dismissed EB-2 NIW Case: Industrial Automation

U.S. Citizenship 
and Immigration 
Services 
In Re: 23069339 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 1, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner , an electrical engineer in the field of industrial automation, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is either a member of the professions holding an advanced degree or an 
individual of exceptional ability. The Director also concluded that the Petitioner has not demonstrate 
that his proposed endeavor to work as the Director of his own company, _______ 1 holds 
national importance or that, on balance, it would be beneficial to waive the requirement of a job offer 
and thus of a labor certification. The matter is now before us on appeal. 8 C.F.R. § 103.3. On appeal, 
the Petitioner contends that the Director applied a stricter standard when adjudicating his petition and 
that evidence provided was not considered in its totality. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa '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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2) . A U.S . bachelor's degree or a foreign equivalent 
1 The business plan o ________ __,states that the company was formed in 2019 in Georgia and 
focuses on the development of industrial automation systems, integrating them into client facilities, developing specific 
plans, projects, application software, manufacturing control systems, and installing and maintaining those systems. 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act as well as any 
occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement 
for entry into the occupation. 2 8 C.F.R. § 204.5(k)(2). 
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). 3 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 4 
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. 
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 national 
interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 5, 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 
A. Advanced Degree Professional 
The Petitioner initially claimed that he is a member of the professions holding an advanced degree in 
electrical engineering because he holds the equivalent of a U.S. bachelor's degree in electrical 
engineering and because he had over 10 years of foll-time experience. The Director determined that 
the Petitioner is ineligible for classification as a member of the professions holding an advanced 
degree, and we agree. 
2 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
3 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). 
4 USCTS 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 F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
5 See also 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). 
2 
The Petitioner submitted (1) a course certificate from _________ School for the 
completion of course on "industrial learning II," (2) vocational trammg certificates from I I 
School for the completion of training on "maintenance and repair of pneumatic 
circuit" and "maintenance and repair of hydraulic circuit," (3) a school history from School for 
the completion of industrial learning course on "maintenance electrician," (4) a school history from 
I I School for the completion of high school education, and (5) an experexpert opinion evaluation 
from a professor of electrical engineering and computer science atl__JUniversity. The professor 
states that the Petitioner has attained the equivalent of a bachelor of science degree in electrical 
engineering from an accredited institution of higher education in the United States based on his 29 
years of work experience in electrical engineering and related areas. 
In response to the request for evidence (RFE), the Petitioner submitted letters from his current and 
former employers. A letter from the Director of Finance and Administration ofl I 
Corporation, a subsidiary of a multinational engineering and software company, states that the 
Petitioner has worked for the company as a senior controls engineer since November 2020. A letter 
from an accountant for I I an industrial automation company, states 
that the Petitioner worked for the company as its CEO and an electrical engineer from 1997 to 2019. 
The record also includes a letter from the representative of Human Resources Department at D 
a machine builder and industrial automation 
company, which states that the Petitioner worked for the company as a systems manager from 1999 to 
2014. While the Petitioner has extensive work experience as a systems manager, a CEO, an electrical 
engineer, and a senior controls engineer, the record does not reflect that the Petitioner holds a U.S. 
bachelor's degree or a foreign equivalent degree. An individual who does not possess at least a U.S. 
bachelor's degree or a foreign equivalent degree is ineligible for EB-2 visa classification. The 
Petitioner has not demonstrated that he is a member of the professions holding an advanced degree. 
B. Individual of Exceptional Ability 
As indicated above, the Petitioner must first meet at least three of the regulatory criteria for 
classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying 
the petition, the Director determined that the Petitioner did not meet at least three of the six criteria. 
On appeal, the Petitioner maintains that he meets at least four of the six criteria. After reviewing the 
evidence in its totality, we conclude that the record does not support that he meets at least three criteria. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director determined that the Petitioner established eligibility for this criterion. Based on the 
course certificate from School for the completion of course on "industrial 
learning II" and vocational training certificates from I I School for the 
completion of training on "maintenance and repair of pneumatic circuit" and "maintenance and repair 
of hydraulic circuit," the evidence ofrecord establishes that the Petitioner meets the plain language of 
the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A). Accordingly, he meets this criterion. 
3 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Director determined that the Petitioner established eligibility for this criterion. The Petitioner 
submitted a letter from the representative of Human Resources Department at I I which 
states that the Petitioner worked for the company as a systems manager from 1999 to 2014. The 
Petitioner also submitted a letter from an accountant forl I which states 
that the Petitioner worked for the company as its CEO and an electrical engineer from 1997 to 2019. 
The record also includes a letter from the Director of Finance and Administration of I I 
Corporation, which states that the Petitioner has worked for the company as a senior controls engineer 
since November 2020. The evidence of record establishes that the Petitioner meets the plain language 
of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). Accordingly, he meets this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Director determined that the Petitioner did not establish eligibility for this criterion. On appeal, 
the Petitioner acknowledges that he did not submit evidence for this criterion and does not offer new 
evidence. Accordingly, the Petitioner does not meet this criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Director determined that the Petitioner did not establish eligibility for this criterion. A review of 
the record of proceeding does not reflect that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) for the 
reasons outlined below. 
