dismissed O-1A Case: Software Development

I' 
. -Identifying data deleted to 
prevent clearly unwarr~ted 
invasianof personal pnvac}' 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Irrnnigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: 
AUG 1 I 2010 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(O) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(O). 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. § 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. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.UlCil.gov 
" 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant 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. § 214.2(o)(3)(iii)(A) or at least 
three of the eight criteria set forth at 8 C.F.R. § 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. §§ 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 1 01(a)(15)(0)(i) of the Act, 8 U.S.C. § 1101(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. § 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 41818,41819 (August 15, 1994); 137 
Congo 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: 
Page 3 
It must be remembered that the standards for~liens in the fields of business, education, 
athletics, and the sciences are extremely high. The .assification should be reserved only 
for those aliens who have reached the very top of their occupation or profession. The. 
classification is substantially higher than the ol~ prominent standard. Officers involved 
in the adjudication of these petitions should not "water down" the classification by approving 
.petitions for prominent aliens. 
Memorandum, Acting Asst. Comm'r., INS, "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an _lien of extraordinary ability in the fields 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: 
(1) 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; 
(4) 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; 
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. § 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 certifying 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 41820. 
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. Kazarian v. USCIS, 2010 WL 
725317 (9
th 
Cir. March 4, 2010). Similar to the regulations governing this nonimmigrant 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. 
Cj 8 C.F.R. § 204.5(h)(3). 
Page 5 
Specifically, the_ourt 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. § 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 ofthe[ir] field of endeavor," 8 C.F.R. § 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. § 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. § 1153(b)(1)(A)(i). 
Id. at *3. 
Thus, Kazarian 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 fmal 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 AAO finds the 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. § 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 Solfane 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. §§ 214.2(0)(3)(ii) and (iii). 
II. 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 in China (1991). 
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 resume, 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, fmding that the beneficiary meets only two of the eight 
regulatory criteria for establishing sustained national or international acclaim at 8 C.F.R. § 214.2(0)(3)(iii)(B). 
On appeal, counsel contends that the beneficiary meets at least three additional criteria, specifically, 8 C.F.R. §§ 
214.2(0)(3)(iii)(B)(6), (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. § 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. § 214.2(0)(3)(iii)(B).i 
1. Documentation of the alien's receipt of nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor 
To meet the criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(1), the petitioner must submit evidence that the 
beneficiary has received nationally or internationally recognized prizes or awards for excellence in the field. 
I The petitioner has not claimed to meet or submitted evidence relating to the criteria not discussed in this 
decision. 
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. § 214.2(0)(3)(iii)(B)(1). The beneficiary's patents will be considered under the criterion at 8 C.P.R. 
§ 2l4.2(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 IS 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 
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? 
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 RFE, the 
petitioner claimed eligibility under this criterion based on "numerous and continuous citations" to the 
beneficiary'S co-written article, 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. §§ 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. § 214.2(0)(3)(iii)(3). Accordingly, the petitioner has not 
established that the beneficiary meets this criterion. 
2 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. 
.-------.~.----------
Page 8 
3. Evidence of the alien's original scientific, scholarly, or business-related contributions of 
major significance 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. § 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 7483894, issued January 27, 2009), 
and Method and Apparatus for Awareness of Geography and Languages (U.S. Patent number 7523108, 
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 2009.3 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 of Boundless Flight, Inc., in support of this 
requirement. _ 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." _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 
3 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. 
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 Clevelaniiiiiat m invitation 
and presented this new technology to _ the renowned of 
InformationWeek magazine .• 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. 
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 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 benef~sion and efforts have attracted the active support and 
investment," of prominent individuals. _ 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. 
speaks highly of the beneficiary'S work in the Internet search technologies field as 
progressIve, mnovative, 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 candidate at Rutgers University and former 
co-worker of the beneficiary. While the letter from 
beneficiary was employed in a critical or essential capacity by 
to establish that the 
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." 
