remanded EB-1A Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 30, 2024 In Re: 33358714 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is an online marketplace for images, music, and other editing tools. It seeks to classify 
the Beneficiary as an alien 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 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 Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the record did not establish that the Beneficiary had a major, internationally 
recognized award, nor did the Petitioner demonstrate that the foreign national met at least three of the 
ten regulatory criteria. The matter is now before us on appeal. The Petitioner bears the burden of 
proof to demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) by a 
preponderance of the evidence. Section 291 of the Act; Matter ofChawathe, 25 l&N Dec. 369,375 
(AAO 2010). We review the questions in this matter de nova. Matter ofChristo 's Inc., 26 I&N Dec. 
537,537 n.2 (AAO 2015). Upon de nova review, we will withdraw the Director's decision and remand 
the matter for entry of a new decision consistent with the following analysis. 
I. LAW 
To qualify under this immigrant classification, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b)(1 )(A)(i)- (iii) of the Act. 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-step analysis. In the first 
step, 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 move to the second step to 
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, 
1121 (9th Cir. 2010) (discussing a two-step 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 Amin v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). Before the Director, the Petitioner claimed the Beneficiary met the 
following five categories: 
• Published material; 
• Contributions of major significance; 
• Authorship of scholarly articles; 
• Performance in a leading or critical role for distinguished entities; and 
• High salary or remuneration. 
The Director decided that the Beneficiary met one of the evidentiary criteria relating to authorship of 
scholarly articles, but that he had not satisfied the remaining categories listed above. On appeal, the 
Petitioner maintains the evidence satisfies the evidentiary criteria relating to each of the areas upon 
which the Director issued an adverse determination. After reviewing all the evidence in the record, 
we agree with the Director that the Petitioner has satisfied the scholarly articles criterion, but we do 
not agree with the Director's assessments relating to a leading or critical role or the high salary criteria. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The Petitioner provided evidence showing the Beneficiary published scholarly work in his field in at 
least three of the require publication types. The Director determined this evidence met this criterion's 
requirement and we agree with that conclusion. 
Published material about the alien in professional 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 ofthe material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
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This criterion contains multiple evidentiary requirements the Petitioner must satisfy. First, the 
published material must be about the Petitioner and the contents must relate to the Petitioner's work 
in the field under which they seek classification as an immigrant. The published material must also 
appear in professional or major trade publications or other major media. Professional or major trade 
publications are intended for experts in the field or in the industry. To qualify as major media, the 
Petitioner must establish the circulation statistics are high relative to other similar forms of media. 
The final requirement is that the Petitioner provide each published item's title, date, and author and if 
the published item is in a foreign language, they must provide a translation that complies with the 
requirements found at 8 C.F.R. § 103.2(b )(3). The Petitioner must submit evidence satisfying all of 
these elements to meet the plain language requirements of this criterion. 
The Petitioner provided other scholarly articles citing to the Beneficiary's work and patents as 
evidence under this criterion, as well as his own citations. The Director determined that the Petitioner 
did not meet the requirements of this criterion as the material was not about the Beneficiary and his 
specific work published in professional or major trade publications or other major media. Regarding 
the Beneficiary's own citations, the Director indicated this evidence bore no probative value because 
it was not related to this criterion's requirements. 
On appeal, the brief notes that USCIS policy provides that the Beneficiary and his work "need not be 
the only subject of the material; published material that covers a broader topic but includes a 
substantial discussion of the person's work in the field and mentions the person in connection to the 
work may be considered material about the person relating to the person's work." See generally 
6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
They also point out agency policy confirms that its "officers may consider material that focuses solely 
or primarily on work or research being undertaken by a team of which the person is a member, 
provided that the material mentions the person in connection with the work or other evidence in the 
record documents the person's significant role in the work or research." Id. And finally, they note 
agency policy further reflects that evidence under this criterion "may include documentation such as 
print or online newspaper or magazine articles, popular or academic journal articles, books, textbooks, 
similar publications, or a transcript of professional or major audio or video coverage of the person and 
the person's work." Id. 
While we acknowledge counsel's efforts here, they invite us to expand the regulatory language-as 
well as agency policy describing how we are to apply those rules-beyond its textual confines, similar 
to stretching a garment until the fabric loses its intended form. We must resist such elasticity where 
it threatens to compromise the integrity of this administrative law. We note the Petitioner does not 
argue that these scholarly works include a substantial discussion of the Beneficiary and his work as 
opposed to simply referencing to it. More appropriate evidence under this criterion would consist of 
material that is actually about the Beneficiary instead of being about software networking, cloud 
computing, and other information technology topics. 
Coverage that is about a broader topic in which the foreign national is merely mentioned does not 
demonstrate that the published material itself is "about the alien" and "relating to the alien's work in 
the field" as the regulation mandates. See Mussarova v. Garland, 562 F. Supp. 3d 837, 848--49 (C.D. 
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Cal. 2022) (finding the published material criterion's requirements are not satisfied where the articles 
are about events in which a foreign national completed but were not about them and citing Noroozi v. 
Napolitano, 905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012)); see also generally Negro-Plumpe v. Okin, 
No. 2:07-CV-820-ECR-RJJ, 2008 WL 10697512, at *3 (D. Nev. Sept. 9, 2008) (upholding a finding 
that articles about a show or a character within a show are not about the performer). 
