dismissed EB-1A Case: Telecommunications

U.S. Citizenship 
and Immigration 
Services 
InRe: 17186384 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a producer of telecommunications hardware and software, seeks classification of the 
Beneficiary as an alien of extraordinary ability. See Immigration and Nationality Act (the Act) section 
203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference classification makes immigrant visas 
available to those who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that although the 
Beneficiary met the initial evidence requirements for the requested classification, the record did not 
establish that he had sustained national or international acclaim or is one of the small percentage at 
the top of his field of endeavor. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a pettt10ner can demonstrate 
international recognition of his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
he or she must provide sufficient qualifying documentation that meets at least three of the ten criteria 
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). 
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. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Beneficiary earned a master of science degree in electrical and computer engineering from the 
Universit I lin 2011, and is currently employed by the Petitioner as its Head ot1 I 
L..._ ______ r-T=h=e~re~c~o=r=d~s...,hows that he co-founded~----~-~in 2011, which later 
became known as.__ ____ ____., and served as the company's vice president ofresearch until it was 
acquired by the Petitioner in 2019. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must show that he satisfies at least three of the alternate regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Beneficiary met four of the 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his contributions of major significance 
to the field, authorship of scholarly articles, performance in a leading or critical role for an organization 
with a distinguished reputation, and high salary in relation to others in the field. However, in 
conducting the final merits determination, he did not find that the Beneficiary qualified as an individual 
of extraordinary ability. On appeal, the Petitioner submits additional evidence and asserts that the 
Director discounted the evidence of patents on which the Beneficiary is listed as an inventor. It further 
stresses that media articles that are not about the Beneficiary nevertheless discuss his work and were 
not properly considered in the Director's final merits determination. After reviewing all of the 
evidence in the record, we agree with the Director's conclusions regarding the contributions, author, 
and salary criteria, but we do not agree that the evidence sufficiently shows that~ has or had a 
distinguished reputation to meet the criterion at 8 C.F.R. § 204.5(h)(3)(viii). Nevertheless, because 
we agree that the Beneficiary has met the requisite three criteria and thus meets the initial evidence 
requirement for this classification, we will conduct a final merits determination of the totality of the 
evidence to determine whether he qualifies as an individual of extraordinary ability. 
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B. Final Merits Determination 
In a final merits determination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has sustained national or international acclaim and is one of the small 
percentage at the very top of the field of endeavor, and that his achievements have been recognized in 
the field through extensive documentation. Here, the Petitioner has not offered sufficient evidence 
that the Beneficiary meets that standard. 
In its appeal brief: the Petitioner primarily focuses on the patents authored by the Beneficiary for 
I !technology he developed and which led him to co-founcic=J In particular 
it stresses that the commercialization of the technology in those patents led to its acquisition otO 
The first issue it addresses concerns the number of patents in which the Beneficiary is named, which 
the Director characterized as 20 patent applications based upon the Beneficiary's Google Scholar 
profile. On appeal, the Petitioner asserts that it provided evidence of more than 7 5 patents authored 
by the Beneficiary which have been issued. We first note that beyond the Google Scholar profile and 
documentation of 6 U.S. patents and IO patents in other jurisdictions, this evidence submitted in 
response to the Director's request for evidence (RFE) consists of tables apparently created by the 
Petitioner which list information about other patents, some of which these documents indicate are still 
pending. Such documentation may serve as reference material, but it does not serve to verify the 
existence of the listed patents, whether pending or issued. While the Petitioner submitted further 
evidence of the Beneficiary's United States and international patents on appeal, the RFE specifically 
requested further evidence of patents and their licensing and utilization. Where, as here, 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. Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In addition, and more importantly for purposes of this analysis, the evidence does not indicate that 
each of the patents listed in these documents represents a new innovation or original contribution to 
the field, but rather that many of them were filed to secure intellectual property protection for an 
existing and already patented innovation in an additional jurisdiction. While this does not diminish 
the value of the Beneficiary's original contributions, the Petitioner has not established that the number 
of patents and patent applications listing the Beneficiary as an inventor is sufficient to show his 
elevated status within the field of wireless communications. 
