dismissed EB-2 NIW Case: Graphic Art

DATE: 
INRE: 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
OFFICE: NEBRASKA SERVICE CENTER 
SEP 2 7 2011 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigratioll Senicc, 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.s.c. § 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions III liSt he 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion. 
with a fee of $630. Please be aware that 8 C.F.R. § 1 03.5(a)( I )(i) requires that any motion mllst be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts and as a member of the 
professions holding an advanced degree. The petitioner seeks employment as a graphic artist and art 
director for a company owned by the petitioner and her spouse. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as an alien of exceptional ability in the arts, but that the petitioner failed to show that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits arguments from counsel and a copy of a magazine article. Counsel 
indicates that a supplement will be forthcoming within 30 days. To date, more than a year after the 
filing of the appeal, the record contains no further substantive submission from the petitioner. We 
therefore consider the record to be complete as it now stands. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(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) ... the Attorney General 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 director found that the petitioner does not qualify for classification as a member of the professions 
holding an advanced degree, but also found that "the petitioner has established that she is an alien of 
exceptional ability in the arts." The AAO will discuss this finding later in the decision. The director 
denied the petition based solely on the finding that the petitioner has not established that a waiver of the 
job offer requirement, and thus a labor certification, is in the national interest. 
Page 3 
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, WIst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (lMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has 
set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speCUlative. 
The AAO also notes that 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 a given area of endeavor. By 
statute, aliens of exceptional ability are generally subject to the job offerllabor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member of the professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on October 15, 2009. In an accompanying introductory 
statement, counsel stated: 
Page 4 
[The petitioner's] unique skills have contributed to the advancement of the education of 
young aspiring soccer players. The advancements that [the petitioner] has contributed 
[The petitioner] is the illustrator for the book series 
These books are nationally, and sold by large companies such as 
company [sic] . ... The series would not be as 
successful without the creative illustrations provided in the book. 
The record (which includes copies of books in shows that the petitioner is 
not "the illustrator" of those books, but rather a co-illustrator with her spouse. Counsel did not explain 
why the petitioner's work on children's athletic instructional books is so significant as to qualify her for 
the national interest waiver. It may well be that the design of the books' illustrations is integral to the 
overall impact of the series, but the petitioner has not established the impact of that series. The books' 
authors self-published the books through 
Their avail - particularly online sellers such 
as_ does not imply that the books enjoy significant sales. The books are clearly intended to 
teach soccer skills to young children, but this does not mean that the books have had, or will have, a 
significant influence in this area. 
Counsel stated that the petitioner's other "clients would be adversely affected if the Service were to 
require a labor certification under the circumstances." This vague reference to unnamed clients does 
not show or imply that it is in the national interest to ensure that these clients continue to employ the 
petitioner's services, rather than engage the services of properly qualified United States graphic artists. 
The petitioner submitted copies of several materials dated 2007 and 2008, originally submitted in 
support of an earlier petition that the petitioner had filed on her own behalf. In a September 18, 2008 
letter, stated that the petitioner "is a hard-working person who 
invariably understands It to succeed." _clearly holds a high opinion of the 
petitioner's skill and character, but he did not state that the petitioner's continued work on the book 
series is a matter of national interest. 
The petitioner submitted printouts of several World Wide Web pages discussing the 
books. Counsel called these printouts "reviews," but several of them are not "reviews" at all. An article 
from the Arbor ) News does not mention the petitioner. The article, 
, briefly profiled the books' authors (who reside in the _area) and 
discussed motivation to write instructional soccer books for children. 
Other pages, from online retailers, show product descriptions that appear to be the authors' own 
promotional blurbs for the books. Some retailers' pages also include "Customer Reviews." These 
reviews show that customers have been happy with the books, but this does not establish the extent of 
the books' influence. Many of the reviews do not mention the illustrations at all. 
