dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 12260032 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 17, 2022 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks the 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. 
§ 1 l 53(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 he had not established that a 
waiver of the required job offer , and thus of the labor certification, would be in the national interest . 
On appeal , the Petitioner submits a brief asserting that he is eligible for the EB-2 classification as an 
individual of exceptional ability , and a national interest waiver. 1 The Petitioner has the burden to 
establish eligibility for the requested benefit by a preponderance of the evidence. See Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 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. -
1 The Petitioner does not assert nor does the record show that he is a member of the professions holding an advanced degree. 
(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. ... the 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. 
To determine eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." 
8 C.F.R. § 204.5(k)(2). The regulations at 8 C.F.R. § 204.5(k)(3)(ii) further provide six criteria, at 
least three of which must be satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the alien has 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) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the alien has at least ten years of foll-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration [sic] for 
services, which demonstrates exceptional ability; 
(E) Evidence 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. 
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 
2 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 2 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, 3 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. 4 
II. WILLFUL MISREPRESENTATION 
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 inconsistent evidence. 
By issuing a notice of intent to dismiss (NOID), we gave the Petitioner an opportunity to respond to 
the derogatory information, as required by 8 C.F.R. § 103.2(b)(16)(i). We also advised the Petitioner 
that, if he did not overcome this information, then we would make a finding of willful 
misrepresentation of a material fact. The Petitioner responded to the NOID with the submission of 
additional evidence and explanations. However, we conclude that the Petitioner's response does not 
sufficiently address the derogatory information described in our NOID. For the reasons discussed 
below, we conclude that the Petitioner has willfully misrepresented his work experience and other 
qualifications, as well as his contributions to the field of endeavor submitted as evidence of his 
exceptional ability, and of his position to advance his proposed endeavor. 
A. Evidence of Record 
The Petitioner contends that he is an individual of exceptional ability in business and that he satisfies the 
requirements of the Dhanasar analytical framework. He intends to "work as [a] CEO in an environment 
focused enterprise which [he is] in the process of creating, which [he] envision[ s] to be engaged in energy 
efficient electrical installations and plastics recycling." 
As a preliminary matter, the record does not sufficiently substantiate the Petitioner's endeavor. For 
example, while the Petitioner claims he envisions being engaged in "energy efficient electrical 
installations and plastics recycling" through an environment focused enterprise, the record contains 
inconsistent evidence regarding the enterprise. The record reflects that shortly before filing the 
petition, he established a U.S. business, [B-]. However, according to his 2019 federal tax return, B-'s 
principal business activity is "janitorial services," not performing "energy efficient electrical 
installations and plastics recycling." The record does not establish how he would pursue his proposed 
endeavor through providing janitorial services. The Petitioner must resolve this inconsistency and 
ambiguity in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 5 
2 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). 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
5 On appeal, the attorney also claims he has "exceptional ability in swing dance and extensive demonstrated track record 
3 
As evidence of his exceptional ability and his position to advance his proposed endeavor, he avers that 
he has "extensive experience in the field of environmentally friendly, sustainable engineering related to 
plastic recycling and energy saving solutions." The Petitioner submits documentation to support his 
assertions that largely focus on work activities that he performed within two organizations, I 
[O-P-] and 'I [D-S-], which we will discuss in tum. 6 
1. Employment with O-P-
The Petitioner misrepresented the nature of his employment with O-P-, which largely forms the 
foundation of his asserted eligibility as an individual possessing exceptional ability in business, and his 
eligibility for a national interest waiver. He asserts that "[i]n 2003, he was appointed to the position of 
CEO [at O-P-]," 7 and that his "responsibilities in the high-ranking managerial position of CEO 
encompassed a range of essential, business-critical duties." He further states that "[ o ]nly a 
professional of outstanding expertise and ability in the field of energy savings technology would have 
been capable of assuming this comprehensive role, precisely the reason why [O-P-] would have sought 
a candidate of [his] stature." 
