dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 17, 2023 In Re: 28650308 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a human resources generalist, seeks classification as a member of the professions 
holding an advanced degree or 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 employment based second preference (EB-2) 
classification. See section 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. See Poursina v. USCIS, 936 
F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
The Director of the Nebraska Service Center denied the petition, concluding the recorddid not establish 
that the Petitioner qualified for classification as an individual of exceptional ability and a discretionary 
waiver of the job offer requirement, and thus a labor certification, was not required upon application 
of the analytical framework we first explicated in Matter ofDhanasar , 26 l&N Dec. 884 (AAO 2016). 
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 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 visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification 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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
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 the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(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 ofleaming 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. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself: establish eligibility for this classification. We 
will then conduct a final merits determination to decide whether the evidence in its totality shows that 
they are recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. 
Whilst neither the statute nor the pertinent regulations define the term "national interest," we set forth a 
framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, see supra. Dhanasar states that USCIS may as a matter of discretion grant a national interest 
waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-2 category 
if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national 
importance, (2) the noncitizen is well positioned to advance the proposed endeavor, and (3) that on 
balance it would be beneficial to the United States to waive the requirements of a job offer and thus of a 
labor certification. 
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II. ANALYSIS 
The Petitioner is a human resources generalist seeking to demonstrate eligibility in the EB-2 classification 
based on their exceptional ability. A Petitioner must demonstrate expertise significantly above that 
ordinarily encountered to show that they are of exceptional ability. In support, the record contains a 
certificate issued to them by .___________ __. to memorialize completion of a graduate 
specialization in strategic people management in the major of business administration, letters purporting 
to evidence their work experience, evidence of membership in the Society for Human Resource 
Management (SHRM) and Academy of Human Resource Development (AHRD), professional identity 
cards issued by a regional administrative council in the Petitioner's home country, letters of 
recommendation, letters from individuals interested in engaging the Petitioner's services, professional 
certificates, articles from publications, personal statement, business plan, and an expert opinion letter. 
We agree with the Director's ultimate decision that the Petitioner is not of exceptional ability and therefore 
categorically ineligible for the EB-2 classification. The Director concluded that the Petitioner met one of 
the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii). Specifically, the Director concluded that the 
Petitioner demonstrated they met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A) but did not meet 
any of the remaining criteria. 1 Upon de novo review, we agree with the director and conclude that the 
Petitioner has demonstrated that they met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A) but did 
not meet any two of the remaining criteria contained at 8 C.F.R. § 204.5(k)(3)(ii) for the reasons set forth 
below. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
noncitizen has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner initially submitted a letter from~-----------~ attesting that they 
were employed from March 21, 2011 to May 10, 2018, a period ofless than 10 years, in the foll-time 
position of human resources analyst, performing the human resources generalist duties they intend to 
perform in their proposed endeavor. 
In response to the Director's notice of intent to deny (NOID), the Petitioner submitted two additional 
letters from previous employers to demonstrate 10 years of foll-time experience in a human resources 
generalist or substantially similar position. We held in Chawathe that the standard of proof in 
immigration proceedings is the preponderance of the evidence, the burden of proof is always on the 
petitioner. A petitioner's burden of proof comprises both the initial burden of production, as well as 
the ultimate burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see 
the definition of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden 
of proof includes both the burden of production and the burden of persuasion). A petitioner must 
satisfy the burden of production. As the term suggests, this burden requires a filing party to produce 
evidence in the form of documents, testimony, etc. that adheres the governing statutory, regulatory, 
and policy provisions sufficient to have the issue decided on the merits. 
1 The Petitioner did not submit evidence of commanding a salary, or other remuneration for services, which demonstrates 
exceptional ability to meet the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(D) or evidence of recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business 
organizations to meet the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
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The additional letters the Petitioner submitted are not sufficient evidence to establish they had at least 
10 years of full-time experience as a human resources generalist. The letter from I I 
where the Petitioner worked from January 2004 to December 2006, is not sufficient evidence of 
employment from current or former employers because the Petitioner's employment with I I
I I was not in a human resources generalist or substantially similar position. The Petitioner 
served as an executive secretary and "was responsible for receiving customer requests," "mak[ing] 
reservations", and 'issu[ing] travel and tax documents." 