The remaining submission is a review by Receiving 
and Trapping. A legend at the top of the page reads "Clarion - Review For Fee Service," indicating 
Page 5 
that the book's creators commissioned and paid for the review. There is no indication in the record that 
the book has drawn the attention of professional book reviewers not specifically hired for the purpose. 
The _review begins with a mention of "[a]ppealing illustrations of a family of soccer-playing 
soccer balls," but afterwards does not discuss the illustrations apart from incidental references to 
"diagrams" and "a visible banner in the soccer field." The review does not identify the petitioner. 
The petitioner submitted copies of several recommendation letters from witnesses who have worked 
with the petitioner in various capacities. The letters contain general praise for the petitioner's skill and 
dedication, but they do not distinguish her from other graphic de to show how she qualifies for 
the special benefit of a national interest waiver. For example, 
_ Ann Arbor, stated: 
I have had the pleasure of working with [the petitioner and her spouse] on the design of 
marketing materials for my clients. I have found them very creative, as well as 
personable and easy to work with. 
One of their proj is a series of illustrated books for children. 
These books, in my opinion, exemplify the high quality work they produce. Their 
ability to create digital graphics is outstanding. Not only are the pages of these books 
full of colorful and detailed illustrations, but they also represent an imaginative and 
entertaining concept of how to teach children the rules of soccer. 
Lima, Peru, (which employed 
the petitioner from 2002 to 2005), stated that the petitioner and realized" a project that "won 
the First Place in Design" at a 2003 competition, and that the petitioner's "comradeship and team spirit" 
"make her a valuable asset for any enterprise." 
at the University of Michigan, Ann Arbor, stated that 
the petitioner "did an excellent job designing and publishing my website .... The end result was beyond 
our expectations." These letters show that the petitioner has satisfied a number of clients in Ann Arbor 
since leaving Lima, but while customer satisfaction helps to establish one's competence, it does not 
imply eligibility for the national interest waiver. 
On January 26, 2010, the director issued a request for evidence (RFE). This notice, however, did not 
discuss the national interest waiver. The RFE only concerned the petitioner's eligibility for the 
underlying immigrant classification. 
The director denied the petition on May 27, 2010. The director acknowledged the petitioner's 
submission of "many reference letters" and evidence of "an award of limited prestige," but found that 
the petitioner failed to "demonstrate why labor certification would be inappropriate in this case" or to 
demonstrate that the petitioner "stands out in her field." 
On appeal, counsel contends that USCIS relies on 
Page 6 
a balancing test that is overly burdensome and restrictive, and does not adhere to the 
'flexibility' required by Congress. The requirement that an alien show that "the need is 
significantly above that necessary to prove 'prospective National benefit'" unnecessarily 
raises the level for the alien. This test can be equated to having an alien show that he or 
she is an alien of "extraordinary ability." 
An alien of extraordinary ability must show sustained national or international acclaim, and rank among 
the small percentage at the very top of the field. See section 203(b)(I)(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). The director did not impose requirements at that level. 
There is a logical basis for the requirement that the petitioner must exceed the "prospective national 
benefit" inherent in an alien of exceptional ability. In section 203(b)(2) of the Act, Congress 
acknowledged that an alien of exceptional ability in the arts, sciences, or business would prospectively 
benefit the United States, but also typically held such an alien to the job offer requirement. Congress 
could have treated the job offer as an option, or omitted it altogether, but did not do so. Clearly, 
exceptional ability alone is not grounds for a waiver. The waiver is an additional level of immigration 
benefit, and anyone claiming that additional benefit must meet an additional burden to receive it. 
USCIS has interpreted this additional burden to mean that an alien receiving the waiver must stand to 
benefit the United States even more than a typical alien of exceptional ability. 
Counsel proposes an alternative standard, stating: "It is more appropriate to evaluate whether the job 
project that has been proposed by the alien is in the National interest. The evidence is clear to establish 
that the series is a project that is in the national interest." To base the waiver 
entirely on "proposed" proJects, rather than on an alien's past history, would open the program to abuse. 
