dismissed EB-2 NIW Case: Computer Science

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 1 5 2015 OFFICE: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 11S3(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the -Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
) 
Y. �tft:..��trative Appeals Office 
www .uscis.gov 
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DISCUSSION: The-Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. We will 
dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences, the arts, or business, or as 
a member of the professions holding an advanced degree. The petitioner seeks employment as a 
computer science controls engineer. The petitioner asserts that an exemption from the requirement of a 
job offer, and thus of a labor certification, is in the national interest of the United States. The director 
found that the petitioner had not established that he qualifies for the classification sought. 
On appeal, the petitioner submits a statement and supporting evidence including a university transcript, 
job offer documentation, and other materials. 
I. Law 
Section 203(b) of the Act states, in pertinent part: 
(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 of Job Offer-
(i) ... 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. 
II. Facts and Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on May 28, 2013. At that 
time, the petitioner did not specify whether he seeks classification as an alien of exceptional ability 
in the sciences, the arts, or business, or as a member of the professions holding an advanced degree. 
The director addressed both of these classifications in the May 9, 2014 denial notice. In the interim, 
the director issued a request for evidence (RFE) on October 18, 2013, but the RFE only addressed 
the national interest waiver; the director did not request evidence regarding either underlying 
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immigrant classification. Nevertheless, some of the exhibits that the petitioner submitted in response 
to the RFE are relevant to the discussion of the classification, and we will consider them below. 
a. Exceptional Ability 
The regulation at 8 C.F.R. § 204. 5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. The regulation at 8 
C.P.R. § 204. 5(k)(3)(ii) provides that, to show exceptional ability in the sciences, arts, or business, 
the petitioner must submit at least three of the following: 
(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 of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-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 remuneration 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. 
(iii) If the above standards do not readily apply to the beneficiary's occupation, the 
petitioner may submit comparable evidence to establish the beneficiary's eligibility. 
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence 
demonstrates "a degree of expertise significantly above that ordinarily encountered" in the sciences, 
arts, or business. 8 C.P.R. § 204.5(k)(2). Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), sets 
forth a two-part approach where the evidence is first counted and then considered in the context of a 
final merits determination. While involving a different classification than the one at . issue in this 
matter, the similarity of the evidentiary analysis required for the two classifications makes the 
court's reasoning persuasive to the classification sought in this matter. 
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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. 8 C.F.R. § 204. 5(k)(3)(ii)(A) 
In his initial submission, the petitioner stated: "I have obtained my 5 year baccalaureate degree in 
Computer Science. & Engineering at in the United States, Michigan" 
(emphasis in original). The petitioner submitted a photocopy of a transcript from 
issued , 2010, listing the courses that the petitioner took during five non-
consecutive semesters between fall 2006 and winter 2010, as well as 49 transfer credits. The 
transcript does not state that the university awarded him a degree. In the denial notice, the director 
stated that "the evidence submitted does not meet this criterion" because "[t]he transcript does not 
show that the petitioner was awarded an academic degree." 
On appeal, the petitioner submits a transcript from The transcript, dated 
2015, indicates that the university awarded the degree on 2014. This 
document shows that the university had not yet conferred the degree at the time the petitioner filed 
the petition on May 28, 2013. The petitioner must establish that he is eligible for the requested 
benefit at the time of filing the benefit request. 8 C. F.R. § 103.2(b)(1). A petition that was properly 
denied because the petitioner did not hold necessary qualifications at the time of filing cannot be 
subsequently approved at a future date when the petitioner may become qualified under a new set of 
facts. Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The record shows that did not award a bachelor's degree to the petitioner until 
2014. The petitioner maintains that he qualified for the degree beforehand, but that the 
university improperly withheld the degree from him. He has not supported this assertion. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner has not submitted an official academic record showing that he held a degree as of the 
petition's filing date. Therefore, he has not satisfied this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or 
she is being sought. 8 C. F.R. § 204. 5(k)(3)(ii)(B) 
In his initial statement, the petitioner stated that he had "almost a decade worth [of] work 
experience" (emphasis in original). The petitioner submitted a photocopy of an affidavit that he 
signed on December 4, 2012, attesting to his "extensive field experiences." The affidavit is not from 
a current or former employer, and it does not provide dates of employment. Therefore, it does not 
meet the regulatory requirements. Likewise, a letter from mentions the petitioner's 
"work at ' (sic), but provides no dates, and Mr. 