While _ acknowledges the beneficiary's expertise in Internet search technologies, his statements that 
he personally "likes" the beneficiary's invention, and considers it to be an original search engine with 
promising commercial and investment value, do not lead us to a determination that the beneficiary has already 
made an original contribution of major significance in the field based on the recently patented technology. 
A petitioner cannot file a petition under this classification based on the expectation of future eligibility. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Rather than providing specific ex~ 
how the beneficiary's work has already had a significant impact in the field, both _ and_ 
suggest that the beneficiary'S inventions in the Internet search technology field have not been fully 
implemented and remain at the start-up stage. In short, they speak to the possibilities of the beneficiary'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 influence 
beyond serving as the impetus for the formation of a start-up company and attraction of investors. 
Finally, appeal a letter from_ Senior of 
_letter was also submitted primarily to establish that the 
beneficiary was organization in a critical or essential role. However, he spoke more 
generally of the beneficiary'S experience in the field of search technologies as follows: 
[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. I 
personally recruited [the beneficiary] because he has a great deal of knowledge about cutting­
edge search technologies. He had performed extensive prior research and had written several 
influential scholarly articles about the innovative ways to apply search technologies. His prior 
research in the field gave him a firm understanding of our company's products and how they 
could be applied to future algorithmic search engine capabilities. 
speaks in general terms regarding the beneficiary's influential scholarly articles and innovative 
approach to search technologies, but does not identify the beneficiary'S original contribution to the field. 
According to the regulation at 8 C.F.R. § 214.2(0)(3)(iii)(B)(5), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not superfluous 
and, thus, that it has some meaning. While the evidence indicates that the beneficiary performed admirably 
on the projects to which he was assigned and is considered an innovator by those with whom he has worked, 
the submitted documentation does not establish that he has made original scientific contributions of "major 
Page 11 
significance" in his field. For example, the record does not indicate the extent to which his work has 
impacted others in his field, nor does it show that the field has significantly changed as a result of his work. 
Therefore, in this case, the letters of recommendation submitted by the petitioner are not sufficient to meet 
this regulatory criterion. We note that the submitted letters are all from individuals with whom the 
beneficiary has worked. While such letters are important in providing details about the beneficiary's role in 
various projects, they cannot by themselves establish his acclaim beyond his immediate circle of professional 
contacts. USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795-796. 
Thus, the content of the writers' statements and how they became aware of the beneficiary'S reputation are 
important considerations. Even when written by independent experts, letters solicited by an alien in support of 
an immigration petition are of less weight than preexisting, independent evidence of original contributions of 
major significance that one would expect of a software architect who has sustained national or international 
acclaim. Without evidence showing that the beneficiary'S work has been unusually influential, highly 
acclaimed throughout his field, or has otherwise risen to the level of contributions of major significance, we 
cannot conclude that he meets this criterion based on his patents in the field of Internet search technologies or 
prior work in the field. 
Although not of this criterion, the petitioner also provides evidence that the 
beneficiary'S article, Antecedents and Directions," published in Autonomous 
Robots, has been cited frequently and continuously since its publication in 1997. Counsel states that the paper 
is "a milestone paper in the important and active field of cooperative mobile robotics," which has been cited 
to hundreds of times over the last decade by other researchers in the field of artificial intelligence, as well as 
by researchers in other fields including physics and health science. 
The AAO finds that the beneficiary's published article fails to meet this criterion. While the petitioner has 
provided citation evidence from sources such as Google Scholar and lSI Web of Science, the record contains 
no supporting testimonial evidence or other documentary evidence regarding the article and its influence in 
the field, and thus no explanation as to how it constitutes an original contribution of major significance in the 
field. The citation history is solid evidence that other researchers are familiar with the beneficiary'S published 
article, but, without more, this documentation is insufficient to establish that the beneficiary meets this 
requirement. 
Without additional, specific evidence showing that the beneficiary'S work has been influential, highly 
acclaimed throughout his field, or has otherwise risen to the level of contributions of major significance, we 
cannot conclude that he meets this criterion. 