It is much easier to speculate about future benefit than to demonstrate past benefit. Counsel's proposed 
standard offers no way to distinguish between realistic plans and implausible exaggerations, put forth 
solely to support a waiver application. 
Furthermore, the record contains no persuasive evidence that the project has or will 
result in s· benefit to the United States. The petitioner submits a copy of ••••• 
an article that appeared in the June 14,2010 issue of Time magazine. Counsel states 
that the article shows soccer's nationwide appeal, and therefore establishes at least a potential national 
marketplace for the books. Speculation that the books might one day become more 
popular and influential than they now are cannot take the place of objective, documentary evidence. 
Also, an applicant or petitioner must establish that he or she is eligible for the requested benefit at the 
time of filing the application or petition. 8 C.F.R. § 103.2(b)(1). Therefore, an alien cannot 
subsequently become eligible under a new set of facts. See Matter r<f Katigbak, 141&N Dec. 45, 49 
(Reg'l Comm'r 1971). Conjectural assertions about the possible future impact of the book series 
cannot show the petitioner's eligibility as of the filing date. 
-Page 7 
Counsel contends that the petitioner's "unique skills have contributed to the advancement and the 
education of young aspiring soccer players. The advancements that [the petitionerl has contributed 
are significant." Counsel, however, fails to establish that the petitioner's work has been especially 
influential when compared to the work of countless other illustrators of children's educational or 
instructional books. 
that the "books are published nationally, and sold by large companies such as 
Company." The director did not dispute that the books are 
available for sale. The books' availability, however, does not force the conclusion that the books 
have been, or are likely to be, particularly influential, or even that customers have bought very many 
copies of the books. The assertion that soccer is a popular children's sport, and therefore the 
petitioner serves the national interest by helping to teach soccer to children, does not support the 
conclusion that the petitioner has had, or will have, more influence in that area than others who do 
similar work. 
Counsel states that the petitioner cannot meet the job offer requirement, because the creators of the 
series are clients rather than full-time employers, and because a job offer from 
another company would limit her ability to perform freelance work. These arguments address why a 
waiver would be in the petitioner's interest, not the national interest. Nothing in the legislative 
history suggests that the national interest waiver was intended simply as a means for employers (or self­
petitioning aliens) to avoid the inconvenience of the labor certification process. Matter at' New York 
State Dept. of Transportation, 22 I&N Dec. at 223. USCIS acknowledges that self-employed aliens 
have no U.S. employer to apply for a labor certification. While this fact will be given due consideration 
in appropriate cases, the inapplicability or unavailability of a labor certification cannot be viewed as 
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the self­
employed alien will serve the national interest to a substantially greater degree than do others in the 
same field. Id. at 218 n.5. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every professional 
with an advanced degree or alien of exceptional ability in the arts should be exempt from the 
requirement of a job offer based on national interest. Likewise, it does not appear to have been the 
intent of Congress to grant national interest waivers on the basis of the overall importance of a given 
occupation, rather than on the merits of the individual alien. On the basis of the evidence submitted. the 
petitioner has not established that a waiver of the requirement of an approved labor certification will be 
in the national interest of the United States. 
The AAO may identify additional grounds for denial beyond what the Service Center identified in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
-Page 8 
In addition to affirming the director's finding that the petitioner has not established eligibility for the 
national interest waiver, the AAO finds that the petitioner has not satisfactorily shown that she 
qualifies for the underlying immigrant classification under section 203(b)(2) of the Act. 
EXCEPTIONAL ABILITY 
As noted above, the director found that the petItioner qualifies for classification as an alien of 
exceptional ability in the arts. The record, however, does not support this finding. The USCIS 
regulation at 8 C.F.R. § 204.5(k)(3)(ii) reads: 
To show that the alien is an alien of exceptional ability in the sciences, arts, or 
business, the petition must be accompanied by at least three of the following: 
(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 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; 
(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 to the beneficiary's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility. 8 c.F.R. § 204.5(k)(3)(iii). 
