dismissed EB-2 NIW Case: Industrial Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 26, 2023 In Re: 28424040 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner states that he is an industrial designer. He seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability or a member of the professions 
holding an advanced degree, 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. 
§ 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies as an individual of exceptional ability or as a member of the 
professions holding an advanced degree. The Director further concluded that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The matter is now before us on appeal. 
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 ofChristo's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner has not demonstrated that he qualifies for the 
underlying EB-2 visa classification. A the identified basis for denial is dispositive of the Petitioner's 
appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding his 
eligibility for a discretionary waiver of the job offer requirement under the three-prong framework set 
forth in Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016). 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 alternative issues on appeal where an applicant is otherwise ineligible). 
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. 
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. 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). 1 
(A) An official academic record showing the noncitizen's possession of 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) Letters from current or former employers showing that the noncitizen has at least 10 
years of foll-time experience in the proposed occupation; 
(C) A license to practice the profession or certification for the profession or occupation; 
(D) Evidence of the noncitizen's receipt of a salary or other remuneration demonstrating 
exceptional ability; 
(E) Proof 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. 
Meeting at least three criteria, however, does not, in and of itself: establish eligibility for this 
classification. 2 If a petitioner does so, a final merits determination is conducted 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 a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, grant a national interest waiver if 
the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCTS has previously confirmed the applicability of this two-palt adjudicative approach in the context of aliens of 
exceptional ability. 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
II. ELIGIBILITY FOR EB-2 CLASSIFICATION 
The issue to be addressed in this matter is whether the Petitioner has established eligibility for the EB
-
2 classification as either an individual of exceptional ability or as an advanced degree professional. 
A. Exceptional Ability 
At the time of filing the Petitioner did not claim eligibility for the EB-2 classification as an individual 
of exceptional ability, nor did he claim that he meets the requirements of at least three of the six 
categories listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Rather, the Petitioner provided an 
"Autobiographical Statement" in which he discussed his educational background and work history 
and broadly stated that he has a "background and [] extensive knowledge of architecture and industrial 
design." Although the Petitioner provided his certificate of general secondary education along with a 
corresponding transcript, he did not establish that the certificate was related to industrial design, the 
area in which he claims to have exceptional ability. Likewise, the Petitioner did not establish that any 
of the remaining submissions, such as a "letter of gratitude" and various certificates showing his 
completion of English courses in 2012 and 2013 and participation in an exhibition in 2017, satisfy at 
least three criteria listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 
The Director issued a request for evidence (RFE) notifying the Petitioner of these evidentiary 
deficiencies. However, the Petitioner did not provide further evidence establishing that he meets at 
least three of the six categories listed at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner merely 
acknowledged that the RFE sought evidence pertaining to his claimed exceptional ability, but he did 
not comply with that portion of the request, nor did he specifically claim that he qualifies as an 
individual of exceptional ability. In fact, the subject matter in the RFE response was limited to the 
Petitioner's claimed eligibility for a national interest waiver pursuant to the three-prong framework 
set forth in Dhanasar. Accordingly, in denying the petition the Director noted the Petitioner's failure 
to provide the requested evidence and concluded that the Petitioner did not establish that he is an 
individual of exceptional ability. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
On appeal, the Petitioner claims that he met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), and (F), 
pointing out that he previously submitted a "full transcript froml !University," a "Thank 
you letter" from I I and a certificate showing that he participated in and contributed towards 
the organization of a 201 7 exhibition. 
We conclude that the Petitioner has not demonstrated that he meets the criterion listed at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), which requires submission of an official academic record showing that he was 
awarded a degree or diploma relating to his claimed area of exceptional ability. The Petitioner states 
that he "received a 'final state attestation' as well as passing professional practice" and claims that 
these qualifications along with his university transcript show that he "passed 122 credits," thereby 
attaining a level of education that the Petitioner states is equivalent to a U.S. bachelor's degree. 
