dismissed EB-2 NIW Case: Environmental And Sustainability

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 12, 2024 In Re: 31134856 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an environmental and sustainability professional, seeks classification as a member of 
the professions holding an advanced degree or of exceptional ability. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest 
waiver of the job offer requirement that is attached to this EB-2 immigrant classification. See section 
203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) 
(joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in 
concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner qualified for classification as an individual of exceptional ability. The matter is now 
before us on appeal pursuant to 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 appeals of immigration 
benefit decisions de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 53 7, 53 7 n.2 (AAO 2015). Contrary 
to the Petitioner's assertions, we are not constrained by the Director's conclusions when we consider 
the merits of the Petitioner's appeal. Upon de novo 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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(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 ofleaming 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 full-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 remuneration 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. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 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 we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. 
Whilst 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, see supra. Dhanasar states that USCIS may as a matter of discretion grant a national interest 
waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-2 category 
if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national 
importance, (2) the noncitizen 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 offer and thus of a 
labor certification. 
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II. AUTOPEN SIGNATURE 
We observe upon our de novo review 
that the Petitioner signed the underlying Form I-140, Immigrant 
Petition for Alien Worker by creating a signature using an autopen. The petition was not properly 
filed as a result. 
The regulation at 8 C.F.R. § 103.2(a)(2) provides that "[u]nless otherwise specified in this chapter, an 
acceptable signature on a benefit request that is being filed with the USCIS [U.S. Citizenship and 
Immigration Services] is one that is either handwritten or, for benefit request filed electronically as 
permitted by the instructions to the form, in electronic format." 1 
USCIS policy explains that a valid signature is "any handwritten mark or sign made by a person" and 
such signature must be made by the person who is the affected party with standing to file the benefit 
request to signify that "[t]he person knows of the content of the request and any supporting documents; 
[t]he person has reviewed and approves of any information contained in such request and any 
supporting documents; and [t]he person certifies under penalty of perjury that the request and any 
other supporting documents are true and correct." See generally 1 USCIS Policy Manual B.2(B), 
https://www.uscis.gov/policymanual. A person's signature on an immigration form establishes a 
strong presumption that the signer knows and has assented to its contents, absent evidence of fraud or 
other wrongful acts by another person. Matter of Valdez, 27 I&N Dec. 496, 499 (BIA 2018) ( citing 
Thompson v. Lynch, 788 F.3d 638,647 (6th Cir. 2015); Bingham v. Holder, 637 F.3d 1040, 1045 (9th 
Cir. 2011 ). The probative force of a declaration subscribed under penalty of perjury derives from the 
signature of the declarant. 
The USCIS Policy Manual provides that in "general, any person requesting an immigration benefit 
must sign their own immigration benefit request, and any other associated documents, before filing it 
with USCIS." See generally 1 USCIS Policy Manual, supra, at C.l (citing to 8 C.F.R. § 103.2(a)(2)). 
Although a signature may be considered valid if it is "photocopied, scanned, faxed, or similarly 
reproduced .... the copy must be of an original document containing an original handwritten signature, 
unless otherwise specified." See generally 1 USCIS Policy Manual, supra, at B. If someone acting 
on behalf of a petitioner's signatory, such as someone from their attorney's office, performs the 
function of electronically applying a signature to a required form, that act nullifies the filing because 
it is not a valid signature, and it is not properly signed under penalty of perjury. Ultimately, even if a 
filing party presents a photocopy of a form to USCIS, that photocopied form must contain a filing 
party's original signature that is consistent with how the person normally signs their name because 
"[a]n applicant or petitioner must sign his or her benefit request." 8 C.F.R. § 103.2(a)(2). 
The USCIS Policy Manual further explains that the agency interprets the regulatory term "valid 
signature" to mean a signature that "is consistent with how the person signing normally signs his or 
her name." See generally 1 USCIS Policy Manual, supra, at B (explaining that the appearance of the 
signature on USCIS forms must be preponderantly consistent with that person's normal signature). 
In the same way that one person signing a declaration "for" another person carries no evidentiary 
force, neither will an image of a signature duplicated using some electronic means or method. Without 
1 Because this Form I-290B was not electronically filed, none of the provisions governing electronic filings apply. 
3 
the signatory's actual and personal signature as the declarant, the declaration under the penalty of 
perjury on immigration forms has no evidentiary force. See in re Rivera, 342 B.R. 435, 458-459 (D. 
N.J. 2006). Moreover, if we determine that a benefit request does not contain a valid or a proper 
signature, we reject, deny, or dismiss it without providing an opportunity to correct or cure a deficient 
signature. 8 C.F.R. § 103.2(a)(7)(ii)(A); see generally l USCIS Policy Manual, supra, at A. 
And whilst the "regulations do not require that the person signing submit an 'original' or 'wet ink' 
signature on a petition, application, or other request to USCIS," we do "not accept signatures created 
by a typewriter, word processor, stamp, auto-pen, or similar device." See generally l USCIS Policy 
Manual, supra, at B. See also generally l USCIS Policy Manual, supra, at A (stating that "[e]xcept 
as otherwise specifically authorized, a benefit requestor must personally sign his or her own request 
before filing it with USCIS"). USCIS has implemented these regulations and attendant policies "to 
maintain the integrity of the immigration benefit system and validate the identity of benefit 
requestors." See generally l USCIS Policy Manual, supra, at A. 
