dismissed EB-1A Case: Software Engineering

COW 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washmeton. DC 20529 
U. S. Citizenship 
and Immigration 
- FILE: Office: CALIFORNIA SERVICE CENTER Date: 
WAC 98 203 52577 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l:1(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
L Robert P. Wiemann, Director 
, Administrative Appeals Office 
DISCUSSION: The employment-based preference visa petition was initially approved by the Director, 
California Service Center. In connection with the petitioner's Application to Register Permanent Resident or 
Adjust Status (Form I-485), the director served the petitioner with notice of intent to revoke the approval of the 
petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of the 
Immigrant Petition for Alien Worker (Form 1-140). The matter is now before the Administrative Appeals Office 
(AAO) 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. $ 11 53(b)(l)(A), as an alien of extraordinary ability in the 
sciences. The director determined the petitioner had not established the sustained national or inlernational 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
In a supplementary appellate brief, counsel draws the AAO's attention to a recent opinion, Firstr'and Int'l, 
lnc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004), issued by the United States Court of Appeals for the Second 
Circuit on August 2,2004. In that opinion, the court in Firstland interpreted the third and fourth sentence of 
section 205 of the Act, 8 U.S.C. $ 11 55 (2003), to render the revocation of an approved immigrant petition 
ineffective where the beneficiary of the petition did not receive notice of the revocation before beginning his 
journey to the United States. Firstland Int'l, 377 F.3d at 130. Counsel asserts that the reasoning of this 
opinion must be applied to the present matter and accordingly, Citizenship and Immigration Services (CIS) 
may not revoke the approval because the beneficiary did not receive notice of the revocation before departing 
for the United States, since he was already in the United States when the director issued the revocation.' 
According to the record of proceeding, the petitioner lives in California; thus, this case did not arise in the 
Second Circuit. Firstland Int'l was never a binding precedent for this case. Even as a merely persuasive 
precedent, moreover, Firstland Int '1 is no longer good law. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, - Stat. - (2004). Specifically relating to this matter, section 5304(c) 
of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 1 154 of this 
title. Such revocation shall be effective as of the date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and that the amended version of section 205 applies to revocations under 
section 205 of the Act made before, on, or after such date. Accordingly, the amended statute specifically 
I Counsel's arguments illustrate the illogical effects of the Second Circuit's reasoning: In the present matter, 
the beneficiary entered the United States as a nonimmigrant on May 30, 1997, over one year prior to the 
filing of the Form 1-140 immigrant petition and more than seven years prior to the revocation of the petition's 
approval. Accordingly, it was physically impossible for CIS to have notified the beneficialy of the 
revocation before he departed for the United States. In effect, counsel's interpretation of Firstland would 
have created a situation where any alien would have an irrevocable immigrant visa petition if the alil:n simply 
waited to file the petition until after he or she arrived in the United States. 
applies to the present matter and counsel's Firstland Int'l argument no longer has merit. Finally, we note 
that the realization by the director that the petition was approved in error may be good and sufficient cause 
for revoking the approval. Matter of Ho, 19 I&N Dec. 582,590 (BIA 1988). 
Counsel's remaining arguments will be discussed below. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively 
the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the individual 
is one of that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). 
The specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that he has sustained national or international acclaim at the very top level. 
This petition seeks to classifL the petitioner as an alien with extraordinary ability as a senior software engineer. 
The regulation at 8 C.F.R. 9 204.5(h)(3) indicates that an alien can establish sustained national or international 
acclaim through evidence of a one-time achievement (that is, a major, international recognized award). Barring 
the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which must ble satisfied 
for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The 
petitioner has submitted evidence that, he claims, meets the following   rite ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or awards for 
excellence in theJield of etzdeavor. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 4 
petitioner made "an outstanding and significant contribution" to Siemens' EWSD switch, designated "most 
reliable" in an annual telecommunication ranking of switches. market development 
architect for Lucent Technologies, reiterates that the petitioner made a "significant contribution" to the EWSD 
switch, asserting that the switch "won Be1 itching equipment with 
the least down-time in the United States." 
instrumental in helping Siemens attain this 
confirms the petitioner's contributions to t 
submitted promotional materials for the switch, which indicate it is best selling switch but does not mlzntion any 
awards. 
In the notice of intent to revoke and again in the final decision, when discussing this criterion, the director 
evaluated the petitioner's presentation at a NATO workshop whose participants are described as "leaders" in the 
field. As noted by counsel on appeal, the petitioner has never claimed the workshop relates to this criterion. 
