dismissed EB-2 NIW Case: Digital Media

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 16, 2024 In Re: 29277220 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, 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. § 1 l 53(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for classification as an individual of exceptional ability. The 
Director further concluded that the Petitioner 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. 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 l&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. 
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 
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. 
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). 
2 U.S. Citizenship and Immigration Services (USCIS) has previously confinned the applicability of this two-part 
adjudicative approach in the context of aliens of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov /policy-manual/volume-6-part-f-chapter-5 . 
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. 
Although we agree with the Director that the Petitioner has satisfied the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), for the reasons below, we disagree that he met the professional membership 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In addition, the Petitioner claims for the first time on appeal that he meets the licensing and salary 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (D). Although a petitioner may supplement previous 
eligibility assertions, it should not raise previously unclaimed eligibility issues on appeal. See Matter 
o_f Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter o_f Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). Further, the Petitioner does not identify the evidence he believes may be comparable to the 
licensing criterion ( or how it would be comparable) or which evidence would satisfy the salary 
criterion.4 As noted above, the Petitioner bears the burden of proof to demonstrate eligibility by a 
preponderance of the evidence. Matter o_fChawathe, 25 I&N Dec. at 375-76. Therefore, the Petitioner 
has also not established his eligibility under the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (D). 5 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
Although the Director determined the Petitioner met this criterion we wjth~raw that conc)usjon The 
Petitioner provided evidence to e~his membership in the I ~ II I, along with a printout ofl___J' website describing its mission and~--------~ 
education, but he has not provided information regarding the qualifications for membership in this 
organization. "Profession" is defined as the occupations listed in section 101(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 into the occupation.6 8 C.F.R. § 204.5(k)(3). Here, the Petitioner has not offered 
sufficient evidence to establish the professional nature of the association of which he is a member. 
Accordingly, we cannot conclude the Petitioner meets this criterion. 
3 See also Poursina v. USC1S, 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 generally 6 USC1S Policy Manual F.5(B)(2), https: //www.uscis.gov/policy-manual. 
5 As the Petitioner does not claim, and the record does not reflect, that he meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
we will not address it here. 
6 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
2 
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) 
The Director determined that the Petitioner had not met this criterion and we agree. On appeal, the 
Petitioner claims that his "educational background, professional experience, and superb skills ... enabled 
[him] to contribute to his field and will allow him to continue to do so in the future." However, the plain 
language of the regulation requires "recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business organizations." 
The record includes three letters ofrecommendation from the Petitioner's colleagues, along with four 
I 
certificates for completing courses 
I, 
in Cinema 4D, a Certificate of Award from the I I
and Instagram account information. While the letters commend the 
Petitioner's work in the field of digital media, they do not provide any specific details that establish 
the Petitioner's recognition for achievements and significant contributions to the industry or field. For 
example, they do not explain with corroborative detail how working on client projects such as a 
wedding video and a commercial shoot for a beauty and personal care company would meet this 
criterion. 
Similarly, although the 
certificates and Instagram information demonstrate his dedication to his 
profession and the Petitioner's silver medal at the ~----------------~ is 
admirable, without more, this evidence does not show he has received the required recognition for 
significant contributions to his field or industry as required by the plain language of this criterion. 
Therefore, we agree with the Director that the documentation does not satisfy this criterion. 
Because the Petitioner has only met one of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), he 
cannot fulfill the initial evidentiary requirement of three criteria. Thus, we need not provide a final 
merits determination to evaluate whether the Petitioner has achieved the required level of expertise 
required for exceptional ability classification. In addition, we need not reach a decision on whether, 
as a matter of discretion, the Petitioner is eligible for or otherwise merits a national interest waiver 
under the Dhanasar analytical framework. Accordingly, we reserve these 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 alternate issues on appeal where an applicant is 
otherwise ineligible). The appeal is dismissed for the above stated reasons, with each considered as 
an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
3