dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re: 13010814 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 23, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a teacher, 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 did not 
qualify for classification as an individual of exceptional ability, and that she 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. 
On appeal, the Petitioner asserts that she qualifies for both the underlying classification and a national 
interest waiver. 
On June 7, 2021, we issued a notice of intent to dismiss (NOID). In response, the Petitioner submitted 
a notarized statement. For the reasons below, we will dismiss the appeal and enter a separate finding 
of willful misrepresentation of a material fact against the Petitioner. 
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. -
(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) 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 101 (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 1 0l(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, to demonstrate 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) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
may, as matter of discretion 2, 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 off er and thus of a labor 
certification. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
The Director concluded that the Petitioner did not establish that she is an advanced degree professional. 
On appeal, the Petitioner does not address this issue. We, therefore, consider this claim abandoned. 
See Matter ofR-A-M-. 25 I&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. AttJ! 
Gen., 401 F.3d 1226. 1228 n. (11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 
1344 (11th Cir. l998);Hristovv. Roark, No. 09-CV-27312011, 2011WL4711885 at*l. *9 (E.D.N.Y. 
Sept. 3 0, 2011) (plaintiff's claims were abandoned as he failed to raise them on appeal to the AAO). 
B. Exceptional Ability 
On appeal, the Petitioner asserts that she meets five of the six criteria. As the Petitioner does not address 
the Director's conclusion that she does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), we will 
consider this issue abandoned. Id. 
An official academic record showing that the alien has a degree, diploma, certtficate, 
or similar awardfrom 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). 
The Petitioner's foreign bachelor's degree meets the plain language of this criterion. 
Evidence in the form ofletter(s)from currentorformer employer(s) showing that the alien 
has at least ten years ofjitll-timeexperience in the occupationfor which he or she is being 
sought. 8 C.F.R § 204.5(k)(3)(ii)(B) 
As explained by the Director, the two submitted letters regarding the Petitioner's employment from 
November 2, 2015 until March 19, 2016 and November 21, 2016 until June 1, 2018 4 do not establish ten 
years of full-time experience. Although the Petitioner claims she "has worked since 2007 5 as an English 
teacher" and "held various administrative roles," without "letter(s) from current of former emp layers" 
2 Sec also Poursinav. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest wa iverto be discretionary in nature). 
3 See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 This letterwa s written by the Petitioner,___---, 
5 We note that the Petitionerwas bomod I 1992 andherresume lists her first date of employment as 2010. not 
2007. 
3 
which document "ten years of full-time experience in the occupation," we cannot conclude that she 
meets the requirements of this regulatory criterion. 6 
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). 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative ofher claimed exceptional ability relative to others working 
in the field. 7 The record does not contain any documentation which makes such a showing. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner contends that her membership in the Association of American Educators satisfies this 
criterion. As explained by the Director, the submitted letter and membership card indicate that she 
did not become a member until January 10, 2020., almost 8 months after the date of filing. Eligibility 
for a requested immigration benefit must be established at the time of filing. 8 C.F.R. §§ 103 .2(b )(1), 
(12);MatterofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter of Izwnmi, 22 I&N 
Dec. 169, 175 (Comm 'r 1998). That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981 ), further provides that USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id. at 176. Accordingly, the Petitioner has not established that she meets this 
criterion. 
Evidence of recognition for achievements and significant contributions to the industly 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
As evidence, the Petitioner provided complimentary recommendation letters 8 from a number of her 
instructors, but they are not sufficient to demonstrate that she meets the plain language requirements of 
this criterion. 9 The evidence does not show that the Petitioner's work as a teacher has had an impact 
beyond her students at a level indicative of achievements and significant contributions to the industry 
or field. 10 For these reasons, the Petitioner has not established that she fulfills this criterion. 
6 The Form 1-140, Immigrant Petition for Alien Worker, in this matter was filed on May 29,2019. The Petitioner, therefore, 
must demonstrate that she had at least ten years of full-time experienceatthe time of filing. See 8 C.F.R. § 103.2(b)(l ). 
7 Sec USCIS Policy MemorandumPM-602-0005.l,Evaluation ofEvidcnccSubmittcdwith CertainForml-140Pctitions; 
Revisions to the Adjudicator ·s Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 21 (Dec. 22, 20 I 0), 
https://www.uscis.gov/legal-resources/policy-memoranda. 
8 We note that the Petitioner asserts that she is a teacher of exceptional ability. Therefore, she cannot rely on, and we will 
not address, letters submittedregardingherwork in the technology field. 
