dismissed EB-2 NIW Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
In Re: 12337001 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 20, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a graduate student, seeks second preference immigrant classification as an individual 
of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established that he was an individual of exceptional ability . 
On appeal, the Petitioner submits a brief asserting that he meets the requirements of the requested 
classification. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business . Because this classification requires that the 
individual's services be sought by a U.S. employer , a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of 
exceptional ability. A petitioner must submit documentation that satisfies at least three of the six 
categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate that on balance, it would be beneficial to the United States 
to waive the requirements of a job offer and thus of a labor certification. 3 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner maintains that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the official academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 4 
In the appeal brief: the Petitioner claims that he also meets the salary criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D), and the recognition for achievements and significant contributions criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). We have reviewed all the evidence in the record and conclude that it 
does not support a finding that the Petitioner meets the requirements of at least three criteria. 
1. Evidentiary Criteria 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
On appeal, the Petitioner indicates that he received "total scholarship awards of over $100,000," and 
it "requires me to be at the top 2% of my graduate program." He further states that "I believe this 
accomplishment demonstrates a degree of expertise significantly above the ordinarily encountered." 
The Petitioner submits a letter from thel I Financial Aid Department awarding the Petitioner 
thel !Thesis Scholarship in the amount of $23,246 applied to the 2019-2020 academic year. 
The Petitioner previously submitted two letters from thel I Financial Aid Department granting 
the Petitioner a scholarship of $43,760 for the 2018-2019 academic year, and a scholarship of $45,592 
for the 2019-2020 academic year. The Petitioner also submitted an article dated September 18, 2018, 
froml I that stated the Petitioner was a recipient of the I I EU Scholarship which "covers 
the full tuition of the Master of Architecture 2 program for a citizen of the European Union." 
Although the Petitioner contends on appeal that the scholarships awarded to him requires him to be 
the top 2% of the graduate program, the Petitioner did not provide any corroborating evidence to 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner presented his Bachelor of Arts degree in Architecture from the University and 
The University ofl las well as his academic transcript. ~-------~ 
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establish this claim. In addition, the record does not reveal the criteria for receiving these scholarships 
and whether they are awarded for merit, need, or some other eligibility requirement. 
Moreover, the Petitioner has not submitted evidence to establish that this academic scholarship 
qualifies as either a salary or remuneration for services. Without additional information on the 
scholarship, the Petitioner has not established that disbursements from the scholarship could be 
considered either salary or remuneration for services, as contemplated by the regulation. 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field. 5 Here, the Petitioner has not offered documentation showing that his earnings are 
indicative of exceptional ability relative to others in his field. Based on the foregoing, we agree with 
the Director that the Petitioner has not demonstrated that he meets this regulatory criterion. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner states that in the denial notice there is only a "mention" of the recommendation 
letter submitted by~ _____ ____.CEO of the I I In 
addition, the Petitioner noted that the Director did not discuss the letter discussing his work with the 
"renown [sic] architect! I' or the letter by thd I Business Council "confirming my 
participation in the competition regarding! I in California." 
The letter of recommendation from the studio director of the.__ ______ ____. confirmed that the 
Petitioner worked as an intern from November 2016 throu:h May 2017. The letter stated that the 
Petitioner worked on a........., _______ ~ project in! _ I and that he "gave a solid contribution 
to the success of the project." The letter also stated that the Petitioner participated in a competition in 
I land "showed a large range of software skills allowing him to jump in multiple tasks and a real 
artistic sensitivity and exigency," and the author "noticed as well his mental strength puts him in the top 
10% of trainees I used to work with." Upon review of this letter, it does not appear that the author 
discusses achievements and significant contributions to the industry but instead indicated that the 
Petitioner performed well in his intern position. 
The letter from the communications director of thel I Business Counsel stated that the 
Petitioner "successfully participated in the 2019.__ _______ ~~--__.Competition." The 
letter does not provide any detail about the competition and whether the Petitioner won or placed in 
the competition. Without any information about this competition, it is impossible to determine the 
Petitioner's achievement and significant contributions to the industry or field by peers. 
Further, the Petitioner submitted a letter from the Director/CEO of I I who stated that the 
Petitioner is doing "exemplary work in his Graduate Studies," and "he was a crucial pa~icipant t all 
school work and research and the project for ~-------- ..... submitted to th as a 
5 See USCIS Policy Memorandum PM-602-0005 .1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 21 (Dec. 22, 2010), 
https ://www.uscis.gov/legal-resources/policy-memoranda. 
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potential prototype which could assist in housing the homeless in California and in eliminating 
construction work," and the team received second prize. The letter also stated that the Petitioner is a 
"prolific student and future architect" and is "currently developing very advance research in the 
technology field related to design and architecture." As noted in the letter, the Petitioner is a strong 
student and has achieved academic accomplishments, but the letter does not provide sufficient 
evidence of his achievements and significant contributions to the industry or field. The author also 
stated that the Petitioner is developing advance research in the technology field related to design and 
architecture but did not provide any details of this research and if it is a significant contribution to the 
field of architecture. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. As the Petitioner has not met the threshold requirement for this 
classification, farther analysis of his eligibility for a national interest waiver would serve no 
meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
as an individual of exceptional 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. 
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