As stated previously, the Petitioner signed the underlying Form 1-140, Immigrant Petition for Alien 
Worker by creating a signature using an autopen. Consequently, the petition was not properly filed. 
And, if the petition was not properly filed, this appeal is not properly before us and we could dismiss 
this appeal on this ground alone for the reasons set forth above without any additional discussion. But, 
for the reasons listed below, the petition would not have been approved even if the Petitioner had 
properly signed the Form 1-140 because they have not demonstrated that they are eligible for 
classification in the EB-2 permanent immigrant category as a noncitizen of exceptional ability. 
III. EXCEPTIONAL ABILITY 
The Petitioner is an environmental and sustainability development professional seeking to demonstrate 
eligibility in the EB-2 classification based on their exceptional ability. 2 A Petitioner must demonstrate 
expertise significantly above that ordinarily encountered to show that they are of exceptional ability. We 
agree with the Director's conclusion that the Petitioner is not of exceptional ability and therefore 
categorically ineligible for the EB-2 permanent immigrant classification. 
The Director concluded that the Petitioner met three of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). 3 Specifically, the Director concluded that the Petitioner demonstrated they met the 
criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), 4 and (E) but, upon final examination of the record 
in totality, did not demonstrate a degree of expertise significantly above that ordinarily encountered in 
their field to merit a determination of exceptional ability. 
2 The Petitioner does not claim eligibility for, nor do they submit evidence seeking, classification in the EB-2 permanent 
immigrant category as an advanced degree professional. 
3 The Petitioner did not submit evidence of a license to practice the profession or certification for a particular profession 
or occupation to meet the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(C). The Petitioner also did not submit evidence 
demonstrating they had commanded a salary, or other remuneration for services demonstrating exceptional ability to meet 
the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
4 We conclude the Petitioner has submitted sufficient evidence demonstrating at least ten years of full-time experience in 
the occupation they seek to fulfill meeting the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
4 
We conduct a final merits determination only after determining a Petitioner met three of the criteria 
contained at 8 C.F.R. § 204.5(k)(3)(ii). And we consider evidence demonstrating eligibility under the 
respective criteria the Petitioner in their totality. But the Director's final merits determination 
evaluated evidence under criteria the Director had concluded the Petitioner had not met. Since this 
was clearly erroneous, we hereby withdraw the Director's final merits determination. 5 
So, whilst we agree with the Director's conclusion the Petitioner did not demonstrate eligibility for 
EB-2 permanent immigrant classification, we do so on a different basis. Upon de novo review, we 
conclude 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 because the Petitioner has not 
demonstrated that they met at least three ofthe six threshold criteria contained at 8 C.F.R. § 204.5(k)(3)(ii) 
for the reasons set forth below. 
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 ofexceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(A). 
We disagree with the Director's conclusion the Petitioner met this criterion and hereby withdraw it. 
To demonstrate eligibility under this criterion, the Petitioner submitted 12 certificates demonstrating 
completion of 12 specific individual courses. The certificates contained the logos of several United 
States and international institutions of higher education (University of Michigan, University of Alberta, 
Technical University of Denmark, University of Colorado Boulder, Duke University, and Duke 
University). The certificates were issued byl I 
The criterion requires that a certificate be issued by a college, university, school, or other institution of 
learning. I I is not an institution of learning. 6 And the specific certificates the Petitioner 
submitted only demonstrate the completion of an individual and singular "online non-credit course." 
There is no evidence in the record demonstrating that the certificates are like a degree, diploma or other 
award which typically reflect completion of a curriculum, earning of credits, and are issued from a college, 
university, school, or other institution oflearning. 
Moreover, the evidence does not sufficiently describe how the courses the Petitioner participated in 
are related to their claimed area of exceptional ability. The topics of the non-credit courses the 
Petitioner participated in are diverse and disparate. The Petitioner is an environmental and 
sustainability development professional. It is not readily apparent from the certificates the Petitioner 
presented how the topics of the non-credit courses the Petitioner participated in relate to their area of 
exceptional ability. Whilst we observe on de novo review that some of the topics contain buzz words 
like "renewable," "green building" "climate change" and "sustainability," we also observe others are 
5 It would serve no legal purpose to remand this appeal to the Director to conduct a final merits determination because our 
decision today concludes the Petitioner has not met the threshold requirement of demonstrating the evidence they submitted 
supports eligibility under three of the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii). 
6 Whilst I Istates that it offers certain programming that culminates in the award of a degree, diploma, 
ce1iificates, or similar awards, those credentials would ostensibly be issued by United States and international institutions 
of learning based on credits applied towards a degree. But those credentials are not the endpoint of all I I 
programming. As stated earlier, the courses the Petitioner's certificates correspond to are in fact "online non-credit 
courses" not reflecting the award of a degree, diploma, ce1iificate, or similar award from an institution of learning. 