Page 12 
(4) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other 
major media 
The director acknowledged that the beneficiary presented papers at three conferences between 1992 and 1995, 
and published the above-referenced scholarly article in Autonomous Robotics in 1997. The director 
determined that the petitioner did not submit evidence to meet this criterion. The director excluded the 
beneficiary's conference presentations from consideration, and determined that the beneficiary's publication of 
a single article written 12 years prior to the filing of the petition "is insufficient to establish sustained 
international recognition." 
On appeal, counsel asserts that the director erred by requiring the beneficiary's article to have been recently 
published, emphasizing that the petitioner provided evidence that the article has been cited to since its 
publication in 1997, and as recently as 2008. Counsel further states that the director failed to review an 
additional publication, "Integrating a Priori Information i_" which was published in 
1992 in the journal Proc. SP IE. In a ce on appeal to establish that the • • • • ,', • • • • • II • • • 
beneficiary's conference presentation ' a virtual reality project exhibited 
at the 1999 SIGGRAPH conference, was subsequently published. 
Upon review, the AAO agrees with counsel that, for purposes of satisfying the plain language of the 
regulatory criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(6), the petitioner must only establish that the beneficiary 
has published scholarly articles in his field. The weight to be given to the beneficiary's body of published 
work, and an analysis as to whether that body of published work is indicative of sustained acclaim, should be 
considered in a final merits determination. 
(5) Evidence that the alien has been employed in a critical or essential capacity for organizations and 
establishments that have a distinguished reputation 
-The petitioner claims that the beneficiary has been employed by both the petitioning company and by_ 
in a critical or essential capacity.4 In support of the first claim, _asserts that the beneficiary is critical to 
the success of the petitioning company because he has been granted three U.S. patents and filed six additional 
patent applications, that underpin the company, and that without his work, the company would not have been 
funded. 
The director determined that the petitioner did not submit any evidence to establish that the petitioning company 
has a distinguished reputation, noting that the fact that it attracted notable investors as a start-up company in a 
weak economic environment is insufficient to support such a fmding. The director noted that "a company which 
enjoys a distinguished reputation can easily provide articles in major media about the company indicating a 
from October 2007 until April 2008. 
classification petition filed by 
pr~:oelcessor of the petitioner, which was valid 
Page 13 
distinguished reputation." The AAO concurs with the director, and notes that the petitioner has not contested this 
finding on appeal. While the beneficiary's services appear to be critical to the petitioning company based on his 
research and inventions in the Internet search and e-commerce field, the petitioner also indicates that it presently 
has one employee and no income, and has not been able to establish the company's distinguished reputation given 
its current stage of development. 
The director noted does have a distinguished reputation and considered the testimonial letter 
provided by _ In his letter dated July 1,2009,_ stated that the beneficiary joined the company 
when it was in the process of developing the second version of its search engine, the version which ultimately 
enabled the company to be competitive with Google. He indicated that the beneficiary "played an essential role in 
implementing and optimizing a critical component of the new version," specifically in the areas of 
internationalization, large-scale operations, and artificial intelligence. 
The director found that _ letter was lacking in specific details regarding the beneficiary's role with Ask 
Jeeves, and further noted that it was unclear that _as a former co-worker of the beneficiary, was in a 
position to make statements on behalf of the entire company regarding the beneficiary's contribution. 
On appeal, the petitioner submits the above-referenced letter from 
to meet this criterion. _states that he was the beneficiary's direct supervisor during the beneficiary's 
tenure with the company as a senior software engineer. As noted above, _ discusses in some detail the 
beneficiary's expertise in search engine technologies, and states that the beneficiary's services as a senior software 
engineer were "essential and critical" to the company. He states that "although many people made it possible for 
our company's search engine to compete against search giants such as Google, [the beneficiary's] role was 
essential and extremely critical to our company's successes." _states that the beneficiary was hired at a 
time when the company needed to expand its capabilities in foreign languages, "related searches," and large-scale 
operations, and that the beneficiary had the knowledge and skills necessary to contribute to these developments. 