'----�----------------------------- -----
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did not claim to be a current or former employer. Rather, he and the petitioner "went to school 
together. " 
To explain the lack of employer letters, the petitioner stated: "Please [note,that] some supervisors I 
worked under [have been] replaced by current management who has [sic] less knowledge of my 
duties and functions performed. In other case[s], the company moved from their original location to 
a new location." A printout of an electronic mail exchange shows that he had attempted to contact a 
former employer but the message could not be delivered. 
Copies of Internal Revenue Service (IRS)-Form W-2, Wage and Tax Statements, show that 
paid the petitioner $3,324. 00 in 2008, and paid him 
$9,907.20 in 2011. These documents are not letters from employers, but they are secondary 
evidence of employment because they document payment of wages. These statements establish 
what appear to be only a few months of employment; they do not establish the nature of that 
employment. 
The petitioner's RFE response included letters from several employers, including his current 
employer, (identified as · 1. Submitted letters from 
representatives of did not provide starting or ending dates of 
employment. _ a human resources administrator at stated 
that the petitioner "was accepted as a summer intern [in] May 2008. " She did not state when the 
employment ended, but she stated that the petitioner worked for the company "over the summer," 
indicating that the employment lasted no longer than a few months. 
senior business analyst at stated that the petitioner served 
"as an integrator on [his] launch team," in a position that requires "5 years of extensive experience." 
Mr. did not state where the petitioner earned the five years of required prior experience, 
or how Mr. verified that prior experience. 
The director, in denying the p'etition, found that the petitioner had not documented ten years of full­
time experience in the occupation. On appeal, the petitioner states: "For more than 10 years, I have 
gain[ ed] full time hands on and class room experience." Academic experience falls under a different 
criterion at 8 C.F. R. § 204.5(k)(3)(ii)(A). The present criterion concerns full-time experience to 
which "current or former employer(s)" can attest. 
The petitioner states that he submitted IRS Forms W-2 and "recently requested .. . letters from 
former employers" and co-workers. The director took the previously submitted letters and other 
materials into account. The letters do not establish at least ten years of full-time experience, and the 
director noted that neither of the IRS Forms W-2 shows an amount consistent with a full year's 
employment. 
· 
The appeal includes copies of new electronic mail messages from late October 2013, showing the 
petitioner's continued attempts to contact former employers for experience letters. The petitioner 
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did not submit the required experience letters at the time of filing, in response to the RFE, or on 
appeal. 
For the reasons discussed above, the petitioner has not met this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204. 5(k)(3)(ii)(C) 
The petitioner's initial submission included a copy of a "Certificate of Completion" from 
. stating that the petitioner completed a course 
on May 24, 2011. This certificate is not certification for a particular profess.ion or occupation. It is, 
rather, documentation that the petitioner completed a specific training course. 
The petitioner's RFE response included a copy of a February 26, 2012 certificate indicating that he 
"is recognized by the 
This petitioner has not shown that ' 
is a recognized profession or occupation. The certificate instead appears to 
demonstrate that the petitioner is proficient in certain types of software from one company. 
In the denial notice, the director noted the petitioner's submission of the 
certificates, but concluded: "The completion of an employer's security training and of manufacturer­
specific product training do not grant [a] license to practi,ce a profession or professional certification 
for [an] occupation in the field of computer science and engineering." 
On appeal, the petitioner states: "I believe my educational background is a license or full 
· certification to practice the profession, since a license to practice has not been defined to specifically 
state what form of license is needed." The petitioner notes that the regulatory language does not 
specifically require "a state approved license or federal approved license to practice the 
profession [or] occupation" (emphasis in original), and asserts that his 
certifications show "that the employee has gain[ed] extensive skill. " 
The petitioner has not shown that the certificates demonstrate certification for a particular profession 
or occupation, as the regulation requires. Rather, the certifications relate to specialized skills that 
one may exercise in the course of engaging in a profession or occupation. 
