dismissed EB-2 NIW Case: Electrical Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 27, 2024 In Re: 29548869 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an electrical technician, seeks employment-based second preference (EB-2) 
classification as an individual of exceptional ability, as well as a national interest waiver of the job 
offer requirement attached to this classification. Immigration and Nationality Act (the Act) section 
203(b)(2), 8 U.S.C. § 1153(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 the EB-2 exceptional ability classification or that a waiver 
of the job offer requirement 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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. 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. 2 
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 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of noncitizens of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
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. ANALYSIS 
A Exceptional Ability 
The first issue on appeal is whether the Petitioner has established that he is eligible for the EB-2 visa 
classification as an individual of exceptional ability in the sciences, arts, or business. 4 This 
classification can only be granted to noncitizens with a degree of expertise significantly above that 
ordinarily encountered in their fields, where that expertise will provide a substantial prospective 
benefit to the national economy, cultural or educational interests, or welfare of the United States. 
8 C.F.R. § 204.5(k)(2); section 203(b )(2)(A) of the Act. 
The Petitioner initially claimed to qualify under all six of the initial exceptional ability evidentiary 
criteria at 8 C.F.R. § 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). The Director concluded that the evidence met 
four of the criteria: 
• (A), an official academic record showing the Petitioner has a degree, certificate, or similar 
award from an institution of learning in his area of exceptional ability; 
• (B), letters from current or former employers showing that the Petitioner has at least ten years 
of full-time work experience in the occupation he seeks to work in; 
• (C), a license to practice the profession or certification for a particular profession or 
occupation; and 
• (D), evidence of membership in professional associations. 
Since the Director found that the Petitioner had met at least three of the criteria, the Director conducted 
a final merits determination and concluded that the totality of the record did not establish that the 
Petitioner has a degree of expertise significantly above that ordinarily encountered in his field. 
8 C.F.R. § 204.5(k)(2). 
3 See also Flores v. Garland. 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
the Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
4 The Petitioner does not asse1i, and the record does not indicate, that he qualifies as a member of the professions holding 
an advanced degree. 8 C.F.R. § 204.5(k)(2), (3)(i). 
2 
On appeal, the Petitioner asserts that the Director overlooked evidence and imposed a stricter standard 
than the one in the relevant statues and regulations. Upon review, we conclude that the Petitioner does 
not qualify as an individual of exceptional ability, because while he does have a diploma in his 
specialty, he does not meet any of the other five initial criteria, for the reasons below. 
1. An official academic record showing that the individual 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 
To establish 
eligibility for this criterion, the Petitioner submitted a diploma and academic transcript 
showing that he completed a two-year training program for electrical technicians which was 
administered by a federal technological education center. We therefore conclude that the Petitioner 
submitted official academic records showing he has a diploma in his field from an institution of 
learning. 
2. Evidence in the form ofletter(s) from current or former employer(s) showing that the individual 
has at least ten years of full-time experience in the occupation in which they are seeking to work 
The record includes letters from several of the Petitioner's past employers which include the name, 
address, and title of the writer and a specific description of the Petitioner's duties, as required by 
8 C.F.R. § 204.S(g)(l), and state that he has over ten years of full-time work experience. The 
qualifying letters5 relate to the following employers and positions: 
• I-Technical Coordinator, January 14, 2019, to January 24, 2022; 
---------....----~• I-Instrumentation Technician, April 13, 2012, to December 18, 2017;/============----------,
• I - Automation Technical Assistant, May 2, 2011, ~---------------~ to April 5, 2012; 
• ~I--------------------~I- Senior Implementation Technician, 
October 28, 2006, to January 3, 2011. 
However, beyond the decision of the Director, we note that the Petitioner did not approp1iately 
document his 10 years of qualifying work experience in his U.S. Department of Labor (DOL) Form 
ET A 750B, Statement of Qualifications of Alien. All petitions requesting a national interest waiver 
of the job offer requirement must be accompanied by two fully-executed copies of Form ETA 750B 
as part of their initial evidence. 8 C.F.R. § 204.5(k)(4)(ii); 6 see also 8 C.F.R. § 103.2(b)(l) (requiring 
all benefit requests to be properly completed and to include all the initial evidence required by 
applicable regulations and other USCIS instructions). 
