dismissed EB-1A Case: Transportation Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 12796266 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 29, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a manufacturer ofrail transportation systems, seeks to classify the Beneficiary, a project 
commercial manager, as an individual 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 the Petitioner did not 
establish, as required, that the Beneficiary meets at least three of the ten initial evidentiary criteria for 
this classification. The matter is now before us on appeal. 
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 novo review, the Petitioner has not met that burden. 
Accordingly, we will dismiss the appeal. 
I. LAW 
Section 203 (b )( 1) 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 petitioner 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 Petitioner currently employs the Beneficiary as a project commercial manager with responsibility 
for commercial and contractual aspects of it integration projects for the 
I landl I railroads inl I The Beneficiary has a bachelor's degree in civil 
engineering and a master's degree in infrastructure - transportation from University I I as 
well as a master's degree in management from University I I Prior to joining the Petitioner in 
2018, the Beneficiary was employed byl I from 2011 to 2017 and with 
I I from 2001 until 2011. His curriculum vitae reflects that he has 
international experience with public private partnership (P3) and infrastructure projects, particularly 
in the transportation sector, and has provided advisory and consultancy services to his employers' 
clients in several other industries. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must establish that he satisfies at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner initially claimed that the Beneficiary 
could meet four of the ten criteria, summarized below: 
• (ii), Membership in associations that require outstanding achievements; 
• (iv), Participation as a judge of the work of others in the same field; 
• (v), Original contributions of major significance; and 
• (viii), Performing in a leading or critical role for organizations with a distinguished reputation. 
The Director concluded that the Petitioner did not establish that the Beneficiary meets any of the 
claimed evidentiary criteria. On appeal, the Petitioner asserts that the Beneficiary meets the criteria 
related to judging, original contributions, and critical roles, and contends that the Director either 
2 
disregarded probative evidence or misapplied the law as it relates to these criteria. The Petitioner has 
not contested the Director's conclusion that the Beneficiary did not satisfy the membership criterion 
at 8 C.F.R. § 204.5(h)(3)(ii). Issues or claims that are not raised on appeal are deemed to be waived. 
See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). See also Sepulveda v. US. Att'y 
Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court determined the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
After reviewing all the evidence in the record, we conclude that the Petitioner has not established that 
the Beneficiary meets the initial evidence requirements for this classification. 
Evidence of the individual's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The Director determined that the Beneficiary did not meet this criterion, explaining that "in an 
occupation where judging the work of others is an inherent duty of the occupation, simply performing 
one's job-related duties demonstrates competency, but is not evidence that one's 'achievements have 
been recognized in the field of expertise."' For this reason, the Director concluded that the evidence 
related to the Beneficiary's work-related judging activities "has no probative value for this criterion." 
On appeal, the Petitioner argues that the Director misapplied the law when evaluating this criterion. 
We agree, as the plain language of 8 C.F.R. § 204.5(h)(3)(iv) does not require a showing that the 
Beneficiary's judging activities demonstrate recognition for his achievements in the field. Such an 
analysis would be appropriate in a final merits determination to determine whether or to what extent 
evidence submitted in support of this criterion establishes the Beneficiary's sustained national or 
international acclaim. 
We also emphasize that the fact that a management consultant may be required to judge the work of 
others as an inherent job function does not prohibit persons in this occupation from meeting this 
criterion. USCIS guidance on evaluating this criterion indicates that routine activities performed by 
professors as part of their occupation ( such as peer review of manuscripts for scholarly journals and 
serving on Ph.D. dissertation committees) may be qualifying. 1 However, regardless of the field, the 
judging activities must be clearly described and well-documented in the record, and the evidence 
should demonstrate with specificity whose work and what type of work the individual judged. 
Upon de nova review, we find insufficient evidence to establish that the Beneficiary meets this 
criterion. The Petitioner relies on testimonial evidence, including a letter from! I 
'------,-------,,------------ who states: 
[The Beneficiary] ... conducted an ambitious review of the I I Finance and 
Transport ministries' processes and policies for developing, procuring and delivering 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 8 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
3 
road, rail and port transport projects inl I This work involved comparing the 
~--~I government's construction projects, policies and procedures against that of 
many other countries . . .. This complex study required [the Beneficiary] to use his 
detailed understanding of many of the world's most complex transport and infrastructure 
organizations to determine what policies contribute positively to a successful project 
development and delivery process. As such [he] summarized key lessons and practices 
that could be implemented to resolve the challenges the I I government was 
encountering in its own market. 
