dismissed EB-2 NIW Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 13, 2023 In Re: 28400326 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an accountant, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability in the sciences , arts, or business . See Immigration 
and Nationality Act (the Act) section 203(b)(2) , 8 U.S.C . § 1153(b)(2). She also seeks a national 
interest waiver of the job offer requirement attached to this classification under section 203(b )(2)(1 )(B) 
of the Act. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner 's eligibility for EB-2 classification as an individual of exceptional ability. The 
Director further determined that the Petitioner did not establish that it would be in the national interest 
to grant her a discretionary waiver of the job offer requirement. 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 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate 
qualification 
for the underlying EB-2 visa classification , as either a member of the professions holding an advanced 
degree or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) 
of the Act. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
1 If these types of evidence do not readily apply to the individual 's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion 3, grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. EB-2 CLASSIFICATION 
The first issue to be addressed is whether the Petitioner established her eligibility for EB-2 
classification. 
The record reflects that the Petitioner initially claimed eligibility as a member of the professions 
holding an advanced degree in accounting and finances from a U.S. college or university. In a request 
for evidence (RFE), the Director acknowledged this claim, but emphasized that the record indicates 
the Petitioner earned a bachelor's degree in accounting from a U.S. college in 2019, and not an 
advanced U.S. degree as claimed. The Director further concluded that she could not, in the alternative, 
document the required five years of progressive post-baccalaureate experience in the specialty at the 
time she filed this petition in March 2021, and therefore did not establish that she holds an advanced 
degree as defined at 8 C.F.R. § 204.5(k)(2). The record supports the Director's determination, and the 
Petitioner has not pursued her initial claim that she qualifies for EB-2 classification as an advanced 
degree professional. She indicates that she qualifies, in the alternative, as an individual of exceptional 
ability in the arts, sciences or business. 
The Director determined that the Petitioner satisfied only two of the six criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii) and therefore does not qualify for the requested classification. On appeal, the 
Petitioner asserts that she submitted sufficient evidence to establish that she meets at least one 
additional criterion and is otherwise qualified to be classified as an individual of exceptional ability. 
She also submits new evidence for consideration. 
The record supports the Director's determination that the Petitioner satisfies the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (E), based on evidence that she possesses a bachelor's degree in accounting 
2 U.S. Citizenship and Immigration Services (USCTS) has previously confirmed the applicability of this two-part 
adjudicative approach in the context of aliens of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual/volume-6-part-f'..chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
and is a member of a professional association in her field. However, for the reasons provided below, 
we agree with the Director's conclusion that the Petitioner does not meet the initial evidentiary 
requirements for classification as an individual of exceptional ability by meeting at least three criteria. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
individual has at least ten years offit/I-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
This criterion focuses on evidence of experience in the occupation which a petitioner intends to pursue 
in the United States. The Petitioner initially submitted: (1) a letter froml I 
~---------- indicating that she worked as an administrative assistant for this organization 
from May 1, 2012 until March 30, 2015; (2) a certification and confirmation of contract extension 
from the Organization of the American States, Mission to Support the Peace Process indicating that 
the Petitioner was employed as a secretary in the I I Colombia regional office from April 5, 2015 
until August 31, 2015; and (3) a "notice of hire" from the District of Columbia Department of 
Employment Services indicating that the Petitioner was hired through a staffing agency on a contract 
basis for a term commencing in August 2019 that was not to exceed one year. 4 
In the RFE, the Director advised the Petitioner that the initial evidence was insufficient, and she would 
need to submit employment verification letters from her current or former employers. The Director 
noted that such letters should be on employer letterhead, provide her dates of employment, and state 
the duties she performed. 
In response, the Petitioner stated that she "worked in accounting from 2009 until 2015," at which time 
she was required to cease working based on the requirements of her student visa. She stated that since 
graduating in 2019, she "continued to work in accounting, continuously advancing her career." The 
Petitioner provided a revised and updated resume indicating she worked as an "accountant" for
I I from May 2009 until May 2015, and had been continuously employed in 
accounting-related positions for U.S. employers from August 2019 through June 2022. She did not, 
however, claim that she had ten years of full-time work experience in the field or provide the requested 
evidence in the form of employment verification letters from her employers. Further, as noted, she 
had previously submitted a letter from I !confirming that she worked for this employer 
in the position of administrative assistant for approximately three years, not as an accountant for six 
years. She did not provide an explanation for the changes made to her employment history and did 
not sufficiently document her claimed six years of experience as an accountant in Colombia. 
The Director determined that the Petitioner did not provide evidence that she meets this criterion. The 
Petitioner does not contest this determination on appeal. Rather she repeats her unsupported claim 
that she worked "in accounting" from 2009 until 2015, and from May 2019 until the present. Because 
the record lacks evidence that the Petitioner has at least ten years of full-time employment in the 
occupation in which she seeks to provide her services in the United States, she has not satisfied the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
4 The Petitioner's initial submission included a resume in which she indicated that she had worked for the D.C. government 
as a "financial transaction analyst" from "August 2019 to present." She listed three other accounting-related positions held 
with U.S. employers between September 2017 and August 2019, but did not provide letters from her former employers 
confirming her full-time experience with their organizations. 