The instructions of Form ETA 750B require the preparer to list all jobs related to the occupation in 
which the noncitizen beneficiary is seeking employment. Every form submitted in connection with a 
benefit request must be executed in accordance with the form instructions, which carry the weight of 
5 The letter from~-----------------~ did not list the Petitioner's duties. and so did 
not meet the requirements of 8 C.F.R. § 204.S(g)( l) to be used as evidence of qualifying work experience. 
6 Alternatively, petitioners may submit two full-executed copies of DOL Form ETA 9089, Application for Permanent 
Employment Certification, Sections J, K, and L. See generally 6 USCJS Policy Manual F.5(D), 
https://www.uscis.gov/pol icy-manual. 
3 
I 
regulations. 8 C.F.R. § 103.2(a)(l). The Petitioner did not do so here. Instead, he only listed his 
positions with0and0on the Form ETA 750B, while omitting the positions withc=]and 
Ias well as other positions listed as relevant experience on his resume. 
Where there are inconsistencies in the evidence, it is the Petitioner's burden to resolve these 
inconsistencies using independent, objective evidence pointing to where the truth lies. Matter ofHo, 
19 T&N Dec. at 591-92 (BIA 19!8). Thi Petitioner has not provided an explanation for why his 
positions atl land were not listed as relatedjobs on his ETA 750B ifhe 
considered them sufficiently relevant to qualify as work experience for this criterion. The positions 
which he did properly document on his ETA 750B comprise less than nine years of work experience, 
rather than the 10 years required under 8 C.F.R. § 204.5(k)(3)(ii)(B). 7 The Petitioner's evidence 
therefore does not establish his eligibility under this criterion. 
3. A license to practice the profession or certification for a particular profession or occupation 
For this criterion, the Petitioner submitted an identity card and a certificate of good standing issued by 
the Federal Council of Industrial Technicians, stating that the Petitioner is an elect1ical technician. 
The Director concluded that this was sufficient to meet the criterion. We disagree. 
The identity card and good standing certificate were not accompanied by any suppmiing 
documentation indicating that they were required for the Petitioner to work in his occupation in Brazil. 
Instead, both documents state that the Petitioner registered with the council in May 2022, after he had 
already entered the United States and stopped working as an electrical technician.8 The record 
therefore does not demonstrate that the Petitioner has a license or certificate to practice his occupation, 
and we will withdraw the Director's finding to the contrary. 
4. Evidence that the individual has commanded a salary or other remuneration for services which 
demonstrates exceptional ability 
For this criterion, the Petitioner 
submitted letters from his employers stating his past wages, as well as 
one instance of a bonus. However, he did not provide any documentation of the wages of other 
electrical technicians in his area as a basis of comparison. It is therefore not apparent that the 
Petitioner's wages reflected a level of expertise that is significantly above that ordinarily encountered 
in his field, and the Director accordingly found that the Petitioner does not meet this criterion. 8 C.F.R. 
§ 204.5(k)(2). 
7 We further note that the Petitioner's duties atOconsisted of contract administration; budget, equipment, and vehicle 
management, coordinating maintenance and repair services for electrical power substations, and managing personnel and 
outsourcing. The Petitioner did not install, repair, or maintain electrical equipment as part of his duties. It is therefore not 
apparent that this position was "in the occupation" in which he seeks employment, as required for the 10 years of work 
experience for 8 C.F.R. § 204.5(k)(3)(ii)(B), rather than just being ··related" to that occupation, as required for the ETA 
750B. In any future filings in this matter, the Petitioner should address this issue. 
x The Petitioner's stated work history ends in January 2022, when he was admitted to the United States as a B-2 
nonimmigrant visitor for pleasure, a classification which does not permit the holder to engage in employment. 8 C.F.R. 
§ 214.l(e). 
