dismissed O-1A Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 14, 2024 In Re: 29913834 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a semiconductor manufacturing business, seeks to classify the Beneficiary, a senior 
software development engineer, as an individual of extraordinary ability. This 0-1 nonimmigrant visa 
classification is available to individuals who can demonstrate their extraordinary ability through 
sustained national or international acclaim and whose achievements have been recognized in the field 
through extensive documentation. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(O)(i), 8 U.S.C. § 1101(a)(15)(O)(i). 
The Director of the Vermont Service Center denied the petition, concluding the Beneficiary had not 
satisfied the initial evidentiary criteria applicable to individuals of extraordinary ability: either receipt 
of a major, internationally recognized award or at least three of eight possible forms of documentation. 
8 C.F.R. § 214.2(o)(3)(iii)(A)-(B). The matter is now before us on appeal. 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 Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
As relevant here, section 101(a)(15)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated 
by sustained national or international acclaim, whose achievements have been recognized in the field 
through extensive documentation, and who seeks to enter the United States to continue work in the area 
of extraordinary ability. Department of Homeland Security (DHS) regulations define "extraordinary 
ability in the field of science, education, business, or athletics" as "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." 8 C.F.R. 
§ 214.2(o)(3)(ii). 
Next, DHS regulations set forth alternative evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements. A petitioner may submit evidence either 
of "a major, internationally recognized award, such as a Nobel Prize," or of at least three of eight listed 
categories of documents. 8 C.F.R. § 214.2(o)(3)(iii)(A)-(B). 
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met.") Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the 
totality of the record and the quality of the evidence shows sustained national or international acclaim 
such that the individual is among the small percentage at the very top of the field of endeavor. See 
section 101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iii). 1 
II. ANALYSIS 
Because the Petitioner did not indicate or establish the Beneficiary has received a major, 
internationally recognized award, it must demonstrate the Beneficiary satisfies at least three of the 
alternate regulatory criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B)(])-(8). The Director determined the 
Beneficiary fulfilled only two criteria, judging under 8 C.F.R. § 214.2(o)(3)(B)(iii)(4) and scholarly 
articles under 8 C.F.R. § 214.2(o)(3)(B)(iii)(6). On appeal, the Petitioner maintains the Beneficiary 
meets three additional categories. 2 
Evidence ofthe alien's original scientific, scholarly, or business-related contributions 
o_fmajor sign[ficance in the field. 8 C.F.R. § 214.2(o)(3)(iii)(B)(5). 
Analysis under this criterion focuses on whether the beneficiary's original work constitutes major, 
significant contributions in the field. 3 The Petitioner argues the Beneficiary's eligibility for this 
criterion based on his publication of "articles in highly ranked journals relative to other journals." 
Evidence that the beneficiary's work was funded, patented, or published, while potentially 
demonstrating the work's originality, will not necessarily establish, on its own, the work is of major 
significance in the field. 4 Here, the Petitioner did not show how the publication of articles in highly 
ranked or popular journals automatically demonstrates the research and work to be original 
contributions of major significance. Moreover, publications bearing high rankings or impact factors 
reflect the publications' overall citation rates; they do not establish the reported research's influence 
or automatically indicate a contribution of major significance in the field. 
Similarly, the Petitioner contends that the Beneficiary "was first author in all but one of the 
publications." However, the Petitioner did not show how serving as first author for published papers 
automatically reflects majorly significant contributions. In fact, any published paper inevitably 
contains a first author, and thus we are not persuaded by the Petitioner's reasoning that first-authored 
papers certainly indicates contributions of major significance in the field. Following this argument, 
1 See also 2 Policy Manual, M.4(C)(2), https://www.uscis.gov/policymanaul. 
2 We consider any previous eligibility claims not raised on appeal to be waived. See, e.g., Matter of O-R-E-, 28 T&N Dec. 
330,336 n.5 (BIA 2021) (citing Matter o(R-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). 
3 See generally 2 USC1S Policy Manual, supra, at M.4(C)(2)(appendix). 
4 Id. 
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any person who first authors a paper would establish a contribution of major significance, regardless 
of the paper's impact, influence, or effect in the field. 
