommendation and four 
presentations written or co-authored by the petitioner. On appeal, the petitioner submits additional evidence 
including four new support letters, copies of nine scholarly articles co-authored by the petitioner, citations to 
two of the petitioner's co-authored articles, and documentation of the petitioner's income. Counsel's claims and 
the additional evidence submitted on appeal do not overcome the deficiencies of the petition and the appeal will 
be dismissed. We address the evidence submitted and counsel's contentions in the following discussion of the 
regulatory criteria relevant to the petitioner's case. 
(ii) Documentation of the alien's membership in associations in the field for which classlJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
Although the petitioner did not claim eligibility under this criterion, we note that the record contains evidence 
relevant to this category. Four of the five recommendation letters initially submitted with the petition discuss 
the petitioner's membership in two "prestigious" organizations in his field, the Institute of Electrical and 
Electronics Engineers (IEEE) and the Association for Computing Machinery (ACM). Yet the record contains 
no documentation of the petitioner's IEEE or ACM membership or evidence that outstanding achievements are 
prerequisite to IEEE or ACM membership. Accordingly, the petitioner does not meet this criterion. 
(iii) Published material about the alien in professional or mqor trade publications or other major media, 
relating to the  alien'.^ work in the field for which classlJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
In her decision, the director commented on the lack of published material about the alien in the record. 
However, the petitioner did not claim eligibility or submit evidence under this criterion. 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others 
in the same or an alliedfield of speclJication for which classfication is sought. 
The petitioner claims to meet this criterion by virtue of his evaluation and judgment of other individuals in his 
current position at Goldman and as a graduate student at Columbia University. The record does not support this 
claim. The director determined that the evidence did not establish that the petitioner had judged the work of 
others outside of the evaluation of other Goldman employees as required by his supervisory position. On 
appeal, counsel contends that "[tlhere is no legal requirement that an EBl 1 candidate's achievements must be 
done outside of his employment" and that "[tlhe reason [the petitioner] was chosen to judge the work of others 
is precisely because of his extraordinary ability." Although an alien may meet this criterion through work 
associated with his or her employm_ent, duties or activities which nominally fall under a given regulatory 
criterion at 8 C.F.R. 5 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or 
routine in the occupation itself, or in a substantial proportion of positions within that occupation. The petitioner 
submitted no evidence that he has judged of the work of other individuals in his field in a manner significantly 
outside the general duties of his positions and reflective of national or international acclaim. 
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As evidence of the petitioner's judgment of other individuals at Goldman, counsel cites the recommendation 
letters of Laurent Daynbs, Staff Engineer at Sun Microsystems Laboratories; Steve Dossick, Systems Architect 
at the Frameworks Division of BEA Systems, Incorporated; and Yu Li, Director of the Credit Derivatives 
Department at an unidentified investment bank in New York City. Mr. Daynes explains that part of the 
role at Goldman is being a "mentor to other professionals" and that he supervises ten engineers on a 
project entitled "JFree." -states that the petitioner is "known to be a qualified judge of others, as 
evidenced by his role as supervisor an leader of other engineers on the JFree project." Both Mr. Daynes and 
Mr. Dossick describe the petitioner's judgment of other individuals in his field as limited to his supervisory 
position on a specific project at Goldman. Similarly, Yu Li states that "in his supervisory role at Goldman 
Sachs, [the petitioner] is constantly sought out to review the designs and proposals of other proprietary software 
developers who are themselves experts." Yu Li also notes that "Goldman Sachs analysts, associates, and vice 
presidents routinely seek his expert advice." This statement indicates that the petitioner's expertise is valued by 
other Goldman employees, but Yu Li's letter does not demonstrate that the petitioner has judged the work of 
others in his field outside of Goldman and in a manner consistent with the requisite sustained acclaim. 
