dismissed EB-2 NIW Case: Geology

U.S. Citizenship 
and Immigration 
Services 
In Re: 26481781 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a geologist, 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. § 1 l 53(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidentiary requirements for EB-2 classification as an 
individual of exceptional ability . The Director further concluded that the Petitioner did not establish 
his eligibility for a national interest waiver. 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. 
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 as 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 
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). 1 Meeting 
at least three criteria, however , does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
1 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). 
2 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. 
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. While neither the 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 U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, 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 Petitioner completed the foreign equivalent of a U.S. bachelor's degree in geology in Belarus in 
June 2017 and entered the United States in July 201 7 to enroll in English language training as an F-1 
nonimmigrant student. 
When the Petitioner filed this petition in February 2021, he indicated that he would work as a geologist, 
but did not provide any further information or evidence related to his proposed endeavor. In response 
to a request for evidence (RFE) from the Director, the Petitioner submitted a business plan for 
I I and indicated that he intends to establish a website and mobile software application under 
this name. He stated that the completed software product will be offered as "a digital education tool 
that contributes to the improvement and quality of teaching and learning of rocks and geological 
contents within the natural science subjects in the formal school system." 
A. Exceptional Ability 
In reviewing the Petitioner's eligibility for the underlying EB-2 visa classification, the Director 
concluded that the evidence did not establish that he met the requisite three of the six evidentiary 
criteria under 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) to demonstrate his eligibility as an individual of 
exceptional ability. 4 Specifically, the Director determined that the Petitioner submitted evidence 
related to three of the six criteria and met only one criterion. On appeal, the Petitioner submits 
additional evidence related to one criterion and asserts that he is eligible for the classification sought. 
3 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). 
4 The Petitioner did not initially indicate whether he was seeking EB-2 classification as a member of the professions 
possessing an advanced degree and/or as an individual of exceptional ability. In response to the RFE, he clarified that he 
was seeking classification as an individual of exceptional ability. We note that the record does not establish that he 
possesses an advanced degree as defined at 8 C.F.R. § 204.5(k)(2), either through attainment ofa U.S. or foreign equivalent 
degree above that of a baccalaureate or based on a U.S. baccalaureate degree or foreign equivalent degree followed by at 
least five years of progressive experience in his specialty. The Petitioner does not claim any post-baccalaureate work 
expenence. 
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For the reasons provided below, we conclude that the Petitioner does not meet the initial evidentiary 
requirements for classification as an individual of exceptional ability. 
An official academic record showing that the individual 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. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The Petitioner presented a diploma and transcripts from the I !University, together with 
certified English translations, which establish that he earned a Diploma of Higher Education in 
geology and prospecting of mineral resources in June 2017 and is qualified as an "engineer-geologist." 
Upon review, we agree with the Director's conclusion that the Petitioner meets this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner's initial evidence in support of this criterion included a paid invoice from the 
Association of Environmental and Engineering Geologists (AEG) indicating that he submitted a fee 
for international membership in this association on January 11, 2021. The Petitioner also provided 
screenshots from the "About AEG" section of the association's website at www.aegweb.org. 
According to the website, "AEG is the acknowledged international leader in environmental and 
engineering geology and is greatly respected for its stewardship of the profession." The AEG website 
further states that the association "leads the profession in its advocacy for legislation, professional 
licensure, regulation and codes and standards as each affects the practice of applied geosciences." 
In the RFE, the Director acknowledged this initial evidence, and requested additional evidence that 
AEG is a "professional association." The RFE provided a definition of "professional association" but 
did not specify or suggest what type of evidence the Petitioner should provide. In response, the 
Petitioner submitted a screenshot of his member profile from the AEG website identifying him as an 
active international member as of August 2022. 
The Director concluded that the Petitioner provided evidence of his membership in AEG but "did not 
submit any evidence which shows that AEG is a professional association," noting that a professional 
association is "a non-profit organization seeking to further a particular profession, the interests of 
individuals engaged in that profession, and the public interest." 