4 
On appeal, the Petitioner does not mention this criterion in his brief. Any issue not raised on appeal 
is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 
25 I&N Dec. 657, 658 n.2 (BIA 2012)). The Petitioner has not met this criterion. 
5. Evidence of the individual's membership in professional associations 
For this criterion, the Petitioner submitted doclllllentation relating to the Electrical Association and to 
Comunidade de Eletricidade. The Director concluded that this sufficed to meet the criterion. We will 
withdraw this conclusion. 
To establish his membership in the Electrical Association, 9 the Petitioner submitted a website printout 
stating that he is a "Non Mbr Indiv." He did not provide any documentation explaining why he is 
registered as a non-member if he is, in fact, a member of this organization. As noted above, it is the 
Petitioner's burden to resolve discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. The Petitioner has not done 
so here. The record indicates that he is not a member of the Electrical Association, and so the related 
evidence does not qualify him under this criterion. 
The documentation regarding the Comunidade de Eletricidade indicates that it is an online bulletin 
board for electrical technicians to discuss their work. There is no indication that this bulletin board is 
an association, apart from a note presumably written by the Petitioner. The record is insufficient to 
establish that the Petitioner's registration with an online bulletin board constitutes a membership in an 
association. 
Furthermore, we note that 8 C.F.R. § 204.5(k)(2) defines a "profession" as an occupation requiring at 
least a U.S. baccalaureate degree or its foreign equivalent for entry. 10 The record does not indicate, 
and the Petitioner does not claim, that the occupation of electrical technician has such an educational 
requirement. The Petitioner also did not provide any doclllllentation of the membership requirements 
of the Electrical Association or Comunidade de Eletricidade. 11 It is therefore not apparent that either 
of these organizations is professional in nature. For this additional reason, the Petitioner has not met 
the crite1ion at 8 C.F.R. § 204.5(k)(3)(ii)(E), and we will withdraw the Director's finding to the 
contrary. 
9 The Electrical Association is a trade organization that "supports electrical contractors and electricians in Minnesota and 
all 50 states." Elec. Ass'n, About Us, https://www.electricalassociation.com/Online/ About_ Us.aspx. 
10 The definition also encompasses the list of occupations at section 101 (a)(32) of the Act, 8 U.S.C. § 1101 (a)(32), which 
does not include electrical technicians. 
11 We further note that according to their website, the Electrical Association requires anyone joining as an electrical 
contractor to be licensed and bonded in Minnesota. Elec. Ass'n, Member Type Descriptions, 
https://www.electricalassociation.com/Online/Member_ Type_ Description.aspx. The Petitioner has no U.S. occupational 
licenses or certifications. 
5 
6. Evidence of recognition for achievements and significant contributions to the industry or field 
by peers, governmental entities, or professional or business organizations. 
To establish eligibility under this criterion, the Petitioner submitted various training certificates and 
recommendation letters from his former coworkers, a screen capture of an online meeting, and 
documentation of the Petitioner's receipt of a bonus payment and a scholarship from an employer. 12 
The certificates show that the Petitioner has completed various professional training courses, but do 
not provide any information indicating that this constitutes an achievement in the field, as opposed to 
simply fulfilling one's occupational obligations. 13 On appeal, the Petitioner claims that "his 
continuous learning and improvement in the field" establishes his eligibility, without further 
elaboration, and so we will not address the issue further. Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 
1997) (declining to address a "passing reference" to an argument in a brief that did not provide legal 
support). 
Similar concerns apply to the letter documenting the Petitioner's bonus, which states that it was 
awarded "for achieving goals and results." Being a capable worker for one's employer does not, in 
and of itself: constitute the kind of achievement or significant contribution to the field or industry that 
is contemplated by this criterion. The letter regarding the company scholarship does not state any 
requirements for receipt of such a scholarship, which does not establish that it was awarded for an 
achievement or contribution. The Petitioner also has not provided any argument regarding this 
evidence on appeal, beyond stating that it establishes eligibility. Id. 
Finally, while the recommendation letters speak highly of the Petitioner's abilities and work ethic, 
they do not sufficiently document any specific achievement or significant contribution the Petitioner 
has made to his industry or field. See Matter of Chawathe, 25 I&N Dec. at 376 (stating that a 
petitioner's asse1iions must be suppmied by relevant, probative, and credible evidence showing that 
those assertions are "probably" true). 
