dismissed EB-2 NIW Case: Industrial And Quality Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 2, 2024 In Re: 29531052 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner is an industrial and quality engineer who seeks employment-based second preference 
(EB-2) immigrant classification as a member of the professions holding an advanced degree and an 
individual of exceptional ability, as well as a national interest waiver (NIW) of the job offer 
requirement attached to this classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the Petitioner did not establish that he qualifies for the underlying visa 
classification or merits a discretionary waiver of the job offer requirement in the national interest. The 
Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and Immigration 
Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 
25 l&N Dec. 369, 375 (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 an NIW, 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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 
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). Meeting 
at least three criteria, however, 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. USCIS has previously confirmed the applicability of this two-part adjudicative approach in 
the context of individuals of exceptional ability. See generally 6 USCIS Policy Manual B.2, 
https://www.uscis.gov/policy-manual. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 NIW 
petitions. Dhanasar states that USCIS may, as matter of discretion, grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NTW rests solely with USCTS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
II. EB-2 ELIGIBILITY 
The Director determined that the Petitioner is not eligible for the EB-2 classification on either basis as 
an advanced degree professional or as an individual of exceptional ability. While we agree with the 
Director's determination relating to the Petitioner's advanced degree professional claims, we do not 
wholly agree with the analysis under his claims as a foreign national of exceptional ability. 
A Advanced Degree Professional 
The Petitioner filed the petition in October of 2020. The Petitioner does not claim to possess a U.S. 
academic or professional degree (or a foreign equivalent degree) above that of a bachelor's degree. 
The Petitioner provided evidence he earned a foreign bachelor's degree in engineering in December 
of 2013. The Petitioner claimed work experience both before and after earning his bachelor's degree 
during various periods between 2002 and 2022. 
For foreign nationals who have not attained a U.S. advanced degree (or a foreign equivalent degree), 
the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires them to possess a U.S. bachelor's degree (or a 
foreign equivalent degree) and at least five years of progressive post-baccalaureate experience in the 
specialty. The Director partly denied the petition because the Petitioner had not met these 
requirements on the date he filed the petition in October of 2020. In the denial, the Director noted that 
some of the post-bachelor's experience letters did not contain the duties the Petitioner performed for 
the organizations. The regulation at 8 C.F.R. § 204.5(g) mandates that experience letters be from 
current or former employers while also including the name, address, and title of the author, and a 
specific description of the duties the foreign national performed. If a petitioner can demonstrate this 
2 
evidence is unavailable, USCIS will consider other documentation relating to their experience. Here, 
the Petitioner provided the letters from previous employers and did not assert that such evidence was 
unavailable. 
As it relates to his qualifying post-bachelor's degree experience, the Petitioner's appeal brief replies 
to the Director's denial by identifying Exhibit 2 in his request for evidence (RFE) response, which 
was a business plan relating to his proposed endeavor in the United States. This business plan was 
prepared by an organization that, according to their website, specializes in creating business 
documents for various employment-based immigration classifications. This document recounted the 
Petitioner's professional experience, but it was not the form ofrequired evidence relating to qualifying 
experience listed in the regulation at 8 C.F.R. § 204.5(g) as it did not include letters from current or 
former employers among other requirements. Here within the appeal, the Petitioner relies on a 
document from an organization that is not supported by probative and independent evidence in the 
record. Probative evidence is the type that "must tend to prove or disprove an issue that is material to 
the determination of the case." Matter ofE-F-N-, 28 I&N Dec. 591,593 (BIA 2022) (quoting Matter 
of Ruzku, 26 I&N Dec. 731, 733 (BIA 2016) ); see also Evidence, Black's Law Dictionary (11th ed. 
2019). Therefore, if some form ofthe Petitioner's evidence does not adequately prove their contention, 
then it is not considered to be probative and that's the case we have here. 
As the Petitioner's final point on this issue within the appeal, he relies on the credentials evaluation 
he offered with the initial filing. A review of that evaluation from I !reveals that he equated 
the Petitioner's education to a U.S. bachelor's degree in electrical engineering. He then discussed the 
foreign national's professional experience during different periods from 2002 through 2017. We note 
the Director favorably counted the Petitioner's work experience subsequent to his bachelor's degree 
and up to 2017 in their analysis, as it was evidence by the type of materials required by the regulation 
at 8 C.F.R. § 204.5(g). The credentials evaluation did not contain any discussion of post-bachelor's 
experience after 201 7. I Ithen stated: 
Considering that a Bachelor's Degree followed by five years of full-time work 
experience in the field of electrical engineering is equivalent to a Master of Electrical 
Engineering, it is my expert opinion that [the Petitioner], with a bachelor's degree and 
5 years of experience, has no less than the equivalent of a Master of Electrical 
Engineering . 
