U.S. Citizenship and Immigration Services

MATTER OF H-K-B-R-

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 25,2017

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a sensor engineer and system architect, seeks classification as an individual of extraordinary ability in the sciences. See Immigration and Nationality Act (the Act) section 203(b)(1)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who can demonstrate their extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in their field through extensive documentation.

The Director of the Nebraska Service Center denied the petition, concluding that although the Petitioner met the regulatory requirement of satisfying three evidentiary criteria, he did not show sustained national or international acclaim and demonstrate that he is among the small percentage at the very top of the field of endeavor.

On appeal, the Petitioner submits an additional recommendation letter and a brief, arguing that he has sustained the required acclaim and has risen to the very top of his field.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 203(b )(1 )(A) of the Act makes visas available to qualified immigrants with extraordinary ability if:

(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

(ii) the alien seeks to enter the United States to continue work m the area of extraordinary ability, and

(iii) the alien's entry into the United States will substantially benefit prospectively the United States.

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The term "extraordinary ability" refers only to those .. individuals in "that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, internationally recognized award). Alternately, he or she must provide documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain media, and scholarly articles).

Where a petitioner meets these initial evidence requirements, we then consider the totality of the material provided in a final merits determination and assess whether the record shows sustained national or international acclaim and demonstrates that the individual is among the small percentage at the very top of the field of endeavor. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 201 0) (discussing a two-part review where the documentation is first counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCJS, 772 F. Supp. 2d 1339 (W.O. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be determined not by the quantity of evidence alone but by its quality," as well as the principle that we examine "each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010).

II. ANALYSIS

The Petitioner is a lead hardware and production engineer with As the Petitioner has not indicated or established that he has received a major, internationally recognized award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3 )(i)­(x).

A. Evidentiary Criteria

The Director found that the Petitioner met the following three criteria: original contributions under 8 C.F.R. § 204.5(h)(3)(v), scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi), and high salary under 8 C.F.R. § 204.5(h)(3)(ix). The Petitioner's documentary evidence indicates that he has authored articles that have appeared in professional publications and earns a high salary at his current employer. The record also contains an article about the Petitioner relating to his work printed in

thereby qualifying for the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii). Accordingly, the Petitioner satisfied three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3). Although we find the record does not support the Director's determination that he has made original contributions of major significance in the field, we will evaluate the totality of his documentary evidence in the context of the final merits determination below.

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B. Final Merits Determination

As the Petitioner has submitted the requisite initial evidence, we will evaluate whether the Petitioner has demonstrated, by a preponderance of the evidence, that he has sustained national or international acclaim and is one of the small percentage at the very top of the field of endeavor, and that his achievements have been recognized in the field through extensive documentation. In a final merits determination, we analyze a petitioner's accomplishments and weigh the totality of the evidence to determine if his successes are sufficient to demonstrate that he has extraordinary ability in the field of endeavor. See section 203(b)(l)(A)(i) ofthe Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian,

· 596 F.3d at 1119-20. In this matter, we determine that the Petitioner has not shown his eligibility.

The record indicates that the Petitioner received a bachelor of technology and master of technology at the (India) in 2005 and a master in science at

in 2010. The Petitioner has previously worked as a physical verifier and manufacturing engineer for automation and surgical businesses, and he has also worked as a hardware design lead for an electronic gaming company. Currently, the Petitioner is a lead hardware and production engineer for As mentioned above, the Petitioner has been covered in the press, authored scholarly articles, and commands a high salary. The Petitioner has not demonstrated that his achievements, however, are reflective of a "career of acclaimed work in the field'' as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990).

The Petitioner satisfied the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii) based on a 2015 article in which featured the Petitioner discussing futuristic hardware. In addition, the Petitioner submitted two 20 15 articles posted on www. and www that discuss the Petitioner and his work on current projects. Further, the record contains screenshots from www. and www from 2004 and 2016 in which the Petitioner provided a quote for each article, but they were not about him. Here, the Petitioner did not demonstrate that his media coverage of three articles relating to him and his work are indicative of a "career of acclaimed work in the field'' as contemplated by Congress. H.R. Rep. No. at 59. Moreover, as all three articles about the Petitioner were published in 2015, they do not demonstrate the required sustained national or international acclaim for this highly restrictive classification. See section 203(b )(1 )(A) of the Act.

In addition, the Petitioner met the scholarly articles criterion under 8 C.F.R. § 204.5(h)(3)(vi) by presenting evidence that he published three articles in professional journals. The record reflects that two articles were published in 2016 and one article was published in 2007. The Petitioner has not established that this publication record is consistent with being among the small percentage at the top of the field or having a "career of acclaimed work." H.R. Rep. No. at 59. In addition, as there is a nine-year gap between the Petitioner's publications and two of the three articles were published within a year of the filing of his petition, he has not demonstrated that his publications reflect the required sustained national or international acclaim. See section 203(b )( 1 )(A) of the Act. The commentary for the proposed regulations implementing section 203(b)(l)(A)(i) of the Act provides that the "intent of Congress that a very high standard be set for aliens of extraordinary ability is

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Matter of H-K-B-R-

reflected in this regulation by requiring the petitioner to present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991 ).