However, the record does not sufficiently corroborate his employment with O-P-. For example, as 
evidence of the Petitioner's claimed employment with O-P-, he submitted a copy of the certificate of 
public registration for a different entity - [P-LLC], reflecting that P- LLC was partially owned by the 
Petitioner's father. We observed in our NOID that the Petitioner did not establish how a certificate of 
public registration for P-LLC established his employment history at O-P-. 
In response to our NOID, the Petitioner states that O-P- does business as P-LLC, but he provides 
insufficient evidence of O-P-'s business operations to show that O-P- actually is P-LLC. He also 
acknowledges that his "father was the general director of [O-P-], and the company's partial owner," and 
contends "[t]his is precisely what allowed him to fully evaluate my ability to perform in the high-ranking 
CEO position at this company." Nonetheless, even if O-P- and P-LLC are the same entity, the lack of 
prior disclosure regarding his father's ownership interests and the insufficient documentation about the 
nature of his employment with O-P- raises questions regarding whether the Petitioner was employed in a 
"high-ranking managerial position" by O-P- commencing in 2003. For instance, the Petitioner's "labor 
record book" which was initially issued in February 2002, makes no mention of his employment with 
O-P-, but instead reflects that he performed services as a "driver of the transport department" from 
that time for T- until July 2002, when he assumed a role for [I] as an "electrical officer" until March 
2003. He also provided a 2006 attestation certificate in which his credentials as of 2003 are described 
as "unfinished vocational education" obtained at 
and his place of employment and work status are described as "individual entrepreneur." 
The Petitioner asserts in the NOID response that he "was hired [by O-P-] based on my experience at 
[I-] (which is duly reflected in my labor record book) as well as my future potential, and therefore, 
any suspicions that my prior experience as a driver should serve to negate credibility as to my 
managerial experience are unfounded." While the Petitioner points to his nine-month experience as 
of success in this field." While this may be administrative error, we also note that in the support letter, the Beneficiary is 
frequently referred to in the wrong pronoun. 
6 While we may not discuss every document submitted, we have reviewed and considered each one. 
7 In 2003, the Petitioner was 19 years old. 
4 
an "electrical officer" for 1-, and his "future potential" as factors for his appointment to the CEO 
position at his father's business, the record does not reflect that the Petitioner possessed any managerial 
experience at the time of his hire as a "CEO," nor does the limited information about the Petitioner's 
unfinished vocational school education - and work as a driver and an electrician suggest that he was 
"a professional of outstanding expertise and ability in the field of energy savings technology" in 2003. 
Within our NOID, we provided the Petitioner with an opportunity to resolve these inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. at 591-92. The Petitioner has not adequately explained or documented how his 
level of education and work experience in 2003 provided him with the aforementioned expertise and 
ability in the field of endeavor. 
Notably, the Petitioner has not submitted material from O-P- that sufficiently details his employment 
there, which is the required initial evidence to show eligibility under the exceptional ability criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(B). The regulation at 8 C.F.R. § 204.5(g)(l), provides in pertinent part that 
"[ e ]vidence relating to qualifying experience or training shall be in the form of letter( s )from current 
or former employer( s) or trainer( s) and shall include the name, address, and title of the writer, and a 
specific description of the duties performed by the [individual] or of the training received." 
In response to the NOID, the Petitioner provided an undated letter from his father, which provides general 
statements about his work performance, such as "[h]]is manager skills have allowed him to create a team 
of dedicated employees that has been with the company for over 10 years ... [he] plays a key role in the 
company in management and sales ... [he] signs contracts with large manufacturing companies, for which 
we produce components for their production, these are such large companies as [], and others." This 
letter does not comport with the regulatory requirements at 8 C.F.R. § 204.5(g)(l). 