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) 
As noted· above, copies of IRS Forms W -2 show that paid the petitioner 
$3,324. 00 in 2008, and paid him $9,907.20 in 2011. The 
petitioner's RFE response included an October 1, 2013 job offer letter from 
proposing "to continue [the petitioner's] project with for $43.56 per hour. The petitioner 
provided no basis for comparison to show that these rates of compensation demonstrate exceptional 
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ability. The director, therefore, concluded that the petitioner had not established that his 
remuneration demonstrates exceptional ability. 
On appeal, the petitioner states that the director "did not specify how much the beneficiary should 
make or what the commanded salary or other remuneration is." The burden is on the petitioner to 
establish eligibility for the benefit sought. Section 291 of the Act, 8 U.S. C. § 1361; Matter ofOtiende, 
26 I&N Dec. 127, 128 (BIA 2013). Occupations vary widely in the standard rate of compensation, and 
the regulation has fixed no specific amount that one must earn. Rather, it is up to the petitioner to 
compare his earnings to the level of compensation ordinarily encountered in the field, in order to show 
that his compensation demonstrates exceptional ability. At the time of the denial, the petitioner had 
documented total $13,231.20 in earnings over the course of two years. He has not demonstrated that 
this level of pay is unusually high iri his field of endeavor. 
The petitioner submits a copy of an April 4, 2012 letter offering him "the position of Project 
Engineer" at "for a minimum period of 2-3 months beginning April 9, 2012," 
with the prospect of "another assignment within "1 The position offered a salary 
of $71,899. 92 per year. The petitioner submits no evidence to show how this salary compares with 
the level of compensation usually encountered in the field. 
The petitioner has not satisfied this criterion. 
Evidence of membership in professional associations. 8 C. P. R. § 204. 5(k)(3)(ii)(E) 
The petitioner's initial submission contained no evidence of memberships. The response to the RFE 
included information showing that the petitioner had registered for 
scheduled to take place in September 2013 and March 2014. 
The director, in the denial notice, stated that the petitioner submitted "[n]o evidence" of qualifying 
memberships. On appeal, the· petitioner states that he had previously submitted the 
conference information. This information does not show that is a professional association, 
or that the petitioner was a member of that association. Rather, the conferenceswere gatherings of ' users," indicating that is either a product or a manufacturer. 
The petitioner submits a copy of a message dated February 26, 2009, acknowledging that the 
petitioner had registered with . The message includes a copyright notice from 
Inc. The petitioner indicates that this document shows that he is a "member of 
The petitioner did not show that is a professional assoCiation, rather than a resource for 
developers of software for products. 
job offer letter indicated that he would be "working in MX" during the initial 2-3 
month assignment. The petitioner's signature is on the letter, indicating acceptance of the job offer, but there is no 
evidence that the petitioner actually worked in Mexico in the spring of 2012. On Part 3, line 13 of Form I-140, the 
petitioner indicated that he has been in the United States since July 26, 2003. 
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Undated printouts identify the petitioner as a member of· 
The petitioner submits 
no other information about these groups, and therefore he has not shown that they are professional 
associations. The two pages both show a logo used by which is not a professional 
association but rather a business-oriented social networking site. 
The petitioner has not established membership in professional associations. 
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) . 
In his introductory statement, the petitioner stated: "While obtaining my degree, I have received 
awards one of which is the for my research in 
the use of '' The petitioner did not submit evidence to support these assertions. 
See Matter ofSoffici, 22 l&N Dec. at 165. 
