dismissed EB-2 NIW Case: Film Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 20, 2024 In Re: 30231927 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a content creator and producer in the film industry, seeks employment-based second 
preference (EB-2) immigrant classification as an individual of exceptional ability, as well as a national 
interest waiver of the job offer requirement attached to this classification. See 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 Petitioner had not 
established eligibility as an individual of exceptional ability and that a waiver of the required job offer, 
and thus of the labor certification, 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 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. 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 1 Section 203(b )(2)(B)(i) of the Act. 
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). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
1 As the Petitioner has not claimed to qualify as a member of the professions holding an advanced degree, we need not 
address the separate requirements for that classification. 
2 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). 
3 U.S. Citizenship and Immigration Services (USCIS) has previously confirmed the applicability of this two-part 
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-part-f-chapter-5 . 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 4 
We acknowledge and agree with the Petitioner that the decision incorrectly referenced individuals of 
extraordinary ability. However, this error was, at most, harmless. See generally Matter ofO-R-E-, 28 
I&N Dec. 330, 336 n.5 (BIA 2021) (citing cases regarding harmless or scrivener's errors). Here, the 
Director properly considered the evidence under the exceptional ability criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F) and not the extraordinary ability criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), 
concluding that she only satisfied one criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). As the Petitioner does 
not address the Director's conclusions that she did not meet the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B)-(F), we consider them waived. 5 
Because the Petitioner has only met one of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), she has 
not established eligibility for the underlying EB-2 classification as an individual of exceptional ability. 
Therefore, 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 of L-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). 
ORDER: The appeal is dismissed. 
4 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. 
5 An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. at 336. 
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