Without more, this letter does not demonstrate the Petitioner's employment with O-P- in an executive 
position from 2003 until at least 2018 as stated in the petition. For example, the Petitioner's father asserts 
that the Petitioner "has established international relations with the CIS countries, China, Europe, and the 
United States," and that his "communication skills allowed him to start working with large federal chain 
stores, such as [], etc., which have thousands of branches, thus our products are represented in every city 
of Russia." However, the Petitioner has not provided evidence that identifies the products which are 
produced by O-P-, and to whom they are sold. While the Petitioner claims that O-P- sells its products 
across Russia, and that he is responsible for establishing O-P-'s international relations with large 
companies across the globe, the record does not contain evidence to substantiate his assertions. 
The Petitioner has not established that his responsibilities with O-P- involved "overseeing a large­
scale plastic recycling operating and implementing innovative energy-efficient production solutions," 
as stated in a 2020 letter from O-P-'s general director. On appeal, the Petitioner states that his 
"patented technologies greatly improved [O-P-'s] ability to reduce the cost of waste disposal, decrease 
its use of landfills, and optimize the production of new raw materials." The Petitioner has not shown 
that he held "several patented technologies" relating to waste disposal or the production of new raw 
materials from recycled goods during his tenure with O-P-. The record contains one 2006 Russian 
patent that was issued to someone other than the Petitioner for a product called I which 
according to the patent "refers to the bottles intended for the storage, transportation, and sale of 
beverages and other liquid products." The Petitioner's 2013 Russian patent is for an electric lamp, 
5 
and focuses on certain characteristics of the lamp, such as the "latches of the fixation element are L­
shaped," and the "fixation element is made in the form of a strip from elastic material." 
In response to the NOID, the Petitioner states that the other person's patent "was emailed to my 
attorney by mistake." He does not explain how his submitted 2013 patent for a light fixture is relevant 
to his assertions that he utilized his own patented technologies in O-P-'s plastic recycling projects, nor 
did he provide evidence that he held such patents while in O-P-'s employ. Here, the Petitioner has not 
provided probative objective evidence to resolve the inconsistencies in the evidence raised in our 
NOID. Matter of Ho, 19 I&N Dec. at 591-92. 
Moreover, the Petitioner has also not provided contemporaneous, probative evidence about the 
projects he managed for O-P-, and the significance of his patented technologies, if any, used therein. 
For instance, O-P- indicates in its 2020 letter that the projects involving the Petitioner's "technology 
began in 2015 and [were] successfully completed in 2018." The letter expounds on the advantages 
of the Petitioner's technology, noting "it has great environmental importance," "allows reducing the 
number oflandfills," and "provides the company with additional raw materials obtained by processing 
plastic." However, O-P- does not provide a plain language description about what the Petitioner's 
technology actually is, nor does it describe the scope and nature of the recycling projects in which this 
technology was used, other than to state that the goal of the projects "is to organize the processing and 
disposal of plastic waste." Further, the Petitioner did not submit additional evidence to corroborate 
these projects. 
In the NOID res onse, the Petitioner rovides evidence of a new Russian atent for an invention, 
which was authored by ____________________________ 
the Petitioner and four other individuals. The Petitioner does explain how this patent, which was 
issued in June 2020, supports his assertion that his patented technologies were used in projects that 
were completed years prior to the approval of the patent. Further, the 2020 patent was issued to the 
Petitioner a year after the filing of the petition, thus the Petitioner's obtainment of a patent after the 
filing date cannot retroactively establish eligibility. 8 In his appeal brief, the Petitioner contends that 
his "significant contributions to his field," have been "confirmed by nationally and internationally 
recognized experts," but on balance, the limited evidence in the record is overwhelmingly at odds with 
his assertions, and therefore, is of little probative value. Matter of Chawathe, 25 I&N Dec. at 376. 
For these reasons, we further conclude that the Petitioner has misrepresented his work history, his 
managerial expertise, and the significance of his accomplishments relating to his employment with O­
P-, which in large part form the basis for his assertions regarding his eligibility for the benefit sought 
in this petition. 