Upon review, the petitioner has not established that the beneficiary was employed in a critical or essential 
capacity with _. has provided a more detailed letter than that provided by_ 
the essential and critical nature of the beneficiary's role of senior software engineer has not been adequately 
explained. Rather, _explains why he believes the beneficiary's knowledge is superior compared to other 
software engineers. The record shows that the beneficiary joined _ when the company was already in 
the middle of developing the second version of its search engine software, and _ acknowledges that many 
people were involved in its development. Although _stated that the beneficiary possesses extensive 
expertise in the field and repeats the regulatory language by indicating that the beneficiary's services were 
"essential and critical," it is not clear how his duties and contributions would have set him apart from any other 
software engineer working on the same product, let alone from more senior technical personnel and managers 
who had been involved in all stages of developing the company's search technology. It is reasonable to believe 
that a company whose primary purpose is to develop and continuously improve an Internet search engine would 
require all of its software engineers to have expertise in this field and to perform work on the cutting edge of the 
technology. Although the beneficiary's title was "senior" software engineer, it has not been established that he 
had a leading role or a senior role within the company as a whole. 
The letters submitted do not establish that the beneficiary was responsible for the success or standing of. 
_ to a degree consistent with the meaning of" essential or critical capacity." The scope of this evidentiary 
criterion focuses on the beneficiary and the relative importance of his position within the scope of the 
organizations that have employed him. Therefore, we concur with the director that the beneficiary's 
employment as a senior software engineer, while of great value to his prior employer, is not considered 
employment in a "critical or essential capacity" as would be the position of a chief scientist or department 
head within the company. 
Based on the foregoing discussion, the petitioner has not submitted evidence that satisfies the plain language of 
the criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(7). 
6. Evidence that the 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. 
The petitioner stated on Form 1-129, Petition for a Nonimmigrant Worker, that the beneficiary will work 12 
hours per week, but did not complete the information requested regarding his wages. Where asked to indicate his 
"other compensation," the petitioner stated that the beneficiary will receive "standard benefits." 
The petitioner also provided a copy of its job offer letter to the beneficiary dated May 1, 2009, in which the 
petitioner stated that the beneficiary would be expected to work 12 hours per week at a salary of IIper hour. 
The petitioner submitted wage data from the Foreign Labor Certification Data Center's "Online Wage 
Library" showing the median wages of ' in the Los Angeles-Long Beach-
Glendale, California region. For example, nt) for Computer Specialists in this 
region was $41.39 per hour. Counsel stated in her letter dated May 18, 2009 that this evidence shows that the 
beneficiary's offered salary "is the highest level for the job position." However, the petitioner must submit 
evidence showing that the beneficiary's salary places him among that small percentage at the very top of the 
field rather than simply in the top half on a regional basis. Thus, median regional wage statistics are not an 
appropriate basis for comparison in determining "significantly high" earnings in relation to others in the field. 
In the RFE issued on May 27, 2009, the director observed that the initial evidence showed that the beneficiary 
would receive "a standard pay for someone in his field," and advised that additional evidence would be 
necessary to establish that the beneficiary will command a high salary. 
In response, the petitioner submitted the above-referenced letter dated July 6, 2009 from 
_ is the CEO of the apparently unaffiliated company, Boundless Inc. and stated in his prior letter 
that he is an advisory board member of the petitioning company. 
following: 
stated, in pertinent part, the 
Page 15 
[The petitioner] values [the beneficiary's] role so much that it is ready to offer him 2% of the 
company once his 01 gets approved. In comparison, an ordinary senior software architect 
would receive only 0.02%. The fact that [the beneficiary] will get 100 times the market rate 
for a senor [sic] software architect in non-salary compensation further indicates that he is 
extraordinary and invaluable to [the petitioner]. These extra stock options allow the company 
to conserve on cash while maintaining [the beneficiary's] intensity, focus and dedication. 
The director determined that the petitioner failed to submit evidence that the beneficiary meets this criterion. 