While the director engaged in a semantics discussion distinguishing "leader" from one of the very few at the top 
of the field, the more obvious problem with this evidence, as it relates to this criterion, is that an invitation to 
present one's work, regardless of the prestige of the workshop, is not an award or prize. Thus, as ackr~owledged 
by counsel, this evidence simply does not relate to this criterion. The problems with counsel's characterization 
of this evidence will be discussed below. 
The evidence that was actually submitted to address this criterion is not persuasive. First, the record does not 
contain the ranking or award from Bellecore. Second, the record does not contain any evidence about the 
significance of the award, such as how many switches received a similar rating. Third, while the petitioner's 
colleagues attest to the importance of the petitioner's contribution to the switch, the record does not contain the 
patent for the switch confirming the etitioner's inclusion as an inventor. Finally, according to the attestations 
about the award, it was issued t &not the petitioner. The clear language of the regulation at 8 C.F.R. 
5 204.5(h)(3)(i) requires evidence of the alien's receipt of the award or prize. The petitioner has failed to 
establish that the beneficiary satisfies this criterion. 
Published materials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which class$cation is sought. Such evidence shall ilzclude the 
title, date, and author of the material, and any necessary translation. 
Initially, counsel asserted, "material about [the petitioner's] work has been published in professional 
publications." Counsel references exhibit 13, a magazine whose cover features a robot allegedly designed by 
the petitioner. The portion of the cover submitted does not credit the petitioner with the design of the robot. 
In the notice of intent to revoke, the director concluded that no evidence had been submitted to meet this 
criterion. The petitioner's response did not address this criterion and the director reaffirmed the conclusion in 
his final decision. Counsel does not challenge this conclusion on appeal. 
Materials that do not identify the petitio er the petitioner any acclaim. Moreover, the magazine 
July 1990, bears the word The petitioner obtained his Ph.D. at the University of 
1989. Local or school publications cannot be considered major media. Moreover, the magazine is 
before the date of filing and is not evidence of sustained acclaim as of that date. Thus, we 
concur with the director that the petitioner does not meet this criterion. 
Evidence of the alien's original scientzjk, scholarly, artistic, athletic, or business-related contributions of 
major signlJicance in the field. 
Counsel initially asserted that the petitioner's designs of an assembly line robot and award-winning 
telecommunications switching system are original contributions. According to counsel, "the most credible 
indication of the value of [the petitioner's] research is the fact that [he] was invited to present hi,s findings 
to the NATO Workshop for Multisensor Computer Vision, held in France in 1989." (Emphasis in 
original.) Counsel referenced this "invitation" as evidence that the petitioner is "recognized as one of the 
pioneer leading experts in artificial intelligence." Counsel continues to emphasize this workshop 
presentation. For example, in response to the notice of intent to revoke, counsel notes that the prel'ace to the 
volume containing the revised papers affirms that "[elach participant is a recognized leader in his or her area 
in the academic, governmental, or industrial research community." Counsel asserts that leadership in the 
field is the same as being at the top of the field. The director rejected this comparison. On appeal, counsel 
reiterates that only leaders in the field were invited to this workshop and that leaders are those who have 
risen to the top of the field. 
We do not find the director's distinction between "leaders" and those at the top of their fields to be useful. 
Of more significance is the fact that the invitation in the record is addressed to the petitioner's mentor. " 
Specifically, Exhibit 9 contains a December 19, 1988 letter from he editor of the publication 
of the revised papers, to inviting him to same exhibit includes= 
-anuary 13, 1989 response to Professor Agganval submitting an abstract of his work, coauthored 
with the petitioner, for consideration. A final letter accepting the paper for presentation, dated April 20, 
1989, is addressed to "Workshop Participant." The petitioner's name is handwritten after the salutation. 
That the petitioner is the first author of the paper submitted for presentation is irrelevant as to whether he was 
the actual invitee as a leader in the field. The letters discussed in this paragraph do not support counsel's 
continued assertion that the petitioner was invited to this workshop as a leader in his field. The petitioner 
cannot demonstrate his own acclaim through affiliation with his mentor. That the petitioner's own mentor 
selected an article for presentation coauthored by the petitioner is not evidence of the petitioner's acclaim 
beyond his mentor. We note that in 1988, when Professor Agganval issued the first invitation, the petitioner 
was a Ph.D. student with a single published paper. 
