dismissed EB-2 NIW Case: Embroidery

U.S. Citizenship 
and Immigration 
Services 
In Re: 11991282 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 9, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an embroiderer, 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 
establish that he is an individual of exceptional ability. The Director also concluded that the Petitioner 
did not establish that a waiver of the required job offer, and thus of the labor certification, would be in 
the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova 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. 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 ofjob offer-
(i) National interest waiver. ... the 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. 
For the purpose of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations farther provide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the alien 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; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the alien has at least ten years of foll-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition 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). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
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Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Director found that the Petitioner did not establish he is an individual of exceptional ability. The 
Petitioner does not assert that he qualifies for second-preference employment as a member of the 
professions holding an advanced degree. If the Petitioner does not establish eligibility as an individual 
of exceptional ability, we need not determine whether a waiver of the job offer requirement, and thus 
of a labor certification, would be in the national interest. See section 203(b )(2) of the Act. For the 
reasons discussed below, the Petitioner did not establish that he is an individual of exceptional ability. 
The Director concluded that the Petitioner satisfied the criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and 
(E), but the Director found that the Petitioner did not satisfy at least one of the four other criteria. 
More specifically, the Director observed that "[ n ]o evidence has been submitted relating to this 
criterion" for the criteria at 8 C.F .R. § § 204.5(k)(3)(ii)(B)-(D). Similarly, in response to the Director's 
request for evidence (RFE), the Petitioner addressed only the criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), 
(E), and (F), and did not assert eligibility under the criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(B)-(D). 
On appeal, the Petitioner asserts eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(B) for the first time. 
However, the extent of the Petitioner's assertion is that "[t]he evidence in the record clearly establishes 
that the [Petitioner] has had well over 10 years of foll-time experience as an embroiderer. Based on 
the evidence submitted, the [Petitioner] has met this criterion by the preponderance of the evidence 
and USCIS erred in finding otherwise." 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from current 
or former employer(s) showing that the alien has at least ten years of foll-time experience in the 
occupation for which he or she is being sought." On appeal, the Petitioner does not specify any 
particular letter that may establish the extent of the Petitioner's experience, instead generally 
referencing "[t]he evidence in the record." 
The Petitioner's curriculum vitae in the record does not support the assertion that, as of the petition 
filing date in 2019, he "had well over 10 years of foll-time experience as an embroiderer." See 8 C.F.R. 
§ 103 .2(b )(1) (requiring petitioners to "establish that he or she is eligible for the requested benefit at 
the time of filing the benefit request"). The curriculum vitae lists two positions as "work experience": 
"2011-Now [a]rtisan [e]mbroider" and "2011-2014 [h]ead of [e]mbroidery [w]orkshop, Old City, 
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~-------_,' The only date earlier than 2011 on the Petitioner's curriculum vitae is 2008, 
correspondin to the Petitioner's "Bachelor's De rre sic in t echnological [m]achines and 
[ e ]quipment,__ _____________________ -----'" not full-time experience 
as an embroiderer. 
We note that the record contains recommendation letters, but not letters from current or former 
employers as required by 8 C.F.R. § 204.5(k)(3)(ii)(B). Like the curriculum vitae, the 
recommendation letters do not support the Petitioner's assertion regarding the duration of his full-time 
work ex erience in the occupation sought. For example, a recommendation letter from a member of 
the association, notes that "[the Petitioner] has been a member of the [c]raftsmen 
[a]ssociation of,__ __ ___, since 2011, and has been participating in many events and exhibitions." 
The letter does not, however, establish that, at the time of filing, the Petitioner had at least 10 years of 
full-time experience in the embroiderer occupation. See 8 C.F.R. § 103.2(b)(l). As another example, 
a recommendation letter from a self-employed e~trenreneur jn fine art noted that "[s]ince 2011, [the 
Petitioner has been recognized as an [ a ]rtisan in.___ __ ____. and operated as an independent master 
o_~ ______ _,embroidery .... " However, similarly, this recommendation letter does not 
establish that the Petitioner had at least 10 years of full-time experience in the embroider occupation 
at the time of filing. See id. Moreover, as of the time of adjudication, the Petitioner had not asserted 
eligibility under the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). It is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). The Petitioner has not satisfied this burden, 
and accordingly has not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The only other remaining criterion under which the Petitioner asserts eligibility on appeal is 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). The Petitioner states that "nationally and internationally recognized experts in 
the field ofl I embroidery [confirm] the [Petitioner] has made a contribution of major 
significance to this field." The Petitioner also asserts that he was "recognized at the municipal and 
national level as an artisan of an exceptional artistic ability" in 2011 a~d 2012 · b:2weyer the Jetitioner 
also asserts that the 2011 award was for a "city-wide competition" in~ _______ ___, and that 
the 2012 award was "at a fair celebrating a national! I holiday," not that it satisfies the criteria for 
exceptional ability. 