The director reiterated that the beneficiary's proffered salary of $42.00 hour is a standard rate for an 
experienced professional in his field. The director acknowledged but observed that the 
petitioner did not submit supporting evidence to indicate that the additional non-salary compensation is high 
compared to what would be offered to others in the field. 
On appeal, counsel asserts statements as an expert "clearly support the conclusion that the 
petitioner submitted some evidence to indicates that the 2% stock grant is high remuneration for an individual 
in the beneficiary's position." Nevertheless, the petitioner submits additional evidence in support of the 
appeal, including a letter from its Interim CEO, who states that the company is valued at $8.33 million, and 
thus the beneficiary's 2% interest is valued at _ The petitioner's CEO states that, based on his 
industry experience, a stock grant of 2% to a senior software architect is "extremely high." The petitioner 
also submits a Salary. com article titled "Understanding Your Options," which discusses stock option grant 
practices in high-tech companies. The article appears to have been written in 2001. 
Upon review, the petitioner has not established that the beneficiary has commanded or will command a high 
salary or other remuneration for services, evidenced by contracts or other reliable evidence. 
The AAO notes that the petitioner's statements on Form 1-129, counsel's initial letter, and the signed offer 
letter which was submitted in lieu of a contract between the petitioner and beneficiary, all indicate that the 
beneficiary's salary will be an hourly wage of $42.00 and "standard benefits." If the petitioner intended as of 
the date of filing that the beneficiary is also going to be given stock options valued in excess of_ it is 
unclear why the petitioner would not have mentioned this remuneration in its formal offer letter to the 
beneficiary or when setting forth its claim of eligibility in the initial filing with USCIS. The petitioner's initial 
claim that the beneficiary'S salary will be high was based solely on his proffered hourly wage. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Here, the petitioner's claim that 
the beneficiary will be issued a 2% interest in the company was made only after the director advised the 
petitioner that the beneficiary's hourly salary does not meet the evidentiary criterion at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(8). Further, the initial claim that the beneficiary will receive the stock options did not come 
directly from the petitioner, but from the CEO of Boundless Flight, Inc., who states that he is merely an "advisory 
board member" of the petitioning company. Although the petitioner's interim CEO now confirms the additional 
Page 16 
non-salary remuneration on appeal, the petitioner has not submitted an amended job offer letter or employment 
contract setting forth the terms of the stock option arrangement. As noted above, the petitioner's claims that the 
beneficiary will receive a high salary or other remuneration must be supported by contracts or other reliable 
evidence. 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The record shows 
that the beneficiary's terms of employment at the time of filing were twelve hours of work per week at a wage 
of $42 per hour, and "standard benefits." Accordingly, the petitioner has not established that the beneficiary's 
salary would be significantly high in relation to others in his field. 
B. Final Merits Determination 
Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the context of 
a final merits determination. However, as discussed above, the petitioner established eligibility for only one of 
the criteria, of which three are required under the regulation at 8 C.P.R. § 214.2(0)(3)(iii)(B). 
Notwithstanding the above, a fmal merits determination considers all of the evidence in the context of whether or 
not the petitioner has demonstrated: (1) that the beneficiary has achieved a level of expertise indicating that he is 
one of that small percentage who have risen to the very top of the field of endeavor pursuant to 8 c'P.R. § 
214.2(0)(3)(ii); and (2) that the beneficiary has sustained national or international acclaim and that her 
achievements have been recognized in the field of expertise, pursuant to 8 C.P.R. § 214.2(0)(3)(iii). See 
Kazarian, 2010 WL 725317 at *3. 
In this case, we concur with the director's finding that the petitioner has not established that the beneficiary 
has "extraordinary ability" in the sciences, which has been demonstrated by sustained national or international 
acclaim, and whose achievements have been recognized in the field through extensive documentation. Section 
101 (a)(l5)(O)(i) of the Act. The petitioner has not demonstrated that the beneficiary received a major 
internationally recognized award or that he meets at least three of the criteria that must be satisfied to 
establish the national or international acclaim necessary to qualify as an alien of extraordinary ability. 8 
C.P.R. § 214.2(0)(3)(iii). 