Counsel claims that "[mlany academic organizations, conferences and publishers asked [the petitioner] to 
evaluate the latest advances in the field" when he was a graduate student at Columbia University. Again, the 
record does not corroborate this claim. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of firoof. The unsupported assertions of counsel do not constitute 
evidence. Matter ofobaigbena, 19 J&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter of Rumirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Gail E. Kaiser, Professor of Computer 
Science at Columbia University and the petitioner's doctoral advisor, states that the petitioner's "opinion is 
highly valued by other experts in the field, and he is frequently called upon to judge the work of others. Editors 
of the most influential academic journals and international conferences submit the works of other researchers, 
including the works of professors, researchers and Ph.D. students, to [the petitioner] to review, rate, and 
comment on, prior to approval for publication." The petitioner submitted no documentation of his review of 
manuscripts for scholarly journals in his field or any other evidence to corroborate Professor Kaiser's statement. 
Simply going on record without supporting documentary evidence is not sufficient to meet the burden of proof 
in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Mutter of Treu,sure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Although the record indicates that the petitioner evaluates other employees in his supervisory role and is 
consulted by other Goldman staff for his expertise, the petitioner submitted no evidence that he has judged the 
work of other individuals in his field in a manner significantly outside the duties of his employment and 
reflective of the requisite sustained acclaim. Accordingly, the petitioner does not meet this criterion. 
(v) Evidence of the alien 's original scientzjic, scholarly, artistic, athletic, or business-relaled contributions of 
major signrJicance in the$eld. 
The petitioner claims to meet this criterion through his work on five projects. Counsel cites the testimonial 
letters submitted with the petition as evidence of the petitioner's eligibility under this criterion. Three of the 
authors of these letters have worked with the beneficiary and two authors do not state how they became 
acquainted with the petitioner's work. While such letters provide relevant information about an alien's 
experience and accomplishments, they cannot by themselves establish the alien's eligibility under this criterion 
because they do not demonstrate that the alien's work is of major significance in his field beyond the limited 
number of individuals with whom he has worked directly. Even when written by independent experts, letters 
EAC 03 149 52408 
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solicited by an alien in support of an immigration petition cany less weight than preexisting, independent 
evidence of major contributions that one would expect of an alien who has sustained national or international 
acclaim. Accordingly, we review the letters as they relate to other evidence of the petitioner's contributions. 
As a graduate student at Columbia University, the petitioner contributed to Project Oz, which Professor Kaiser 
describes as "the first distributed, process-centered software development environment." Mr. Dossick states that 
the petitioner's "work on Oz was notable and earned him recognition and admiration of other seasoned 
professionals in the field." Jinsong Wang, Chief Strategist of Proprietary Equity Trading at the Bank of 
Montreal in New York City, describes the petitioner as playing "a leading and critical role" in developing Oz. In 
his letter submitted on appeal, Kenneth M. Anderson, Assistant Professor of Computer Science at the University 
of Colorado at Boulder, explains that he attended the petitioner's presentation on Oz in 1996 at the University of 
California at Irvine, which he states "was very well received, and generated many questions and much 
stimulating discussion from the session attendees." Professor Anderson explains that the petitioner designed 
rule-based programming language for Oz and "was one of the very first to address some of the critical problems 
facing large scale software development, by advocating formal software process definition and automation, 
reusable component development and extensive coordination models among programmers." Although Professor 
Kaiser, Mr. Dossick, Jinsong Wang and Professor Anderson all attest to the importance of the petitioner's 
contribution to Oz, the record does not demonstrate that his individual work was widely recognized as a major 
contribution to his field. The record contains no documentation of the petitioner's 1996 presentation discussed 
by Professor Anderson and none of the submitted articles or presentations appear to relate to the petitioner's 
work on Oz. 
