remanded EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 22395252 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 7, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an attorney, seeks to classify the Beneficiary, a software development entrepreneur, as 
an individual of extraordinary ability. See Immigration and Nationality Act (the Act) section 
203(b )(1 )(A), 8 U.S.C. § 1153(b )(1 )(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 record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter for the entry of a new decision. 
I. LAW 
Section 203(b )(l)(A) of the Act makes immigrant visas available to individuals with 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; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose 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 the initial evidence requirements through either a one-time achievement or 
meeting three lesser criteria, 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 states: 
[The Beneficiary] is a well-known, widely respected, and exceedingly accomplished 
Entrepreneur who specializes in I He also holds the distinction of 
being one of the top 1001 I entrepreneurs inLJ and has had enormous success in 
the field of startup innovation technology. As Founder and Chairmanofthd I I I [ of] Companies, [the Beneficiary] has developed numerous highly successful 
startups in the areas ofinformation technology, enterprise software] and 
more. Notably, the small I I startup he founded more than 2 decades 
ago,I I became a leading, nationally lauded company in the I I 
space. 
Because the Petitioner has not indicated or shown thatthe Beneficiary received a major, internationally 
recognized award, the Petitioner must instead submit evidence to satisfy at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner initially claimed to have submitted 
evidence to satisfy six of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (vi), Authorship of scholarly articles; and 
• (viii), Leading or critical role for distinguished organizations or establishments. 
The Director concluded that the Petitioner's evidence met two of the criteria, pertaining to judging the 
work of others and authorship of scholarly articles. On appeal, the Petitioner asserts that the 
Beneficiary also performed in a leading or critical role for organizations or establishments with a 
distinguished reputation, thereby satisfying the requirements of 8 C.F.R. § 204.5(h)(3)(viii). 
Upon review of the record, we agree with the Petitioner that the evidence satisfies this third criterion. 
The Benefici is chairman and chief executive officer ofl I and "is also the board chairman 
of each of subsidiar com anies." The Beneficiary is also a cofounder and member of 
the board of trustees for __________ The Director agreed that these capacities 
constitute leading or critical roles. The Director determined, however, that the Petitioner had not 
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established thatl and have distinguished reputations, defined 
as "marked by eminence, distinction, or excellence or befitting an eminent person. " 1 
On appeal, the Petitioner argues that the Director did not fully consider record evidence of the reputations 
of these organizations. We agree. Published articles in the record refer to I asl I I land indicate that it one ofits flagship products has" a market 
share." This evidence, uncontradicted in the record, is sufficient to establish by a preponderance of the 
evidence that I has a distinguished reputation. 
In the denial notice, the Director stated: "while these organizations may enjoy some local popularity in 
Iran, the record does not contain evidence of their eminence, distinction, or excellence in the field as a 
whole." This conclusion, however, imposes a requirement that the organizations must have a 
distinguished reputation at an international level. The statute and regulations, however, referto "national 
or international acclaim"; a distinguished reputation in one country is sufficient within this framework. 
See 8 C.F.R. § 204.5(h)(3), "A petition for an alien of extraordinary ability must be accompanied by 
evidence that the alien has sustained national or international acclaim and that his or her achievements 
have been recognized in the field of expertise." 
Because theevidenceaboutl is sufficientto meetthe criterion at 8 C.F.R. § 204.5(h)(3)(viii), 
we need not explore, here, the question ofwhethe __________ also has a distinguished 
reputation. 
If the Director had not reached an erroneous conclusion about the distinguished reputation ofl I 
then the Director would have proceeded to a final merits determination to weigh the totality of 
the evidence to determine if the Beneficiary's successes are sufficient to demonstrate that he has 
extraordinary ability in the field of endeavor. See section 203(b )(1 )(A)(i) of the Act; 8 C.F.R. 
§ 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. 2 
Therefore, we will remand the matter, so that the Director may undertake the final merits determination 
that would have ensued if not for the Director's error. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
1 See https://www.merriam-webster.com/dictionary/distinguished, cited in 6 USCIS Policy Manual F.2 appendix, 
https://www.uscis.gov/policymanual. 
2 See also 6 USCIS Policy ManualF.2(B)(2), https://www.uscis.gov/policymanual (stating that USCIS officers should then 
evaluate the evidence together when considering the petition in its entirety to determine if the petitioner has established, 
by a preponderance of the evidence, the required high level of expertise fortheimmigrant classification). 
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