dismissed O-1A Case: Software Development

, i&ntifying data deleted to 
prevent clearly unw~ted 
invasion of persona\ privacy 
PUBLIC CQpy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 09 166 5 125 8 Office: CALIFORNIA SERVICE CENTER Date: 
AUG 1 1 2010 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(0). 
ON BEHALF OF PETITIONER: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
uerry Rhew 
Chief, Administrative Appeals Office 
WAC 09 166 51258 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimrnigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner, an Internet software development company, filed this petition seeking to classify the 
beneficiary as an 0-1 nonimmigrant pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality 
Act (the Act), as an alien of extraordinary ability in the field of science. The petitioner seeks to employ the 
beneficiary as a senior software architect for a period of three years. 
On July 21, 2009, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary has received "sustained national or international acclaim" or to demonstrate that he is one of the 
small percentage who has risen to the very top of his field of endeavor. Specifically, the director determined 
that the evidence submitted did not satisfy the criteria set forth at 8 C.F.R. 5 214.2(0)(3)(iii)(A) or at least 
three of the eight criteria set forth at 8 C.F.R. 5 214.2(0)(3)(iii)(B). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel asserts that the director erred in determining that the evidence 
submitted failed to satisfy the evidentiary criterion at 8 C.F.R. $5 214.2(0)(3)(iii)(B)(6), (7) and (8). Counsel 
submits a brief and additional evidence in support of the appeal. 
I. The Law 
Section 10 l(a)(15)(0)(i) of the Act, 8 U.S.C. 5 1 10 1 (a)(15)(0)(i), provides for the classification of a qualified 
alien who: 
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, and seeks to enter the 
United States to continue work in the area of extraordinary ability . . . . 
The regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a level of 
expertise indicating that the person is one of the small percentage who have arisen to the very 
top of the field of endeavor. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive for aliens in 
the fields of business, education, athletics, and the sciences. See 59 FR 4 18 18, 4 18 19 (August 15, 1994); 137 
Cong. Rec. S18242, 18247 (daily ed., Nov. 26, 1991) (comparing and discussing the lower standard for the 
arts). 
In a policy memorandum, the legacy Immigration and Naturalization Service (INS) emphasized: 
WAC 09 166 51258 
Page 3 
It must be remembered that the standards for 0-1 aliens in the fields of business, education, 
athletics, and the sciences are extremely high. The 0-1 classification should be reserved only 
for those aliens who have reached the very top of their occupation or profession. The 0-1 
classification is substantially higher than the old H-1B prominent standard. Officers involved 
in the adjudication of these petitions should not "water down" the classification by approving 
0-1 petitions for prominent aliens. 
Memorandum, 
 , "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
The regulation at 8 C.F.R. fj 214.2(0)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in thejields of science, education, 
business, or athletics. An alien of extraordinary ability in the fields of science, education, 
business, or athletics must demonstrate sustained national or international acclaim and 
recognition for achievements in the field of expertise by providing evidence of: 
(A) 
 Receipt of a major, internationally recognized award, such as the Nobel Prize; or 
(B) 
 At least three of the following forms of documentation: 
(I) 
 Documentation of the alien's receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(2) 
 Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized or international experts in their disciplines or 
fields; 
(3) 
 Published material in professional or major trade publications or major media 
about the alien, relating to the alien's work in the field for which classification is 
sought, which shall include the title, date, and author of such published material, 
and any necessary translation; 
( 
 Evidence of the alien's participation on a panel, or individually as a judge of the 
work of others in the same or in an allied field of specialization to that for which 
classification is sought; 
(5) Evidence of the alien's original scientific, scholarly, or business-related 
contributions of major significance in the field; 
WAC 09 166 51258 
Page 4 
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional 
journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation; 
(8) Evidence that alien has either commanded a high salary or will command a high 
salary or other remuneration for services, evidenced by contracts or other reliable 
evidence. 