The Petitioner also claims the Beneficiary's "citation count had in fact increased by almost three-fold 
- a 1 70% increase - in simply a matter of five months from the time of filing of the petition in late 
January, to the submission of the RFE [request for evidence] Response in late June." Eligibility must 
be established at the time of initial filing. 8 C.F.R. § 103.2(b )(1 ). Although the Petitioner provided 
updated citation rates in response to the Director's RFE, the Petitioner did not demonstrate whether 
any of the additional figures occurred in papers published at the time of initial filing. Regardless, the 
Petitioner initiall rovided evidence reflectin that the Beneficiar 's two hi hest cited a ers 
amered 7 
and4 r--------------------.-----~ ------------------' 
~--------------~citations, respectively. 
Again, this criterion requires the Petitioner to establish the Beneficiary's original contributions of 
major significance in the field. Generally, citations can serve as an indication that the field has taken 
interest in a beneficiary's research or written work. Published research that has provoked widespread 
commentary on its importance from others working in the field, and documentation that it has been 
highly cited relative to other works in that field, may be probative of the significance of the 
beneficiary's contributions to the field of endeavor. 6 Here, the Petitioner has not shown that the 
citation figures for any of the Beneficiary's published articles are commensurate with contributions of 
major significance. The Petitioner did not articulate the significance or relevance of the citation data. 
For example, the Petitioner did not demonstrate that these citations are unusually high in the 
Beneficiary's field or how they compare to other articles considered to have been majorly significant. 
Although the citations indicate the Beneficiary's research and work has received some attention from 
the field, the Petitioner did not establish that the Beneficiary's citation numbers to his individual 
articles represent majorly significant contributions in the field. 
Further, the Petitioner asserts the submission of testimonial letters established the Beneficiary's 
contributions of major significance. 7 In general, the letters recount on the Beneficiary's research and 
findings and indicate their publications in journals. Although they reflect the novelty of his work, they 
do not sufficiently articulate how the Beneficiary's research and findings have been considered of such 
importance and how their impact rises to the level of major significance required by this regulatory 
criterion. For instance, the letters from Dr. S-D- and W-C-R- indicated several of the Petitioner's 
research applications, such as the Beneficiary "created a ML [ machine learning] model which can 
predict the size, power and speed of a FPGA chip just by looking into the behavioral description of 
the design," and "he had applied his model for faster designing of image recognition chips using 
5 In response to the RFE, the evidence indicates that each paper garnered 1 additional cite, and the Beneficiary's other 
papers received 1-2 additional citations. 
6 See generally 2 USCIS Policy Manual, supra, at M.4(C)(2)(appendix). 
7 The Petitioner submitted a new testimonial letter on appeal that was not presented to the Director. Because the Petitioner 
was put on notice and given a reasonable opportunity to provide this evidence, we will not consider it for the first time on 
appeal. See 8 C.F.R. § 103.2(b)(l 1) (requiring all requested evidence be submitted together at one time); Matter ofSoriano, 
19 l&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence submitted on appeal because "the petitioner was 
put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial"). 
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convolution neural networks (CNN)." However, neither letter farther elaborates and describes how 
the Beneficiary's research or work has significantly influenced the field in a major way. 
Moreover, some of the letters speculate on the potential influence of the Petitioner's work and propose 
that it will have an impact at some undefined point in the future. For instance, Dr. S-N- claimed "[t]his 
work will extremely benefit both the EDA [ electronic design automation] industry and the VLSI [ very 
large-scale integration] industry," and "[t]his is a marvelous work which can be applied to wide range 
of applications in the industry." Likewise, Dr. D-B- stated that "[t]his approach of generating 
standardized benchmark designs will help design future HLS [high-level synthesis] tools efficiently," 
and "I think this breakthrough research work will majorly impact EDA tools that will use machine 
learning in the design flows." While the letters show promise in the Beneficiary's work, they do not 
establish how his work already qualifies as a contribution of major significance in the field; rather than 
prospective, potential impacts. The significant nature of the Beneficiary's work has yet to be 
determined or measured. 
Detailed letters from experts in the field explaining the nature and significance of the beneficiary's 
contribution(s) may also provide valuable context for evaluating the claimed original contributions of 
major significance, particularly when the record includes documentation corroborating the claimed 
significance. 8 Submitted letters should specifically describe the beneficiary's contributions and its 
significance to the field and should also set forth the basis of the writer's knowledge and expertise. 9 
Here, for the reasons discussed above, the letters do not contain specific, detailed information 
explaining the unusual influence or high impact the Beneficiary's research or work has had on the 
field, demonstrating that his work has risen to a level of major significance in the field. 
