dismissed EB-2 NIW Case: Computerized Metal Cutting And Fabrication

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 07, 2023 In Re: 27448763 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a manager in the area of computerized metal cutting and fabrication, seeks 
employment-based second preference (EB-2) immigrant classification as an individual of exceptional 
ability, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for, and merits as a matter of discretion, a national interest 
waiver. The matter is now before us on appeal. 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 of Christo 's, Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . Upon de novo 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. Section 203(b )(2)(B)(i) of the Act. 
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). 1 Meeting 
1 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) . 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination 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 discretion 3, grant a national interest waiver if 
the petitioner demonstrates that: 
• 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. EB-2 CLASSIFICATION 
The Director did not directly address the Petitioner's eligibility for the underlying EB-2 classification 
in her decision. 4 The Petitioner specifically requested classification as an individual of exceptional 
ability in his initial filing and in response to the Director's request for evidence (RFE), but the Director 
did not consider this in her decision, and only briefly mentioned his eligibility as a member of the 
professions holding an advanced degree. We will therefore consider the Petitioner's eligibility under 
both. 
A. Member of the Professions Holding an Advanced Degree 
In her decision, the Director describes the Director's education as a bachelor's degree in computer 
science and the foreign equivalent of one year of graduate study in the same field. She also later 
mentions, without providing an analysis, that the combination of his education and work experience 
make him qualified as an advanced degree professional. We disagree and withdraw the Director's 
conclusion. 
The evidence of the Petitioner's educational credentials includes a diploma issued to him by a 
university in Venezuela on July 11, 2008, as well as related transcripts showing that he completed six 
semesters of coursework. An educational evaluation in the record determined that this education is 
2 USCIS 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(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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 Although the decision references the underlying classification in its analysis under the second prong of the Dhanasar 
framework, the Director does not clearly indicate whether the Petitioner is eligible or provide an accurate and complete 
analysis of the evidence submitted in support of his eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability. 
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the equivalent of an associates degree in information technology from an accredited college or 
university in the United States. 
The plain language of the regulations indicates that an advanced degree equivalency must include a single 
bachelor's degree, without substituting experience for education or combining lesser educational 
credentials. The regulations require five years of progressive experience to follow "[a] United States 
baccalaureate degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(2). 
Also, when introducing the EB-2 regulations, the former Immigration and Naturalization Service (INS) 
explained that "the proposed rule does not provide a procedure to allow experience alone to substitute for 
either a baccalaureate degree or an advanced degree." Proposed Rule on Employment-Based Petitions, 
56 Fed. Reg. 30703, 30706 (July 15, 1991). In response to stakeholder input, the INS reviewed the 
Immigration Act of 1990 Act and found the proposed regulations consistent with Congressional intent. 
The INS stated: 
[B]oth the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
INS Final Rule on Employment-Based Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
( emphasis added). Thus, an advanced degree professional must have at least a U.S. bachelor's degree 
or a single foreign degree equivalent. 
Here, as the Petitioner has not established that his degree is equivalent to a U.S. bachelor's degree, he 
does not qualify as an advanced degree professional. 
B. Individual of Exceptional Ability 
The Petitioner claimed to meet all six of the evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) to 
show that he qualifies as an individual of exceptional ability. While the Director requested additional 
evidence relating to all of these criteria in her RFE, she did not address them in her decision. We will 
discuss the evidence submitted under each of the criteria below. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award J,-om a college, university, school, or other institution of learning 
relating to the area ofexceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(A) 
As discussed above, the Petitioner submitted a diploma and transcripts showing that he holds the 
foreign equivalent of an associate' s degree in information technology from an accredited institution in 
the United States. This degree relates to his claimed area of exceptional ability, management of 
computer-aided tools for the cutting of metal. He therefore meets this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years offit/I-time experience in the occupation for which he or 
she is being sought; 8 C.F.R. § 204.5(k)(3)(ii)(B) 
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I 
The record includes two letters from the Petitioner's former employers which show that he has at least 
ten years of full-time experience in the use and management of computer-aided tools used in the 
construction industry for metal cutting. This includes nearly four years withl
D and more than seven years of experience withl I(BLK). As such, he 
meets 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) 
In support of his claim to this criterion, the Petitioner submitted a certificate stating that he completed 
requirements and passed a test to "be acknowledged as" a certified junior Linux operator. Although 
the record includes some basic information about the Linux computer operating system and what it is 
used for, it does not show that this certification is required for entry into the Petitioner's occupation 
or is specifically tailored for that occupation. The Petitioner indicates in his statement that this training 
aided him in carrying out his duties, but does not suggest that it was required. We conclude that the 
Petitioner does not meet this criterion. 