The petitioner made no attempt to satisfy three of the above regulatory standards. Instead, in an 
introductory statement, counsel stated: 
An alien can demonstrate exceptional ability where s/he holds an advance [sic I degree 
or its 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. Traditionally, this office has found that a Master's degree or its 
Page 9 
equivalent is necessary in order to establish "exceptional ability." Memo, Cronin, 
Action [sic] Associate Commissioner Office of Program and Yates, Deputy Exec. 
Assoc. Commissioner, Field Operations Manual. Under HR Rep. No 955 a person 
can show the equivalent of a Master's degree by showing a bachelor's degree plus 5 
years work experience in the field of expertise. Petitioner meets this criteria, she is 
submitting documentation with her application that she has a bachelor's degree and 
that she has more than 5 years experience working as a graphic designer. 
The above statement shows a fundamental misunderstanding of the relationship between the parallel 
classifications of "alien of exceptional ability" and "member of the professions holding an advanced 
degree." Counsel purports to quote a "Memo" but provides no date or title for it. In any event, there 
is no statute, regulation or case law to state that "a Master's degree or its equivalent" establishes 
exceptional ability in the sciences, arts or business. Rather, section 203(b)(2)(C) of the Act clearly 
states: "the possession of a degree ... shall not by itself be considered sufficient evidence of ... 
exceptional ability." Under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A), an academic degree can 
form part of a claim of exceptional ability, but by law that degree cannot suffice by itself. 
Section 203(b )(2) of the Act established two separate classifications: (1) alien of exceptional ability 
in the sciences, arts or business; and (2) member of the professions holding an advanced degree. 
The statutory term is not simply "alien holding an advanced degree." Rather, it is "member of the 
professions holding an advanced degree." Clearly, it is not enough for an alien to have an advanced 
degree. The alien's occupation must also meet the regulatory definition of a profession. The AAO 
will revisit this issue later in this decision. 
Counsel stated that the petitioner "holds a bachelor's degree in graphic design. Additionally, she has 
5 years of expertise in her field .... [S]he also receives royalties from the book 
_ She has received the _ award for outstanding achievement." These claims appear to 
touch on four of the six regulatory standards listed at 8 C.F.R. § 204.5(k)(3)(ii). 
An official academic record showing that the alien has a degree, diploma, cert~flcate. 
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) 
. oner submitted a copy of a certificate from the of 
Lima, Peru, indicating that the petitioner studied there from autumn 
1994 to summer 1997, and "obtained the Title ... of Technical Professional in GRAPHIC DESIGN" 
(emphasis in original). The petitioner therefore holds an academic degree in graphic design. (As 
discussion of the sufficiency of this degree belongs in a separate final merits determination, this 
issue will be addressed later in this decision). 
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) 
Page 10 
The petitioner, initially, did not claim at least ten years of full-time experience as a graphic artist. 
Counsel repeatedly stressed the claim of five years of experience, but the plain wording of the 
regulation requires "at least ten years." Even if the petitioner began creating graphic art more than 
ten years before the filing date, this would not prove "at least ten years of full-time experience." 
The record contains portions of ETA Form 9089. Section K of that form, "Alien Work Experience," 
begins with the instruction to "[l]ist all jobs the alien has held during the past 3 years. Also list any 
other experience that qualifies the alien for the job opportunity." The petitioner and counsel (who 
prepared the form) left this section blank. 
Subsequently, in response to the director's J 26, 2010 RFE, the petitioner submitted several 
letters from current and former employers. stated that the petitioner 
"worked under my supervision for a period of five (5) years in my two companies, 
1999 - 2002 and 2005) as Manager of Art." 
of New York, New York, writing on the letterhead of 
Redmond, Washington, stated that she and the petitioner "had the chance to work together at Studio 
A Design Consultancy for a couple of years." did not claim to have been the 
petitioner's employer during that time. 