For example, M-S-B-, the Petitioner's coworker atl Istates that the Petitioner once proposed a 
"circuit for signaling the theft of stationary battery packs" which "saved millions for the operator and 
for the market" and is "still in use today by several operators as a method of theft prevention." 
However, none of these claims are supported by any documentation indicating how much money was 
saved or how these savings had any significance to anyone but the client company. While M-S-B­
states that the Petitioner's work is "undoubtedly important for the industry in which he operates and 
for society," simply being a capable employee who produces good results for one's employers and 
clients does not constitute the kind of achievement or significant contribution to the field that is 
contemplated by this criterion. 
Similarly, S-J-S- states that the Petitioner's work on a solar-powered charging station for electric 
vehicles "became a reference in the market and served as a model for several other professionals in 
the engineering area," but does not state to what extent the other professionals followed the Petitioner's 
12 While we will not discuss all of the letters in detail, we have read and considered each one. 
13 Cl section 203(b)(2)(C) of the Act (stating that having the education and/or licensure required for an occupation shall 
not by itself be considered sufficient to establish exceptional ability). 
6 
model, whether it changed or improved their work, the scale of the affected work, or any other details 
that would establish the scope of the Petitioner's claimed influence. 
A-P-A-, the Petitioner's coworker at c::J states that after a cyclone intenupted cell phone service 
throughout the region where they worked, the Petitioner's "unique performance and his efforts to 
reestablish the essential service were visible" and that he "was recognized" for this work. However, 
this letter, the letter from A-P-I- stating that the Petitioner can-ied out the emergency action plan on 
this occasion, and the provided screen capture of the Petitioner at an online meeting regarding the 
storm response only indicate that the Petitioner performed his job well. They do not document how 
this performance rose to such a level that it constituted a contribution or achievement in his field or 
industry. 
On the whole, the provided letters indicate that the Petitioner has had various career accomplishments 
which benefited his employers and clients, and is considered to be a highly capable worker. However, 
none of these letters or the other documentation in the record show that the Petitioner had any 
achievement or contribution which extended beyond those employers to the larger field or industry he 
was working in. The Petitioner has not established eligibility for the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 
Because the Petitioner has not met at least three of the initial evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), he does not qualify as an individual of exceptional ability. We therefore do not need 
to conduct a final merits determination to decide whether the totality of the evidence establishes his 
exceptional ability and hereby reserve this issue. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where the applicant did not otherwise meet their 
burden of proof). 
B. National Interest Waiver 
The next issue on 
appeal is whether waiving the job offer requirement would be in the national interest 
according to the three-prong test outlined in Matter ofDhanasar, 26 I&N Dec. 884. 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. Meanwhile, in 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Matter of Dhanasar, 26 I&N Dec. at 889-90. For example, an endeavor may 
qualify if it has national implications within a paiiicular field, such as those resulting from certain 
improved manufacturing processes or medical advances, or if it has significant potential to have a 
substantial economic effect, especially in an economically depressed area. Id. 
In this instance, the Director concluded that while the Petitioner's endeavor has substantial merit, he 
did not describe or document it with sufficient specificity to establish what impact it would have, or 
how that impact would rise to the level of national impmiance. On appeal, the Petitioner contends 
that the Director made unspecified "en-oneous conclusions of both law [ and] fact." Upon review, he 
has not overcome this denial ground. 
7 
The Petitioner's appellate brief argues extensively that his endeavor will have national importance due 
to the importance of electrical technicians and various industries he could work in. However, when 
determining whether a proposed endeavor will have national importance, the relevant question is not 
the importance of the industry or profession where a noncitizen will work, but the specific impact of 
that proposed endeavor. Id. at 889-890. See generally 6 USCIS Policy Manual F.5(D)(l), 
https://www.uscis.gov/policy-manual. ("The term 'endeavor' is more specific than the general 
occupation; a petitioner should offer details not only as to what the occupation normally involves, but 
what types of work the person proposes to undertake specifically within that occupation.") Here, the 
Petitioner has not stated a cognizable endeavor, and so cannot establish that this endeavor's impact 
will have national importance. 
