remanded EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 20340150 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 04, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
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. § 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidence requirements for the classification by establishing 
the Petitioner's receipt of a major, internationally recognized award or by meeting three of the ten 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3). The matter is now before us on appeal. 
We review the questions in this matter de nova. See Matter of Christo 's Inc ., 26 I&N Dec. 537, 537 
n.2 (AAO 2015). In these proceedings, it is the Petitioner's burden to establish eligibility for the 
requested benefit by a preponderance of the evidence . See Section 291 of the Act, 8 U.S.C. § 1361. 
Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). Upon de nova review, we will withdraw 
the Director's decision and remand this matter for the entry of a new decision consistent with the 
following analysis. 
I. LAW 
Section 203(b)(l)(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 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 may demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). Absent such an achievement, the petitioner must provide 
sufficient qualifying documentation demonstrating that they meet 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 record reflects that the Petitioner has been serving in the pos1t10n of chief technology 
officer/technical director forl I and its U.S. subsidiary since these 
companies were established in 2002 and 2012, respectively. Both companies specialize in the 
development ot-c=] management technologies and software solutions. The Petitioner began his 
career in the management software field in the early 1990s and holds several patents. 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must show that he satisfies at least three of the regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director addressed evidence relating to four criteria: 
• (i), Lesser nationally or internationally recognized awards; 
• (iii), Published material about the individual; 
• (v), Original contributions of major significance; and 
• (viii), Leading or critical roles for organizations with distinguished reputations. 
The Director determined that the Petitioner met his burden to establish that he has made original 
contributions of major significance and has performed in a leading or critical role for an organization 
with a distinguished reputation. The record supports the Director's determination, and we agree that 
the Petitioner satisfied the criteria at 8 C.F.R. § 204.5(h)(3)(v) and (viii). 
We also agree with the Director's determination that the Petitioner did not establish that he satisfies 
the criteria at 8 C.F.R. § 204.5(h)(3)(i) and (iii). The criterion at 8 C.F.R. § 204.5(h)(3)(i) requires 
evidence of the person's receipt oflesser nationally or internationally recognized prizes or awards for 
2 
excellence in the field of endeavor. The Petitioner rovided evidence relating to two awards: 1 a 2018 
Business Award recognizin for "Best Internatio o_n_a_l 
Technologies"; and (2) a 2017 echnology Award issued to for its product 
____ The Director determined that the Petitioner did not satisfy the criterion because he did 
not show that he was the recipient of these awards. On appeal, the Petitioner maintains that his employer 
has confirmed that he is responsible for the development of the awarded technologies. He maintains that 
it is sufficient to establish that the awards are "traceable" to him despite the fact that his employer was 
the only named recipient for both awards. 
In evaluating evidence under this criterion, users must first determine whether the person seeking 
extraordinary ability classification was the recipient of prizes or awards. The description of this type 
of evidence in the regulation indicates that the focus should be on the person's receipt of the awards 
or prizes, as opposed to his or her employer's receipt of the awards or prizes. 1 Therefore, the Director's 
decision reflects that he applied established users policy by requiring evidence that the Petitioner 
himself was an acknowledged recipient of the awards documented in the record. Here, while the 
Petitioner's employer acknowledges his involvement in the development of its technologies, there is 
no evidence from the entities that issued the awards indicating that these awards programs were 
intended to recognize individual contributors within companies. As noted by the Director, both awards 
were granted to[ I 
On appeal, the Petitioner refers to non-precedent decisions and asserts that this office has previously 
granted this criterion in cases where a company or employer was the recipient of an award. These 
decisions were not published as precedents and therefore do not bind users officers in future 
adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the 
specific facts of the individual case and may be distinguishable based on the evidence in the record of 
proceedings, the issues considered, and applicable law and policy. Here, the Petitioner has not shown 
that the cited non-precedent cases were factually similar. For example, the Petitioner references a case in 
which an award issued to a corporation also separately listed individuals by name as award recipients. 
We found such evidence sufficient to establish that an individual was a recipient of the award, but this 
type of evidence is not present in this case. For the reasons discussed, we agree with the Director's 
determination that this criterion was not met. 
We also agree with the Director that the Petitioner did not satisfy the criterion at 8 e.F.R. § 
204.5(h)(3)(iii), which requires evidence of published material about the petitioner in professional or 
major trade publications or other major media, relating to the petitioner's work in the field. The Petitioner 
provided evidence that he was interviewed aboutl !products in the 2018 edition of the German 
publication Digital Druck ("Digital Print"). However, the interview is not "about" the Petitioner; the 
unidentified interviewer asked him general questions about digital printing and how customers can use 
I I products for certain applications, but the article does not provide information about the 
Petitioner himself beyond his name and job title. Further, the record does not contain evidence that Digital 
Druck is a professional or major trade publication or other major media. The Petitioner submitted 
evidence relating to the German printing industry publication Deutscher Drucker ("German Printer") but 
1 See 6 USCIS Policy Manual F.2 appendix, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (providing 
guidance on the evaluation of evidence submitted in support of immigrant petitions for individuals seeking extraordinary 
ability classification). 
3 
did not provide similar evidence relating to Digital Druck. While it appears that the same publisher may 
also publish Digital Druck, the record lacks supporting evidence establishing the circulation and/or 
intended audience of this publication. The remaining evidence submitted in support of this criterion 
includes articles that do not mention the Petitioner and therefore cannot be considered published material 
about him. The Petitioner also submitted one 2020 article that was published subsequent to the filing of 
the petition and therefore cannot establish that he met this criterion at the time of filing. 2 On appeal, the 
Petitioner states that he "disagrees" with the Director's determination that he did not satisfy this criterion 
but does not further address it. For the reasons discussed, we conclude that the Petitioner did not meet 
the criterion at 8 C.F.R. § 204.5(h)(3)(iii). 
III. BASIS FOR REMAND 
As discussed above, we agree with the Director's conclusions with respect to the criteria at 8 C.F.R. § 
204.5(h)(3)(i), (iii), (v) and (viii), including his determination that the Petitioner met two of these criteria. 
However, the record reflects that the Petitioner claimed to meet one additional criterion based on his 
authorship of scholarly articles published in professional publications. See 8 C.F.R. § 204.5(h)(3)(iv). 
The Petitioner submitted evidence of his publications at the time of filing. Further, in response to a 
request for evidence, he specifically claimed that he was submitting evidence for evaluation under this 
criterion. The Director did not acknowledge the Petitioner's claim or the evidence submitted in 
support of this claim and therefore did not evaluate whether he meets the criterion at 8 C.F.R. § 
204.5(h)(3)(iv). 
An officer must fully explain the reasons for denying a visa petition in order to allow a petitioner a 
fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 
See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 l&N Dec. 786 (BIA 1994) (finding that a 
decision must fully explain the reasons for denying a motion to allow the respondent a meaningful 
opportunity to challenge the determination on appeal). Here, because the Director did not consider 
the Petitioner's claim that he met a fifth criterion, and the evidence submitted in support of this 
criterion, the Director did not adequately explain the reasons for denial of the petition. 
Based upon this deficiency, we will withdraw the Director's decision and remand the matter for further 
review and entry of a new decision. Should the Director conclude upon review that the Petitioner 
meets a third criterion at 8 C.F.R. § 204.5(h)(3), the new decision should include a final merits analysis 
of the totality of the record. Specifically, the Director must evaluate whether the Petitioner has 
demonstrated, by a preponderance of the evidence, that he possesses the requisite sustained national 
or international acclaim, is one of the small percentage at the very top of his field of endeavor, and 
that his achievements have been recognized in the field through extensive documentation. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
2 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
4