dismissed EB-1A Case: Technology

Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF E-S- DATE: FEB. 4, 2019 
APPEAL _OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a chief technology officer,_ seeks classification as an individual of extraordinary 
ability. See Immigration and Nationality · Act (the Act) section 203(b)(l)(A), 8 U.S.C. 
, § l 153(b)(l)(A). This first preference classification makes immigrant visas availabi'e t6 those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive docurnentation. 
The Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had satisfied only two of the ten initial evidentiary criteria, of 
which he must meet at least three. 
On appeal, the Petitioner submits a briet: arguing that he meets at least three of the ten criteria. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been -demonstrated by sustained national or international 
acclaim and whose achievements have been' recognized in the ·field through 
extensive documentation, 
(ii) the alien _ seeks to enter the United siates to continue work m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial· evidence 
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requirements. First, a _pet1t10ner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). If that petitioner does not submit this evidence, then he or she 
must provi~e documentation that meets at least three of the ten categories listed at 8 C_.F.R. 
§ 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media, and 
scholarly articles). The regulation at 8 C.F.R. § 204.5(h)( 4) allows a petitioner to submit comparable 
material if he or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not 
readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
. material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USC!S, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); R?jal v. USC!S, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that trye "truth is to be 
determined not _by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a chief technology officer at located in Texas. Because 
he has not indicated or established that he has received a major, internationally recognized award, he 
must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In 
denying the petition, the Director found that the Petitioner met only two of the initial evidentiary 
criteria, judging under 8 C.F.R. § 204.5(h)(3)(iv) and leading or _critical role under 8 C.F.R. 
§ 204.5(h)(3)(viii). 
On appeal, the Petitioner argues that USCIS found that he met the original contributions criterion at 
8 C.F.R. § 204.5(h)(3)(v) in a previous filing. 1 Thus, he contends that he satisfied three criteria over 
the course of two petition filings. However, each extraordinary ability petition is reviewed on its 
own merits, and we are not bound by decisions of a service center or district director. See La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). ·Moreover, 
we have revi ew,ed all of the evidence in the record and conclude that it does not support a findin g 
that the Petiti oner fu lfills the requir ements of at least three criteria. 
1 See USC IS decision dated, November 3, 20 I 7, for 
., 
where the Director determined that the Petitioner 
satisfied the original contributions and leading or critical role criteria. 
2 
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A. Evidentiary Criteria 
Published material about the alien in prqfessional 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 qf the material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The record contains screenshots, such as hufiingtonpost.com, pcadvisor.co.uk, mashable.com, and 
the verge.com, reporting on the release of a computer application, The evidence, 
however, does not reflect published material about the Petitioner. 2 In fact, the Petitioner is not 
mentioned in any of the material. Articles that are not about a petitioner do not fulfill this regulatory 
criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles regarding a show are not about the actor). Accordingly, the 
Petitioner did not demonstrate that he satisfies this criterion. 
Evidence qf the alien's participation. either individually or on a panel, as a judge qfthe work qf 
others in the same or an allied.field qfspecificationfhr which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The Petitioner submitted evidence showing that he served as a judge for a database module add-on 
competition. As such, we agree with the Director that the Petitioner fulfills this criterion. 
Evidence qf the. alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signfficance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v),-.a petitioner must establish that not only 
has he made original contributions but that they have been of major significance in the field. For 
example, a petitioner may show that the contributions have been widely implemented throughout the 
field, have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance in the field. 
The record reflects that the Petitioner provided evidence relating to his development of three 
computer applications, websites, and software: 
As previously mentioned relating to the record contains screenshots reporting on the 
new application, such as theverge.com, mashable.corn, and pcadvisor.co.uk. However, the 
screenshots do not reflect that has significantly impacted the field in a major way 
rather than announcing the availability of a new application. Moreover, the Petitioner submitted 
screenshots from time.com and forbes.com listing as one of the 
and ________ as well as receiving third place at the 
2 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Suhmilled with Certain Form /-/40 
Petitions; Revisions to the Adjudicator's Field Manual(AFM) Chapter 22.2. AFM Update AD I /-/4 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
3 
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Matter of E-S-
Although received initial accolades for its ingenuity and originality, 
the record does not indicate that it garnered honors based on its recognition by the field as being 
greatly influential. The Petitioner, for example, did not show the influence of __ smce 
its introduction. In addition, the Petitioner offered recommendation letters that explained the 
purpose of the application and described his role in its development but do not demonstrate how it is 
considered to have been of major significance in the field.3 For instance, the authors generally 
indicate that it "reach[ es] more than 2.5M users worldwide" Without explaining the meaning of such 
usage numbers and how it establishe~ the impact of the application in the field. 