(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
Additionally, the regulation at 8 C.F.R. 5 214.2(0)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, firm, establishment, or organization where the work was performed. 
(B) Affidavits written by present or former employers or recognized experts certifiing to the 
recognition and extraordinary ability . . . shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required by the regulation does not 
necessarily establish that the alien is eligible for 0- 1 classification. 59 Fed Reg at 4 1820. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach recently 
set forth in a decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kuarian v. USCIS, 2010 WL 
7253 17 (9" Cir. March 4, 2010). Similar to the regulations governing this nonirnmigrant classification, the 
regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining to at least three 
out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with extraordinary ability. 
Cf: 8 C.F.R. 5 204.5(h)(3). 
WAC 09 166 51258 
Page 5 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence provided 
(which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the 
applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. 
at *6 (citing to 8 C.F.R. 5 204.5(h)(3)). The court also explained the "final merits determination" as the corollary 
to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. 5 204.5(h)(2), 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. 5 204.5(h)(3). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 U.S.C. 5 1 1 53(b)(l)(A)(i). 
Id. at *3. 
Thus, sets forth a two-part approach where the evidence is first counted and then, if qualifying under at 
least three criteria, considered in the context of a final merits determination. The final merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
regulatory definition of "extraordinary ability" as "one of that small percentage who have risen to the very top of 
the field of endeavor." 
Although the director's decision pre-dates the Kazarian decision, AAO finds the Kazarian court's two part 
approach to be appropriate for evaluating the regulatory criteria set forth for 0-1 nonimmigrant petitions for 
aliens of extraordinary ability at 8 C.F.R. 5 214.2(0)(3)(iii), (iv) and (v). Therefore, in reviewing Service Center 
decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis rather than 
the two-step analysis dictated by the Kazarian court. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO reviews appeals on a de novo basis). 
In the present matter, the petitioner has submitted evidence pertaining to several of the evidentiary criteria, but has 
not established that the beneficiary has risen to the very top of his field or that he has achieved sustained national 
or international acclaim. 8 C.F.R. 5 5 2 14.2(0)(3)(ii) and (iii). 
11. The Beneficiary's Eligibility under the Evidentiary Criteria 
The beneficiary in this matter is a native and citizen of China. The beneficiary holds a Ph.D. in Computer 
Science from the University of California at Los Angeles that was conferred in 1997. The beneficiary also 
holds a Master of Science in Computer Science from the University of Louisville (1993), and a Bachelor's 
degree in Electrical Engineering from Zhejiang University in China (1991). 
WAC 09 166 51258 
Page 6 
In this case, the petitioner seeks classification of the beneficiary as an alien with extraordinary ability in the 
sciences, specifically in computer science. The petitioning company was formed in January 2008 and states that it 
is "creating a unique interactive site for on-line shopping," focusing on price comparison of bundled products 
through its patent-pending search engine and related core technologies. 
The petitioner initially submitted a job offer for the beneficiary and comparative salary information, the 
beneficiary's rksume, the beneficiary's publications and conference presentations, evidence of citations to the 
beneficiary's major work, information regarding the petitioner, evidence related to the beneficiary's patents and 
patent applications, the beneficiary's educational diplomas, and a reference letter. In response to a Request for 
Evidence ("RFE") dated May 27, 2009, the petitioner submitted two supplemental letters and other background 
information regarding the significance of the beneficiary's publications and conference presentations. 
On July 21, 2009, the director denied the petition, finding that the beneficiary meets only two of the eight 
regulatory criteria for establishing sustained national or international acclaim at 8 C.F.R. 5 214.2(0)(3)(iii)(B). 
On appeal, counsel contends that the beneficiary meets at least three additional criteria, specifically, 8 C.F.R. $5 
2 14.2(0)(3)(iii)(B)(@, (7), and (8). 