The Petitioner submitted a letter from __________ which states that during his 
employment from 1999 to 2014, the Petitioner earned a higher salary than any of its systems engineers 
because of his expertise in the field. I lalso states that the Petitioner was paid a base salary 
of $3,913 and bonus of $3,248 per month, earning a total of $85,932 per year. However, the record 
does not contain evidence of an average monthly salary, monthly bonuses, or annual salary of systems 
engineers in the field of industrial automation in Brazil during this period or other sufficient evidence 
to establish that the Petitioner's salary and bonuses froml I were indicative of his claimed 
exceptional ability relative to others working in the field. Simply going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without sufficient corroborating 
evidence, the Petitioner did not demonstrate that he commanded a salary or bonuses for his services, 
which demonstrates exceptional ability. Accordingly, the Petitioner does not meet this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
4 
The Director determined that the Petitioner did not establish eligibility for this criterion. A review of 
the record of proceeding does not reflect that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) for the 
reasons outlined below. 
The Petitioner claims eligibility for this criterion based on his membership with I I the 
Brazilian Association of the Industry of Machinery and Equipment. A letter from the executive 
director of states that the Petitioner is the representative of a member organization, 
However, as the Director noted, the bylaws of 
__ do not establish that an individual can be a member of the association; rather, it is companies 
(manufacturers of machine, equipment, their components and accessories, and production services 
providers to these manufacturers) that are members of this association. 
On appeal, the Petitioner contends that he is the owner and representative of I I and that a 
company is nothing without people. The Petitioner also contends that he effectively participated in 
one of the working groups of_ I While the Petitioner may be the owner and representative of 
I I a corporation and an individual are two separate legal entities. Matter of Soffici, 22 l&N 
Dec. at 162. This is true even if the individual is the sole shareholder of the business. See id. at 161-
63. The record reflects that the Petitioner's claimed company,! i is a member ofl I 
However, the evidence of record does not establish that the Petitioner is a member of a professional 
association. Accordingly, the Petitioner does not meet this criterion. 
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 Director determined that the Petitioner did not establish eligibility for this criterion. A review of 
the record of proceeding does not reflect that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) for the 
reasons outlined below. 
Th P itioe et1t1oner su m1tte b it d . 1 vanous mtemet art1c es an art1c es pu IS e m raz1 ian magazmes. d ic1 blish d in B ili F or 
example, he submitted an article from miriangasparin.com.br titled I 
I an article from TI, a Brazilian magazine, titled I 
I and an interview article from Siderurgia Brasil, a Brazilian steel industrv magazine, titledl 
I These articles generally discuss the importance of the Brazilian industrial development and 
contain quotes from the Petitioner regarding this topic. In these articles, the Petitioner explains about the 
fourth industrial revolution, the importance of industrial automation in the Brazilian industry to increase 
its competitiveness in the global market, and future training needs. These articles do not talk about the 
Petitioner's achievements or significant contributions to the industry. 
The Petitioner submitted a letter ofrecommendation from a mechanical engineer atl which 
states that the Petitioner developed a programming technique that was disseminated to multiple 
5 
companies in the industry to train employees. The Petitioner also submitted a letter of recommendation 
from an industrial engineering supervisor at ___________ which states that the 
Petitioner introduced him to an outstanding standard software that was developed by the Petitioner, used 
by the companies the Petitioner was in charge of, and solves the integration of devices in every size of 
automation process. However, these letters do not provide further details regarding the programming 
technique or software, the Petitioner's role in the development, or significant contributions of the 
programing technique or software in the field of industrial automation. The record also does not contain 
license agreements, distribution agreements, or other sufficient evidence to corroborate claims in the 
record. Without sufficient corroborating evidence, these letters do not sufficiently demonstrate 
recognition for the Petitioner's achievements and significant contributions to the industry or field by his 
peers. 
The Petitioner submitted a schedule of lectures about automation atl I University in Brazil in 
2018, two email messages, and photographs of the Petitioner at the university. The documents show that 
the Petitioner provided a lecture about automation at the university in 2018. The email invitation from 
an engineering professor at the university states: "We are inviting professors and lectures that can talk 
about relevant topics in Engineering, such as Robotics. It would be extremely enlightening if you could 
share practical examples so students can get in contact with the market reality." However, as the Director 
noted, the record does not sufficiently demonstrate that the Petitioner was invited to provide a lecture at 
the university as recognition for his achievements and significant contributions to the industry or field. 
Lastly, the Petitioner submitted a printout from amazon.com.hr showing a book authored by the Petitioner 
and titled ___________________ The website states that the book is 
"aimed at showing the importance of the internship, the intern, and the advisor." It appears that the book 
was written as a guide to career success by participating in internship opportunity. This book about a 
career guide authored by the Petitioner does not establish that the Petitioner was recognized for his 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professionals or business organizations. Accordingly, the Petitioner does not meet this criterion. 
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 record supports the Director's finding that the Petitioner did not meet at least three of the six 
regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner states 
that he may submit other comparable evidence of eligibility and submitted articles, a book he has written, 
interviews, and lectures summary with pictures and panels. In this case, the Petitioner has not 
demonstrated that the standards at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his occupation 
or that any of his documentation is "comparable" to the specific objective evidence required at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) - (F). 
III. CONCLUSION 
The Petitioner did not establish that he is a member of the professions holding an advanced degree. 
The Petitioner also did not establish by a preponderance of the evidence eligibility for at least three of 
the six criteria. Since the Petitioner did not establish eligibility for at least three of the six criteria, we 
6 
need not provide a final merits determination to evaluate whether the Petitioner has achieved the level of 
expertise required for exceptional ability classification. Moreover, we need not reach a decision on 
whether, as a matter of discretion, he is eligible for and otherwise merits a national interest waiver 
under the Dhanasar analytical framework. Therefore, we will reserve these issues. 6 
The appeal will be dismissed for the reasons stated above, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6 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 of L-A-C-, 26 l&N Dec. 516. 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
7