Accordingly, considered both individually and collectively, the Petitioner has not shown the 
Beneficiary has made original contributions of major significance in the field. 
Evidence that the alien has been employed in a critical or essential capacity for 
organizations or establishments that have a distinguished reputation. 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(7). 
To show a critical role, the evidence should establish that the beneficiary has contributed in a way that 
is of significant importance to the organization or establishment's activities. 10 To show an essential 
role, the evidence should establish that the beneficiary's role is (or was) integral to the entity. 11 For a 
supporting role to be considered critical or essential, USCIS considers other factors, such as whether 
the beneficiary's performance in the role is ( or was) integral or important to the organization or 
establishment's goals or activities, especially in relation to others in similar positions within the 
organization. 12 It is not the title of the beneficiary's role, but rather the beneficiary's duties and 
performance in the role that determines whether the role is (or was) critical or essential. 13 
8 See generally 2 Policy Manual, supra, at M.4(C)(2)(appendix). 
9 Id. 
10 See generally 2 users Policy Manual, supra, at M.4(C)(2)(appendix). 
11 Id. 
12 Id. 
13 Id. 
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The Petitioner argues the Beneficiary "holds a critical and highly specialized role for the [Petitioner]." 
In response to the Director's RFE, the cover letter claimed: 
The Beneficiary is a part of the Software Development team that primarily works on 
our Radiant software. Radiant software is included in [ the Petitioner's] FPGA 
products, enabling the company's FPGA revenue. The Radiant software the 
Beneficiary works on has grown more complex with the launch of Mid-Range FPGA 
product! I The launch ofl lis a critical part of [the Petitioner's] overall 
strategy, doubling the company's addressable market over the next 5 years. By 2028, 
55% of [the Petitioner's] $10 billion addressable market will be driven by thel I 
Mid-Range FPGA. The Beneficiary's experience and knowledge is critical to the 
success of I I and the growth of [the Petitioner's] addressable market. Currently 
the Beneficiary is conducting research into how Machine Leaming and Artificial 
Intelligence can be applied to enhance and optimize the Radiant Software for next 
generatio~ IFPGA devices. 
Although the Petitioner indicated the Beneficiary's work on its Radiant software, the Petitioner did 
not provide specific, detailed information explaining how the Beneficiary has contributed in a way 
that is of significant importance. Rather, the Petitioner broadly referenced the Beneficiary's 
experience and knowledge. The Petitioner, for instance, did not elaborate and articulate how the 
Beneficiary's experience and knowledge has substantially impacted Radiant's success. Detailed 
letters from persons with personal knowledge of the significance of the beneficiary's role can be 
particularly helpful in analyzing this criterion. 14 Here, the Petitioner did not provide a detailed letter 
from a person with personal knowledge of the significance of the Beneficiary's role; rather the record 
contains an RFE response letter from counsel. 
Moreover, the Petitioner contends it provided charts to "illustrate how [the Beneficiary's] work 
directly impacts the company's current and future bottomline [sic]." Included in the IE res}onse 
letter, the Petitioner offered two charts entitled, "Doubled Our Addressable Market with ' and 
I ISAM Outlook." At the outset, this criterion requires evidence of the beneficiary having been 
employed in a critical or essential capacity rather than whether the beneficiary will have a prospective 
critical or essential role. Furthermore, although the chart claims that I !doubled the market from 
Nexus, the Petitioner did not reference any supporting evidence to substantiate the chart's data, let 
alone evidence showing the Beneficiary's contribution in a critical or essential capacity. The rcord,I 
for example, does not contain evidence showing the Beneficiary's contributions resulted in 
doubling the market for the Petitioner. 
Finally, the Petitioner asserts it "submitted evidence that [the Beneficiary] is one out of only five 
employees in the same role; one out of five from a total US employee count of 343." The record 
reflects that the RFE response letter, arguing eligibility for the high salary criterion, made this claim. 