After careful review of the record, it must be concluded that the petitioner has failed to overcome the grounds for 
denial. The extraordinary ability provisions of this visa classification are intended to be highly restrictive. In 
order to establish eligibility for extraordinary ability, the statute requires evidence of "sustained" national or 
international acclaim and evidence that the alien's achievements have been recognized in the field of endeavor 
through "extensive documentation." The petitioner has not established that the beneficiary's abilities have been so 
recognized. 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has received 
a major, internationally recognized award pursuant to 8 C.F.R. 5 214.2(0)(3)(iii)(A), then it will meet its 
burden of proof with respect to the beneficiary's eligibility for 0-1 classification. The regulations cite to the 
Nobel Prize as an example of a major award. Id. There is no evidence that the beneficiary has received any 
major awards in his field, and the petitioner does not claim that the beneficiary meets this criterion. 
As there is no evidence that the beneficiary has received a major, internationally recognized award, the 
petitioner must establish the beneficiary's eligibility under at least three of the eight criteria set forth at 8 
C.F.R. 5 214.2(0)(3)(iii)(~).' 
1. Documentation of the alien's receipt of nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor 
To meet the criterion at 8 C.F.R. 5 214.2(0)(3)(iii)(B)(I), the petitioner must submit evidence that the 
beneficiary has received nationally or internationally recognized prizes or awards for excellence in the field. 
' The petitioner has not claimed to meet or submitted evidence relating to the criteria not discussed in this 
decision. 
WAC 09 166 51258 
Page 7 
At the time of filing the petitioner claimed that the beneficiary meets this criterion based on three granted U.S. 
patents. In the RFE, the director advised the petitioner that patents are not considered national or international 
prizes or awards and cannot be used to satisfy this criterion. The AAO agrees with the director, and the 
petitioner does not contest the director's finding that the beneficiary's patents do not satisfy the criterion at 8 
C.F.R. 5 214.2(0)(3)(iii)(B)(I). The beneficiary's patents will be considered under the criterion at 8 C.F.R. 
5 2 14.2(0)(3)(iii)(B)(6) and in the final merits determination. 
2. Published material in professional or major trade publications or major media about the alien, 
relating to the alien's work in the field for which classiJication is sought, which shall include the title, 
date, and author of such published material, and any necessary translation 
In general, in order for published material to meet this criterion, it must be primarily "about" the beneficiary and, 
as stated in the regulations, be printed in professional or major trade publications or other major media. To 
qualify as major media, the publication should have significant national or international distribution. An alien 
would not earn acclaim at the national level from a local publication. Some newspapers, such as the New York 
Times, nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.2 
The director concluded that the petitioner submitted evidence that meets this criterion. The AAO disagrees and 
will withdraw the director's finding. As noted above, the AAO conducts appellate review on a de novo basis. 
See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
The petitioner did not initially claim that the beneficiary meets this criterion. In response to the ME, the 
petitioner claimed eligibility under this criterion based on "numerous and continuous citations" to the 
beneficiary's co-written article, "Cooperative Mobile Robotics: Antecedents and Directions," which was 
published in the journal Autonomous Robots in 1997. The petitioner's claims are supported by documentary 
evidence of the number of citations to this work. Regarding the scientific articles that merely reference the 
petitioner's published work, we note that the plain language of this regulatory criterion requires that the 
published material be "about the alien." The submitted citations to the beneficiary's work do not discuss the 
merits of his work, his standing in the field, any significant impact that his work has had on the field, or any 
other aspects of his work so as to be considered published material about the beneficiary as required by this 
criterion. Instead, these citations are more relevant to the regulatory criteria at 8 C.F.R. $5 214.2(0)(3)(iii)(5) 
and (6) and the final merits determination, and thus will be addressed further below. 
In light of the above, while the citation evidence is relevant as to the significance of the beneficiary's 
scholarly articles and contributions in the field of publication, it does not meet the plain language 
requirements for qualifying evidence under 8 C.F.R. 5 214.2(0)(3)(iii)(3). Accordingly, the petitioner has not 
established that the beneficiary meets this criterion. 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
WAC 09 166 51258 
Page 8 
3. Evidence of the alien's original scientijic, scholarly, or business-related contributions of 
major signzjkance in the field. 
