dismissed EB-2 NIW Case: Film And Television Production

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 31, 2024 In Re: 29424907 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a film and television producer, seeks classification as an individual of exceptional 
ability. 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. 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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is an individual of exceptional ability or that a waiver of the job offer 
requirement is 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 ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). 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 immigrant classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
"Exceptional ability" means a degree of expertise significantly above that ordinarily encountered in 
the field. 8 C.F.R. § 204.5(k)(2). An individual 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). Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 1 If a petitioner 
does demonstrate meeting at least three criteria, USCIS then conducts a final merits determination to 
decide whether the evidence in its totality shows that the individual is recognized as having a degree 
of expertise significantly above that ordinarily encountered in the field. 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner must then establish eligibility for a 
discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of 
the Act. While neither 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 USCIS may, as a matter of discretion, 2 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 
The Director found that the Petitioner did not establish that he is an individual of exceptional ability, 
and as such did not demonstrate that he qualifies for the EB-2 classification. 3 The Director farther 
found that the Petitioner did not demonstrate eligibility under any of the three required prongs of the 
Dhanasar framework and therefore concluded that he is not eligible for a national interest waiver. The 
Petitioner proposes to work as a television and film producer. On appeal, the Petitioner submits a brief 
in which he asserts that he is an individual of exceptional ability and is eligible for a national interest 
waiver. 
A. Qualification for the EB-2 Classification 
As stated above, the Petitioner claims to qualify as an individual of exceptional ability. 8 C.F.R. 
§ 204.5(k)(2). The Director concluded that the Petitioner established only the initial criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(B) (possessing at least ten years of foll-time experience in the occupation) 
and 8 C.F.R. § 204.5(k)(3)(ii)(E) (relating to membership in a professional association). On appeal, 
the Petitioner asserts that the evidence also establishes the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D) and 
8 C.F.R. § 204.5(k)(3)(ii)(F).4 We examine each criterion in tum. 
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). 
The Director determined that the personal financial documents and work experience documents that 
the Petitioner submitted were not sufficient to establish that the Petitioner has commanded a salary or 
other remuneration which demonstrates exceptional ability. 
2 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). 
3 The Petitioner does not claim to qualify for the EB-2 classification as an advanced degree professional. 
4 The Petitioner states that he does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) (relating to a degree, diploma, or 
other certificate relating to the area of exceptional ability). The Petitioner also states that his occupation does not require 
a license to practice, and therefore the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) (a license to practice or certification for 
the profession or occupation) does not apply to his occupation. 
2 
On appeal, the Petitioner asserts that the evidence submitted does establish this requirement and claims 
that the wages he received for his work as an audiovisual producer for television and film significantly 
exceed the minimum wage in Colombia. 
However, the Petitioner does not explain why the minimum wage in Colombia is a useful comparison 
point to establish that the wages he has earned demonstrate his exceptional ability. Exceptional ability 
means a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. 
§ 204.5(k)(2). Without an explanation as to the relevance of this standard, we conclude that the 
Petitioner's claim that his wages have exceeded the minimum legal requirement for wages, even if 
true, does not sufficiently demonstrate exceptional ability. 
Similarly, in response to the request for evidence (RFE), the Petitioner claimed that he has earned 
"significantly higher salaries than the average in Colombia" and well above average for that of a film 
and television producer in Colombia. We acknowledge that the salaries of other film and television 
producers in Colombia would be a better comparison point than the minimum wage in Colombia. 
However, in support of the assertion that his wages have exceeded those of other film and television 
producers, the Petitioner only provided URLs to websites that are in Spanish. The Petitioner did not 
provide any documentary evidence related to this claim and did not provide a translation of the 
information contained in the websites. 5 We conclude that this is insufficient for the Petitioner to meet 
his burden of proof to demonstrate this claim. See Matter of Chawathe, 25 I&N Dec. at 375-76. 
Additionally, we note that the evidence the Petitioner submitted to demonstrate his own wage history 
is not sufficiently clear. The Petitioner submitted work experience letters, along with English 
translations, which state the wages he was paid for various projects. The Petitioner also included a 
chart in response to the RFE and a chart on appeal to compile this wage information. However, there 
are discrepancies between the wage amounts stated on the original letters, the English translations, 
and the charts. To use one production as an example, the chart submitted in the RFE response states 
that, for the I I production in 2009, the Petitioner earned $12,664.78 USD. However, the 
English translation of the letter from this production company states that the Petitioner received $214 
USD per week, and a total of $6,853 USD for his work on this production. Meanwhile, in the original 
letter in Spanish, the corresponding sums are stated as 1,000.00 and 32,000.00. These discrepancies 
appear to be due to the Petitioner attempting to both adjust for inflation and convert from Colombian 
pesos to U.S. dollars. While the Petitioner may have made these changes in an attempt to provide 
context, we conclude that the changes create confusion and a lack of clarity as to the actual wages 
earned by the Petitioner. 