However, the Petitioner did not present any evidence to support these assertions. Regardless, the 
Petitioner argues that "[s]imply going by these employee numbers alone, it should already be obvious 
that [the Beneficiary] holds a critical and highly specialized role for the company." The Petitioner did 
not demonstrate that holding a position with a limited number of other employees automatically shows 
14 See generally 2 USC1S Policy Manual, supra, at M.4(C)(2)(appendix). 
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the critical or essential capacity, as well as how the Beneficiary differentiated from the other four 
individuals who hold the same position. As indicated above, the beneficiary's duties and performance 
in the role determines whether the role is ( or was) critical or essential. 15 
Because the Petitioner did not provide specific, detailed information reflecting the Beneficiary's duties 
and performance and how they have contributed to the company's goals or activities, the Petitioner 
did not establish the Beneficiary satisfies this criterion. 
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. 8 C.F.R. § 214.2(o)(3)(iii)(B)(8). 
If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide 
appropriate evidence establishing that the beneficiary's compensation is high relative to others 
working in similar occupations in the field. 16 The Petitioner initially provided a job offer letter for the 
position of a senior software development engineer reflecting $150K in base salary, 10% cash 
incentive plan, $1 OK sign-on bonus, and restricted stock units valued at $40K. The Petitioner also 
submitted a letter confirming the Beneficiary's annual compensation equals $217K. Further, the 
Petitioner offered wage data from flcdatacenter.com reflecting Level 4 annual wages for "Software 
Developers" in thel !California area earn $193K. 
In response to the Director's RFE, the Petitioner submitted "Average Compensation Breakdown" of 
"Lead Software Engineer" from Cadence Design Systems ($160K - $170K total compensation); 
"Average Compensation By Level" of "Software Engineer" (various grades) from Intel ($134K -
$539K total compensation) 17 ; various positions from Synopsis ($136K- $310K total compensation); 
and various level positions from Xilinx ($ l 50K - $240K). 
Although the Petitioner argues that the Beneficiary's total compensation is higher than the median, 
the Petitioner's comparable data does not demonstrate the Beneficiary commands a high salary or 
other remuneration for services as required by this regulatory criterion. The Beneficiary's total 
compensation of $21 7K falls within the average salary data supplied by the Petitioner rather than at 
the higher end of the spectrum. Furthermore, the Petitioner employs the Beneficiary as a senior 
software development engineer while the comparable evidence reflects a range of occupations, such 
as software engineer, lead software engineer, and various grades and levels of software engineers. The 
Petitioner did not establish how the Beneficiary's occupation, which appears to be at a higher level, 
compares to these positions, some of which earn more than the Beneficiary. 
Moreover, the Petitioner compares the Beneficiary's total compensation to a limited, selected pool of 
positions rather than the total compensation figures for senior software development engineers in the 
area. Even comparing the Beneficiary's base salary of a senior software development engineer to the 
15 See generally 2 USCIS Policy Manual, supra, at M.4(C)(2)(appendix). 
16 See generally 2 USCIS Policy Manual, supra, at M.4(C)(2)(appendix). 
17 The Petitioner claims that "[t]he alleged data point relied on by the [Vermont Service Center] which assigned salaries 
for comparable positions 'from $97,000 to $539,000' is nowhere to be found in the documents submitted with the RFE 
Response." On the contrary, at the top of the screenshot from levels.fyi submitted by the Petitioner shows "Intel Software 
Engineer Salary $134K-$539K." 
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Petitioner's initial evidence from flcdatacenter.com for software developers in the geographic area, 
the Beneficiary earns a substantially lower salary in relation to Level 4 wages. 
Accordingly, the Petitioner did not demonstrate the Beneficiary meets this criterion. 
III. CONCLUSION 
The Petitioner did not show the Beneficiary meets 
three categories of evidence. As such, we need not 
provide a totality determination to establish whether the Beneficiary has sustained national or 
international acclaim and is one of the small percentage who has arisen to the very top of the field. 
See section 10l(a)(l5)(0)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iii). 18 Accordingly, we 
reserve this issue. 19 Consequently, the Petitioner has not established the Beneficiary's eligibility for 
the 0-1 visa classification as an individual of extraordinary ability. The appeal will be dismissed for 
the above stated reasons, with each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
18 See also 2 USCIS Policy Manual, supra, at M.4(B). 
19 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516, 526 n.7 
(BIA 2015) ( declining to reach alternative issues on appeal where applicants do not otherwise meet their burden of proof). 
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