dismissed EB-2 NIW Case: Geology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF TPSE- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a geological technology testing company, seeks classification of the Beneficiary as 
an individual of exceptional ability in the sciences. 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 normally attached to this immigrant classification. See 
§ 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. 
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The Director, Texas Service Center, denied the petition. The Director found that the Beneficiary did 
not qualify for classification as an individual of exceptional ability, and therefore declined to make a 
determination as to whether a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In a letter provided on appeal, the Petitioner argues that the 
Beneficiary qualifies as an individual of exceptional ability. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate the 
beneficiary's qualification for the underlying visa classification, as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts, or business. Because this 
classification normally 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 states, in pertinent part: 
(2) Aliens who are members ofthe professions holding advanced degrees or aliens of 
exceptional ability. -,--
Matter of TPSE- LLC 
(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 of job offer-
(i) National interest waiver. ... the Attorney General1 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. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of 
which an individual must meet in order to qualify as an alien of exceptional.ability in the sciences, 
the arts, or business: 
(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 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. 
1 Pursuant to section 1517 of the Homeland Security Act of2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135,2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See' also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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(b)(6)
Matter ofTPSE- LLC 
Only those who demonstrate "a degree of expertise significantly above that ordinarily encountered " 
are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
Furthermore, with regard to eligibility for the national interest wavier, neither the statute nor the 
pertinent regulations define the term "national interest." Additionally , Congress did not provide a 
specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
report to the Senate that the committee had "focused on national interest by increasing the number 
and proportion of visas for immigrants who would benefit the United States economically and 
otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that 
the P\Oposed benefit will be national in scope. Id. Finally, the petitioner seeking the waiver must 
establish that he or she will serve the national interest to a substantially greater 
degree than would an 
available U.S. worker having the same minimum qualifications. Id. at 217-18. 
II. ANALYSIS 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker, listed the Beneficiary's job title as 
"Scientific Technologist" and indicated that he prepares "thin sections of rocks by gluing a domino 
sized epoxy impregnated rock sample to a slide, cutting and grinding it." The Form I-140 was 
accompanied by letters of support discussing the Beneficiary's expertise in preparing such thin section 
rock specimens for clients in the petroleum industry and academia. In addition, the Petitioner provided 
the Beneficiary's resume, training course certificates, and Forms W-2, Wage 
and Tax Statements. The 
Director issued a request for evidence (RFE) asking the Petitioner to submit documentation that meets 
at least three of the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii), and that satisfies the second and 
third prongs of the NYSDOT national interest analysis. The Petitioner's response included the 
Beneficiary's membership renewal confirmation from the additional 
letters of support, the Beneficiary's federal income tax returns, salary data, information concerning U.S. 
energy policy, and copies of previously submitted documents. 
The Director denied the petition, finding that the Beneficiary did not qualify for classification as an 
individual of exceptional ability.· As the Petitioner had not established the Beneficiary 's eligibility 
for the underlying classification , the Director did not make a determination as to whether a waiver of 
a job offer would be in the national interest. On appeal, the Petitioner claims that the Beneficiary 
meets the following three exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii), as detailed below: 
Evidence in the form of letter(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. · 8 C.F.R. § 204.5(k)(3)(ii)(B) 
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(b)(6)
Matter ofTPSE- LLC 
The Petitioner submits the Beneficiary's pay statements and "unionized work place cards" from 
reflecting his employment there from May 2006 through June 2007. The Petitioner also offers a letter 
from a former petrophysics laboratory supervisor at indicating that the 
Beneficiary worked for the company as a thin section preparation technician "from late 2006 to August 
2007." In addition, the Petitioner provides a letter and Forms W-2 for the Beneficiary reflecting that it 
has employed him as a thin section preparation technician since August 2007. According to the 
submitted documents, the Beneficiary had only eight years and five months of full-time experience in 
his occupation at the time of filing the Form I-140 petition on October 15, 2014. Eligibility must be 
established at the time of filing. 8 C.P.R.§ 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 
(Reg'l Comm'r 1971 ). With regard to the Beneficiary's full-time work for the Petitioner after 
October 15, 2014, we cannot consider any occupational experience gained after the date the petition 
was filed as evidence to establish his eligibility at the time of filing. While the Petitioner has 
documented the Beneficiary's work experience as a thin section preparation technician since May 2006, 
the Beneficiary had 
not accrued the requisite ten years of full-time experience in the occupation at the 
time of filing the Form 1-140. Therefore, the Petitioner has not established that the Beneficiary meets 
this regulatory criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.P.R. § 204.5(k)(3)(ii)(D) 
The Petitioner provides Forms W-2 and income tax returns for the Beneficiary showing earnings of 
$143,358.42 in 2014, $123,937.42 in 2013, $77,063.18 in 2012, $90,585.55 in 2011, $82,277.25 in 
2010, $60,961.41 in 2009, $54,896.08 in 2008, and $15,138.62 in 2007. In addition, the Petitioner 
submits an April 2014 article from the reflecting that in 
2013 the average salary for a petroleum geologist was $145,400 with "6-9" years of experience and 
$147,600 with "10-14" years of experience. The article also includes "Historical Averages Salary" data 
reflecting: 
Years 
Experience 
6-9 
10-14 
2010 
$127,800 
$139,100 
2011 
$137,300 
$153,400 
2012 2013 
$127,800 $145,400 
$147,000 $147,500 
While the Petitioner offers salary datil for a petroleum geologist, there is no evidence demonstrating that 
the Beneficiary works in that occupation or that a thin section preparation technician is a petroleum 
geologist. Regardless, the submitted information indicates that the Beneficiary's salary did not exceed 
the average amount for a petroleum geologist 
in any specific year. Accordingly, even if we concluded 
that the Beneficiary is a petroleum geologist, the Petitioner has not established that his salary 
demonstrates 
exceptional ability. 