The record does not contain additional evidence regarding the study referenced in this letter, and 
notably, the letter does not identify with specificity what work or whose work the Beneficiary judged. 
We cannot determine that "benchmarking," "review," or summarizing the results of a comparative 
study equate to 'judging," particularly where the record does not identify whose work was reviewed 
or provide sufficient detail to adequately document the nature of the Beneficiary's activities. 
On appeal, the Petitioner asserts that the I I Transport Ministry deferred to the Beneficiary s 
guidance "on how it developed, procured and delivered every new road, railway or port inl _ ," 
noting that "[every] government-led transportation project inl I in its totality is a much larger 
body of work to judge than most infrastructure projects that require consultants, so any consultant 
capable of judging it must be definition exceed the norm in the field by as wide of a margin." However, 
I l's letter does not adequately support the Petitioner's claim that the Beneficiary has 
effectively judged "every government-led transportation project inl I" 
For similar reasons, we find a letter from of insufficient to 
demonstrate that the Beneficiary meets this criterion. ~---------'.....:>..L.<.1.1.lo..~....,at he supervised the 
Beneficiary on several projects when they both worked at ~----~--~ The Petitioner relies 
on the following passage from his letter in support of its claim that the Beneficiary has performed 
qualifying activities as a judge: 
[The Beneficia and I also had the o ortunity to conduct a risk assessment of the 
proposed ro · ect. ThiJ I was proposed 
by the ........,_..------------.------ and failed to progress through the 
design and feasibility stages to the bid phase. [The Beneficiary] supported me and a 
small team of consultants in a review of the project's technical and commercial 
challenges. Using criteria that had been developed from other project work he helped 
develop explanations as to why this~project ... was unlikely to progress. As part 
of his professional development this particular project helped show the importance of 
careful preparatory work at the earliest stages of development. 
~--~-~Is assertion that the Beneficiary supported his supervisor and a team of consultants "in 
a review of ... technical and commercial challenges" related to this project is insufficient to establish 
eligibility for this criterion. In a supporting letter, the Petitioner asserts thatl ts letter 
demonstrates that the Beneficiary has been responsible for "judging non-colleagues' infrastructure 
management work, like his evaluations ofthel ~-" However, the 
nature and source of any "infrastructure management work" reviewed by the Beneficiary remains 
largely unidentified in the record, and we note that I ts letter does not make any reference 
4 
tol The Beneficiary's curriculum vitae lists the~------------~ among 
the high-speed rail projects he worked on, but it provides no additional information about his activities 
related to this project, nor does it mentio~ I 
For the reasons discussed, we conclude that the Petitioner has not established that the Beneficiary 
meets this criterion. Although we have considered the testimonial evidence, the record lacks 
specificity and corroborating evidence of the Beneficiary's role in the projects mentioned above and 
is insufficient to establish that his activities involved judging the work of others as contemplated by 8 
C.F.R. § 204.5(h)(3)(iv). 
Evidence of the individuals original scientific, scholarly, artistic, athletic, or business­
related contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
The Petitioner contends that the recommendation letters submitted from the Beneficiary's colleagues 
reflect his business-related contributions in the field. 2 In order to meet this criterion, a petitioner must 
establish that not only has the beneficiary 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 Director concluded that the letters froml l I I and others illustrate 
that the Beneficiary "is a capable project commercial manager" but do not establish that his 
contributions to various projects are "both original and of major significance in the overall field." On 
appeal, the Petitioner asserts that the Director ignored reliable, relevant and probative evidence and 
incorrectly relied on Matter o_f Caron Int'! Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) "to justify 
ignoring all letters." The Petitioner farther emphasizes that expert letters that specifically articulate 
how the Beneficiary's contributions are of major significance in the field and their impact on 
subsequent work "may form the basis for meeting this criterion." 