____ language alluded to the Petitioner's experience as occurring after he earned his 
bachelor's degree, but he failed to explicitly state that or discuss any of his experience in detail. That 
the five years of progressive experience in the specialty occurs post-baccalaureate is a requirement for 
the advanced degree professionals immigrant classification. 8 C.F.R. § 204.5(k)(3)(i)(B). I 
also generally discussed the documents he reviewed to make his credentials determination but only 
indicated the evaluation "relies upon the copies of the original documents of the diplomas, transcripts, 
and resume provided by" the Petitioner, but not that I I reviewed experience letters from 
current or former employers that included the name, address, and title of the author, and a specific 
description of the duties the foreign national performed. 
Therefore, lrelied on the Petitioner's self-produced resume to evaluate his work experience 
and not the type of evidence mandated by the regulation. For these reasons, we do not consider this 
3 
I 
credentials evaluation to be probative nor does it assist the Petitioner in satisfying his burden of proof 
relating to his advanced degree professional claims. 
Finally, the Petitioner vaguely references his work experience between the years 2020 and 2022, but 
we note he filed the petition in October of 2020. Therefore, any post-bachelor's work experience after 
October of 2020 cannot be factored into his claims for this petition. The Petitioner must have 
completed all substantive requirements of the degree or its equivalent on the date the NIW petition 
was filed in order to establish eligibility. See Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO 
Apr. 17, 2017); see also 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971) (a visa petition may not be approved based on speculation of future eligibility or after 
an individual becomes eligible under a new set of facts); Matter of Izummi, 22 I&N Dec. 169, 175 
(Assoc. Comm'r 1998) (a petitioner may not make material changes to a petition in an effort to make 
a deficient petition conform to USCIS requirements). 
In summary, we agree with the Director's overall determination that the Petitioner has not 
demonstrated eligibility for the advance degree professional immigrant classification based on the 
current record. 
B. Exceptional Ability 
The Director concluded that even though the Petitioner satisfied two of the criteria under the regulation 
at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), he did not meet a third criterion to warrant a final merits 
determination. That final determination would evaluate whether the evidence in its totality shows the 
Petitioner is recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field. While we agree with the Director regarding the two criteria they granted, we do not agree 
with their adverse determination relating to a license or certification to practice the profession at 
8 C.F.R. § 204.5(k)(3)(ii)(C), as the Petitioner provided the licensing or certification to perform in the 
occupation with his initial petition filing. We therefore withdraw the Director's adverse determination 
on that regulatory criterion. 
Normally we would remand the matter for the Director to perform a final merits analysis in the first 
instance. But, if a review of other dispositive issues addressed in the appeal reflect the Petitioner 
would remain ineligible even ifwe were to return the case to the Director, remanding would serve no 
purpose and would unnecessarily expend agency resources and the Petitioner's time in which he could 
decide future avenues that best serve his interests. Below we perform such a review of his NIW claims. 
TIT. NATTONAL INTEREST W AIYER 
The Petitioner initially indicated his proposed endeavor was to continue working as an industrial and 
quality engineer in the United States. In response to the Director's RFE, he clarified the issue 
indicating he would provide high level industrial and quality engineering services with a focus on 
manufacturing and production processes. The Petitioner further suggested he would bring innovative 
and highly effective industrial and quality engineering solutions that serve to drive the U.S. 
manufacturing sector, with a particular focus on the automotive industry. The Petitioner indicated he 
would pursue this endeavor while working for the same U.S. entity that employed him when he filed 
the petition. 
4 
We begin with Dhanasar 's first prong; substantial merit and national importance. These elements 
focus on the specific endeavor that the individual proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
The Director concluded the record established the Petitioner's proposed endeavor had substantial 
merit, but it did not show that it also has national importance. The Director evaluated and thoroughly 
discussed the Petitioner's claims relating to the first prong's national importance element. After 
reviewing the entire record, to include the arguments and evidence submitted on appeal, we agree with 
the Director's ultimate conclusion under this basis for NIW eligibility, with the added comments 
below. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 
230, 234 (D.C. Cir. 1997) (noting the practice of adopting and affirming the decision below has been 
"universally accepted by every other circuit that has squarely confronted the issue"); Mendoza v. US. 
Atty. Gen., 327 F.3d 1283, 1289 (I Ith Cir. 2003) (joining eight U.S. Circuit Courts of Appeals in 
holding that appellate adjudicators may adopt and affirm the decision below as long as they give 
"individualized consideration" to the case). 
