dismissed EB-2 NIW Case: Art Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 16, 2024 In Re: 30233684 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is an art teacher who seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability or a member of the professions holding an 
advanced degree, as well as a national interest waiver of the job offer requirement attached to this 
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 record did not 
establish that the Petitioner qualifies as an individual of exceptional ability or as a member of the 
professions holding an advanced degree. The Director further concluded that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The matter is now before us on appeal pursuant to 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 ofChristo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that he meets the statutory criteria 
of the EB-2 immigrant classification. Because the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve any appellate arguments regarding whether 
the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor 
certification, is in the national interest. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 1 
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 
1 The Director detennined that the Petitioner did not meet the criteria of a national interest waiver. On appeal, we note 
that the evidence of record does not appear to show that the Petitioner could overcome that adverse conclusion, but we 
have reserved further discussion of the issues pertaining to the national interest waiver. 
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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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). 2 
(A) An official academic record showing the noncitizen's possession of a degree, 
diploma, certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Letters from current or former employers showing that the noncitizen has at least 10 
years of foll-time experience in the proposed occupation; 
(C) A license to practice the profession or certification for the profession or occupation; 
(D) Evidence of the noncitizen's receipt of a salary or other remuneration demonstrating 
exceptional ability; 
(E) Proof of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 3 If a petitioner does so, a final merits determination is conducted 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 U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion4, grant a national interest waiver if 
the petitioner demonstrates that: 
2 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). 
3 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-palt-f-chapter-5. 
4 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver are 
discretionary in nature). 
2 
• 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. ELIGIBILITY FOR EB-2 CLASSIFICATION 
The issue to be addressed in this matter is whether the Petitioner has established eligibility for the EB
-
2 classification as either an individual of exceptional ability or as an advanced degree professional. 
A. Advanced Degree Professional 
Fist, we will address the Petitioner's claim that he is eligible for the EB-2 classification as an advanced 
degree professional. In the first of two requests for evidence (RFE), issued in May 2021, the Director 
determined that the Petitioner demonstrated that he has a bachelor's degree and at least five years of 
progressive experience in the specialty as required by the regulation at 8 C.F.R. § 204.5(k)(2). The 
Director therefore did not pursue the Petitioner's EB-2 eligibility at that time. However, in the second 
RFE, issued in August 2022, the Director noted a lack of sufficient evidence demonstrating the 
Petitioner's EB-2 eligibility and asked that further evidence be submitted to address the evidentiary 
deficiency. The Director stated that although the Petitioner provided the required degree certificate 
and corresponding transcripts showing that he was awarded a bachelor's degree in printmaking by the 
I Ithe record lacked sufficient evidence in the form of letters from current 
or former employers verifying that the Petitioner's employment history and showing that he attained 
at least five years of progressive post-baccalaureate experience in the specialty. 
In a response statement, the Petitioner explained that letters from past employers were not available 
due to "mergers of schools and elapse of time." The Petitioner therefore provided two documents, 
each titled "Letter of Certificate," from the _________________ and from 
a claimed coworker, respectively. The former refers to the Petitioner by name and identification 
number, states that he is "a retiree under the social management of the 
I I and lists the dates and names of three middle schools where the Petitioner is claimed 
to have been employed as an art teacher between 1990 and 2007. The second letter is from an 
individual who states that he and the Petitioner worked together from 1994 to 2007 at two schools that 
were also listed in the Petitioner's uncertified Form ETA 750. 
In denying the petition, the Director recognized that the Petitioner provided the required degree 
certificate and corresponding transcripts showing his bachelor's degree in printmaking. However, the 
Director concluded that the evidence the Petitioner submitted is not sufficient to establish that he has 
at least five years of progressive experience in the specialty pursuant to 8 C.F.R. § 204.5(k)(2). 
On appeal, the Petitioner disputes the Director's conclusion, stating that he "has been engaged in full­
time artist career for some 30 years," starting with 17 years as a high school and middle school art 
teacher and subsequently working as a freelance artist. That said, the Petitioner relies on his claimed 
17 years as an art teacher as the basis for claiming eligibility for the EB-2 classification and argues 
that "it would be arbitrary to deny the credibility of a certificate from a government agency, together 
with testimonials from the applicant himself and the testimonial from his prior colleague." (Emphasis 
added in the original document). 
3 
As in prior submissions, the Petitioner maintains that primary evidence of his claimed employment as 
a teacher was unavailable "due to lapse of time and the merger of the schools." However, the Petitioner 
does not provide evidence of the claimed school mergers to support this explanation and thus he does 
not establish that primary evidence, such as employment letters from the schools where the Petitioner 
is claimed to have worked as an art teacher, was unavailable or could not be obtained. 5 We further 
note that the "Letter of Certificate" from the does 
not state how the employment information was obtained. 
Moreover, according to the U.S. Department of State's Bureau of Consular Affairs, most records from 
China can be obtained from one of China's Notarial Offices (Gong Zheng Chu) in the form of notarial 
certificates. With written authorization, notarial offices may issue notarial certificates to relatives or 
friends in the People's Republic of China (PRC) on behalf of someone now living abroad. See U.S. 
Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visasNisa­
Reciprocity-and-Civil-Documents-by-Country/China.html (last accessed April 16, 2024). 
With respect to notarial work experience certificates, the Bureau of Consular Affairs states: 
Notarial Work Experience Certificates (NWECS) briefly describe an applicant's work 
experience in the PRC. They should be required of all employment-based preference 
immigrant applicants who claim work experience in China. Employer's letters or 
sworn statements from persons claiming person's knowledge should not be accepted in 
lieu ofNWECS. The inability of an applicant to obtain a NWEC should be regarded 
as primafacie evidence the applicant does not possess the claimed experience. 
(Emphasis added). 
Here, the Petitioner attempts to establish his claimed employment experience by relying only on 
testimonial evidence from the Beneficiary's former coworker and from a "Service Center" that does 
not identify the source of the employment information. 
Accordingly, the referenced letters are insufficient to document at least five years of progressive 
experience in the specialty as required. 6 8 C.F.R. § 204.5(k)(2). 
In addition, the Petitioner provides a work permit to support his claim, stating that this document was 
previously unavailable. However, while the permit contains the Petitioner's name, age, school, 
5 If a required document is unavailable, a petitioner must demonstrate this and submit secondary evidence pertinent to the 
facts at issue. If secondary evidence is also unavailable, the petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence and submit two or more affidavits from persons who have direct 
personal knowledge of the circumstances. See 8 C.F.R. § 103.2(b)(2)(i). 
6 The Petitioner also provided several documents addressing his career as an artist. Such documents include: a "Certificate 
of Collection" regarding an oil painting he created in 2008; letters from a senior art curator and from a senior artist, 
respectively; a "Patron Contract" documenting the Petitioner's obligation to submit one painting yearly for three years in 
exchange for use of an art studio; an "Exhibition Contract" for an art exhibition in October 2008; and an annual exhibition 
and agency contract between the Petitioner and an agent company for the "2018-2020" period. As noted, however, the 
Petitioner relied on his claimed employment as an art teacher as the basis for claiming that he has at least five years of 
progressive experience in the specialty. 8 C.F.R. § 204.5(k)(2). 
4 
position title, and shows a date of issue in 1996, it does not list the Petitioner's dates and length of 
tenure with the listed school. 
In light of the evidentiary deficiencies described above, the Petitioner has not demonstrated 
qualification for the underlying EB-2 visa classification either as an advanced degree professional. 
B. Exceptional Ability 
Next, we will address whether the Petitioner qualifies for the EB-2 classification as an individual of 
exceptional ability. At the time of filing the Petitioner did not claim to be an individual of exceptional 
ability and maintained that he is eligible for the EB-2 classification as an advanced degree professional. 
Nevertheless, the August 2022 RFE informed the Petitioner that he did not meet any of the six 
requirements listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). The Petitioner was then given an opportunity 
to provide evidence showing that he met at least three of the six requirements. 
In response, the Petitioner continued to claim eligibility for the EB-2 classification as an advanced 
degree professional and, as discussed above, submitted evidence addressing the education and 
employment requirements regarding that claim. The Petitioner did not list any of the criteria listed at 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), nor did he claim that he meets at least three of the six criteria, as 
required to establish eligibility for the EB-2 classification as an individual of exceptional ability. 
On appeal, however, the Petitioner states that "[a]ssuming arguendo, [he] does not hold a master's 
( equivalent) degree" he would then seek "an alternative" avenue for the EB-2 classification based on 
his claimed qualifications "as an artist of exceptional ability." Accordingly, the Petitioner now claims 
that he qualifies for three of the six criteria based on his bachelor's degree in fine arts, his license to 
teach art in middle school, and his claimed "[r]ecognition by peers, association [sic] and experts." 
Regarding the latter criterion, the Petitioner did not correctly restate the regulatory requirements or 
cite to the relevant regulatory section, although it appears that he seeks to establish that he meets the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), which requires: "Evidence ofrecognition for achievements 
and significant contributions to the industry or field by peers, governmental entities, or professional 
or business organizations." 
Here, despite claiming that he provided evidence in the form of "international art exhibitions, media 
reports, award-winning achievements and testimonials from experts" to show recognition by "peers, 
association [sic] and experts," the Petitioner does not specify the "achievements and significant 
contributions to the industry or field" for which he was purportedly recognized. Nor does he 
specifically discuss his prior submissions to explain how they demonstrate that he meets the 
requirements of the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). As such, the Petitioner has not 
established that he meets the listed criterion. 
In sum, the Petitioner focused on three criteria as the basis for claiming eligibility under the 
exceptional ability classification. In light of the evidentiary deficiencies described above regarding 
one of those criterion, the Petitioner has not established that he 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. 
5 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference 
classification as an 
advanced degree professional or as an individual of exceptional ability. Therefore, we conclude that 
the Petitioner has not established eligibility for, or otherwise merits, a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
6