dismissed EB-2 NIW Case: Arts

U.S. Citizenship 
and Immigration 
Services 
In Re : 8163490 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 19, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an individual of exceptional ability 
in the arts, 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 did not 
qualify for classification as an individual of exceptional ability , and that she had not 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. 
The Petitioner has requested to withdraw the appeal. We will grant the request and enter a finding of 
willful misrepresentation of a material fact. 
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. 3 
II. REQUEST FOR WITHDRAW AL OF THE APPEAL 
After a preliminary review of the record, we notified the Petitioner of our intent to dismiss the appeal 
with a finding of willful misrepresentation of a material fact based on various adverse findings. The 
Petitioner subsequently asked to withdraw the appeal. A withdrawal may not be retracted and may 
not be refused. 8 C.F.R. § 103.2(b)(6); Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). Accordingly, 
the Petitioner's request will be granted, and the appeal will be dismissed based on that withdrawal. 
III. WILLFUL MISREPRESENTATION 
As mentioned above, we sent the Petitioner a notice of intent to dismiss (NOID) the appeal based on 
findings outside of the record of proceeding. By issuing a NOID, we gave the Petitioner an opportunity 
to respond to the adverse findings, as required by 8 C.F.R. § 103.2(b)(16)(i). We also advised the 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
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). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
Petitioner that, if she did not overcome the adverse findings, then we would make a finding of willful 
misrepresentation of a material fact. We further advised that, while the Petitioner had the right to 
withdraw the petition, such a withdrawal would not prevent a finding of willful misrepresentation of 
a material fact. The Petitioner responded to the NOID with a request to withdraw the appeal and did 
not address the adverse findings in any way. For the reasons discussed below, we find that the 
Petitioner willfully misrepresented her authorship of two books, which is material to the adjudication 
of the instant petition. 
A. Evidence of Record 
The Petitioner claims to be an individual of exceptional ability in the arts and that she satisfies the 
requirements of the Dhanasar analytical framework. 
As documentation of her exceptionr abi)itv and that she is we)) positioned to advance her proposed 
endeavor, the Petitioner submitted_ I a book which she 
claims to have written and which was oumortedlv oublished in 2015.4 The book consists of sections 
entitled 'I 
I 
I 
I As discussed in our NOID, further research did not corroborate the Petitioner's claimed 
authorship of this book. users has determined that the aforementioned sections of her book are identical 
to those found in an article, entitled! ~ that was written b~ I and published 
in January 2013.5 
The Petitioner also presented'--------------.------...,,....,...------,1 a book which she 
claims to have written, and which was ublished in 2018.6 The book consists of sections 
entitled "Introduction," '---~----------~---------------,...... 
As indicated in our NOID, further research did not corroborate the Petitioner's claimed authorship of this 
second book. users has determined that the "Introduction" section of her book contains identical 
language to that from a February 2015 article published by I I In addition, the 
sections of the Petitioner's 
book have identical language to that of an article, entitled L..r------,- _________ _J 
I I that was written b .___ ____ __. and published in 1998. 8 
Based on the above, the Petitioner has falsely claimed authorship of the books she submitted as evidence 
of her exceptional ability and of her position to advance the proposed endeavor. 
B. Analysis 
The facts and evidence presented in the instant matter warrant a finding of willful misrepresentation 
of a material fact against the Petitioner. 
4 The title page for this book lists its publication date as "February 2015." 
5 See httpJ O !{last visited February 5, 2021 ). 
6 The title a e for this book lists its ublication date as "March 2018." 
7 See https last visited Februa 5 2021). 
8 See https:.__ _______________________ ~(last visited February 5, 2021). 
3 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. As 
outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that the 
foreign national willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. See Matter of Kai Hing Hui, 15 I&N 
Dec. 288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter o_f Healy 
and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material, the misrepresentation must 
be one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which 
might well have resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 
536,537 (BIA 1980). 
USCIS will deny a visa petition if the petitioner submits evidence which contains false information. 
In general, a few errors or minor discrepancies are not reason to question the credibility of a foreign 
national or an employer seeking immigration benefits. See Spencer Enters. Inc. v. US., 345 F.3d 683, 
694 (9th Cir. 2003). However, if a petition includes serious errors and discrepancies, and the 
petitioner does not resolve those errors and discrepancies given the opportunity to rebut or explain, 
then the inconsistencies will lead USCIS to conclude that the claims stated in the petition are not true. 