While the petitioner's presentation at the NATO workshop is not, in and of itself, indicative of his 
recognition for contributions of major significance, the remaining evidence must be considered. The 
petitioner obtained his Ph.D. from the University of Karlsruhe in Germany in 1989. He then worked for 
Siemens, ultimately as a senior software engineer, until 1997, when he left to join TCSl in the United States 
as a senior software engineer. 
ked in the Robotics and Computer Vision research group 
sserts that the petitioner "developed a new and original 
solution'' to the problem of unreliable recognition of 3-D objects by robots. Specifically, the petitioner - 
introduced data fusion, combinin data from the robot's illumination sensor and range data from its laser 
sensor. According to -is work was "a major breakthrough" in that it allowed "sutlstantially 
more robust object recognition results." 
Chair of the Computer and Electronics Engineering Technology Department at ITT Technical 
Institute, asserts that the petitioner's robotic work "inspired my research team." -f the 
University of Hamburg asserts that he has "been a beneficiary of [the etitioner's] work since 19815 when he 
e University of Karlsruhe]." PDirector of Research and 
asserts that between 1986 and 1991 he requested and used four of the 
These letters confirm that the petitioner's Ph.D. work was useful. 
Without evidence of widespread credit, such as numerous journal citations or references in patent 
applications, however, we cannot conclude that this work constituted a contribution of major significance. 
Moreover, the work referenced in these letters occurred more than nine years before the petition's filing date. 
The petitioner needs to demonstrate sustained acclaim for those nine years. 
M Switch Research ~ana~eeiscusses the petitioner's work on the EWC;D/EWSX 
dltchcompanyI dicates that Siemens is one of ten companies worldwide able to produce 
such switches and that 9,000 employees work on this projectEtates: 
[The petitioner] was put in charge of Object Modeling Defined Object Models (DOM) Table 
Facility for the Q3 Platform. This became the central and crucial part of the Q3 Platform 
dealing with CMISICMIP protocol for our ATM Switch. . . . It has repeatedly been shown 
that [the petitioner's] design and implementation of the DOM subsystem stabilized the run 
time behavior of the platform, strengthening considerably the competitive advantage of the 
Siemens ATM Switch. [The petitioner's] DOM Table Facility for the Q3 platform design 
was without a doubt a significant breakthrough in the development of Telecommunication 
Management Network (TMN) Q3 technology. 
concludes that the petitioner's "grasp of the new standardized operating interfaces, as 
demonstrated by his ability to quickly and competently design System Architecture around them, played a 
crucial role in allowing Siemens to maintain its lead in this critical area during this period of rapid 
technological and regulatory change." Other letters in the record provide similar information. 
The record lacks evidence that the switch was highly ranked by Bellecore as claimed. The promotional 
materials about the EWSD switch, while they do suggest that the EWSD switch is "the best-selling switching 
system in the world," are not as persuasive as independent evaluations of the switch by trade publications. 
Moreover, the petitioner has not submitted any foreign or U.S. patents naming him as an inventor of any 
component of the switch or the switch itse~f.~ 
a principal software engineer at TCSI Corporation, explains that many transactions ire routed 
through the phone system but that phone companies cannot afford a massive upgrade of their switching 
systems. Thus, they seek "intelligent software to better utilize their switch resources."ar;serts that 
the petitioner's background in artificial intelligence allows him to design systems that prioritize tasks and 
the expensive switch equipment [the phone companies] own and hold down 
3 
U.S. Patent information is publicly available. A search of the U.S. Patent Office's website, www.uspto.gov, 
reveals no patents listing the petitioner as an inventor. 
[The petitioner] is the leading researcher and has made significant contribution to the design 
and implementation of the Configuration Management and the Fault Management parts for 
our flagship product: solutioncoreTM, an application environment for building and deploying 
large, distributed TMN system for the telecom industry. Central to TMB System 
Architecture is the 43 Platform, without which a TMB cannot work properly. [The 
petitioner] has been designing TMB's and Q3 Platform since 1992, when he worked for [a] 
public telephone network division of Siemens, the European company. His unusually high 
level of expertise in TMN system architecture makes him an indispensable addition to 
TCSI's software development team who has been playing a critical role in solving the most 
challenging problems. 
ncedes, however, that as of 1998, the technology on which the petitioner was working had yet to 
released. As such, it is not clear how the petitioner's work at TCSI can be considered a 
contribution of major significance to the field as of the date of filing. 