Specifically, the Petitioner relies on the letters of I II I and._l ___ _, 
.__ _____ _,I, CEO o ~--------~to establish that the Beneficiary meets the criterion 
at 8 C.F.R. § 204.5(h)(3)(v). 
In his letterJ lstates that the Beneficiary "was a key contributor on numerous rail 
infrastructure projects" during his tenure with0 including "noteworthy advisory projects withc=J 
in thel l" He briefly describes one project in which the Beneficiary "conducted 
workshops with public organizations, interacted with rail contractors and corporates, and ran focus 
groups for a supply chain market study for g" I I also states that he "worked on 
anothe0 project that looked to comparethL 1 ~ organization to and benchmark its 
processes for infrastructure procurement and spending programs against other railroad organizations." 
He notes that the Beneficiary interacted closely with French, Spanish and Italian national railways to 
determine how these countries modernized their national rail infrastructures and to determine "what 
lessons can be learnt to improve the c:J organization's own internal processes." WhileD 
2 Although we discuss the three letters that the Petitioner emphasized in response to the Director's request for evidence 
and on appeal, we have considered all testimonial evidence submitted in support of this criterion. 
5 
~----~!confirms the Beneficiary's contributions as a consultant assigned bQ to th~~-~ 
project, he does not explain his role in detail, explain how his contributions were novel or original, or 
describe the remarkable influence or impact that his contributions to this project have had in the field 
of P3 infrastructure management. In fact, he does not describe with specificity how the Beneficiary's 
efforts advanced this particular project. 
On appeal, the Petitioner explains that~is the first entirely domestic high-speed rail line inl._ __ _. 
history with an estimated cost that makes it one of the country's largest P3 infrastructure projects.3 
The Petitioner maintains that "because of its sheer size and novelty and the incredibly specialized 
nature of [ the Beneficiary's] field, any work that considerably advances its construction is a significant 
contribution to the entire area of P3 infrastructure consulting." More specifically, the Petitioner states 
that "[h ]is creation of its first benchmarks for procurement rd spelding therefore improve any P3 
infrastructure manarr anf affect any such project throughout while given how many workers 
are involved with s construction, there are unquestionably many people applying his 
contribution." While the Petitioner maintains thatl l"confirmed all of this" in his 0 
testimony, we disagree with that assertion. His letter, as noted, does not in fact address how the duties 
the Beneficiary performed fore=] on this project have advanced the construction of theO or how 
he has contributed "to the entire area of P3 infrastructure consulting," nor does it support a conclusion 
that there are "many people" applying the Benefici~ contributions in this field. He did not, for 
example, explain how the Beneficiary's work on the[__J project was particularly impactfol on other 
rail projects in this sector. 
We do not question that the Beneficiary was a valuable member ofOs team assigned to theO 
project or that the project itself is a significant, high profile 
1
rojec\ However, the Petitioner has not 
established that the Beneficiary's involvement on behalf of even if it will ultimately help to 
"advance the construction" of theLJ railway, equates to an original contribution of major 
significance in the field. 
The Petitioner similarly claims that the Beneficiary's "original contributions to thel I had 
major significance to his entire field because it was an all-important P3 rail rrojey." The Petitioner 
ex lains that th is the first and only connection between the andl I 
.-!====..-------~~------') and "a vital part of thel ] 
.....,_ __ ➔, a program "intended to create a continent-wide P3 rail network." 
The Petitioner maintains that a letter frortj !"explains why [ the Beneficiary's] work 
on this ro·ect constituted a series of original contributions of major significance." 4 Mr. 
'-----.-----'-w_h_o__,states that he was formerly the chief operating officer for this project, confirms 
that the.__ ____ ___.is "a critical part of this entire European transport corridor" and notes that the 
Beneficiary "was a significant advisor and contributor" throughout its construction. Specifically, he 
3 The Petitioner submitted background information from the website ot1 I (wwwOrg.uk) regarding~ 
high speed rail project, which indicates that it involves 345 miles of new high-speed track that will connectl___J 
Birmingham, Manchester and Leeds. with construction on Phase One (London-Birmingham) expected to start by 2026 and 
network completion b,.__2~03~3~. --~ 
4 A who previously worked with the Beneficia~ in her ro)e as a managing consu)tant 
with mentions this same project in passing. She notes that the!_ I 
project was one of many infrastructure projects he supp01ted while with his previous employer. 