Concerning the commercialization of the Beneficiary' ~--------------' technology 
for which the patents were filed, the Petitioner asserts that the Director did not consider the evidence 
of contracts to deploy that technology, as well as media coverage o-c==J and its purchase by the 
Petitioner Ibis evide~ce includes a statement of work (SOW) between! I I J ancOin the amount of $50,000 for an approximately six month term. The 
SOW, dated May 18, 2016o~e Beueficia~ as "Technical Re resentative" and calls for~to 
provide software to supportJ _ ] technology for devices. Additional evidence 
includes a contract betwee and.__ ______ ___, a corn an in Sri 
Lanka, for the provision of "a software application to enabl_.__ ____ ---1 
D data transmission." The Petitioner also submitted a 
1
ress release frorn __ ...... d_a_t_e_d_F_e_b_ru_ar__.__2_6_,_, 
2019, announcing its demonstration of its I O _ wit1 I a.__ ________ _. 
Although the contracts indicate that the Beneficiary's innovations have begun to be deployed in the 
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telecommunications industry to some extent, it is insufficient to show that this limited 
commercialization of his technology has impacted the broader telecommunications field already or 
brought him sustained national or international acclaim in the field. For example, we note that the 
press release regarding thel I demonstration does not indicate that s software has already 
been deployed, but that it "can be utilized to update existin....,_ ___________ _.devices." 
Several of the reference letters submitted by the Petitioner also highlight the potential of the 
Beneficiary's work rather than the effect it has already had on the telecommunications field. 1c=] 
I I co-founder and CEO of writes that he ·oinedc=Js advisory board in 
2013 based upon his impression of the Beneficiary's~-----~technology. While he praises 
the Petitioner's solution as the most cost-effective to address the demand for wireless connectivity, he 
then states that it "could be a revolutionary approach to cellular networks that may help address the 
burgeoning need for wireless connectivity," and notes that "we are only at the beginning." 
Another former member ofD's advisory board isl ~ CEO ot1 I Similar toO 
I l's letter, he writes that the company's technology "has the potential to change the way the 
telecorn sector will operate in the corning years," and describes it's software solution as "likely to be 
the most cost-effective alternative to come to market in the next several years." Although both of 
these letters mention the ongoing commercialization of the Beneficiary's technology, neither is 
specific in describing the impact it has already made. 
An additional reference letter was submitted by~--------~of the University! I I I who notes that he met the Petitioner in 2011 at the university and fully supported him and 
the seed financing fo0 from the University ofl I Like the letters 
above, he mentions that the technology developed by the Petitioner "has the potential to be the most 
cost-effective way to improve the efficiency of cellular networks," that the "real work has just started." 
While the patents and evidence relating toe=] show that Petitioner has already significantly 
contributed to the development of telecommunications technology, these letters do not establish that 
the commercialization and impact of his innovations are at a point where he is of the small percentage 
of engineers at the top of the telecommunications field. 
The record also includes several media articles discussingc=] and the technology developed by the 
Beneficiary. As not
1 
d byte Director in his decision, none of the articles are about the Beneficiary, 
but instead focus on it's launch, financing and purchase by the Petitioner, and the benefits and 
drawbacks of the technologµ.ni;oduces and markets. Some of these materials appeared as blogposts, 
some as press releases frornl__Jand the Petitioner, while three of the articles were news items posted 
on websites focusing on information technology and startup companies such as www.geekwire.com 
and www.technologyreview.com. We note that while the latter articles appeared on well-known 
media and discuss the PetitionerD and the technology developed by the Beneficiary, none of them 
mention him by name. Further, the publication of these three articles is spread out over five years, 
covering the period frornc=]s beginnings to its purchase by the Petitioner, which does not indicate 
that the company or technology was receiving significant or frequent interest from industry or 
mainstream media. This not only reflects upon whether0had a distinguished reputation, as briefly 
1 All reference letters in the record have been reviewed, including those not specifically mentioned in this decision. 
4 
referenced above, but also does not show that the Beneficiary was the recipient of sustained national 
or international acclaim for his work. 