In response to the RFE, the petitioner submitted documentation from showing 
that he received two scholarship payments of $3,083.45 each for the 2008-2009 and 2009-2010 
school years. An unattributed statement reads: 
The School of engineering scholar-ship [sic] for Information Intelligence is awarded 
to outstanding individuals or students who contributed in development, 
implementation of new technological ideas, educational, research programs to meet a 
rapidly expanding requirement in the technical world. The individual must be a role 
model in society, while developing/designing a project that helps 'the environment or 
in other areas that would be helpful to the whole country as a whole [sic]. 
(Emphasis in original.) Because the quoted statement has no attributed source, it is not evidence of 
the requirements for the scholarship. Furthermore, the university documentation states that the 
pe titioner received financial aid from the "SECS Scholarship" fund, but the re is no reference to a 
"scholarship for Information Intelligence." 
The petitioner also submitted letters from people who have worked and/or studied with him. Many 
of these individuals described the petitioner's duties and offered general praise for his work. In 
terms of discussion of specific contributions and their significance, the most detailed description is 
in a letter signed by Dr. interim head of 
[The petitioner's] Notification alert System design using the PI notification tool, by 
adding all the calculation of the achieve shift and other system shifts is very 
ingenious. The tool [is] currently playing an important role in our services delivery 
and prevention of outage or a shut down before it occurs. 
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In denying the petition, the director noted "letters of support from the petitioner's friends and 
acquaintance, " but stated that the record lacked "documentation showing that the [petitioner] has 
been recognized by peers, governmental entities, or professional or business organizations for 
achievements and significant contributions to the industry or field." The director concluded that the 
petitioner had submitted "[ n ]o evidence of recognition for achievement." 
On appeal, the petitioner refers, without elaboration, to "evidence already submitted to satisfy this 
prong," along with a newly submitted "Certificate of Achievement," dated May 30, 2014, which the 
petitioner received "for The petitioner received this 
certificate more than a year after the filing date, and therefore it cannot establish eligibility at the 
time of filing. Furthermore, he has not shown that the certificate constitutes recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations. The petitioner has not met this criterion. 
b. Member of the Professions with an Advanced Degree 
The petitioner did not claim to be a member of the professions holding an advanced degree, but the 
director considered the matter because the petitioner had not established exceptional ability. 
The regulation at 8 C. F. R. § 204. 5(k)(3)(i) provides that, to establish eligibility as a professional 
holding an advanced degree, the petitioner must submit either: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
At the time he filed the petition, the petitioner stated: "I have obtained my 5 year baccalaureate 
degree" from (discussed above) and "almost a decade worth [of] work 
experience . .. where my level of responsibility, work exerted, and complexity of the tasks taken 
increased progressively over the course of years" (emphasis in original). 
The petitioner's undergraduate studies at continued until the winter 2010 
semester, approximately three years before the petition's May 2013 filing date. Therefore, 
regardless of the complications regarding the awarding of the degree, the petitioner cannot have 
earned the required five years of pr.ogressive post-baccalaureate experience between the time he 
finished college and the filing date. The evidence of record shows that the petitioner held neither an 
advanced degree nor its equivalent at the time he filed· the petition. The director, accordingly, made 
such a finding in the denial notice. The petitioner has not contested this finding on appeal. 
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The director, in the decision, made no finding on the merits of the petitioner's application for a national 
interest waiver of the job offer requirement. The waiver is available only to foreign workers who 
otherwise qualify for classification under section 203(b )(2)(A) of the Act. Because the petitioner has 
not established eligibility for the underlying immigrant classification, the issue of the national interest 
waiver is moot. 
We note that the regulation at 8 C.F.R. § 204. 5(k)(4)(ii) requires that a petitioner seeking to apply for 
the exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. 
Form ETA-750B is now obsolete, but sections J, K and L of the successor form, ETA Form 9089, 
Application for Permanent Employment Certification, fulfill the same purpose. The record does not 
contain either version of this required document, and therefore the petitioner has not properly 
applied for the national interest waiver. 
III. Conclusion 
The petitioner does not hold an advanced degree or its defined equivalent, and he has not overcome the 
director's finding that he has not established exceptional ability. We will dismiss the appeal for the 
above stated reasons, with each considered as an independent and alternate basis for the decision. In 
visa petition 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.