Similarly, regarding , the recommendation letters confirm his work on the website without 
showing its impact of influence in the field. For example, , co-founder of 
stated that the Petitioner's "exceptional abilit_ies were a key driver in making happen and 
leading to its ultimate acquisition and successful integration within other web assets." 
Although the record indicates that purchased neither nor the Petitioner, 
demonstrated how such acquisition shows that is considered to be a contribution of major 
significance to the greater field.4 Moreover, director of product at indicated 
that the Petitioner "spearheaded the efforts to increase the scale in which the website worked as more 
and more users of [sic] different on line properties came to the site." While 
briefly discussed the Petitioner's post~acquisition work, he did not establish how his contributions 
greatly impacted the overall field outside of · 
Likewise, as it pertains to the Petitioner offered a letter from , chief 
executive officer of who stated' that the Petitioner led the development of, the software 
product at and "was one of the most scalable products in the company allowing to serve 
thousands of customers from a single server." Here, commented on importance of the 
software to ___ rather than showing the impact or influence to the overall field. Letters that 
specifically articulate how a petitioner's contributions are of major significance to the field and its 
impact on subsequent work add value. 5 On the other hand, letters that lack specifics and use 
hyperbolic language do not add value, and are not considered to be probative evidence that may 
form the basis for meeting this criterion. 6 Moreover, USClS need not accept primarily conclusory 
statements. 1756, Inc. v. The U.S. Att'yGen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that he has made original contributions of major significance in the field. 
3 Although we discuss a sampling of letters, we have reviewed and considered each one. 
4 See USCIS Policy Memorandum PM 602-0005.1, supra; at 8-9; see also Visinscaia, 4 F. Supp. 3d at 134-35 (upholding 
· a finding that a ballroom dancer had no_t met this criterion because she did not corroborate her impact in the field as a 
· whole). . 
5 See USCIS Policy Memorandum PM 602-0005.1, supra , at 8-9. 
6 Id. at 9. See also Kazarian, 580 F.3d at I 036, affd in part 596 F.3d at 1115 (holding that · letters that repeat the 
regulatory language but do not explain ho_w an individual's contributions have already influenced the field are 
insufficient to establish original contributions of major significance iri the field). 
4 
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Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reJJutation. 8 C.F.R. § 204.5(h)(3)(viii): 
Although the Director concluded that the Petitioner fulfilled this criterion, the record does not reflect 
that he performed in leading or critical roles for organizations or establishments that have a 
distinguished reputation. 7 The record reflects that the Petitioner claimed eligibility for this criterion 
based· on his roles for and Although we agree that the 
Petitioner's roles were leading or critical, he did not establish that the organizations enjoy 
distinguished reputations. 8 The record contains screenshots relating to application 
release and acquisition of as well as 2015 tax documentation and 
acquisition agreement. The Petitioner, however, did not show how the evidence 
demonstrates the eminent reputations for any of these organizations. 
Because the Petitioner did not meet his burden of establish that he performed in a leading or critical 
role for organizations or establishment that have a distinguished reputation, we withdraw the 
Director's decision for this criterion. · 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Petitioner, the prior approval does not preclude 
USCIS from denying an immigrant vis.a petition which is adjudicated based on a different standard -
statute, regulations, and c_ase law. Many Form I-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of.Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a_ff'd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office adjudicating the nonimmigrant 
visa petition, is comparable to the relationship between a court of appeals and a district court. Even 
if a service center director has approved a nonimmigrant petition on behalf of an individual, we are 
not bound to follow that finding in the adjudication of another immigration petition. Louisiana 
Philharmonic Orchestra v. INS, No. 98-2855 at *2. 
Ill. CONCLUSION 
The Petitioner has .. not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria . As a result, we need not provide the 'type of 
final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Ntvertheless, we advise 
7 See USC IS Policy Memorandum PM 602-0005.1; supra, at I 0. 
8 Id. at I 0-11 (defining Merrion-Webst er 's Dictiona,y definition of "distinguished" as marked by eminence, distinction, 
or excellence). 
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that we have reviewed the record in the aggregate, concluding that .it does not support a finding that 
the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long 
held that even athletes performing at the major league level do not automatically meet the 
. "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r. 1994). 
Here, the Petitioner has not shown that the significance of his work is indicative of the required 
sustaineq national or international acclaim or that it is consistent with a "career of acclaimed work in 
the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also 
section 203(b )(1 )(A) of the Act. Moreo·ver, the record does not otherwise demonstrate that the 
Petitioner has garnered national or international acclaim in the field, and he is one of the small 
percentage who has risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the 
Act and 8 C.F.R. § 204.5(h)(2). 
For the foregoing reasons, the Petitioner has not shown that he qualifies for classification as an 
individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matten~[ E-S-, ID# 1973171 (AAO Feb. 4,2019)