The Petitioner also states that his work has been praised by major media; however, the Petitioner does 
not provide any legal, regulatory, or policy support for the position that media coverage satisfies the 
requirements of 8 C.F.R. § 204.5(k)(3)t)(F). We note that the record contains articles from four 
media sources: the magazine, th~-___ ___,~agazine, the Our Home Minnesota newspaper, 
and the Link magazine. The record contains a letter from the publishing house for 
the ,______, and ma azines, attesting that "our company occupies one of the leading places 
on the media market o_..__ ___ _,today" and that its publications are "well known to a wide audience 
by its popular, influential publications in the republic." 
The two-page article published in thd I magazine is almost entirely written in first-person by the 
Petitioner. The extent of the objective, third-person language in the article is as follows: 'The 
embroidery of ancient I I is a kind of national craft which is still being pursued with interest 
today. [The Petitioner], a master of thel I embroidery school, has been admired in sacred 
I bnd then overseas by the world population." Although this article opines that the Petitioner 
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"has been admired," it does not establish that he has been recognized for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations, as required by 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The one-page article published in thel I magazine summarizes the Folk Embroidery 2018 
contest held id I The extent of the article's reference to the Petitioner is that "[ flirst place on 
the most beautiful embroidery was [the Petitioner], a young embroiderer from the city o{ I . 
All three winners received cash rewards. The first-place holder also received the opportunity from 
August 1 to exhibit his embroidered product in the Museum of Applied Art inl I along with 
other first place holders from 12 regions and the Republic ofl I I' We note that, unlike 
the 2011 and 2012 awards, the Petitioner does not describe the 2018 award as "recogni[tion] at the 
municipal and national level as an artisan of an exceptional artistic ability." Considering the totality 
of the record, the article does not establish that the Petitioner has been recognized for achievements 
and significant contributions to the industry or field by peers, governmental entities, or professional 
or business organizations, as required by 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Next, although the article published in the Our Home Minnesota newspaper spans several pages, half 
of it describes I I embroidery in general, without addressing the Petitioner or his achievements 
or contributions specifically. The remainder of the article summarizes the Petitioner's family tradition 
of embroidering, expresses well wishes toward the Petitioner, and o~serves that "his work was 
received with pleasure and surprise" at the I !Art Festival in ]Minnesota. Like 
the other articles, this article does not establish that the Petitioner has been recognized for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations, as required by 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The fourth article, published b~ I Link, summarizes the author's experience at the 
I !International Festival in 2018. The article notes that, at the festival, the author found 
embroideries made by the Petitioner and another individual. Similar to the Our Home Minnesota 
article, this article briefly summarizes the Petitioner's family tradition of embroidering, expresses well 
wishes toward the Petitioner, and observes that his ~-------~--~------~ 
~-----------~------_____.' As with the other articles, this article does not 
establish that the Petitioner has been recognized for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business organizations, as required 
by 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner also asserts that he "published scholarly articles dedicated to thd !traditional 
embroidery, its history and importance inl !culture in ma·or media in national circulation," and 
that he "authored a non-fiction book titled " The Petitioner's assertions 
regarding "scholarly articles dedicated t-,__ _ __.traditional embroidery" and "a non-fiction book titled 
I . I" as applied to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), is misplaced. That 
criterion addresses "[ e ]vidence of recognition 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). Accordingly, the focus of this criterion is not on whether the Petitioner authored 
an article or a book, but rather on whether the Petitioner received recognition by peers, governmental 
entities, or professional or business organizations for having authored those works. Accordingly, 
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without more, neither the referenced articles nor the non-fiction book, in and of themselves, may 
establish eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In summation, the Petitioner has not satisfied at least three of the six criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), and therefore has not established he is an individual of exceptional ability. Because 
the Petitioner did not establish eligibility as an individual of exceptional ability, we need not address 
the Petitioner's assertions on appeal regarding whether a waiver of the job offer requirement, and thus 
of a labor certification, would be in the national interest. See section 203(b )(2) of the Act. 
III. CONCLUSION 
As the Petitioner has not satisfied at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), we 
conclude that the Petitioner has not established that he is an individual of exceptional ability. 
ORDER: The appeal is dismissed. 
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