6 
notes that the Beneficiary's duties as "a consultant and engineer" included: reviewing the construction 
progress over the schedule, assessing the project's commercial requirements, ensuring payment of 
project funds, holding meetings with public and private stakeholders, developing solutions with senior 
construction and rail engineers, and facilitating the project's completion! hsserts 
that the Beneficiary's contributions "reduced project risks by identifying specific technical and 
commercial issues" and he credits him with "contributing methods for the contractor to resolve these 
[issues] to ensure that the project could be delivered on time and on budget." He also notes that the 
Petitioner returned to this project following its completion to review and develop restructuring 
solutions for consideration by stakeholders. 
, 0 I praises the Beneficiary's "exceptional command of the wide-ranging and diverse 
transferable skills required for engineering, commercial and infrastructure rail and transport project 
delivery" and confirms that he has contributed to "many distinguished global organizations" working 
on "complex rail and transport projects." 
As with th~rail project, the Petitioner submitted evidence demonstrating that thd d 
was part of a significant high-speed rail undertaking. On appeal, the Petitioner maintains tha 
I , 'CO I "made clear that [the Beneficiary's] original contributions had major significance to 
the entire field of P3 management by describing how the tunnel is a critical centerpiece of the entire 
I I network, a continent-wide network of P3 rail lines responsible for modernizing infrastructure 
acrossl [" The Petitioner states that "any work that noticeably improved" this network "must 
have advanced P3 infrastructure management by extension" and maintains that~------~ 
testimony "described in detail how [the Beneficiary's] original contributions did that." 
However, as notedJ I testimony does not elaborate on how the Beneficiary's 
responsibilities related to thd lamounted to original contributions of major significance 
that went on to influence or impact the field of P3 infrastructure management consulting. The 
Petitioner requests that we make assumptions based on the importance of the overall project, a major 
undertaking in which the contributions of many professionals from many organizations were 
undoubtedly necessary to ensure its successful completion. ~--~---~ brief summary of 
the Beneficiary's project-related contributions, without more, is not sufficient to establish that he has 
made contributions that were widely implemented by others in the field or otherwise impacted 
subsequent the P3 infrastructure management projects in a way that is considered to be of major 
significance in this field. 
The third and final contribution referenced! by the retitioner on appeal relates to the Beneficiary's 
work on twc~ I construction projects in (known as the ~----__.routes) during his 
tenure with I I The Petitioner maintains that the Director "arbitrarily dismissed" the 
following testimony o~ I: 
As a key member of my teams [the Beneficiary] conducted due diligence advisory 
projects on about 500 km of majoc:::Jconstruction inl I such as [the~and 
I lroutes]. He had a significant role in the technical, commercial and financial 
analysis of these two major construction projects, both of which are today in full 
operational 320 km/hour service. By way of explanation, the projects were funded 
7 
under a P3 model and are part of some of the longestD routes delivered into 
operation inl I in the last decade. 
The Petitioner maintains that "by leading the creation of two of the longest new high-speed rail lines 
inl Ir the Beneficiary] undoubtedly made a contribution with major significance to the field," 
and notes that "this is particularly the case given that thee::] was just the second P3 high-speed line 
inl !history." The Petitioner asserts that the completion of these two lines was "a historic 
achievement that could not have happened without [the Beneficiary's] ... leadership" and "his 
prominent role in that accomplishment undoubtedly has major significance for the field of P3 
infrastructure management." 
I r '5 testimony does not support the Petitioner's suggestion that the Beneficiary was 
charged with "leading the creation" of thec=J andD high-speed rail lines and does not attribute 
this level of responsibility to him. He does not suggest that the Beneficiary spearheaded the entire rail 
delivery project or even led I ts advisory contribution. In fact[ I 
indicates in his letter that he personally mentored the Beneficiary during his tenure with! ____ ~ 
0 so that he could "develop the skills necessary to become a consultant in the role of Lenders' 
Technical Advisor." As noted, he indicates that, as a member of a team, the Beneficiary performed 
due diligence activities and contributed technical, commercial and financial analyses, but he does not 
discuss the impact of these activities on the overall project, much less in the field, nor is it clear how 
the Beneficiary's contribution t(LJandc=] lines was novel or original. 