Evidence that the alien has commanded a salary, or other renumeration for services, 
which demonstrates exceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(D) 
As evidence of his salary, the Petitioner referred to the letter from BLK, which states that he "would 
make $3500 monthly" in his position as an operations manager overseeing metal cutting and building 
fabrication. However, the record does not include verifiable evidence of the Petitioner's salary, such 
as foreign tax documents, despite the Director's specific request for such evidence in her RFE, and it 
is therefore insufficient to show his actual salary or remuneration. 
Also, the Petitioner submitted a report from the website www.salaryexplorer.com titled "Information 
Technology Average Salaries in Panama 2022." We first note that it is not apparent that the position 
held by the Petitioner, which the record indicates involves programming CNC machines among many 
other duties, was included in this report. In addition, the report notes that the figures presented are 
"the combined average of many different jobs," and that more accurate data can be found by using 
specific job titles. Therefore, even if the Petitioner had submitted sufficient evidence of his salary, 
this evidence is not a sufficient basis for comparison to determine that his salary demonstrates 
exceptional ability. For both of these reasons, the Petitioner has not shown that he meets this criterion. 
Evidence ofmembership in professional associations; 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner submitted evidence that he has been a member of IEEE for three years. He did not 
submit documentary evidence of this organization's membership requirements, but instead referred to 
an expert opinion letter which states that a member must "be a graduate of a technology or engineering 
program of an appropriately accredited institution of higher education." However, the regulation at 
8 C.F.R. § 204.5(k)(2) defines "profession" as "any occupation for which a United States 
baccalaureate degree or its foreign equivalent is minimum requirement for entry into the occupation." 
Accordingly, a professional association is one which requires its members to be members of a 
profession as defined in the regulation. Even assuming that the expert opinion letter accurately states 
IEEE's membership requirements, without additional information it does not establish that the 
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organization qualifies as a professional association. The Petitioner therefore does not meet this 
criterion. 
Evidence ofrecognition 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 support of his claim to this criterion, the Petitioner relies upon the previously mentioned reference 
letters from his former employers. These letters describe some of the construction projects in which 
the Petitioner was involved, and are generally complimentary regarding the service he provided to his 
employers and their clients. But the plain language of this criterion requires evidence of "significant 
contributions to the industry or field," meaning that any such contributions must be significant and 
must extend beyond a particular organization. Although the writers of these letters vaguely mention 
economic impacts of these projects to the communities in which they were built, they do not indicate 
that in working on them, the Petitioner made a significant contribution to the construction industry. 
In addition, we note that these letters were prepared for purposes of this petition. As such, this 
evidence is less probative than evidence of contemporaneous recognition of any achievements and 
significant contributions made by the Petitioner. We therefore conclude that the Petitioner does not 
meet this criterion. 
C. Final Merits Determination 
As the Petitioner has not established that he meets the requisite three evidentiary criteria, we need not 
conduct a final merits determination of whether he possesses a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. Nevertheless, we have reviewed the 
totality of the evidence and conclude that he does not meet the elevated standard for this classification. 
While the Petitioner has related education and years of experience in the programming and operation 
of CNC machines and management of the fabrication of metal construction components, the record 
does not show that his level of expertise is unusual or stands out in this field. 
III. NATIONAL INTEREST W AIYER 
Per the 
discussion above, the Petitioner has not established his eligibility for the underlying EB-2 
classification, and he is therefore not eligible for a waiver of that classification's job offer requirement. 
However, we will briefly discuss whether he meets the first prong under the Dhanasar analytical 
framework. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
In her decision, the Director determined that the Petitioner's proposed endeavor, to continue working 
with his current employer as an "operations manager of computerized cuts," is of substantial merit. 