Our added comments relate to the portion of the Petitioner's appeal brief associated with his 
endeavor's national importance. Even ifwe did not adopt and affirm the Director's determination, we 
would conclude that the Petitioner has abandoned this issue on appeal when, in his appeal brief, he 
effectively reproduced the identical text he presented to the Director in response to the RFE. The only 
essential changes were cosmetic such as transitions introducing new paragraphs and a summarizing 
paragraph that failed to identify any error in law or fact attributable to the Director's adverse decision. 
The reason for filing an appeal is to provide an affected party with the means to remedy what he or she 
perceives as an erroneous conclusion of law or statement of fact within a decision in a previous 
proceeding. See 8 C.F .R. § 103.3( a)( 1 )(v). Without such an error specifically identified within the appeal, 
the affected party has failed to identify the basis for the appeal. If the Petitioner does not explain the 
specific aspects of the decision that he considers to be incorrect, he has failed to meaningfully identify 
the reasons for taking an appeal. In order to review the appeal, it would therefore be necessary to search 
through the record and speculate on what possible errors the Petitioner claims. Matter of Valencia, 
19 I&N Dec. 354, 355 (BIA 1986). 
It is insufficient to merely assert that a filing party doesn't agree with a denial decision or that the 
preceding authority made an improper determination. Within an appeal, it should be clear whether the 
alleged impropriety in the decision lies with the interpretation of the facts or the application of legal 
standards. Where a question of law is presented, supporting authority should be included, and where the 
dispute is on the facts, there should be a discussion ofthe particular details contested. Id. Merely claiming 
the Director made an improper determination is the reason the regulation at 8 C.F.R. § 103.3(a)(l)(v) was 
promulgated; to allow us to promptly deal with appeals where the reasons given for the appeal are 
inadequate to inform it of the particular basis for the claim that the Director's decision before us is wrong. 
Cf Valencia, 19 I&N Dec. at 355. 
5 
The Petitioner must identify all of the errors made by the Director as it relates to each of the claimed 
eligibility bases. Otherwise, we must speculate on what errors the Petitioner alleges. Failure to identify 
the error in law or error in fact for each basis contested on appeal, equates to an insufficient claim of 
eligibility within the appellate proceeding. Such a failure essentially amounts to the Petitioner's 
abandonment of the eligibility claim regarding this criterion. 
The Eleventh Circuit Court of Appeals reasoned that it is not enough that a petitioner has merely 
contested an issue within its appeal. Whether an appellant has sufficiently addressed a claim relies on 
at least two aspects. First, they must raise the "core issue" before us within the appeal. Montano 
Cisneros v. US. Att'y Gen., 514 F.3d 1224, 1228 n.3 (I Ith Cir. 2008). Second, the appellant must 
also set out any discrete arguments it relies on in support of that core issue claim. Shkambi v. US. 
Att'y Gen., 584 F.3d 1041, 1048 n.4 (11th Cir. 2009). While there is no requirement for a petitioner 
to "use precise legal terminology" or provide abundantly-developed arguments to support their claim, 
an appellant is required to "provide information sufficient to enable [the appellate body] to review and 
correct any errors below." Indrawati v. US Att'y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) 
(quoting Arsdi v. Holder, 659 F.3d 925,929 (9th Cir. 2011)). 
When an appellant's brief does not challenge the denial by offering new arguments on the issues, or 
by describing the manner in which the Director erred, we consider those issues abandoned, waived, or 
forfeited. All the more so, when the filing party is not responsive to the Director's analysis and does 
not specify the actual error in the denial decision, which can be a basis for a summary dismissal. 
Matter of Valencia, 19 I&N Dec. 354, 355-56 (BIA 1986) (finding a summary dismissal of an appeal 
is appropriate when the filing party only asserts the underlying trier of fact came to the wrong 
conclusion or expresses general disagreement with the lower decision and "fails to specify the reasons 
for the appeal"). Likewise, offering the same analysis as presented within the RFE response, without 
describing the Director's error, is inadequate. Here, we conclude the Petitioner's actions on appeal 
result in his abandonment, waiver, or forfeiture of his first prong claims in this and any subsequent 
motion based on this petition. 
As we explain above, Dhanasar 's second and third prongs require the Petitioner to demonstrate he is 
eligible for an NIW meeting additional requirements. But because the Petitioner has not established 
that his proposed endeavor satisfies the first prong of the Dhanasar framework, he is not eligible for 
an NIW and further discussion of the second and third prongs would serve no meaningful purpose. 
Consequently, we will not address and we reserve the Petitioner's remaining appellate arguments. 
Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) 
(finding agencies are not required to make "purely advisory findings" on issues that are unnecessary 
to the ultimate decision)); see also Matter of Chen, 28 I&N Dec. 676, 677 n. l, 678 (BIA 2023) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
6 
ORDER: The appeal is dismissed. 
7