Professor Kaiser explains that while a graduate student, the petitioner also "developed a groundbreaking 
architecture that integrated Object-Oriented Databases (OODB) into the World Wide Web. [His] work allows 
web sites to be customized to the different needs or requirements of different viewers." Professor Kaiser notes 
that the petitioner's work "has facilitated other innovations in technology; features such as security alert, web- 
page reformatting for Palm Pilots, content filtering and translation functions are all a result of [his] original, 
important work in this area." Professor Kaiser further notes that the petitioner's research was published in the 
proceedings of the "prestigious International World Wide Web Conference, and since then has been widely 
cited by top experts and applied successfully throughout the business community, worldwide." The record does 
not fully support Professor Kaiser's assessment of the impact of the petitioner's work in this area. The record 
contains a copy of an article entitled "An Architecture for Integrating OODBs with WWW that was published 
in 1996 in Computer Networks and ISDN Systems and presented at the Fifth International World Wide Web 
Conference. The petitioner is the lead author of this article, of which Professor Kaiser is a co-author. On 
appeal, the petitioner submitted evidence that this article has been cited in three manuscripts written by other 
scholars in his field. One of these citing manuscripts has been published in an academic journal and another 
was presented at the Sixth International World Wide Web Conference. The petitioner also submitted printouts 
from unidentified sources, one of which includes the petitioner's article in a bibliography on OODRs and the 
other of which contains a purported link to his article in a "Bookmarks EDBT Tutorial." On appeal, the 
petitioner also submitted a copy of a syllabus for a course taught at the University of Illinois at Chicago in 2004 
that includes his article. We cannot consider this evidence because it arose after the petition was filed. The 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See 8 C.F.R. 3 103.2(b)(12), Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). 
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Professor Kaiser further explains that the petitioner's dissertation was based on his research in "external, 
extensible transaction services (code-named JPern)" and that his "novel idea was to extract the core transaction 
management technology and put it into a standalone software component, called the external transaction server." 
Mr. Daynes explains that "[t]ransaction management is considered one of the most difficult areas of software 
development" and that the petitioner's work "opened the door to reusable transaction technologies." Mr. 
Daynes states that "[hlis work on JPern has frequently been cited by other experts in the field and [his] 
presentations on the topic have benefited numerous researchers and developers." Mr. Dossick, Jinsong Wang, 
Professor Anderson and Leon Ostenveil, Dean of the College of Natural Sciences and Mathematics at the 
University of Massachusetts Amherst, also attest to the importance of the petitioner's work on JPern. On 
appeal, the petitioner submitted copies of two manuscripts concerning JPern. The first is an article entitled 
"JPernLite: Extensible Transaction Services for the WWW that was published in 1999 in IEEE Transactions 
on Knowledge and Data Engineering. The second article is similarly titled and was presented at "Hypertext 98: 
The Ninth ACM Conference on Hypertext and Hypermedia." The petitioner is the lead author of both of these 
articles, which are co-authored by Professor Kaiser. Apart from Mr. Daynes undocumented assertion, the record 
contains no evidence that the petitioner's JPern work has been cited by other researchers in his field. 
The petitioner also claims to meet this criterion through his work at Sun Microsystems Laboratories ("Sun") 
where he created an application called PJama which was incorporated into Sun's Java programming language. 
Mr. Daynks, of Sun, describes the petitioner's work as "invaluable to the company." Mr. Dossick explains that 
PJama "enables programs to store their own state and restart from where they were last left off, which is a 
valuable time-saver for developers when writing lengthy programs, and critically important in the event of a 
power surge or loss. Because Java is so widely used, literally millions of developers have benefited from [the 
petitioner's] work." Professor Kaiser adds that the petitioner's "original, important contributions for Sun have 
gained him widespread recognition as one of the key leaders in his field." Yet the record contains no evidence 
that the petitioner's work on PJama has been recognized by any experts in his field besides Mr. Daynes, Mr. 
Dossick and Professor Kaiser. 
The record also fails to document the allegedly major significance of the petitioner's work at Goldman. Mr. 