Because the Petitioner did not provide evidence of published material that is about the Beneficiary in 
the requisite publication types, it has not fulfilled this criterion's plain language requirements. 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner provided numerous forms of evidence, but the Director determined that material did 
not meet the requirements of this criterion. 
We begin with the Petitioner's claims of error on the Director's part. We agree with the Petitioner 
that the Director committed an error when they required evidence to "directly compare the 
beneficiary's remuneration to those in his specific position of Senior Software Engineer, API in the 
specific field of enterprise-level solutions and network security development." 
The Petitioner must present evidence of objective earnings data showing the Beneficiary has earned a 
"high salary" or "significantly high remuneration" in comparison with those performing similar work 
during the same time period. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) 
(considering professional golfer's earnings versus other PGA Tour golfers); see also Skokos v. US. 
Dept. of Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding salary information for 
those performing lesser duties is not a comparison to others in the field). But narrowly focusing on 
the job's title rather than its duties and responsibilities is not the proper approach. 
Now to the evidence. Although the Petitioner provided several types of evidence, we note a few that 
appear to demonstrate they satisfy this criterion's requirements. The Petitioner provided material from 
the now defunct U.S. Department of Labor's Online Wage Library for the standard occupational 
classificational code 15-1252 for Software Developers in the location and the year they filed the 
petition, and the same year as his representative pay statements. The Online Wage Library reflects a 
Level 4 Wage was $157,477 per year. A Level 4 Wage is the average of the highest-paid two-thirds, 
or approximately the 67th percentile. The Beneficiary's annual salary is above the 89th percentile and 
we conclude this is sufficient to meet this criterion's requirements. 
We therefore withdraw the Director's adverse determination and conclude the Petitioner has submitted 
evidence that meets the plain language requirements of this criterion. 
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). 
A leading role should be apparent by its position in the overall organizational hierarchy and the role's 
matching duties. A critical role should be apparent from the Petitioner's impact on the entity's 
activities. The Petitioner's performance in any role should establish whether it was leading or critical 
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for organizations, establishments, divisions, or departments as a whole. Ultimately, the leading or the 
critical role must be performed on behalf of the organization, establishment, division, or department 
that enjoys a distinguished reputation, rather than for a unit subordinate to these listed entities. See 
generally 6 USCIS Policy Manual, supra, F.2(B)(l ). 
USCIS policy reflects that organizations, establishments, divisions, or departments that enjoy a 
distinguished reputation are "marked by eminence, distinction, or excellence." Id. (citing to the 
definition of distinguished, Merriam-Webster, 
https://www.merriam-webster.com/dictionary/distinguished). The Petitioner must submit evidence 
satisfying all of these elements to meet the plain language requirements of this criterion. 
The Petitioner provided claims relating to three organizations but the Director decided none of those 
claims met this criterion's requirements. In a letter from current Senior Vice President of 
she characterized the Beneficiary's role at as both leading and critical. 
But it does not appear that his role was leading in the manner the regulation requires for this criterion 
and we will consider whether his performance for this organization was critical. 
Ms. I I stated I I hired the Beneficiary late in 2018 as a software engineer but based on his 
skills moved him to the ad-products team early the next year. She stated the Beneficiary built 
ad-pacing services, which are tools or technologies used to regulate the delivery of online 
advertisements over a specified time period to ensure ads are distributed evenly throughout an 
advertising campaign's duration. These services were particularly important for I business as 
they can experience spikes in use surrounding large, planned events ( e.g., the Superbowl) or unplanned 
events (e.g., celebrity gossip). 
Ms. I I detailed how I I advertising services impacted I 
I lwhich ultimately fell through due to Ms. 
quoted and referred to an article published on TechCnmch's website in which the article's author 
quoted from the primary 
regulatory body responsible for overseeing and enforcing competition law and ensuring that markets 
operate fairly: 
"Before the merger, I had launched innovative advertising services which it was 
considering expanding to countries outside the U.S., I I 
services allowed companies-such as Dunkin' Donuts and Pepsi-to promote their 
brands through noted. 
I advertising services had the potential to compete with I I
I They would have also encouraged greater innovation 
from others in the market, including social media sites and advertisers. I I 
terminated I I advertising services I I removing an 
important source of potential competition. I considers this particularly 
concernmg g1ven that I I controls nearly half of the I I 
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It appears Ms.I I explains not only how the Beneficiary's work for the company had an internal 
impact, but also in its business dealings outside of the organization. She further explains the 
Beneficiary's other efforts within the organization, but based on his work on the ad-pacing services 
she has sufficiently explained how his work for the company was impactful. She details how the 
company has progressed in the area in which the Beneficiary was a key player and it seems apparent 
that his role was crucial tol I success. As it relates to reputation, the record more than 
adequately reflects it meets the regulatory requirement of being distinguished. 
Based on the above, we withdraw the Director's conclusion that the Beneficiary did not meet this 
criterion's requirements. 
Because the Petitioner has fulfilled at least three of the regulatory criteria, it is unnecessary that we 
offer additional analysis on the remaining claims under the regulation at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
It would also serve no purpose for us to evaluate the Petitioner's comparable evidence claims for the 
same reason. See 8 C.F.R. § 204.5(h)(4). 
III. CONCLUSION 
Further, because the Petitioner has overcome the only stated ground for the denial, we remand this 
proceeding so that the Director can render a final merits determination in keeping with the Kazarian 
framework. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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