dismissed EB-2 NIW Case: Civil Service

U.S. Citizenship 
and Immigration 
Services 
In Re: 10768018 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 25, 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, 
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 individual of exceptional ability or 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 and additional evidence asserting that the Director's decision 
was m error. 
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 ( emphasis added), 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
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 
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 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. ANALYSIS 
In denying the petition, the Director determined that the Petitioner had met the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (B). On appeal, the Petitioner asserts that he also meets the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D).4 
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). 
The record includes a copy of the Petitioner's "Statement of Earnings and Deductions" for November 
2019 and for the period from Janua 1 2019 throu h November 30 2019, a~yment 
confirmation letter from the L_ ___________ ..,r-------, in L___J Sudan 
I l a printout regarding "Pay and Benefits" at the~----- and a printout entitled 
"Household Income Percentile Calculator for the United States [2019] (HIPC)." 
On appeal, the Petitioner argues that he meets this criterion because his annual gross income "is in the 
87th percentile of U.S. household income." 5 To satisfy this criterion, however, the evidence must show 
that he has commanded a salary or remuneration for services that is indicative of his claimed 
exceptional ability relative to others working in the field, not to the United States generally. 6 
The "Statement of Earnings and Deductions" indicates that the Petitioner's job category is D' his 
grade is D and his step is 0' According to the information from thel I 
The level of pay for staff in the Professional and higher categories that are recruited 
internationally is set by reference to the highest paying national civil service. Staff members 
in categories that are locally recruited are compensated in accordance with the best prevailing 
conditions of service locally. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter of R-A-M-. 25 l&N 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, 
that issue is waived). See also Sepulveda v. U.S. Att 'v Gen., 401 F .3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *l, 
*9 (E.D.N.Y. Sept. 30, 2011) ~laintitrs claims were abandoned as he failed to raise them on appeal to the AAO). 
5 The employment letter from I states that the Petitioner "earns a net salary and other emoluments of USD 
137,085.24 per annum" and "Danger Pay ofUSD 1600.00 per month which is pro-rated subject to his presence inl I' 
According to the HTPC, "[i]n 2019, about 39,162,447 households (30.4% of households) in the United States made 
$100,000 or more." 
6 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/sites/ default/files/ document/memos/i- l 40-evidence-pm-6002-005-1.pdf. 
3 
The printout also states that "[t]he base salary, which is determined by the grade of the post specified 
in the job opening and the existence of any dependents, is the same throughout the I I 
system." Notably, while the printout contains information for position categories Pl-P5 and Dl-D2, 
there is no information regarding the Petitioner' Ocategory. Regardless, based upon the information 
in the record, the Petitioner has not established that his remuneration is a result of his exceptional 
ability, as opposed to thel f standardized pay scale for his position and time in grade. 
Without more, the Petitioner has not demonstrated that he meets this regulatory criterion. 
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. Since this issue is dispositive of the Petitioner's appeal, we decline 
to reach and hereby reserve the appellate arguments regarding the remaining issues. 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 I&N 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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