Dossick explains that the petitioner is the "supervisor and leader of 10 engineers now developing a state-of-the- 
art trading system infrastructure called JFree." Mr. Daynes states that JFree is "a groundbreaking creation; there 
is simply no comparable product like it in the marketplace. JFree has become a core component of several 
business units at Goldman Sachs and it is relied upon every day in the company's New York, London, and 
Tokyo offices. [The petitioner's] development of JFree is of far ranging importance." Jinsong Wang affirms 
that the petitioner's work "is revolutionary in the banking industry and truly gives Goldman Sachs a competitive 
advantage. Without [the petitioner's] expertise, JFree could not have been the success it is." Yu Li, Professor 
Kaiser, Dean Ostenveil, and Charles McClintock, Dean of the School of Human and Organizational 
Development at the Fielding Graduate Institute in Santa Barbara, California, similarly attest to the importance 
and value of the petitioner's work at Goldman. Professor Anderson also explains that the petitioner's current 
work is "proprietary, inasmuch as it is used to create advances in the fixed income securities trading systems 
used by Goldman Sachs to gain a comparative advantage over competitors in the financial markets. 
Unfortunately for the field, this has meant that [the petitioner] is not free to share his more recent findings at 
conferences and in professional journals." Yet the confidentiality of the petitioner's work for Goldman should 
not prevent other types of documentation of the work's alleged significance. For example, the petitioner 
submitted no support letters from Goldman or other unclassified or redacted materials from Goldman or other 
financial firms to document the importance of his work on JFree to his field. 
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The record indicates that the petitioner has made valuable contributions to his field as discussed by seven 
experts in their testimonial letters. However, the petitioner submitted little evidence that his work has been 
recognized in his field beyond the authors of these letters. Of his alleged major contributions to his field, only 
one has been documented in a published manuscript and that article has been cited in only one other published 
article. Accordingly, the petitioner does not meet this criterion. 
(vi) Evidence of the alien's authorship of scholarly articles in the Jield, in professional or major trade 
publications or other major media. 
The petitioner initially claimed eligibility under this criterion, but submitted only a list of 11 manuscripts. On 
appeal, the petitioner submits copies or excerpts of nine manuscripts that he has co-authored. The record shows 
that five of these articles have been published in scientific journals or conference proceedings. The petitioner 
submitted no evidence that the remaining four manuscripts have been printed in professional, major trade 
publications or other major media. Counsel describes two of these manuscripts as "Columbia {Jniversity 
Computer Science Department Technical Papers," but the record contains no evidence that the manuscripts were 
published in academic or trade journals or printed in major media. Counsel lists a third article as having been 
published in 1998 in the World Wide Web Journal, but submits only a copy of the paper purportedly accepted by 
the journal and no evidence of its publication. Counsel similarly lists a fourth article as having been printed in 
the Proceedings of the Seventh Workshop of Information Technology and Systems in 1997. The record 
documents the petitioner's presentation of the paper at this conference, but the petitioner submitted no evidence 
that the paper was actually printed in the conference proceedings. 
The petitioner is the lead author of three of his five published articles. As discussed above under the fifth 
criterion, one of these three articles has been minimally cited. This article, "An Architecture for Integrating 
OODBs with WWW," was published in 1996 in Computer Networks and ISDN Systems and presented at the 
Fifth International World Wide Web Conference. The article has been cited in three manuscripts written by 
other scholars in the petitioner's field. One of these citing manuscripts has been published in an academic 
journal and another was presented at the Sixth International World Wide Web Conference. The petitioner's 
article is also included in a bibliography on OODBs from an unidentified source. 
The record indicates that only one other article co-authored by the petitioner has been cited in his field. The 
article is entitled "An Architecture for WWW-based Hypercode Environments" and was published in 1997 in 
the Proceedings of Pulling Together - Nineteenth International Conference on Software Engineering. The 
petitioner submitted excerpts from four papers published in scientific journals that cite his 1997 article. The 
article is also cited in manuscripts from three internal academic and company publications and is included in a 
bibliography on Hypertext Techniques from the website of a university in Finland. On appeal, counsel lists two 
other articles and one book chapter that cite the petitioner's 1997 article, but the submitted excerpts of these 
citing manuscripts do not include any evidence of their publication. In fact, one article ("Capturing 
Communication and Context in the Software Project Lifecycle") is captioned, "For submission to Research in 
Engineering Design." 