The specific deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.P.R. § 214.2(0)(3)(iii)(B). The petitioner submitted 
documentation relating to the beneficiary'S achievements. Although the petitioner's evidence meets one of the 
eight criteria, the submitted evidence is not indicative of the beneficiary'S national or international acclaim and 
there is no indication that his individual achievements have been so recognized in the field or that he met the 
overall criteria for eligibility at the time his petition was filed. 
With regard to the evidence submitted for 8 C.P.R. § 214.2(0)(3)(iii)(B)(3), the evidence submitted has met the 
plain language of the regulation. The beneficiary's small published body of work includes one article which 
-------------------------------------- .-._---- ... 
Page 17 
has continued to receive citations from other researchers for over a decade. While the AAO acknowledges 
the petitioner's statement that the beneficiary's article is considered a milestone paper in the field of 
cooperative mobile robotics, there is no additional evidence to support a claim that this one important 
published work demonstrates that the beneficiary has achieved a level of expertise and recognition indicating 
that he is among that small percentage who have risen to the very top of the field of endeavor. See 8 C.F.R. 
§ 214.2(0)(3)(ii). Eligibility for this classification may be established through a single achievement, but that 
achievement must be the receipt of a major, internationally recognized award, such as the Nobel prize. See 8 
C.F.R. § 214.2(0)(3)(iii)(A). Eligibility cannot be established based on the citation statistics for one published 
article. 
Furthermore, our analysis of the importance of the beneficiary's work, the originality of his contribution to the 
field of science, and the significance of any contributions, is determined by the quantity and quality of 
supporting evidence submitted. None of the experts who provided recommendation letters have stated how or 
whether the beneficiary's published works have influenced their own research activities, and there is no 
evidence that the beneficiary received any individual recognition in the field as a result of his "milestone 
paper" in cooperative mobile robotics. The testimonial evidence offers glowing praise of the beneficiary's 
more recent work and its potential impact in the Internet search technology field, however, as discussed, the 
beneficiary's recently patented inventions and patent-pending technologies have yet to impact the field and 
have not been shown to have garnered any recognition beyond those who are personally known to the 
beneficiary. 
The AAO acknowledges that the petitioner's rationale for seeking to employ the beneficiary is readily 
apparent. However, unlike recruiting and hiring decisions, eligibility for this visa classification is not based 
on a beneficiary's having specific professional competencies, however unusual or in-demand they may be, but 
rather hinges on the beneficiary's sustained national or international acclaim and recognition in the actual 
field. The context is much broader than an evaluation for suitability for a particular position. 
The conclusion we reach by considering each evidentiary criterion separately is consistent with a review of 
the evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the beneficiary as one 
of the small percentage who has risen to the very top of the field of endeavor. 8 C.F .R. § 214.2(0)(3 )(ii). The 
beneficiary is undoubtedly a highly successful computer scientist who has achievements that may set him apart 
from typical software engineers, and who has been considered extremely valuable to employers requiring his 
expertise. However, review of the record does not establish that the beneficiary has distinguished himself to 
such an extent that he may be said to have achieved sustained national or international acclaim or to be within 
the small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international level. 
Therefore, the petitioner has not established eligibility pursuant to section 101(a)(15)(O)(i) of the Act and the 
petition may not be approved. 
III. Conclusion 
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Nothing in the decision of the AAO should be seen as an attempt to minimize the accomplishments of the 
beneficiary. Indeed, as the testimonial letters suggest, the beneficiary's recently patented technologies in 
Internet search technology may ultimately have a significant impact in the field. This denial does not 
preclude the petitioner from filing a new immigrant or nonimmigrant visa petition, supported by the required 
evidence. As always, the burden remains with the petitioner to establish eligibility for the requested visa 
classification. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. § l361. Here, the petitioner has not sustained that burden. Accordingly, the director's decision will be 
affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.