9 Although the Petitioner also submitted four publications, as will be discussed below, she is not the author and we will 
not consider them here. Similarly, although one ofthe letters claims that the Petitioner's "achievements[] include two 
publications in the magazineofEducation,"there is no credible documentary evidence to supportthe statement. 
1° Formal recognition that is contemporaneous with the individual's claimed contributions and achievements may have 
more weight than letters prepared for the petition "recognizing" the individual's achievements. See USCIS Policy 
Memorandum PM 602-0005.l,supra, at 23. 
4 
For the reasons set forth above, the Petitioner has not shown that she meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
C. National Interest Waiver 
As the Petitioner has not met the threshold requirement for this classification, further analysis of her 
eligibility for a national interest waiver would serve no meaningful purpose. 
III. WILLFUL MISREPRESENTATION 
As mentioned above, we sent the Petitioner a notice of intent to dismiss (NOID) the appeal based on 
findings outside of the record of proceeding. By issuing a NOID, we gave the Petitioner an opportunity 
to respond to the adverse findings, as required by 8 C.F.R. § 103 .2(b )(16)(i). We also advised the 
Petitioner that, if she did not overcome the adverse findings, then we would make a finding of willful 
misrepresentation of a material fact. We further advised that, while the Petitioner had the right to 
withdraw the petition, such a withdrawal would not prevent a finding of willful misrepresentation of 
a material fact. The Petitioner responded to the NOID with a notarized statement. For the reasons 
discussed below, we find that the Petitioner willfully misrepresented her authorship of four 
publications, which is material to the adjudication of the instant petition. 
A. Evidence of Record 
As documentation of her exceptional ability, the Petitioner submitted four "publications," which she 
claimed to have written. As discussed in our NOID, furtherresearch did not conoborate the Petitioner's 
claimed authorship. I I one of the submitted publications, is 
virtually identical to an article entitled Lying and Misleading in Discourse that was written by Andreas 
Stokke and published in the Philosophical Review, 125(1 ), 2016, 83-134. 11 Similarly! I 
.__ ____________ ____. is identical to an article written by Saadia Mahmood-u1-Hassan and 
twootherindividuals.Sci.Jnt. Lahore ,27 2 ,1539-1544,2015. 12 Finall ,thePetitioneralso resented 
two versions of.__ ____________________________ __. both of 
which contain verbatim language from The Use of Computer Software in Teaching Foreign Language 
Elementary School Learners by Umit I. Kopzhasarova, Marina Y. Vaslyayeva, Aida K. Shakimova, 
Togzhan B. Mukanova. 13 
B. Analysis 
In response to our NOID, the Petitioner submitted a notarized statement indicating that she "did not 
intend to claim or state that" she had "authored these articles." She attributes the "confusion"to having 
emailed her attorney "a folder titled 'My publications"' which "included the articles on which I relied 
when developing my teaching materials." She further "note[ s] that the copies of the materials [she] 
11 See http:/ and (visited June 7, 2021, copy attached to .__ ___________________ ~ 
this notice and incorporated into therecordofproceedings). 
12 See htt s: 
..,..,_ _____ ~v-is=it=e=d-Ju=n=e~7~2~0~2~1=co~~a=tt=a=ch=e=d~to~t=h=is~n=o~ti=ce-a=n=d=in=c=;orporatedintotherecordofproceedings). 
13 See https:.__ ____________________ (visited June 7, 2021, copy attached to this 
notice and incorporated into the record of proceedings). 
5 
submitted did not contain any indicia of the published articles," such as "publisher data, publication 
dates, covers, ISBN numbers, or any other attributes that one would expect[] ... to prove the fact of 
publication." 
Upon review, we do not find the Petitioner's response credible. For example, the Petitioner did not 
provide any evidence, such as a copy of the email to her attorney or even a statement from her attorney, 
to support her claim. Further, the Director's decision listed the submitted documents, noted that "the 
publications did not indicate where, when, or how they were published" and informed the Petitioner 
that a search of "Google Scholar on May 4, 2020 found no publications or citations" attributed to her. 
In other words, the Petitioner had an opportunity to address the claimed "confusion" on appeal, but 
failed to do so. 14 In addition, the Petitioner's statement does not explain why, if these were simply 
materials she "relied" on "when developing [her] teaching materials" as claimed, she removed the 
information that identified the true authors and changed some of the titles, wording, and reference 
sections. We also note the recommendation letter from! I which references the 
Petitioner's "achievements, which include two publications in the magazine of Education." The 
Petitioner's statement does not address this letter. Finally, regarding the lack of publication 
information, while we would look to such information to verify a petitioner's claim of publication, the 
lack of such infonnation does not absolve the Petitioner from her false claim. 