8 The Petitioner must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). 
6 
2. Employment with D-S-
The Petitioner also asserts that he gained corporate executive expertise through concurrent 
employment with D-S while he was employed with O-P-, by acting as D-S-'s founding director. He 
avers that D-S- is a large entity "which provided communication services to 20% of the city of 
I !Russia." In contrast, the Petitioner indicated in his 2017 nonimmigrant visa application 
that D-S- is engaged in providing "freight transportation" services, not "communication services." 
Matter of Ho, 19 I&N Dec. at 591-92. 
He contends that in his founding director position with D-S- he "implemented a series of products 
towards the improved automation of production processes, as well as enterprise management and 
financial planning." The Petitioner provides undated letters from an individual who indicates that she 
is the head of human resources for D-S-, who states that the Petitioner "graduated from the I I 
in] 2001, [ where he] received a degree in electrical mechanics in the repair and maintenance of 
industrial equipment." She asserts that the Petitioner "held the position of Director in the [D-S-] 
company from March 2002 till March 2019." We observed in the NOID that the statements provided 
in her letter are inconsistent with other evidence in the record. For instance, the Petitioner's labor 
record book reflects that he was employed as a driver for T- from March until July of 2002, and the 
evidence from I I shows that the Petitioner passed a course (but did not earn a degree) in 
electrical mechanics in 2002, not 2001. In the NOID response, the Petitioner provides an updated 
letter from the head of human resources in which she states "[p ]lease be advised that we have made 
some errors in the original information letter regarding [the Petitioner's] employment dates. [He] 
completed his studies in 2002 and started work at [D-S-] in March 2003." 
Collectively considering these letters and the other submitted evidence about the Petitioner's 
qualifications, we determine that the record does not adequately resolve the inconsistent information 
provided about the Petitioner's education credentials and his executive position with D-S. We 
informed the Petitioner in our NOID that the record does not substantiate the nature and scope of the 
services provided by D-S- and observed that the Petitioner did not include evidence in support of his 
assertion that D-S- "provided communication services to 20% of the city ofl I Russia" 
during his tenure there. Additionally, D-S-'s letters do not comport with the regulatory requirements 
for such evidence at 8 C.F.R. § 204.5(g)(l). The record of proceeding lacks consistent probative 
evidence about D-S-'s business operations to support the Petitioner's assertions on appeal that as the 
director of D-S- he exercised "far-reaching authority [in] closely overseeing the activities of the sales 
and marketing departments, developing, and maintaining client relationships, and managing the 
development of all company reports and internal documentation." 
Due to the inconsistencies and unsubstantiated assertions in the record, the Petitioner has not 
sufficiently supported his assertions on appeal that he possesses "proven expertise in functioning in a 
corporate executive and managerial capacity," and that he "is an expert in the energy efficiency 
technologies essential to the success of his proposed endeavor in the United States." Matter of 
Chawathe, 25 I&N Dec. at 376. 
7 
B. Misrepresentation Analysis 
The facts and evidence presented in the instant matter warrant a finding of willful misrepresentation 
of a material fact against the Petitioner. Based on the evidence in the record, the Petitioner made willful 
misrepresentations regarding his work experience and other qualifications for employment in the field 
of business, and his contributions to the field in order to support his claim that he is an individual of 
exceptional ability and of his position to advance his proposed endeavor. A misrepresentation is 
material when it tends to shut off a line of inquiry that is relevant to a foreign national' s admissibility 
and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other 
documentation, or admission to the United States. Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). In 
addition, for a misrepresentation to be found willful, it must be determined that the (petitioner) was 
fully aware of the nature of the information sought and knowingly, intentionally, and deliberately 
misrepresented material facts. Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). 