The Petitioner also offers results from a search utilizing 
for job postings, that identify two laboratory technician jobs in 
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an online search engine 
Texas. The two jobs listed 
(b)(6)
Matter ofTPSE- LLC 
on are for technicians with experience in biostratigraphy and micropaleontology. 
The webpage states that "technician salaries in TX" average "$45,245 per year" and are 
"2.4% lower than national average." The webpage further mentions that the aforementioned salary 
data is "based on 275 employees and 161 jobs," but there is no indication as to whether the 
information relates solely to job openings or if it also includes data from technician jobs that are not 
vacant. 
In addition, the Petitioner provides search results from stating that the 
"average salary for thin section technician jobs is $39,000." The webpage 
notes that its salary information "was calculated using the average salary for all jobs with the term 
'thin section technician."' The Petitioner has not shown that the and 
search engines' populations of job offerings represent appropriate bases for 
comparison as there is no indication that their average salary calculations included technician jobs 
with a substantial level of experience. Regardless, the Petitioner must submit evidence showing that 
the Beneficiary has commanded a salary that demonstrates exceptional ability, and not just a salary 
that is above average for his occupation. For the reasons outlined above, the Petitioner has not 
established that the Beneficiary meets 
this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner submitted a June 2015 purchase confirmation receipt from the 
reflecting the Beneficiary's membership renewal. In addition, the Petitioner's appellate 
submission includes a webpage from the listing the Beneficiary's account 
information and indicating that his associate membership was approved "11/112014." There is no 
evidence demonstrating that the Beneficiary was a member of the at the 
time offiling the Form I-140 petition on October 15,2014. Again, eligibility must be established at the 
time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. Accordingly, we 
cannot consider any professional memberships that commenced after the petition was filed as 
evidence to establish the Beneficiary's eligibility at the time of filing. Therefore, the Petitioner has 
not established that the Beneficiary meets this regulatory criterion. 
Summary 
The record supports the Director's finding that the Beneficiary did not meet at least three of the six 
regulatory criteria .for exceptional ability. The Director added that, because the Petitioner had not 
established the Beneficiary's eligibility for the underlying immigrant classification, the issue of the 
national interest waiver is moot. The waiver is available only to foreign workers who otherwise qualify 
for classification under section 203(b)(2)(A) of the Act. 
On appeal, the Petitioner questions the applicability of NYSDOT to the present matter. The Petitioner 
states that it is seeking "the immigration classification" based on the Beneficiary's "performance in 
the actual commission of the profession at a high since 2007 level," and that "it is not simply an 
issue of a shortage of workers." The Petitioner contends that the Beneficiary "has a talent and skill 
that few possess" and his "ability directly supports efforts by US Exploration and Production 
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Matter ofTPSE- LLC 
companies to find and, produce a natural resource that has been identified as important to the 
Nation's security." , 
NYSDOT provides the analytical framework for USC IS to determine if a waiver of the job offer is in 
the national interest. Wi~h regard to following the guidelines set forth in NYSDOT, the regulation at 
8 C.P.R. § 103.3(c) provides that precedent decisions are binding on all USCIS employees in the 
administration of the Act, and as the Petitioner seeks a national interest waiver on behalf of the 
Beneficiary, NYSDOT is applicable. As previously outlined, the Beneficiary must first qualify for 
the underlying classification before we determine if a waiver of a job offer is in the national interest. 
In other words, the Petitioner must show that the Beneficiary is either an advanced degree 
professional or possesses exceptional ability before we reach the question of the national interest 
waiver. The Petitioner does not claim that the Beneficiary is an advanced degree professional, and 
as previously discussed, has not shown that the Beneficiary meets at least three of the regulatory 
criteria that would establish him as an alien of exceptional ability. 
' On appeal, the Petitioner explains how the Beneficiary's work benefits the United States, and thereby 
serves the national interest. The Petitioner resubmits letters of support discussing the Beneficiary's 
technical skills and importance to his employer and its clients, but they do not provide specific 
examples of how the Beneficiary's work has influenced the field as a whole. See NYSDOT, 22 I&N 
Dec. at 219, n.6. Regardless, as the Director made no initial determination regarding the national 
interest waiver, and because we agree with the Director's finding concerning the Beneficiary's 
ineligibility for the underlying classification as an individual of exceptional ability, a de novo 
determination regarding the national interest waiver claim would not change the outcome of the appeal 
and, therefore, would serve no constructive purpose. The Beneficiary cannot qualify for the waiver 
without first qualifying for the underlying classification. 
III. CONCLUSION 
The Beneficiary has not satisfied at least three of the regulatory criteria specified at 8 C.P.R. 
§ 204.5(k)(3)(ii). Therefore, the Petitioner has not established that the Beneficiary qualifies for 
classification as an individual of exceptional ability under section 203(b )(2)(A) of the Act. The burden 
is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofTPSE- LLC, ID# 18001 (AAO Sept. 12, 2016) 
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