The record shows that the petitioner has co-authored five articles that have been published in scientific journals 
or conference proceedings. Two of the petitioner's articles have been minimally cited and recognized by other 
researchers in his field. However, the petitioner's most recent article was published in 1999 and the most recent 
published citation to his work also occurred in 1999, four years before his petition was filed. The petitioner's 
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minimal publication and citation record does not reflect sustained national or international acclaim. 
Accordingly, he does not meet this criterion. 
(vii) Evidence of the displq of the alien's work in the$eld at artistic exhibitions or showcases. 
Documentation of an alien's presentations at scientific conferences may provide comparable evidence of his or 
her eligibility under this criterion pursuant to 8 C.F.R. 3 204.5(h)(4). The petitioner initially submitted copies of 
the text of four talks written or co-authored by him, but no documentation of the actual presentation of the talks 
at conferences in his field. On appeal, the petitioner submitted copies of or excerpts from four of his co- 
authored manuscripts, which document the presentation of his work at the following conferences: Hypertext 98: 
The Ninth ACM Conference on Hypertext and Hypermedia; Pulling Together - the 19' International 
Conference on Software Engineering (1997); the Tenth International Software Process Workshop (1 996); and 
the Fifth International World Wide Web Conference (1996). Steve Dossick and Yu Li also state that the 
petitioner presented his work at the first Asian Pacific web conference. The List of Exhibits submitted with the 
petition identify a manuscript entitled "Transaction Services for WWW-Based SDE" as "presented at 
APWEB98 (Asian Pacific Web Conference), September 28, 1998," but the record contains no corroborative 
evidence that the petitioner's work was actually presented at this meeting. 
In particular, Dean Ostenveil states that the petitioner's co-authored article, "An Architecture for WWW-Based 
Hypercode Environments," was "chosen from among approximately 300, for presentation at the 1997 ICSE 
[International Conference on Software Engineering]" and that the petitioner's presentation "generated great 
interest among conference participants." Professor Anderson also notes that the petitioner's presentation of his 
work on JPern at the 1998 ACM Conference on Hypertext and Hypermedia was "published in the proceedings 
of the conference and referred to and cited numerous times by myself and other researchers in the field." As 
discussed above under the sixth criterion, the petitioner's article was cited in four papers published in scientific 
journals, three internal publications, and is included in a bibliography on Hypertext Techniques from the 
website of a university in Finland. 
Professor Anderson further explains that the petitioner discussed his work at three conferences with "very 
competitive" selection processes for presentations: the ACM Conference on Hypertext and Hypermedia, the 
International Conference on Software Engineering and the International World Wide Web Conference. For 
example, Professor Anderson states that the acceptance rate for the 2004 International World Wide Web 
Conference was 15 percent and explains that "[c]onsidering that the submitted papers are all from the top 
experts in this field, this is a very low percentage. . . . [Olnly the very best research work that is genuinely novel 
and has the greatest potential to make an impact on the field is accepted. By this measure alone, [the petitioner] 
is certainly among the top tier of the experts in the field." On appeal, the petitioner submitted the Call for 
Papers for the Fifth International World Wide Web Conference where he presented his article, "An Architecture 
for Integrating OODBs with WWW." The document explains that "[tlhe primary focus of the conference is on 
new original research results and on innovative technology related to the World Wide Web" and states that 
"[all1 submitted papers will be refered [sic] for relevance, originality, correctness and quality." 
The record indicates that the petitioner presented his work at four scientific conferences in his field between 
1996 and 1998. The evidence shows that the petitioner's presentations at three of these conferences arose from 
a highly competitive selection process, that the petitioner's presented articles were published in the proceedings 
of four conferences, and that his presented work received some recognition in his field. However, the 
petitioner's most recent conference presentation was made in 1998, five years before his petition was filed, and 
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the record does not establish that he continued to present his work at major conferences in his field in a manner 
consistent with the requisite sustained acclaim. Accordingly, the petitioner does not meet this criterion. 
fviii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
To meet this criterion, a petitioner must establish the nature of the alien's role within the entire organization or 
establishment and the reputation of the organization or establishment. Where an alien has a leading or critical 
role for a section of a distinguished organization or establishment, the petitioner must establish the reputation of 
that section independent of the organization itself. In this case, the petitioner claims to have performed a leading 
or critical role for Goldman and Sun, but the record does not demonstrate his eligibility under this criterion. 