3 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Petitioner indicated in response to the RFE that she "does not have her professional license, 
Certified Public Accountant," 
but noted that "she will easily obtain the certification" if she is able to 
remain in the United States. She noted that she maintains a "CPA membership in South Carolina." 
The Petitioner provided evidence that she is a member of the South Carolina Association of CPA 
(SCAPA). However, she concedes that she does not yet have a professional license and did not provide 
evidence that this membership satisfies this criterion's requirement that she possess a "license" or 
"certification." In fact, the submitted welcome letter she received from SCAPA encourages her "to 
continue on [the] path to becoming a CPA." 
The Director determined that the Petitioner did not provide evidence that she meets this criterion, and 
on appeal, she repeats her previous claim that she will be able to obtain a license or CPA certification 
in the future. However, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(l), 
(12). The record therefore supports the Director's conclusion. 
Evidence that the individual has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
With respect to this criterion, the Petitioner stated in response to the RFE that when she is granted 
"permanent permission to obtain employment in the United States, she will easily be able to command 
a salary reflective of her exceptional ability." She provided evidence that she had negotiated a salary 
offer of over $56,000 for an Account Clerk III position with a county police department in 2020. The 
submitted documentation indicates the salary range for the position was $35,499 to $81,344, and that 
she was initially offered the entry level salary. While this evidence indicates that she was able to 
negotiate a salary that was higher than the minimum offered by the prospective employer, she did not 
establish how the agreed salary figure demonstrates her exceptional ability. The Director determined 
that she did not meet this criterion. 
On appeal, the Petitioner asserts that she recently accepted a government position that has "the 
commanding salary of $91,865.87." She submits her offer letter and notice of her appointment to the 
position in January 2023, approximately 22 months after she filed the petition. She does not claim 
that the previously submitted evidence met the requirements of this criterion or that she had 
commanded a high salary demonstrating exceptional ability prior to filing this petition. As noted, 
eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b )(1); see also Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter oflzummi, 22 I&N Dec. 169, 175 (Assoc. 
Comm'r 1998). That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), further 
provides that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
petition." Id. at 176. Therefore, we need not evaluate whether the new evidence provided on appeal 
satisfies the requirements of this criterion. 
4 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, government entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner stated that she meets this criterion because she "has been invited to be a speaker at 
various conferences and work training courses which establish her achievements and contributions to 
the industry as noted by peers, government entities and professional organizations." 
The revised resume the Petitioner submitted in response to the RFE has a section titled "speaking 
engagements" and references a conference on 'Transitioning from college students to business 
professionals," held in October 2018 and a Carolina HBCU Talent Showcase held in September 2019. 
However, the Petitioner did not provide any independent evidence of her participation as a speaker at 
these or any other "conferences and work training courses" or documentation related to these events. 
The Director acknowledged that the Petitioner submitted reference letters in support of her petition. 
We agree with the Director's determination that those letters do not discuss the Petitioner's 
achievements and significant contributions to the areas of accounting or financial management, and 
therefore do not demonstrate recognition for any achievements or contributions. For example, she 
submitted a letter from a professor of accounting and finance who states that she was one of his "most 
ambitious students." The professor praises the Petitioner's personal attributes and academic 
performance and states that she will be a "great asset" to the United States, but does not describe any 
recognized achievements or significant contributions she has made to the accounting field. 
The Petitioner's strong academic performance is well documented in the record, and we note that the 
IRS awarded her a "Community Service Certificate" for her participation in the agency's Volunteer 
Income Tax Service, Tax Counseling for the Elderly, and Stakeholder Partnerships, Education and 
Communication programs. While her academic achievements and commitment to community public 
service are admirable, this evidence does not show she has received the required recognition for 
significant contributions to her field or industry as required by the plain language of this criterion. 
On appeal, the Petitioner once again references her prior engagements as a conference speaker and 
emphasizes that she recently received a mayoral appointment to a key position in city government. 
The record continues to lack any supporting documentations related to the Petitioner's speaking 
engagements. Further, as noted above, the Petitioner assumed her current governmental position in 
January 2023, nearly two years after she filed this petition and therefore this evidence cannot establish 
that she met this criterion at the time of filing. 
Overall, the personal recognitions described and documented in the record do not demonstrate the 
Petitioner has been recognized for "achievements and significant contributions" to the broader 
accounting and financial management field. Accordingly, the Petitioner has not demonstrated that she 
satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner has not submitted the required initial evidence demonstrating that she meets at least 
three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), and we therefore need not conduct a final merits 
analysis to determine whether the evidence in its totality shows that she is recognized as having a 
degree of expertise significantly above that ordinarily encountered in the field. 8 C.F .R. § 204.5(k)(2). 
5 
III. NATIONAL INTEREST W AIYER 
The Petitioner has not established her qualification for the EB-2 classification and is therefore 
ineligible to be granted a national interest waiver as a matter of discretion. Although the Petitioner 
asserts on appeal that she meets all three of the prongs under the Dhanasar analytical framework and 
that the Director erred in concluding otherwise, we will reserve these issues. See INS v. Bagamasbad, 
429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required to make 
findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 
516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
IV. CONCLUSION 
The Petitioner has not established that she is eligible to be classification as an individual of exceptional 
ability or that she is otherwise eligible for EB-2 classification. Accordingly, the petition will remain 
denied and 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. 
6