A misrepresentation of a material fact may lead to adverse immigration consequences. As outlined in 
the USCIS policy manual, a material misrepresentation requires that a (petitioner) willfully make a 
material misstatement to a government official for the purpose of obtaining an immigration benefit to 
which one is not entitled. 8 USCIS Policy Manual J.2, https://www.uscis.gov/policy-manual. See also 
Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). 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. Matter of Ho, 19 I&N Dec. at 591-92. 
In this case, the discrepancies in the documents submitted in support of the petition constitute 
substantial and probative evidence. The Petitioner submitted evidence purporting to show his 
exceptional ability in business and of his position to advance his proposed endeavor, which is material 
to meeting the requirements of the EB-2 classification and eligibility under the Dhanasar analytical 
framework. When given an opportunity to rebut our findings, the Petitioner offered insufficient 
rebuttal evidence and explanations for the inconsistencies in the petition. Furthermore, these 
misrepresentations raise questions regarding the origin and authenticity of the remaining documentation 
that the Petitioner has submitted in support of the petition. Doubt cast on any aspect of a petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. at 591-92. 
Here, the Petitioner falsely misrepresented the substantive nature of his employment with O-P- in 2003. 
He did not disclose that O-P was a family-owned business, asserting "[ o ]nly a professional of outstanding 
expertise and ability in the field of energy savings technology would have been capable of assuming this 
comprehensive role, precisely the reason why [O-P-] would have sought a candidate of [his] stature," 
when the record reflects he was 19 years-old and his education credentials and employment history at that 
time entailed unfinished vocational school education and short-term work as a driver and an electrician. 
The Petitioner also made unsubstantiated claims that he had many years of employment in executive­
level management positions that involved, among other things, overseeing "large-scale" projects that 
utilized his "patented technologies [to] greatly improved [O-P-'s] ability to .... optimize the 
8 
production of new raw materials." As evidence of these patented technologies, he submitted patents 
for inventions unrelated to plastic recycling and renewable energy, one of which belonged to another 
individual. The Petitioner also asserts that he gained corporate executive expertise through concurrent 
employment with D-S while he was employed with O-P-, by acting as D-S-'s founding director. He 
indicates that D-S- is a large entity "which provided communication services to 20% of the city of 
I I Russia," but did not provide probative evidence to overcome the inconsistent and 
insufficient evidence in the record about the nature of his employment with D-S-. When given the 
opportunity to address our findings, the Petitioner offered insufficient rebuttal for the inconsistencies 
in the petition. 
Furthermore, the Petitioner signed Form 1-140, 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 false and misleading documentation as evidence in support of the 
petition. Part 8 of Form 1-140 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." Based on this affirmation, made under penalty of perjury, we find that the 
Petitioner willfully and knowingly made the misrepresentations. 
As discussed, the misrepresented facts are material. The regulation at 8 C.F.R. § 204.5(k)(3)(ii) calls 
for evidence "that the [individual] 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. See Dhanasar, 26 I&N Dec. at 889-890. 
As evidence of the Petitioner's exceptional ability in business and that he is well positioned to advance 
his proposed endeavor, he made willful misrepresentations regarding his work experience and other 
qualifications for employment in the field of business, and his contributions to the field of endeavor. 
Here, the Petitioner's misrepresentations could have affected the outcome of the petition because they 
purported to address, and to satisfy, his eligibility under section 203(b )(2) of the Act. Considering the 
falsified evidence discussed above, we find that the Petitioner's willful misrepresentations were 
material to his eligibility. 
III. CONCLUSION 
Based on the foregoing, because the Petitioner willfully misrepresented material facts to seek 
eligibility for the EB-2 classification as an individual of exceptional ability, and to procure a national 
interest waiver of the job offer requirement attached to this EB-2 classification, the Petitioner is 
ineligible for the benefit sought in the petition. This finding of willful misrepresentation may be 
considered in any future proceeding to determine that the Petitioner is inadmissible to the United 
States. Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
ORDER: The appeal is dismissed. 
9