On appeal, the Petitioners submits additional evidence related to his AEG membership, including 
evidence that he upgraded his membership to that of a "full member" in January 2023. He also 
provides additional information regarding AEG from its website, including a statement identifying it 
as "a nonprofit organization that specializes in engineering and ground-water ecology." The newly 
submitted evidence also includes the association's "Strategic Plan," which indicates that AEG's 
objectives include advocating for the profession through public and private outreach, providing 
professional development opportunities, and providing "applied geology professionals a place to 
thrive personally and professionally." 
Upon review of the previously submitted evidence and supplemental evidence provided on appeal, we 
conclude that the Petitioner has established his membership in AEG and provided sufficient evidence 
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to establish that AEG is a professional association. Accordingly, we conclude that he meets the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, government entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
In support of this criterion, the Petitioner initially submitted a letter attributed to a university professor 
who served as his instructor for a hydrogeology class at thel !University. The 
professor praised his work habits, communications skills, and desire to learn, and recommended him 
as an "exceptional student" likely to succeed in future studies. 
In response to the RFE, the Petitioner submitted two additional reference letters and copies of 
certificates for training he completed with ________________ in 2022, 
subsequent to the filing of the petition. A petitioner must establish eligibility for the requested benefit 
at the time of filing. See 8 C.F.R. § 103.2(b)(l). Further, the evidence does not establish that the 
Petitioner's completion of training in subjects such as web design and software application 
development amount to evidence of recognition for achievements and significant contributions to his 
industry or field. While completion of such training is relevant to the Petitioner's ability to carry out 
his plans for his proposed endeavor, it does not satisfy the plain language of this criterion. 
One of the reference letters submitted in response to the RFE was attributed to the same professor who 
provided the initial letter discussed above, although neither letter bears the individual's signature. In 
the second letter, the professor notes the Petitioner's interest in "development of geological software," 
indicates they worked on "multiple construction projects" atl !University, and states 
that the Petitioner developed a computer application to automate load-bearing calculations that saved 
time and effort on the projects. He describes the beneficiary as "exceptionally talented in designing, 
building and installation of these digital apps." 
The other letter submitted in response to the RFE is attributed to who states that he works 
as a software developer for a Polish company. The author indicates that he has reviewed the prototype 
of the Petitioner's I !application and states that the project "will be very beneficial for the 
upcoming era" and "will change the learning style of those individuals related to the geology field." 
However, none of the submitted reference letters describe achievements or significant contributions 
the Petitioner has already made to the field of geology or to the field of software development for 
geological applications. While the Petitioner's professor claims he developed applications that 
facilitated projects he carried out as a student, he does not state that the Petitioner's work had an impact 
that reached beyond those projects to the broader industry or field, as required by the plain language 
of this criterion. Although the other letter is complimentary of the Petitioner's proposed endeavor, it 
is unclear whether the Petitioner had even begun work on his I I project prior to the filing of 
the petition in February 2021, and the project appears to have remained at the prototype stage at the 
time of the RFE response. The Director concluded, and we agree, that the evidence does not 
demonstrate that the Petitioner has been recognized by peers, governmental entities or professional or 
business organizations, for achievements and significant contributions to the industry or field. The 
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Petitioner has not directly addressed this criterion on appeal and therefore has not overcome the 
Director's determination that he does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Based on the above analysis, the Petitioner has not established that he meets the initial evidentiary 
requirements by satisfying at least three of the six criteria under 8 C.F.R. § 204.5(k)(3)(ii). Therefore, 
we need not conduct a final merits determination of whether he has demonstrated a degree of expertise 
significantly above that ordinarily encountered in the field. Nevertheless, we advise that we have 
reviewed the record in the aggregate and conclude that it does not support a finding that the Petitioner 
has established the expertise required for the classification sought. 
B. National Interest Waiver 
The Petitioner has not established his qualification for the EB-2 classification as an individual of 
exceptional ability and therefore cannot qualify for the requested national interest waiver. While he 
asserts on appeal that he meets all three of the prongs under the Dhanasar analytical framework and 
is eligible for a national interest waiver as a matter of discretion, we will reserve these issues. See INS 
v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally 
required to make findings and decisions 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 alternative issues on appeal where an 
applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established that he meets the initial evidentiary requirements for the underlying 
EB-2 classification as an individual of exceptional ability. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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