Based upon the evidence of the Petitioner's potential contribution to construction projects, we agree. 
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Turning to the national importance of his endeavor, the Director concluded that the Petitioner did not 
establish that his proposed endeavor, continuing to work in his current position for his current 
employer, would prospectively impact the region or nation beyond that employer and its clients. On 
appeal, the Petitioner focuses on the importance of the construction industry to the United States' 
economy, and notes that his work is "related to the development of 3D printing technology to space 
exploration, both of which are important areas of focus for the country." However, as stated above, 
the focus of the Dhanasar framework's first prong is the petitioner's specific endeavor, not the entire 
industry or field in which they work. In this case, while the economic impact and national importance 
of the overall construction industry cannot be doubted, the Petitioner has not shown how his proposed 
work for his employer will potentially have broader implications for the industry or substantial positive 
economic effects for the region or nation. Also, while we acknowledge the Petitioner's statement 
regarding his employer's connection to a builder of 3D printed housing, the evidence does not support 
the potential prospective impact of his proposed endeavor on that specific field or space exploration. 
The Petitioner also asserts on appeal that the Director erred in not considering the two expert opinion 
letters that were submitted, and that these letters show that his proposed endeavor has the potential to 
improve efficiency, accuracy, and safety in construction projects in the United States. Both experts 
provide an analysis of how the Petitioner meets each of the evidentiary criteria applicable to 
individuals of exceptional ability and each prong in the Dhanasar analytical framework, but neither 
claims to be an expert in the area of immigration law. users may, in its discretion, use as advisory 
opinion statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 
791, 795 (eomm'r 1988). However, users is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. Where an opinion is not in 
accord with other information or is in any way questionable, users is not required to accept or may 
give less weight to that evidence. Id. Here, when addressing the national importance of the 
Petitioner's proposed endeavor, both experts write broadly about the use of information technology in 
the construction industry, and mention technologies that are not directly related to the proposed 
endeavor. For example,~--------~ focuses much of his discussion on the benefits of 
cloud computing for the construction industry, but the neither the Petitioner nor his employer indicates 
that his proposed work involves the implementation of cloud computing. The impact of other 
technologies such as building information modelling (BIM) and the use of drones are mentioned in 
the letters and by the Petitioner on appeal, but these also are not included in the descriptions of his 
proposed endeavor. Therefore, these expert opinion letters do not support the national importance of 
the Petitioner's proposed endeavor. 
In addition, the Petitioner asserts on appeal that the government and media reports concerning national 
infrastructure improvement plans show the national importance of his endeavor. We first note that the 
sections of these reports which the Petitioner highlights on appeal focus primarily on the construction 
and repair of highways and bridges and the removal of lead pipes, whereas his proposed endeavor 
involves building construction, which is only briefly mentioned in one of the reports. Second, these 
reports show the national importance of the construction industry as a whole, and therefore do not 
support the importance of the Petitioner's specific proposed endeavor, which is the focus of our 
analysis under first prong of the Dhanasar framework. 
For all of the reasons given above, we agree with the Director's conclusion that the Petitioner has not 
established that his proposed endeavor is of national importance and he therefore does not meet the 
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first prong of the Dhanasar analytical framework. As a petitioner must meet all three prongs of the 
framework to be eligible for a national interest waiver, we reserve our evaluation of whether the 
Petitioner is well positioned to advance his endeavor and whether, on balance, it would be in the 
national interest to waive the EB-2 classification's job offer requirement. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter ofD-L-S-, 28 I&N Dec. 568, 576-77 
n.10 (BIA 2022) ( declining to reach alternative issues on appeal where an applicant is otherwise 
ineligible). 
IV. CONCLUSION 
The Petitioner has not established his eligibility for the underlying EB-2 immigrant visa classification, 
as either an advanced degree professional or an individual of exceptional ability. In addition, he has 
not shown that he is eligible for, and merits as a matter of discretion, a national interest waiver of the 
job offer requirement, and thus of a labor certification. Accordingly, the petition will remain denied. 
ORDER: The appeal is dismissed. 
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