See Matter o_f Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
In this case, the discrepancies in the documents relating to the petition constitute substantial and 
probative evidence. The Petitioner submitted falsified evidence purporting to show her authorship, 
which is material both to her exceptional ability in the arts and her eligibility under the Dhanasar 
analytical framework. When given an opportunity to rebut our findings, the Petitioner offered no 
rebuttal or explanation for the inconsistencies and instead withdrew the petition. If the Petitioner had 
not withdrawn the appeal, we would have dismissed the appeal based on these misrepresentations. See 
Cintron, 16 I&N Dec. at 9; see also 8 C.F.R. § 103.2(b)(l4). 
Beyond the adjudication of the visa petition, a misrepresentation may lead USCIS to enter a finding 
that an individual foreign national sought to procure a visa or other documentation by willful 
misrepresentation of a material fact. This finding of fact may lead USCIS to determine, in a future 
proceeding, that the foreign national is inadmissible to the United States based on the past 
misrepresentation. 
Section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182(a)(6)(C), provides: 
Misrepresentation - (i) In general - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure ( or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
To find a willful and material misrepresentation in visa petition proceedings, an immigration officer 
must determine: 1) that the petitioner or beneficiary made a false representation to an authorized 
official of the United States government; 2) that the misrepresentation was willfully made; and 3) that 
the fact misrepresented was material. See Matter ofM-, 6 I&N Dec. 149 (BIA 1954); Matter o_f L-L-, 
9 I&N Dec. 324 (BIA 1961); Kai Hing Hui, 15 I&N Dec. at 288. 
4 
First, the Petitioner submitted plagiarized material (books she claims to have authored) intended to 
falsely create the appearance of her exceptional ability in the arts and that she is well positioned to 
advance her proposed endeavor. For example, in a signed statement accompanying the petition in which 
the Petitioner discussed her "achievements in the field of embroide ," she asserted: "In 2015, I authored 
and published a book entitled'----------~--------~----~~____. 
'-------,---------'' The Petitioner's submission of these falsified books in support of her 
immigrant visa petition constitutes a false representation to a government official. 
Next, we find that the Petitioner willfully made the misrepresentations. The Petitioner has not asserted 
that she believed the books to be authentic, nor explained how she came to be in possession of them. 
When given the opportunity to address our findings, the Petitioner withdrew the appeal rather than 
offering any explanation or rebuttal that she submitted the evidence accidentally, inadvertently, or in 
an honest belief that the assertions previously offered in support of the petition were true. 
Furthermore, the Petitioner signed Form I-140, Immigrant Petition for Alien Worker, certifying under 
penalty of perjury that the visa petition and the submitted evidence are all true and correct. See section 
287(b) of the Act, 8 U.S.C. § 1357(b); see also 8 C.F.R. § 103.2(a)(2). Accompanying the signed 
petition, the Petitioner submitted the books as evidence in support of the petition. Part 8 of Form I-
140 requires a petitioner to make the following affirmation: "I certify, under penalty of perjury of the 
United States of America, that this petition and the evidence submitted with it are all true and correct." 
On the basis of this affirmation, made under penalty of perjury, we find that the Petitioner willfully 
and knowingly made the misrepresentations. 
Third, the misrepresented facts are material. To be considered material, a false statement must be 
shown to have been predictably capable of affecting the decision of the decision-making body. Kungys 
v. US., 485 U.S. 759 (1988). The regulation at 8 C.F.R. § 204.5(k)(3)(ii) calls for evidence "that the 
alien is an alien of exceptional ability in the sciences, arts, or business." In addition, one of the 
requirements set forth in the Dhanasar precedent decision is that the foreign national is well positioned 
to advance the proposed endeavor. Id. at 889. As evidence of the Petitioner's exceptional ability in 
the arts and she is well ositioned to advance her ro osed endeavor she submitted! I 
'-------------------------~----~--' Here, the Petitioner's 
misrepresentations could have affected the outcome of the petition because they purported to address, 
and to satisfy, her eligibility under section 203(b )(2) of the Act. In light of the falsified evidence we 
described above and in the NOID, we find that the Petitioner's misrepresentations were material to 
her eligibility. 
IV. CONCLUSION 
By filing the instant petition and falsely claiming authorship of two books, the Petitioner sought to 
procure a benefit provided under the Act through willful misrepresentation of a material fact. This 
finding may be considered in any future proceeding where admissibility is an issue. While the 
Petitioner has chosen to withdraw her appeal, this does not negate our finding that she sought to 
procure immigration benefits through willful misrepresentations of material facts, which may render 
her inadmissible in future proceedings. 
5 
ORDER: The appeal is dismissed based on its withdrawal by the Petitioner. 
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