Finally, we note that the letters themselves do not describe the Petitioner's salary as being due to his 
exceptional ability. The letters submitted from prior employers provide the wages paid and state that 
the Petitioner "very satisfactorily fulfilled" his duties, and that the Petitioner's services "were provided 
with autonomy and technical and administrative independence." However, they do not support the 
claim that the Petitioner's wages were determined based upon his exceptional ability. 
5 Any document containing a foreign language submitted to USCIS must be accompanied by a full English translation 
which the translator has ce1iified as complete and accurate, and by the translator's certification that he or she is competent 
to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). 
3 
As such, the Petitioner has not established 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 Director concluded that this criterion was not met. The Director concluded that the letters of 
recommendation submitted in support of this criterion, while not without weight, did not identify any 
specific recognition the has Petitioner received for his achievements and significant contributions to 
the industry and that they were insufficient on their own to establish this claim. 
On appeal, the Petitioner reiterates the assertion that the letters submitted do establish this criterion. 
Upon review of the record, we acknowledge that the writers of the letters appear to be from trade and 
professional organizations related to the Petitioner's industry. However, we agree with the Director 
that the letters lack sufficient detail as to specific recognition that the Petitioner has received for his 
achievements or contributions. Although the letter writers praise the Petitioner and his work, they do 
so only in general terms, for example asserting that the Petitioner's "career in the film and television 
industry has left a significant mark;" that the Petitioner's work has "consistently raised the standard 
of excellence in technical achievement and artistic merit;" that his "leadership and management skills 
have been fundamental to the success of multiple productions;" and that the Petitioner has "exceptional 
talent for producing high-quality television programs and films." We conclude, however, that the 
writers do not provide sufficient details regarding specific achievements or contributions, nor do they 
describe specific recognition that the Petitioner has received for those achievements. 
The Petitioner also submits on appeal a certificate of recognition from the ~---------~ which states that it is "for his extensive career and contribution to the film and television industry," 
along with a new letter of support from this organization. The certificate and letter are both dated July 
4, 2023, after the Director's denial of the petition. 6 Generally, we will not consider events that arose 
after the initial filing of a petition. A petitioner must establish eligibility at the time the petition is 
filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved when a beneficiary, initially 
ineligible at the time of filing, becomes eligible under a new set of facts. See Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Additionally, the Petitioner does not explain the context 
in which he received this certificate. The letter of support, which is dated the same day as the 
certificate, appears to have been written specifically in support of the Petitioner's national interest 
waiver petition. Without farther context, the record is not clear as to whether the certificate similarly 
was created and issued specifically for the purposes of this petition. As such, we conclude that the 
certificate is not sufficiently probative evidence of the Petitioner's recognition for contributions to his 
field. 
Finally, the Petitioner submitted on appeal a list of the film and television projects in which he has 
participated and awards which those projects have received or for which they have been nominated. 
However, the record does not establish that these nominations and awards were the result of the 
Petitioner's work nor whether he significantly contributed to the work that received recognition. For 
example, the categories of awards and nominations include best director, best lead actress in a series, 
6 The Petitioner's Form 1-140, Immigrant Petition for Alien Workers, was filed on July 13, 2022. 
4 
best screenplay, best theme song, and best supporting actor. The Petitioner has not established that 
his work as an audiovisual or field producer in these productions significantly contributed to the 
recognition these projects received. Upon de novo review, with agree with the Director that this 
criterion has not been met. 
As such, the Petitioner has not established this criterion. 
Therefore, the Petitioner has established that he satisfies only two of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). Because the Petitioner does not satisfy at least three of the criteria, we need not 
conduct a final merits determination to evaluate whether he has achieved the degree of expertise required 
for exceptional ability classification. As such, the Petitioner does not qualify as an individual of 
exceptional ability. Having determined that the Petitioner does not qualify as an individual of exceptional 
ability, we conclude that the Petitioner has not demonstrated eligibility for the underlying EB-2 
classification. 
B. Eligibility for a National Interest Waiver 
The next issue is whether the Petitioner has established that a waiver of the classification's job offer 
requirement is in the national interest. Because the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address whether 
he is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. 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 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). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability, and therefore does not qualify for the EB-2 immigrant classification. 
8 C.F.R. § 204.5(k)(3). Because the Petitioner has not demonstrated eligibility for the underlying 
EB-2 classification, we conclude that the Petitioner has not demonstrated eligibility for a national 
interest waiver. We reserve our opinion regarding whether the Petitioner has satisfied any of the three 
prongs of the Dhanasar analytical framework. 
ORDER: The appeal is dismissed. 
5