dismissed EB-2 NIW Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
In Re: 28287463 Date: SEPT. 18, 2023 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a plastic packaging manufacturer, seeks second preference immigrant classification for 
the Beneficiary as a member of the professions holding an advanced degree or 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 Beneficiary did 
not qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability. 1 The matter is now before us on appeal. 
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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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). In addition, "profession" is defined as of 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. 2 8 C .F.R. 
§ 204.5(k)(3). 
Furthermore, "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 the beneficiary satisfies at least three of six categories of evidence. 8 C.F.R. 
1 The Director's decision did not consider if the Beneficiary meets the requirements for a national interest waiver. 
2 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 10l(a)(32) of the Act. 
§ 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of itself, establish 
eligibility for this classification. 3 If a beneficiary 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 the beneficiary's 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 ofDhanasar, 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 discretion4, 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. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a beneficiary holds a qualifying advanced degree, the pet1t10n must be 
accompanied by "[ a ]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may 
present "[ a ]n 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." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director acknowledged the Petitioner's submission of documents indicating that the Beneficiary 
holds the foreign equivalent of a U.S. baccalaureate degree, but concluded that the evidence submitted 
both initially and in response to the Director's request for evidence (RFE) did not show that the 
Beneficiary has at least five years of progressive post-baccalaureate experience in his specialty. See 
8 C.F.R. § 204.5(k)(3)(i)(B). 5 Because the Petitioner did not present evidence showing that the 
Beneficiary had at least five years of progressive post-baccalaureate experience in his specialty at the 
time of filing the Form I-140 petition, the Director correctly found that the Petitioner had not 
demonstrated the Beneficiary's eligibility as a member of the professions holding an advanced degree. 
The Petitioner does not contest this finding on appeal. See Hristov v. Roark, No. 09-CV-2731, 2011 
WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
3 USCTS has previously confirmed the applicability of this two-palt 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-palt-f-chapter-5. 
4 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
5 The record indicates that the Beneficiary received his foreign degree in electrical engineering in February 2016, that he 
began working full-time in his specialty in May 201 7, and that the petition in this matter was filed in June 2021. 
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B. Exceptional Ability 
In response to the Director's RFE, the Petitioner asserted that the Beneficiary satisfies at least three of 
the regulatory criteria for classification as an individual of exceptional ability. Specifically, the 
Petitioner claimed that the Beneficiary meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), (E), and 
(F). In denying the petition, the Director determined that the Beneficiary fulfilled only the academic 
record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the license or certification criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). In the appeal brief: the Petitioner maintains that the Beneficiary also meets the 
membership criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) and the recognition for achievements and 
significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we 
agree with the Director that the record does not support a finding that the Beneficiary satisfies the 
requirements of at least three criteria. The Director's decision clearly illustrates why the Beneficiary 
has not met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F). 
The Petitioner's appeal is essentially a reiteration of the documentation and arguments previously 
offered with its RFE response. The Petitioner reasserts that the Beneficiary is of exceptional ability 
citing the same evidence, documentation, and arguments the Director evaluated in the response to the 
RFE. For example, while the Director determined tha[ the Beneficiary'~ registration certificate from 
the Regional Council of Engineering and Agronomy ~--~(CREA satisfied the license or 
certification criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the Petitioner maintains on appeal that this same 
registration certificate also meets the mem~hip criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 6 The 
Director's decision explained that CREAL_j is a "government agency that is responsible for 
inspecting and judging the practice of engineers, geographers, geologis~ronomists and technicians 
related to those activities in Brazil" and that the Beneficiary's CREALJ registration certificate did 
not constitute his membership in a professional association. We agree with the Director's 
determination that the Petitioner has not shown the Beneficiary meets the regulatory criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(E). 
With respect to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), this regulation requires "[ e ]vidence of 
recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations." The Petitioner contends on appeal 
that the Director's decision did not properly consider the letters submitted from R-D-, T-F-, J-V-, and 
S-S-. In the decision, the Director correctly determined that these four letters offered in support of the 
petition did "not demonstrate that the Beneficiary has been recognized by peers, governmental entities, 
or professional or business organizations for achievements and significant contributions to the industry 
or field." 7 For example, while the letters from R-D- and T-F- (the Beneficiary's supervisors) described 
his work for both of their companies, they did not establish that he was recognized "for achievements 
and significant contributions to the industry or field." Likewise, the written advisory opinions from 
both J-V- and S-S- (professors atl IUniversity) discussed the Beneficiary's academic 
credentials, professional skills and certifications, and job experience, but this evidence does not show 
that his work has been recognized beyond his employers and their specific projects at a level indicative 
6 The Petitioner presented the Beneficiary's CREA□registration ce1iificate under both criteria in response to the 
Director's RFE. 
7 Regarding the two research aiiicles authored by Beneficiary, the Director's decision stated the Petitioner had not 
established "the level of importance of the articles or whether [their] publication made a significant contribution to the 
field." 
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of "achievements and significant contributions to the industry or field." We therefore agree with the 
Director that the Petitioner has not established the Beneficiary fulfills the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 
Based on a de novo review, we will adopt and affirm the Director's determination that the Petitioner 
has not provided sufficient evidence to demonstrate that the Beneficiary qualifies as an individual of 
exceptional ability. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Prado­
Gonzalez v. INS, 75 F .3d 631, 632 (11th Cir. 1996) (joining "every court of appeals that has considered 
this issue" holding that an appellate body may affirm the lower court's decision for the reasons set 
forth therein); Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting the practice of adopting and 
affirming the decision below has been "universally accepted by every other circuit that has squarely 
confronted the issue"); Chen v. INS, 87 F3d. 5, 8 (1st Cir. 1996) (joining eight U.S. Courts of Appeals 
in holding that appellate adjudicators may adopt and affirm the decision below as long as they give 
"individualized consideration" to the case). Here, the Director's decision gave individualized 
consideration of the evidence the Petitioner submitted as documentation of the Beneficiary's 
exceptional ability and correctly concluded that he did not satisfy at least three of the regulatory criteria 
set forth at 8 C.F.R. § 204.5(k)(3)(ii). 8 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that the Beneficiary qualifies for EB-2 
classification as either an advanced degree professional or an individual of exceptional ability. The 
Petitioner has not shown that the Beneficiary is an advanced degree professional or that he has satisfied 
the regulatory criteria and achieved the level of expertise required for exceptional ability classification. 
As the Petitioner has not established the Beneficiary's eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary satisfies the regulatory requirements for 
classification as a member of the professions holding an advanced degree or as an individual of 
exceptional ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
8 Because the Beneficiary did not meet at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii), it was unnecessary for the Director 
to conduct a final merits determination to decide whether the evidence in its totality shows that the Beneficiary is 
recognized as having "a degree of expe1tise significantly above that ordinarily encountered" in the field. See 
8 C.F.R. § 204.5(k)(2). 
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