Turning to the evidence of three scholarly articles written by the Beneficiary and published in one 
scientific journal and two conference proceedings, the Petitioner asserts on appeal that the Director's 
statements regarding the level of citations to this work are ultra vires since citations are not mentioned 
in the pertinent regulations or in users guidance relating to the criterion at 8 e.F.R. § 204.5(h)(3)(vi). 
However, we note that the Director made this statement in his final merits determination, and had 
already granted the criterion relating to the publication of scholarly articles. In addition, the Petitioner 
does not explain how these three papers, when viewed within the totality of the evidence, have 
garnered acclaim for the Beneficiary at the national or international level or mark him as one of the 
few at the top of his field. The Petitioner instead refers to the evidence of the Beneficiary's patents, 
which were discussed above, and the evidence that citations to them "number over 400." While it 
suggested in responding to the Director's RFE that those citations serve as evidence of widespread 
commentary or notice, the record does not include evidence of the nature of any commentary included 
with those citations, and the Petitioner does not otherwise explain how the citations support the 
Beneficiary's eligibility as an individual of extraordinary ability. 
Regarding evidence of the Beneficiary's salary and total remuneration, the Director concluded in his 
decision that the evidence established that he met the criterion at 8 e.F.R. § 204.5(h)(3)(ix) based upon 
the evidence initially submitted. However, in discussing that evidence in the final merits 
determination, the Director used the language from that criterion to diminish the significance of that 
evidence, stating that it did not establish that "his salary or remuneration is significantly high relative 
to others working in the field." The two-step adjudication process put forth in Kazarian and the 
associated users policy 2 dictates that after a petitioner has established that they meet the requisite 
three criteria under 8 e.F.R. § 204.5(h)(3), the next step is to consider whether the totality of the 
evidence shows that the person has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise, indicating that the person is one of that 
small percentage who has risen to the very top of the field of endeavor. Here, the Director incorrectly 
applied the same standard to the evidence of the Beneficiary's remuneration in the final merits 
determination as he had under the relevant criterion, and also reached a different conclusion. 
This evidence shows that in 2019, the Beneficiary received total remuneration fromc=] in the amount 
of $818,267.92. In addition, receipts from three two-week pay periods in 2020 show that the Petitioner 
was paying him a salary at the annual rate of approximately $185,000, and also reflect a one-time 
amount marked "payout" in the amount of $201,056.85. 3 The Petitioner explains on appeal that the 
figure shown in the 2019 Form W-2 reflects the Beneficiary's base salary and "his royalties and stock 
option payouts," but the record does not include information which shows how much of this total was 
comprised of base salary, royalties, and stock option payouts. Nevertheless, although we agree that 
this evidence is sufficient to demonstrate that the Beneficiary meets the relevant evidentiary criterion, 
2 See 6 USCIS Policy Manual F.2(B)(2). https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. 
3 On appeal, the~oner submits for the first time a 2019 IRS Form 1099-B which shows that he received gross proceeds 
from the sale oL__J of over $1.4 million. As noted above, 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. Matter a/Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 l&N Dec. 533 
(BIA 1988). We will therefore not consider this evidence in our decision. 
5 
the Petitioner must establish that the Beneficiary has enjoyed sustained national or international 
acclaim in his field in order to establish eligibility, and this evidence covering approximately 18 
months does not support such an assertion. 
The evidence establishes that the Beneficiary developed novel software applications for use in the 
telecommunications industry and successfully launched a company to develop and market his 
innovations which received investor funding and was ultimately bought out by the Petitioner. In 
addition, he continues to lead the development of this technology, which has begun to find it's way 
into telecommunication equipment, under the Petitioner's employment. However, the evidence does 
not show that his achievements have been widely recognized in the telecommunications industry 
through sustained acclaim in the form of awards or significant media attention, or that his innovations 
have influenced the industry to the extent that he is one of the small percentage at the top of his field. 
III. CONCLUSION 
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 T&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of the Beneficiary's work is indicative of the required sustained 
national or international acclaim or that it is consistent with a "career of acclaimed work in the field" 
as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 
203(b )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate that the Beneficiary 
has garnered national or international acclaim in the field, and that he is one of the small percentage 
who has risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's eligibility as 
an individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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