Lima, identified as an "officer" of_ stated that the petitioner "provided 
services to our company as a Graphic Designer for a period of 5 months in the year 2002." This 
letter contradicts assertion that the petitioner worked at _ "for a couple of 
years." 
series, stated that the petitioner "has worked as the 
illustrator of all six of my books." 
None of the witnesses stated that the petitioner worked full-time as a graphic artist. The letters, on 
their face, do not establish ten years of full-time experience in the occupation. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
Counsel stated that the petitioner "was conferred the Title of Professional Technician in Graphic 
Design from the Ministry of Education in Lima, Peru. [The petitioner I worked 
for one year in an internship under the supervision of the Ministry of Education in order to receive 
this separate License in Peru." 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter (~t' 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Therefore, the petitioner must support counsel's 
Page II 
claims with documentary evidence. The cover page for refers to "A license to 
practice the profession after taking the boards exam required by her country which gives her a 
Certificate from the Peruvian Nation." The two exhibits consist of translated certificates. One 
certificate is from the dated April 3, 1998, indicating that the petitioner 
"completed satisfactorily the Career of Professional Technician / Graphic Design." The other 
certificate, dated September 16, 1998, stated: "The Minister of Education has conferred the title of 
Professional Technician in Graphic Design to [the petitioner]." The materials do not mention any one­
year internship at the Ministry of Education, or any "boards exam," and the petitioner submitted no 
evidence from any examining authority. Nothing in the record shows that this document is comparable 
to occupational licensure or certification. 
Evidence of recognition 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 initial submission contains a translated certificate showing that the 
Finalist" in the 2003 contest, held biannually by 
prize appears to constitute qualifying recognition, thereby apparently satisfying this criterion. 
"First 
This 
The petitioner's evidence, on its face, addresses only two of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Where the petitioner fails to submit the requisite 
evidence, the proper conclusion is that the petitioner failed to satisfy the regulatory requirement of 
three types of evidence. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (a decision 
pertaining to section 203(b)( 1 )(A) of the Act but containing legal reasoning pertinent to the 
classification in the current matter before the AAO). 
If the petitioner has submitted the requisite evidence, USCIS makes a final merits determination as 
to whether the evidence demonstrates "a degree of expertise significantly above that ordinarily 
encountered." 8 C.F.R. § 204.5(k)(2); see also Id. at 1115, 1119. Only aliens whose achievements 
have garnered "a degree of expertise significantly above that ordinarily encountered" are eligible for 
classification as aliens of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
For reasons explained above, the AAO holds that the petitioner did not submit the requIsite 
evidence. Nevertheless, in the interest of s, the AAO offers a final merits determination 
regarding the petitioner's degree from the The degree certainly relates to 
the petitioner's claimed area of exceptional ability. Nevertheless, the petitioner has not shown that 
this degree demonstrates "a degree of expertise significantly above that ordinarily encountered." As 
the AAO will discuss in more detail below, the petitioner earned a three-year degree, and claimed 
that it is equivalent to a United States baccalaureate degree. The petitioner, however, did not show 
that a baccalaureate degree indicates "a degree of expertise significantly above that ordinarily 
encountered." Rather, as the AAO will show, most (but not all) United States graphic designers hold 
bachelor's degrees, typically earned through a four-year course of study. Therefore, a four-year 
bachelor's degree is "ordinarily encountered" in the occupation. The petitioner has not shown that 
Page 12 
her three years of study represents academic trammg significantly above the four-year degrees 
ordinarily encountered among graphic designers in the United States. 
By way of a final merits determination, the petitioner's evidence of claimed exceptional ability 
amounts to: (1) a three-year degree in a field in which most workers have a four-year degree; (2) an 
unspecified amount of experience; (3) a claimed license, for which counsel has described in terms 
unsupported by the record; and (4) an award. The AAO finds that this evidence, in the aggregate, 
does not meet at least three of the six standards listed in the regulation at 8 C.F.R. § 204.5(k)(3)(ii). 
The AAO therefore withdraws the director's finding that the petitioner has shown that she qualifies 
for classification as an alien of exceptional ability in the arts. 