At the time of filing, the petitioner submitted evidence that the beneficiary has been granted two U.S. patents 
in support of its claim that the beneficiary meets the criterion for having made original scholarly contributions 
of major significance in the field, pursuant to 8 C.F.R. 8 214.2(0)(3)(iii)(B)(5). The petitioner has also 
submitted a total of four recommendation letters from prior employers which further address the significance 
of the beneficiary's work. In addition, as discussed above, the citation evidence pertaining to the beneficiary's 
published scholarly articles may be considered under this criterion. 
With respect to the beneficiary's patents, the petitioner submitted Issue Notifications for the following 
inventions: Method and Apparatus for Entity Search (U.S. Patent number - issued January 27, 2009), 
and Method and Apparatus for Awareness of Geography and Languages (U.S. Patent number - 
issued April 21,2009). The petitioner also submitted a Notice of Allowance and Fee(s) Due for the invention 
Method and Apparatus for Freshness and Completeness of Information, and noted that a patent number is 
expected in the second quarter of 2009.~ The petitioner provided receipts for four additional U.S. patent 
applications submitted by the beneficiary and currently pending, and a patent application submitted to the 
World Intellectual Property Organization. 
The director determined that the petitioner met this requirement based on the evidence related to the 
beneficiary's patents alone, and did not further discuss this criterion. The AAO disagrees with the director's 
conclusion that the beneficiary's receipt of patents is sufficient to establish that the beneficiary has made an 
original contribution of major significance in the field. The grant of a patent demonstrates only that an 
invention is original. This office has previously stated that a patent is not necessarily evidence of a track 
record of success with some degree of influence over the field as a whole. See Matter of New York State 
Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Commr. 1998). Rather, the significance of the innovation 
must be determined on a case-by-case basis. Id. 
The petitioner initially submitted a letter from in support of this 
requirement. Mr. - stated that he met the beneficiary through one of his former students in 2004, and 
later worked with him on "a joint project in which [the beneficiary] played a leadership role for several 
months." Mr. further states: 
Throughout most of 2006, [the beneficiary] and his friends tried to apply search technology to 
transportation and logistics. The opportunity was a multi-billion dollar one, the technology 
made sense and the team was strong. I was invited to be on the advisory board of this startup. 
The board was very enthusiastic and active so I flew to Los Angeles many times to attend 
meetings and work with [the beneficiary] on the strategy and architecture of the product 
This notice clearly states it is "not a grant of patent rights," although the application was examined and is 
allowed for issuance as a patent. 
WAC 09 166 51258 
Page 9 
being developed. [The beneficiary's] expertise and his enthusiastic leadership keep [sic] the 
team focused and driven that entire year. 
In April 2006, [the beneficiary] and his leadership team came to Cleveland at my invitation 
and presented this new technology to , the renowned Senior Editor of 
. was significantly impressed by the technology and agreed 
with the business vision of the team. The venture attracted significant attention in the 
industry and was very close to being funded with $5 million but it fell short in late 2006 due 
to circumstances outside the control of [the beneficiary] and his team. 
Since late 2007, I have had the pleasure of working with [the beneficiary] again, this time as 
an advisory board member of [the petitioning company]. The technology developed by [the 
petitioner] under [the beneficiary's] guidance is some of the most progressive search engine 
technology in the world. Several applications have already been developed which are 
generating revenue and which can be expanded to significant international audiences. [The 
petitioner] has received significant funding well beyond anything experienced during the 
effort in 2006. 
Mr. further states that the beneficiary "is on a successful path as a world-class innovator and 
entrepreneur," and indicates that he appreciates the beneficiary's "expertise, tenacious work ethic and growth 
as a person of extraordinary talent." 