Upon review, although the authors of the aforementioned letters demonstrate that the Beneficiary's 
work is highly regarded by his colleagues, the letters do not establish how his work is viewed by the 
field as majorly significant. USCIS may, in its discretion, use as advisory opinions statements from 
universities, professional organizations, or other sources submitted in evidence as expert testimony. 
Caron, 19 l&N Dec. at 794. However, USCIS is ultimately responsible for making the final 
determination regarding a foreign national's eligibility. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility. Id. 
Nevertheless, the Petitioner correctly emphasizes, when assessing this criterion, USCIS officers are 
required to take into account the probative analysis that experts in the field may provide in opinion 
letters regarding the significance of an individual's contributions. Letters that specifically articulate 
how a beneficiary's contributions are of major significance in the field and its impact on subsequent 
work add value. 5 On the other hand, letters that lack specifics are not considered to be probative 
evidence that may form the basis for meeting this criterion. 6 
Here, for the reasons discussed, the Petitioner's letters do not contain specific, detailed information 
identifying the Beneficiary's original contributions and explaining the unusual influence his consulting 
and advisory work has had on his specialized field. Further, the Petitioner's claims regarding the 
impact of the Beneficiary's contributions are not adequately supported by the testimonial evidence. 
Accordingly, we conclude that the Petitioner has not demonstrated that the Beneficiary has made 
original contributions of major significance in the field. 
5 See USC IS Policy Memorandum PM 602-0005 .1, supra, at 8-9. 
6 Id.at9. 
8 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
In denying the petition, the Director addressed the Petitioner's submission of three letters from its own 
representatives and from a representative ofc=J but concluded that the Petitioner did not establish 
that the Beneficiary meets this criterion. The Director determined that the letters "do not provide 
detailed and probative information that specifically addresses how the beneficiary's role was leading 
or critical for an entire organization or establishment." 
Upon review, we disagree with the Director's determination and conclude that the Beneficiary meets 
this criterion based on his current role as a project commercial manager with the petitioning company. 7 
As noted, the Petitioner submitted three letters from high level employees familiar with the 
Beneficiary's work, as well as a very detailed position description for his position which identifies its 
relatively senior placement within the company's hierarchy. This evidence indicates that the 
Beneficiary was specifically recruited by the Petitioner not only to lead commercial and contractual 
aspects of one of its largest and most critical P3 rail projects, but also to help shape the company's 
regional strategy and practice in his area of expertise to ensure the company's continued growth in the 
rail and transport infrastructure sector. The evidence is sufficient to establish both the Beneficiary's 
critical role with the Petitioner's U.S. organization and the company's distinguished reputation. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner has been granted 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 visa petition which is adjudicated based on a different standard -
statute, regulations, and case 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), affd, 905 F. 2d 41 (2d. Cir. 1990). 
Further, it must be emphasized that each petition filing is a separate proceeding with a separate record. 
In making a determination of statutory eligibility, USCIS is limited to the information contained in 
that individual record of proceedings. 8 C.F.R. § 103.2(b)(16)(ii). We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
evidence that meet at least three of the ten alternate criteria. As a result, we need not provide the type 
7 The Petitioner also claimed that the Beneficiary served in a "critical or essential capacity" based on work he performed 
for the government of the~---.....,....-~ and forl I Although the Director did not 
address these claims in his decision. we note that this error is harmless considering our reversal of the Director's 
determination that the Beneficiary did not meet the criterion at 8 C.F.R. § 204.5(h)(3)(v). 
9 
of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Beneficiary 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 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)(l)(A) of the Act. Although the Beneficiary has worked for employers that enjoy a 
distinguished reputation in the transportation and infrastructure consulting field and provided advisory 
and consulting services on some high profile projects, the record does not 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. 
ORDER: The appeal is dismissed. 
10