MEMBER OF THE PROFESSIONS HOLDING AN ADVANCED DEGREE 
Because the petitioner has not shown that she qualifies for classification as an alien of exceptional 
ability in the arts, the AAO will consider the petitioner's alternative claim to qualify for 
classification as a member of the professions holding an advanced degree. The USCIS regulation at 
8 C.F.R. § 204.5(k)(3)(i) states that, to show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
The petitioner does not claim an academic degree higher than a bachelor's degree. Instead, the 
petitioner claims that her post-baccalaureate experience is equivalent to a master's degree. The 
AAO will discuss the petitioner's degree, but first, it is important to observe that the classification 
does not merely call for an advanced degree (or its equivalent). The statutory and regulatory 
language clearly requires the alien to be a member of the professions. 
The regulatory definition of a "profession" is "one of the occupations listed in section 101(a)(32) of 
the Act, as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2). 
Section 101(a)(32) of the Act reads: "The term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The list does not include graphic artists or designers. 
Furthermore, the composition of the list is instructive. Congress did not choose the listed 
occupations arbitrarily. Each of the listed occupations involves some type of licensure or other 
system by which a prospective worker must demonstrate his or her credentials in order to work in 
Page 13 
the field. An untrained or unqualified individual cannot simply set up shop as an architect or 
surgeon. The petitioner has not shown that the same safeguards exist for graphic artists in the United 
States. 
Counsel has argued that the petitioner's academic degree, from Peru, is also essentially a license. 
Counsel cited no Peruvian statute or regulations that prohibit or restrict the employment of an 
unlicensed graphic artist in Peru. In immigration proceedings, the law of a foreign country is a 
question of fact which must be proven if the petitioner relies on it to establish eligibility for an 
immigration benefit. Matter of Annang, 14 I&N Dec. 502 (BIA 1973). 
Furthermore, the petitioner seeks an immigration benefit from the United States government, in 
order to live and work in the United States. Therefore, it stands to reason that the petitioner must 
show that her occupation qualifies as a profession in the United States. 
On ETA Form 9089, under "Occupation Title," the petitioner wrote Asked "Are 
the job opportunity's requirements normal for the occupation," answered "Yes." 
According to O*NET (the Department of Labor's Occupational Information Network), 81 % of graphic 
designers hold bachelor's degrees. l Clearly, most graphic designers hold such degrees, but not all of 
them. Therefore, the AAO cannot conclude that the occupation of graphic designer is a professional 
occupation requiring at least a bachelor's degree. The petitioner cannot change this simply by declaring 
that her work requires a bachelor's degree. 
The AAO notes that, in its July 1, 2009 dismissal notice relating to the petitioner's earlier petition. 
the AAO found that the petitioner had not shown graphic arts to meet the regulatory definition of a 
profession. Although the same attorney participated in both petitions, the new petition does not 
include any acknowledgment of this issue. 
Furthermore, the petitioner's own degree is questionable. 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. A United States baccalaureate 
degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree. If 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
'tioner submitted a copy of a certificate from the 
Lima, Peru, indicating that the petitioner studied there from 
autumn 1994 to summer 1997. USCIS will not presume a three-year course of study to be equivalent to 
a United States baccalaureate degree, usually requiring four years of study. Matter of Shah, 17 I&N 
Dec. 244,245 (Reg'l Comm'r 1977). 
I Source: http://online.onetcenteLorg/linkJdetails127-1 024.00#Education (printout added to record September 21. 201 1 ). 
Page 14 
submitted two credential evaluations. The first is 
stated that the petitioner's "Education is Equivalent to US 
Art Degree," but did not explain how she reached this conclusion except to state 
requires graduation 
from high school." 