For the above reasons, the facts and evidence presented in the instant matter warrant a finding of 
willful misrepresentation of a material fact against the Petitioner. 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. As 
outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that the 
foreign national willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. See Matter of Kai Hing Hui, 15 I&N 
Dec. 288, 289-90 (BIA 1975). The term "willfully"means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief thatthe facts are otherwise. See Matter of Healy 
and Goodchild, 17 I&NDec.22,28 (BIA 1979). To be consideredmaterial, themisrepresentationmust 
be one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which 
might well have resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 
536,537 (BIA 1980). 
USCIS will deny a visa petition if a 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 when 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. 
SeeMatterofHo, 19 I&NDec. 582,591 (BIA 1988). 
14 While an alien's timely and voluntaty retraction of a false statement may serve to excuse the misrepresentation, the 
retraction may not simply be in response to the actual or imminent exposure of the falsehood. See Rahman v. Mukasey, 
272 Fed.Appx. 35, 39 (2nd Cir. 2008) (unpublished)(citingMattcrofNamio, 14 I&NDec.412,414(BIA 1973);Mattcr 
a/Ngan, 10 I&NDec. 725,727 (BIA 1964); MatterojM-, 9 I&NDec.118, l 19(BIA 1960)). 
6 
In this case, the discrepancies in the documents relating to the petition constitute substantial and 
probative evidence. The Petitioner submitted falsified evidence purporting to show her authorship of 
these publications, which is material to her exceptional ability claim. 
Beyond the adjudication of the visa petition, a misrepresentation may lead users to enter a finding 
that an individual foreign national sought to procure a visa or other documentation by willful 
misrepresentation of a material fact. This finding of fact may lead users to determine, in a future 
proceeding, that the foreign national is inadmissible to the United States based on the past 
misrepresentation. 
Section 212(a)(6)(e) of the Act, 8 U.S.e. § l 182(a)(6)(e), provides: 
Misrepresentation - (i) In general - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure ( or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
To find a willful and material misrepresentation in visa petition proceedings, an immigration officer 
must detem1ine: 1) that the petitioner or beneficiary made a false representation to an authorized 
official of the United States government; 2) that the misrepresentation was willfully made; and 3) that 
the fact misrepresented was material. See MatterofM-, 6 I&N Dec. 149 (BIA 1954); Matter ofL-L-, 
9 I&N Dec. 324 (BIA 196l);KaiHing Hui, 15 I&N Dec. at 288. 
First, the Petitioner's submission of plagiarized material in supp01i of her immigrant visa petition 
constitutes a false representation to a government official. 
Second, the Petitioner willfully made the misrepresentations. The Petitioner has not provided a 
credible explanation or rebuttal that she submitted the evidence accidentally, inadvertently, or in an 
honest belief that the assertions previously offered in support of the petition were true. 
Furthermore, the Petitioner signed Form I-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.e. § 1357(b);see also 8 e.F.R. § 103.2(a)(2). Accompanying the signed 
petition, the Petitioner submitted the evidence in support of the petition. Part 8 of Form I-140 requires 
a petitioner to make the following affirmation: "I certify, under penalty of perjury, that I have reviewed 
this petition. I understand all of the information contained in, and submitted with, my petition, and all 
of this information is complete, true, and correct." On the basis of this affirmation, made under penalty 
of perjury, we find that the Petitioner willfully and knowingly made the misrepresentations. 
Third, the misrepresented facts are material. To be considered material, a false statement must be 
shown to have been predictably capable ofaffectingthe decision of the decision-making body. Kungys 
v. U.S., 485 U.S. 759 (1988). The regulation at 8 e.F.R. § 204.5(k)(3)(ii) calls for evidence "that the 
alien is an alien of exceptional ability in the sciences, arts, or business." As evidence of her exceptional 
ability, the Petitioner submitted the plagiarized documents. The Petitioner's misrepresentations could 
have affected the outcome of the petition because they purported to address, and to satisfy, her 
7 
eligibility under section 203(b )(2) of the Act. In light of the falsified evidence we described above 
and in the NOID, we find that the Petitioner's misrepresentations were material to her eligibility. 
IV. CONCLUSION 
By filing the instant petition and falsely claiming authorship of the publications, the Petitioner sought 
to procure a benefit provided under the Act through willful misrepresentation of a material fact. This 
finding may be considered in any future proceeding where admissibility is an issue. 
ORDER: The appeal is dismissed. 
8