As authoring scholarly articles is inherent in the scientific field, the citation history or other evidence of the influence of his articles is an important indicator to determine the impact and recognition that his work has had on the field and whether such influence has been sustained. For example, numerous independent citations for an article authored by the Petitioner would provide solid evidence that his work has been recognized and that others have been influenced by his work. Such an analysis at the final merits determination stage is appropriate pursuant to Kazarian. 596 F. 3d at 1122. On the other hand, few or no citations of an article authored by the Petitioner may indicate that his work has gone largely unnoticed by his field. Here, the Petitioner offered evidence that his 2016 article in has been cited 12 times, his 2016 article in

has been cited 2 times, and his 2007 article presented at the on has been cited 6 times. Although the citation of the

Petitioner's work shows some interest, he did not establish that such citation rate is sufficient to demonstrate a level of interest in his field commensurate with sustained national or international acclaim at the top of his field.

Further, while citations are not the only way to gauge the importance or recogmtwn of an individual's work, the record does not otherwise demonstrate that the Petitioner's work has been considered significant and garnered wide acclaim in the field. The Petitioner presented evidence regarding two projects that he is currently involved with at and

The submitted documentation indicates that the projects are still under development, and the Petitioner has not demonstrated that the projects have been completed, implemented, or otherwise have significantly influenced the field. For instance, the Petitioner submitted a recommendation letter from vice president of who claimed that "will bring consumers the world's first 'smart' jacket" in 2017. Further, in the recommendation letter from director at he indicated that in regards to

"[t]he potential impact of this invention is tremendous." While the Petitioner provided screenshots of articles discussing the prospective release of the projects and his recommendation letters reflect enthusiasm for the projects' possibilities, the Petitioner did not establish that his contributions have already been of major significance and that he has garnered attention at a level among that small percentage at the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2).

Similarly, the record includes a letter from technical program lead at who discussed the Petitioner's roles in the projects and indicated that the technology in was so original that it was not defined under the U.S. Federal Communications Commission (FCC). In addition, stated that the Petitioner proposed and implemented a device test plan that resulted in being incorporated into FCC's proposed rulemaking. Again, the

_ _ involves conductive textiles that turn everyday objects into interactive surfaces, and touchless interface that control devices with gestures. See recommendation letter from president at

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uses a former vice

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record indicates that the impact of either project has yet to be determined, and the Petitioner did not establish how his contributions to the projects have garnered him acclaim or place him among that small percentage at the very top ofthe field of endeavor. See 8 C.F.R. § 204.5(h)(2).

In addition, the Petitioner submitted documentation reflecting that he has three provisional patent applications that were filed in May 2016 for inventions he agreed to assign to In general, a patent recognizes the originality of an individual's invention but does not necessary demonstrate that it has been of major significance in the field. In the case here, the Petitioner's documentation does not establish that his patent applications have been approved, and that he has received national or international acclaim from his inventions or patents. See section 203(b )(1 )(A) of the Act.

The Petitioner's recommendation letters from and also described his role as a lead hardware and production engineer and explain why they hired him for the

group. stated that "to even be selected to join means that the employee is already a proven, recognized leader in the field with unmatched expertise." However, did not support her statement with examples showing that the Petitioner is viewed as a "recognized leader" or is considered to be at the very top of the field of endeavor. See 8 C.F.R. § 204.5(h)(2). Moreover, the record does not demonstrate that the Petitioner's employment with has brought him sustained national or international acclaim. See section 203(b)(l)(A) ofthe Act.

As it pertains to the high salary criterion under 8 C.F.R. § 204.5(h)(3)(ix), the Petitioner submitted a 2014 letter from offering the Petitioner an annual salary of $180,000, with opportunities to earn bonuses. In addition, the Petitioner's income tax documentation indicates that he earned over $220,000 in 2015. Further, the Petitioner presented a letter from manager of talent acqUisition at , who stated that the average salary in the area, where the Petitioner is employed, is about $165,500 and the top 1% makes $215,200. also supported his letter with statistics from which compares salary information from job surveys. Based on the provided spreadsheets, the data reflects that there are five grades higher than the Petitioner's grade in his geographic area, and the highest ranges from $242,200 to $387,900. Although the Petitioner demonstrated that he earns a high salary, he has not shown his earnings are at a level reflecting national or international acclaim.

In addition, as indicated above, the Petitioner previously held physical verifier, manufacturing engineer, and lead hardware designer positions at other companies prior to his employment with

The Petitioner, however, did not show his salary or compensation with these businesses. Accordingly, he did not demonstrate that he has consistently commanded a high salary but instead that he only recently earned a high salary based on his employment with The submission of his latest salary is not reflective of a "career of acclaimed work in the field" as contemplated by Congress and indicative of sustained national or international acclaim. See section 203(b )( 1 )(A) of the Act; H.R. Rep. No. at 59.

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In this case, the Petitioner has had some press coverage, has authored scholarly articles, and commands a high salary. However, the Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top of their respective fields, rather than for individuals progressing toward the top. USCIS has long held that even athletes performing at the major league level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r. 1994). While the Petitioner need not establish that there is no one more accomplished than him to qualify for the classification sought, we find the record insufficient to demonstrate that he has the requisite sustained national or international acclaim. See section 203(b)(l)(A)(i) ofthe Act.

III. CONCLUSION

For the reasons discussed above, the Petitioner has not established eligibility as an individual of extraordinary ability.

ORDER: The appeal is dismissed.

Cite as Matter of H-K-B-R-, ID# 579467 (AAO Oct. 25, 2017)