Laurent Daynes, Steve Dossick, Jinsong Wang, Yu Li, Professor Kaiser, Dean Ostenveil, Professor Anderson, 
and Dean McClintock all discuss the importance and value of the petitioner's work for Goldman, but their 
letters do not provide a consistent description of his actual position and role at the company. Professor Kaiser 
states that the petitioner is a "Software Architect for the Fixed Income Currency & Commodity division of 
Goldman Sachs" and Laurent Daynes describes him as "a researcher and developer" for that division. Yet the 
letters submitted on appeal all state that the petitioner is a Vice President who directs strategic technology 
research at Goldman. The record contains no support letter or other primary evidence from Goldman to clarifj 
this discrepancy and attest to the petitioner's allegedly leading or critical role for the company. 
The record also fails to demonstrate that the petitioner played a leading or critical role at Sun. Laurent Daynes, 
Steve Dossick, and Professor Kaiser all discuss the value of the petitioner's PJama application and its 
incorporation into Sun's Java product. Yet the record does not document the petitioner's exact position at Sun 
or establish that he performed a leading or critical role for the company as a whole. 
The record indicates that the petitioner's work on two projects is highly valued by those individuals familiar 
with his work at Sun and Goldman. Even if the petitioner supervised and made important contributions to 
specific projects at Sun and Goldman, the record does not establish that he performed a leading or critical role 
for these companies at large. Accordingly, the petitioner does not meet this criterion. 
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The petitioner did not initially claim eligibility under this category. On appeal, counsel claims the petitioner 
meets this criterion because his income from 2002 through 2004 was above the average total compensation for 
"Top Financial Systems Executives" in New York during this time period. Counsel states that the petitioner's 
total compensation was $400,000 in 2003 and $300,000 in 2002, but the submitted evidence does not support 
this claim. The documents submitted on appeal include a copy of the petitioner's 2003 W-2 form that states his 
wages as $277,473 and an earnings summary listing his gross pay for 2003 as $301,569. A handwritten note on 
the submitted copy of the 2003 W-2 form and earnings summary reads, "Base Comp. $1 15,000[.] Other 
payments are bonuses attributed to 2002." Hence, we cannot determine the petitioner's income from January 
through April 15, 2003, the date he signed the Form 1-140. The record also contains no documentation of the 
petitioner's income in 2002. Counsel submits a printout from the Wall Street Journal Executive Career Site, 
"CareerJournal.com," which states that the average salary of top financial systems executives in New York is 
$200,218. Yet without documentation of the petitioner's income prior to filing, we cannot determine how his 
EAC 03 149 52408 
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compensation compares with this figure. Nonetheless, we note that the printout lists the income of these 
executives at the 67" percentile as $407,264, an amount well above the petitioner's gross 2003 income of 
$301,569. 
Counsel further states that the petitioner's total compensation package for 2004 was $600,000 and cites the 
submitted assessment of Charles M. Chinzi, President of Creative Career Solutions, who states that "[tlhis level 
of compensation is very high, even for those at the highest levels of this field." We cannot consider evidence 
regarding the petitioner's 2004 income because it arose after the petition was filed. The petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. See 8 C.F.R. 5 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
The evidence submitted on appeal does not establish that the petitioner's income at the time of filing was 
significantly higher than other similarly employed individuals in his field or comparable to executives at the 
very top of his field. Accordingly, he does not meet this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner has made valuable contributions to his field, but the record does not 
establish that he had achieved sustained national or international acclaim at the time of filing. He is thus 
ineligible for classification as an alien with extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 
U.S.C. 5 1 153(b)(l)(A), and his 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. $ 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.