The Petitioner also submitted a letter from a purported former co-worker at their former em lo er 
,IThe letter writer has since changed employment to work at L...------r------,1
I r:fhe letter writer and purported former co-worker wrote their letter on
I lietterhead attesting to the Petitioner's full-time employment from~M_a_y_2_0_0_7_t~o 
May 2010 in the human resources department at I !performing duties similar to those 
expected of a human resources generalist, such as recruitment, selection, and training. A letter from 
a former co-worker on the letterhead of an employer for whom the Petitioner has never worked is not 
primary evidence of a letter from a current or former employer with whom the Petitioner had full-time 
employment in the occupation they seek to pursue as part of their proposed endeavor in the United 
States. It is, at best, secondary evidence. The regulations permit us to accept secondary evidence only 
upon demonstration of the unavailability of primary evidence. See 8 C.F.R. § 103.2(b)(2). The record 
does not contain any evidence supporting why primary evidence in the form of a letter from the former 
employer either did not exist or could not be obtained. Moreover, there is no relevant, material, or 
probative evidence in the record to support that the letter writer is a former co-worker of the Petitioner. 
Consequently, the presumption of ineligibility inherent when required evidence is not presented 
remains unrebutted by the letter of the Petitioner's purported former co-worker. So the Petitioner's 
evidence did not meet the minimum requirements of the regulation to reliably document the 10 years 
of full-time experience as an entrepreneur. 
When, as here, a petitioner has not met the burden of persuasion by a preponderance of the evidence 
because their evidence is not material, relevant, or probative it follows that they have failed to 
demonstrate eligibility for the benefit that they seek. For all the foregoing reasons, we conclude that 
the Petitioner has not demonstrated that they have at least 10 years of full-time experience in the 
occupation of financial analyst. So the Petitioner did not and cannot satisfy the regulatory 
requirements to meet this criterion to demonstrate their exceptional ability. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner submitted a professional identity card from '-------------------' identifying them as a manager restricted to the actuation area of tourism. The Petitioner asserts that 
this is evidence of a license to practice their profession of human resources generalist. Licenses and 
certifications show that a person has the specific knowledge or skill needed to do a job. A license, 
generally conferred by an official government body, confers legal authority to work in an occupation. 
A certification, whilst not always required to work in an occupation, generally requires demonstrating 
competency to do a specific job. The Petitioner's professional identify card reflects registration, not 
licensure, as a manager in the actuation area of tourism. It appears to relate to a broad category of 
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individuals working in the area of "administration" but does not relate to any particular profession or 
occupation. The evidence in the record does not demonstrate the registration is related to performing 
the overarching duties of the Petitioner's profession or occupation. And the evidence in the record 
does not describe how the registration demonstrates the Petitioner's competency to perform their 
proposed human resources generalist job duties. The record does not indicate what standards the 
registration reflects the Petitioner met. Nor does the record indicate whether the registration must be 
periodically refreshed or renewed to ensure the individual holding the registration maintains the 
competency or standards the registration purports to reflect. So we cannot conclude the Petitioner has 
a license to practice the profession or certification for a particular profession or occupation. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner's membership in the Society for Human Resource Management (SHRM) and the 
Academy of Human Resource Development (AHRD) is not sufficient evidence of membership in a 
professional association. The occupation of human resources generalist does not appear in the list of 
professions contained at section 101(a)(32) of the Act, and it is not included as an occupation that 
customarily requires a bachelor's or higher degree. See Update to Appendix A to the Preamble­
Education and Training Categories by O*NET-SOC Occupations; Labor Certification for Permanent 
Employment oflmmigrants in the United States and Procedures To Establish Job Zone Values When 
O*NET Job Zone Data Are Unavailable, 86 Fed. Reg. 63070 (Nov. 15, 2021). The record does not 
adequately describe the criteria for membership in these organizations and consequently we are unable 
to conclude that membership in SHRM or AHRD is reserved for professionals. Consequently, the 
record does not convincingly describe the Petitioner's membership in SHRM or AHRD as membership 
in professional associations as that term is contemplated in the regulations, and we conclude the 
Petitioner has not met this criterion. 
III. CONCLUSION 
The Petitioner has not established eligibility in at least three of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). So they cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). And we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. In addition 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 
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). The appeal is dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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