5 
on topics named "Electric Industry Operations and Markets," "Human Health Risks, Health Equity, 
and Environmental Justice," and "Introduction to the Arctic: Climate." The certificates do not 
describe, and the record does not contain, any other official academic record to shed light on how this 
diverse and disparate range of topics related to the Petitioner's claimed area of exceptional ability in 
environmental and sustainability development. So, we conclude the evidence does not support the 
Petitioner's eligibility under this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
We disagree with the Director's conclusion that the Petitioner met this criterion and hereby withdraw 
it. The Petitioner's membership in the Florida Association of Environmental Professionals (F AEP), 
Solid Waste Association of North America, International Society of Sustainability Professionals, 
National Association of Environmental Professionals, and Associacao Nacional de Gestores 
Ambientais (ANAGEA) is not sufficient evidence of membership in a professional association. 
The evidence the Petitioner submitted establishes the Petitioner's membership in the associations. But 
the evidence does not specify if a bachelor's degree is a minimum requirement for membership as a 
professional in the association. So, we are unable to evaluate whether membership in the associations 
is reserved for professionals in the field of environmental and sustainability development. 
And even if the organizations did require members of the association to have bachelor's degrees in 
related fields required to enter the profession, the Petitioner would not be eligible for membership 
because they have not demonstrated that they have earned a bachelor's degree in the field of 
environmental and sustainability development or related such that they could enter the profession and 
qualify for membership in the relevant association. 
So, the evidence in the record does not materially, relevantly, or probatively establish that the 
associations the Petitioner is a member of are professional association as that term is contemplated in 
the regulations, and the Petitioner has not met this criterion. 
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 Petitioner submitted several support letters/letters of recommendation and award certificates to 
document the recognition of their achievements and significant contributions to their field. 7 
The evidence the Petitioner submits does not meet the standard of proof because it does not satisfy the 
basic standards of the regulations. See Matter of Chawathe, 25 I&N Dec. at 374 n.7. The regulation 
requires evidence of recognition of achievements and significant contributions. When read together 
with the regulatory definition of exceptional ability, the evidence of recognition of achievement or 
significant contributions should show expertise significantly above that ordinarily encountered in the 
field. 
7 While we may not discuss every document submitted, we have reviewed and considered each one. 
6 
The record does not adequately support the Petitioner's assertion that their "achievements and 
significant contributions" were recognized as significantly above those ordinarily encountered in their 
industry or field. For example, the letter of _________ a high-ranking diplomat in 
their country's foreign service, states the Petitioner "dedicates his career to the development of unique 
projects, new techniques, and education." But they do not specify examples of the Petitioner's 
development of unique projects, new techniques, and education and how it would describe an expertise 
significantly above that ordinarily encountered. And whilst the writer has had "several conversations" 
with the Petitioner throughout the years, it is unclear how these conversations showcase an expertise 
significantly above that ordinarily encountered on the basis that they may have informally informed a 
high-level engagement with ranking counterparts in the foreign service of other nations. 
The letter ofl Idescribes the Petitioner's coordination of a project to capture and bum 
biogas for a sanitary landfill. The writer describes the Petitioner's work as an "interconnected network 
of PAD pipelines drilled in surface trenches in the ground." Specifically, the writer describes the 
Petitioner's "horizontal capture technique" crediting it with "30% of gains in capturing and flaring 
biogas and obtaining Carbon Credits." It is not patent from the evidence in the record how a 30% gain 
as described by the writer is an exceptional achievement above that ordinarily encountered in the field 
or a realized project objective based on competent prosecution of assigned job duties. 
The letter of __________ testified to the importance of the work the Petitioner 
performed and their utilization of "superficial horizontal capture." But they did not adequately 
describe any achievements or significant contributions above that ordinarily encountered. Or, if 
"superficial horizontal capture" is a technique of note, how it is an achievement or a significant 
contribution above that ordinarily encountered in the field. 
A letter froml Icredits the Petitioner with conducting projects and developing techniques 
that have promoted improvements on the combat of serious climatic problems, identifying the 
reduction of pollutant gases like methane. However, it is not sufficiently evident what techniques the 
Petitioner utilized and how they were achievements or a significant contribution above that ordinarily 
encountered in the field. Or in other words, it is not apparent how the reduction of the cost of projects 
by 25% and incrementing biogas collection results by 30% is an achievement or significant 
contribution above that ordinarily encountered in the field. 
And the letter of ______ verifies the work the Petitioner consulted with them about and 
speaks of the Petitioner and their work conduct effusively. The writer does not credit the Petitioner 
with any achievements or significant contributions above that ordinarily encountered in the field. 
The letters, in sum, reflect that the Petitioner is a seasoned professional whose competence and 
reliability as an employee, consultant, colleague, or partner is valued and appreciated. But the letters, 
along with the remaining evidence in the record, did not evidence any achievement and significant 
contributions significantly above that ordinarily encountered in the field required to demonstrate the 
Petitioner's exceptional ability. 
So, we conclude that the evidence does not support the Petitioner's eligibility under this criterion. 
7 
IV. CONCLUSION 
The Petitioner has not established eligibility in at least three of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). So, they cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). And 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 
ofL-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. 
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