In a second letter dated July 6, 2009, Mr. reiterates that the beneficiary's "recent effort has been in 
applying search technology to specific industry domains such as transportation, logistics and online 
shopping." He notes that the beneficiary's "vision and efforts have attracted the active support and 
investment," of prominent individuals. Mr. -further states that the beneficiary's "vision is now being 
fulfilled at [the petitioning company]," and without the beneficiary's patented inventions, the petitioning 
company would not have been formed. 
While Mr. speaks highly of the beneficiary's work in the Internet search technologies field as 
progressive, innovative, and attractive to investors and entrepreneurs, he offers no support for a finding that 
the beneficiary's work has been recognized beyond the scope of his current and former employers, and their 
circle of investors, such that it equates to an original contribution of major significance in the field. 
The petitioner has also submitted a letter from , a Ph.D. candidate at Rutgers University and former 
co-worker of the beneficiary. While the letter from ~r.mwas submitted primarily to establish that the 
beneficiary was employed in a critical or essential capacity by Mr. commented that he was 
aware of the beneficiary's recent U.S. patent applications, noting that he "especially liked the one invention 
making sites auction in order to display their information the first on a search engine." He further states that 
"current engines have no capacity of this sort," and that "search engine companies should hurry and buy this 
product." 
WAC 09 166 51258 
Page 10 
While ~r Wei acknowledges the beneficiarfs expertise in Internet search technologies, his statements that 
he Personal~y 'likest the beneficiary's invention, and considers it t0 be an original search engine with 
commercial and investment value, do not lead US to a determination th" the beneficiary has already 
made an original contribution of major significance in the field bard on the recently ~atented technologY. 
. . .. 
A petitioner cannot file a petition under this classification based on the expectation of future ellglblll~- see 
I*itter of Katigbd, 14 l&N Dec 45, 49 (Reg1 Commr 1971). Rather than ~roviding specific examples of 
how the beneficiary's work has already had a significant impact in the field, both Mr. Bane) and Mr. wei 
suggest that the beneficiary's inventions in the Internet search technology field have not been full) 
implemented and remain at the stanup stage. In short, they speak to the possibilities of the beneficiay's 
invented technologies rather than any tangible present application in the field. There is no evidence showing 
that the beneficiary's patented technologies have been successfully marketed, or otherwise had a significant 
national or international impact in the industry such that it equates to an original contribution of major 
significance in his field. The petitioner indicated on Form 1-129 that it has one employee and no gross or net 
annual income. While the petitioning company may indeed be built around technology that was primarily 
developed by the beneficiary, the petitioner must establish that the beneficiary's technologY has had an influe 
beyond serving as the impetus for the formation of a start-up company and attraction of investors. 
Finally, the petitioner submits on appeal a letter from Tao Yang, Senior Vice President and chief Scientis 
Ask.com (formerly Ask Jeeves). Mr. Yang's letter was also submitted primarily to establish that 
beneficiary was employed by this organization in a critical or essential role. However, he spoke 
generally of the beneficiary's experience in the field of search technologies as follows: 1 
[The beneficiary] possesses extraordinary skills in search technologies that are possessed by 
the small percentage of software engineers who have arisen to the very top of their field. 
personally recruited [the beneficiary] because he has a great deal of knowledge about cuttin 
edge search technologies. He had performed extensive prior research and had written sev 
influential scholarly articles about the innovative ways to apply search technologies. His 
research in the field gave him a firm understanding of our company's products and 
could be applied to future algorithmic search engine capabilities. 
Mr. Yang speaks in general terms regarding the beneficiary's influential scholarly article 
approach to search technologies, but does not identify the beneficiary's original contribution 
I 
According to the regulation at 8 C.F.R. 214,2(0)(3)(iii)(B)(5), an alien' 
original but of major significance. We must presume that the phrase "major 
and, thus, that it has some meaning. While the evidence indicates that the 
on the projects to which he was assigned and is considered an innovator by those wit 
the submitted documentation does not establish that he has made original scientific