sustained EB-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 9, 2024 In Re: 35160496 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a software developer, 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 Nebraska Service Center denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is an individual in the 
small percentage at the very top of the field. The matter is now before us on appeal under 8 C.F.R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will sustain the appeal. 
I. LAW 
Section 203(b )(1 )(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. These individuals must seek to enter the United States to continue work in 
the area of extraordinary ability, and their entry into the United States will substantially benefit 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 their achievements in the field through a one-time 
achievement in the form of a major, internationally recognized award. Or the petitioner can submit 
evidence 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. If those standards 
do not readily apply to the individual's occupation, then the regulation at 8 C.F.R. § 204.5(h)(4) allows 
the submission of comparable evidence. 
Once a petitioner has met the initial evidence requirements, the next step is a final merits 
determination, in which we 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. 20 I 0) ( 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); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner has worked in the specialty of 3D digital scanning since 1998. He worked for several 
companies in South Korea, most recently as the chief technical officer (CTO) ofl Ia company that 
manufactures dental scanning equipment. The Petitioner last entered the United States in June 2023 as 
an E-2 nonimmigrant treaty investor, working for I I U.S. subsidiary. He currently holds L-lA 
nonimmigrant status, working asl IUSA's CTO. 
The Petitioner did not claim to have received a major, internationally recognized award. He claims to 
have satisfied five of the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (iii), Published material about the individual in professional or major media; 
• (v), Original contributions of major significance; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
In denying the petition, the Director acknowledged that the Petitioner had submitted sufficient 
evidence to satisfy the criteria pertaining to awards, published material, and leading or critical roles. 
But the Director concluded in a final merits determination that this evidence does not demonstrate that 
the Petitioner has reached the top of his field and achieved sustained national or international acclaim. 
The Director acknowledged the Petitioner's receipt of nationally recognized awards, the publication 
of articles about the Petitioner, but the Director concluded that the related evidence does not show that 
the Petitioner has reached the top of his field. 
On appeal, the Petitioner maintains that he met the two additional claimed criteria that the Director 
did not grant, relating to contributions and remuneration, and that the evidence in the record is 
sufficient to show that the Petitioner has earned sustained national or international acclaim at the top 
of his field. 
We will not focus on individual regulatory criteria, because the Director concluded that the Petitioner 
had satisfied three of them. We will consider whether the record as a whole establishes the Petitioner's 
sustained national or international acclaim and that he 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. 
2 
In a final merits determination, we analyze a petitioner's accomplishments and weigh the totality of 
the evidence to determine if their successes are sufficient to demonstrate that they have extraordinary 
ability in the field of endeavor. See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); 
see also Kazarian, 596 F.3d at 1119-20. 1 In this matter, we determine that the Petitioner has 
established eligibility. 
The Petitioner won awards for his work in 3D modeling software before he began working for _ 
in 201 7. He is named on numerous patents and patent applications filed in various countries since 
2006, some of them specific to digital dentistry, others relating to other aspects of 3D modeling. 
Responding to a request for evidence, the Petitioner cited relevant passages in the USCIS Policy 
Manual: "[E]vidence that the person developed a patented technology that has attracted significant 
attention or commercialization may establish the significance of the person's original contribution to 
the field." 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policy-manual. The same 
document also indicates that "employment ... with leading institutions in the field ... can be a positive 
factor toward demonstrating that the person is among the small percentage at the top of the field." Id. 
at F.2(B)(2). 
The cited passages are relevant because the record indicates that ____________ 
are popular, widely used, and highly regarded in the field of dentistry, and that the Petitioner led the 
development of those devices. An article in Han ung Job & Joy, an offshoot publication of Korea 
Economic Daily, indicated that the "quickly became a game changer in the global 
digital dentistry market," and thatl I"is currently recognized as the second largest[ I 
company in the world." The I lwon a Best of Class Technology Award froml I 
_____ in 2021. 
The Director concluded that "[t]he petitioner did not provide independent and objective evidence to 
demonstrate that the invention( s) and technology is being widely utilized widely by others in the 
petitioner's field-reaching far beyond the petitioner's employer(s)." 
The technology in question is patented, which grants the patent holder exclusive rights to the 
technology. We would not expect rival companies to use the same technology unless the patent holder 
licensed it for that purpose. A patent holder has the discretion to keep its patented technology to itself 
in order to gain market advantage, which appears to be the case here. 
Materials in the record indicate that holds more than a 20% share of the global 
market. This information indicates significant commercialization of the Petitioner's work - not 
through its adoption by competitors, but through sales amounting to a substantial proportion of the 
market for such products. The record shows that when was sold for about $2 billion 
in 2022, a media report about the acquisition called! l"the world's No. 1 _______ 
1 See generally 6 USCIS Policy Manual, supra, at F.2(B)(2) (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 for the immigrant classification). 
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I 
Some of the published materials in the record appear to be self-promotional, such as an article about 
I products that appeared in Dentistry, a publication that describes its purpose as "[c ]onnecting 
dental brands with the UK dental profession." But other materials represent objective trade media 
coverage, indicating that the Petitioner has been recognized as being largely responsible for the 
creation of highly successful products. 
Third-party coverage and discussion of I I products heavily features the Petitioner, both 
identifying him by name and discussing his role as I ICTO and as a key developer of the 
company's products. Crucially, this coverage extends beyond I I own press releases and 
"sponsored" articles. Objective media coverage features the Petitioner as, in effect, the "face" of 
popular and highly-regarded products in the field of digital dentistry. 
The record as a whole supports the conclusion that the Petitioner has met his burden of proof by a 
preponderance of the evidence. 
III. CONCLUSION 
The Petitioner has submitted sufficient evidence to establish eligibility as an individual of 
extraordinary ability. We will therefore sustain the appeal. 
ORDER: The appeal is sustained. 
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