While the record contains the petitioner's written work and academic credentials, the evidence of alleged 
acclaim consists entirely of reference letters. The opinions of experts in the field, while not without weight, 
cannot form the cornerstone of a successful claim. Evidence in existence prior to the preparatiion of the 
petition carries greater weight than new materials prepared especially for submission with the petition. An 
individual with sustained national or international acclaim should be able to produce unsolicited materials 
reflecting that acclaim. 
Evidence of the alien's authorship of scholarly articles in the Jield, in professional or mcljor trade 
publications or other major media. 
The petitioner initially submitted his 1989 dissertation, a 1986 published article, and his revised paper originally 
presented at the 1989 NATO A e Research Workshop on Multisensor Fusion for Computer Vi.sion. The 
petitioner's coauthor, dsserts that the University of Karlsruhe "has received repeated requests 
firms for copies of [the petitioner's] research results." The petitioncv 
mentor rovides two examples of researchers citing the petitioner's work, the mlos recent 
in 1992, seven years prior to the filing date of the petition. In the notice of intent to revoke, the director noted 
the lack of reprint requests in the record. 
In response, counsel asserts that the NATO presentation was significant for the reasons discussed above. The 
petitioner submitted letters from members of the field affirming that they have requested and applied the 
petitioner's published work. 
In his final decision, the director concluded that the photocopy of the NATO workshop papers does not confirm 
the petitioner's authorship. On appeal, the petitioner submits the entire volume, which does contain the 
petitioner's article, a copy of which was part of the petitioner's initial submission. 
The petitioner's most recent published work is from 1989, ten years prior to filing the petition. While ithe record 
contains some attestations of reliance on these articles, the record contains no suggestion that the petitioner's 
work is widely and frequently cited in peer-reviewed journals. Moreover, reliance on the petitioner's work 
should be demonstrable through submission of published articles or patent applications citing the petitioner's 
work as a reference. We are not persuaded by counsel's assertion on appeal that such evidence is no longer 
available. Prior to the on-line citation indexes now available, bound citation indexes, available in academic 
libraries, were used to catalog citations. A lack of recent citations of the petitioner's work, however, suggests 
that his publication record is not indicative of sustained acclaim up until 1998 when the petition was filed. 
Finally, we note that one of the petitioner's referencesa professor at the University of 
Hamburg, purports to have authored over 100 technical papers, five book chapters, and two "research -. A -. 
monographs." Thus, the top of the petitioner's field, as represented by scholarly articles, appears to be far 
higher than the level the petitioner has achieved. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
Counsel initially asserted that the petitioner's work "has been showcased at the NATO Workshop for 
Multisensor Computer Vision and other international scientific conferences." As noted by the director, this 
criterion does not apply to the petitioner's field. It could be argued that an invitation to participate in a highly 
prestigious scientific workshop designed solely for participation by leaders of the field is comparable evidence 
to meet this criterion. Even if we accepted that principle, for the reasons discussed above, the petitioner was not 
the primary invitee. 
Evidence that the alien has performed in a leading or critical role for organizations or establi~h~nents that 
have a distinguished reputation. 
The petitioner first claims to have met this criterion in response to the director's notice of intent to revoke, 
relying on his contributions to his employers discussed above. The director concluded that the petitioner's role 
as a member of a group at Siemens could not serve to meet this criterion. 
On appeal, counsel asserts that the petitioner's achievements while at Siemens attests to his critical role with 
that distinguished company. 
We have already considered the petitioner's claims of contributions to the field above. While counsel is correct 
that a petitioner need not submit evidence that only those with extraordinary ability work for his employer, the 
plain language of the criterion requires evidence that the position the petitioner was hired to fill is a leading or 
critical role for the employer. 
The petitioner was a senior software engineer for Siemens from 1992 through 1997. Acc 
9,000 employees worked in the same department dedicated to the EWS 
indicate how many senior software engineers are included in that number. 
was "put in charge" of the DOM table facility for the Q3 Platform. It is not clear that every team leader for a 
large project involving several components is a leading or critical role. The evidence does not indicate that a 
senior software engineer is a critical or leading role for Siemens other than the obvious need for a successful 
telecommunications company to employ competent engineers. 
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 has risen 
to the very top of the field of endeavor. 
Page 9 
Review of the record, however, does not establish that the petitioner has distinguished himself as a senior 
software engineer to such an extent that he may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the 
petitioner shows talent as a senior software engineer, but is not persuasive that the petitioner's achievements set 
him significantly above almost all others in his field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.