In his "Professional Plan," the Petitioner claims that he will, among other things, install and maintain 
diesel generators, photovoltaic power systems, fire detection and fighting systems, electrical power 
substations, data transmission equipment, air conditioning systems, and natural gas pipeline 
instruments, because he "will be able to consult for companies from different sectors." He further 
states that "[t]he companies that will benefit from [his] work are basically from all segments, as 
electricity is present everywhere and is necessary for processes to work." To document this plan and 
establish its importance, he provides expert opinion letters and various recruitment emails he has 
received for jobs in the United States. 
The recruitment materials provided are for jobs including solar electrician; heating, ventilation, and 
air conditioning (HV AC) technician; information technology (IT) manager; maintenance manager at 
a nursing home; maintenance technician for material handling equipment; 14 electro-mechanical 
technician at a wire products company; and various positions with unspecified employers and duties 
as a mechanical technician/mechanic, calibration technician, and maintenance technician. One 
position is for a maintenance technician apprentice, which does not appear to require the services of 
an individual of exceptional ability in the field. Another position requires a journeyman electrician 
license, which the Petitioner does not have. 
The purpose of the national interest waiver is not to facilitate a petitioner's U.S. job search. While no 
job offer is required, anyone seeking such a waiver must identify the "specific endeavor" that they 
propose to undertake. Matter of Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner has not stated 
how he will divide his time between the many activities listed in his professional plan, and has 
provided job examples which have highly varied duties and requirements, some ofwhich the Petitioner 
does not appear to be qualified for. Without information about what activities the Petitioner actually 
intends to perform, as opposed to a menu of ones he might select from, it is not possible to determine 
whether the proposed endeavor has the kinds of "broader implications" we look for when assessing 
national importance. Id. 
We acknowledge the appellate arguments regarding the merits of the Petitioner's occupation. 
However, working in an area with substantial merit does not make an endeavor nationally important. 
In Dhanasar, the noncitizen's teaching activities in science, technology, engineering, and math 
14 This job is described as centering on belts, motors, photo-eyes, and relays. There is no indication in the record that the 
Petitioner has experience maintaining this type of equipment. 
8 
(STEM) disciplines were found to have substantial merit, but did not qualify him under the first prong 
because the evidence did not show how that work would impact the field of STEM education more 
broadly. Id. at 893. Similarly, the Petitioner here has not demonstrated how his work will have any 
impact beyond his prospective employer, since he has not established what that work will actually be. 
Furthermore, while the Petitioner contends that a national shortage of electrical technicians qualifies 
him under the first Dhanasar prong, DOL directly addresses U.S. worker shortages through the labor 
certification process. Therefore, a shortage of workers in an occupation is not sufficient, in and of 
itself: to establish that workers in that occupation should receive a waiver of the job offer requirement. 
See Matter ofDhanasar, 26 I&N Dec. at 885; see also 20 C.F.R. § 656.1. Nor does the Petitioner 
provide an explanation of how his work, in and of itself, will resolve the shortage of electrical 
technicians or impact it on a national level. 
The record does not establish what the Petitioner's proposed endeavor will be, and so does not show 
that this endeavor would be nationally important. Because the Petitioner has not established his 
eligibility under the first prong of the Dhanasar test, we need not address his eligibility under the other 
two prongs and hereby reserve those issues. See INS v. Bagamasbad, 429 U.S. at 25; see also Matter 
ofL-A-C-, 26 I&N Dec. at 526 n.7 (BIA 2015). 
III. CONCLUSION 
The Petitioner has not shown that he qualifies for the EB-2 visa classification as an individual of 
exceptional ability, and we will withdraw the Director's conclusion that he met the classification's 
initial evidentiary requirements. The Petitioner also has not met the requisite first prong of the 
Dhanasar analytical framework, and so has not established that he is eligible for or otherwise merits 
a national interest waiver as a matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
9