The second, more detailed evaluation, is from ••• ~ ••••••••••••••••• 
••••••• and the European-American University.3 He stated that his evaluation "is based on 
informed opinion as an expert in the field of international credentials"; he cited no particular sources 
with specific regard to the institution where the petitioner studied, or to education in Peru. Most of 
the lengthy evaluation discusses the general proposition that a three-year degree can be equivalent to 
a four-year United States bachelor's degree. 
In his evaluation concluding that the beneficiary's three-year degree following 12 years of primary 
and secondary education is equivalent to 120 credits and a four-year degree in the United States, 
relied on Snapnames.com, Inc. v. Chertoff, 2006 WL 3491005 *5 (D. Or. November, 30 
2006). The judge in that case, however, found that USCIS is entitled to deference in interpreting its 
own regulatory definition of advanced degree. Id. at 11. 
Even if we were to accept all of general claims (which we do not), it would not 
compel a finding that every three-year is equivalent to a four-year United States bachelor's 
degree. (Several of the quoted sources in the evaluation itself indicate that such degrees arc 
considered "on a case-by-case basis," which by definition rules out automatic acceptance of such 
degrees.) In the small section of the evaluation devoted specifically to the petitioner's education, the 
evaluator stated that the petitioner "has completed a three year full-time program ... that requires 
high school graduation ... for entry." This establishes that the petitioner holds a postsecondary 
degree, but not every postsecondary degree is at least equivalent to a bachelor's degree (an 
associate's degree, for instance, is below a bachelor's degree). 
The evaluator also asserted that the petitioner's degree "is not merely an academic award, it is a 
license to practice her profession . . . It is thus in every respect functionally equivalent to a 
bachelor's degree in graphic design." This argument rests on the presumption that graphic design is 
a profession requiring at least a bachelor's degree. The petitioner has submitted nothing to establish 
2 In her evaluation, from the Institute of Transpersonal 
Psychology and a doctorate from ' but did not indicate the field 
in which she obtained her doctorate. According to its website, http://www.sorbonJr/indexl.html ••••••• 
awards de~ past experience rather than academic study. (Printout added to record 
September 21, 2011.) While~ indicated that she is a member of the American Evaluation Association 
(AEA), the Association of International Educators (NAFSA) and the European Association for International Education 
(EAIE), the record does not show that any of these organizations require proof of expertise as a condition of 
membership. The ayment of dues does not confer any expertise . 
.1 Li claimed a doctoral degree ("in Humanities") from the 
which awards degrees on the basis of experience rather than academic study. 
Page 15 
that a bachelor's degree is, in fact, a minimum condition for employment as a graphic designer in the 
United States, let alone for de facto self-employment. On ETA Form 9089, the petitioner identified 
her employer as "Graphic and Creativity" followed by her own name. The employer's address is the 
same as her own, and the petitioner indicated that she has an ownership interest or a familial 
relationship with the owner. 
We reiterate here that O*NET, a source affiliated with the Bureau of Labor Statistics and 
considerably more official and authoritative than indicates that a substantial percentage 
of United States graphic designers - nearly a fifth - do not ld bachelor's degrees. The petitioner 
has not shown that graphic design is a "profession" requiring at least a bachelor's degree. This is 
doubly so in a situation where the petitioner is essentially self-employed, and there is no known 
mechanism by which the lack of a bachelor's degree would prevent a self-employed graphic 
designer from working in the United States. 
For the reasons discussed above, the AAO finds that the petitioner has not established that her 
occupation qualifies as a profession, or that she holds an academic degree equivalent to a United 
States baccalaureate degree. Therefore, the petitioner has not shown that she qualifies for 
classification as a member of the professions holding an advanced degree. 
Without sufficient evidence to show that she is either a member of the professions holding an 
advanced degree or an alien of exceptional ability in the arts, the petitioner has not established 
eligibility for classification under section 203(b )(2) of the Act. Eligibility for that classification is a 
necessary precondition for consideration for the national interest waiver. The petitioner has not met 
that precondition and, thus, has not shown that she qualifies for consideration for the waiver. 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The 
petitioner has not met that burden. 
ORDER: The appeal is dismissed.