However, the Petitioner's Form 750 Part B, Application for Alien Employment Certification, and 
personal statement are inconsistent with his claim on appeal. Namely, in completing the employment 
certification application the Petitioner stated that he attended the.__ _____ __.University for only 
three years and wrote "incomplete bachelor's degree" when asked to list his degrees or certificates; 
3 
I 
this information is consistent with the Petitioner's personal statement where he explained that he "took 
an academic leave" in May 2019, prior to attaining a bachelor's degree. The Petitioner must resolve 
this inconsistency with independent, objective evidence pointing to where the truth lies. Matter ofHo, 
19 I&N Dec. 582, 591-92 (BIA 1988). Although the record contains a translated document titled 
"Reference," which identifies the Petitioner as "a Bachelor student of
IUniversity," this document does not establish that the Petition._e_r_c_o_m_p_l_e-te_d_a_b_a_c_h_e_lo_r_'_.s 
degree program from the named institution, nor does the record contain a diploma issued by that 
institution showing that a bachelor's degree was awarded to the Petitioner. In fact, the translated 
"Reference" document lists "01.09.2016 - 30.06.2021" as the "duration of study." By virtue of 
entering the United States as a J-1 nonimmigrant in May 2019, as the Petitioner claims he did, 
completion of the stated period of study would have been impossible. Therefore, the Petitioner has 
not provided sufficient evidence establishing that he met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
In sum, the Petitioner focused on three criteria as the basis for claiming eligibility under the 
exceptional ability classification. Because the Petitioner must show that he meets the requirements of 
all three criteria and the analysis explains that he did not overcome the Director's decision regarding 
the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), he has not established that he satisfied at least three 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) as required to merit classification as an individual of exceptional 
ability. As such, farther discussion of the two remaining criteria would serve no meaningful purpose.4 
B. Advanced Degree Professional 
The Petitioner did not claim 
to be an advanced degree professional at the time of filing or in response 
to the RFE. As noted above, when completing his labor certification application, the Petitioner 
described the status of his bachelor's degree as "incomplete" and listed the three-year period from 
September 2016 until September 2019 as the dates he attended the I I University to 
pursue a degree in architecture. This information is consistent with the Petitioner's personal statement, 
where he stated that he started his "college student life" in 2016, did an internship in 2019 where he 
"was involved in all the processes of the architect's work," and ultimately "took an academic leave" 
in 2019 when he came to the United States pursuant to a J-1 nonimmigrant visa. Although the 
Petitioner farther stated that his "future plans include continuing my studies and enrolling in a Master's 
Degree program," he made no mention of when or where he plans to complete his undergraduate 
studies to obtain a bachelor's degree, which is presumably a prerequisite for a master's degree. 
The record also contains several certificates as well as a transcript showing the Petitioner's completion 
of 122 credits at the~-----~University. We note, however, that these documents do not 
demonstrate the Petitioner's qualification for the underlying EB-2 visa classification as an advanced 
degree professional. Namely, the certificates were issued prior to September 2016 and thus they 
predate the Petitioner's university attendance, and the transcript was not accompanied by an English 
translation. Any document in a foreign language must be accompanied by a foll English language 
translation. 8 C.F.R. § 103.2(b)(3). The translator must certify that the English language translation 
4 Even if the Petitioner had satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), the record lacks sufficient evidence 
establishing that he has a license or certification to practice his profession as required by 8 C.F.R. § 204.5(k)(3)(ii)(C) or 
that he has been recognized for achievements or significant contributions in his field as required by 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). The "Thank you letter," certificate of participation in a 2017 exhibition, and claim that the Petitioner 
"passed professional practice" do not establish that he met either of the two listed criteria. 
4 
is complete and accurate, and that they are competent to translate from the foreign language into 
English. Id. Because the Applicant did not submit a properly certified English language translation 
of the transcript as required, we accord it no weight. Moreover, as noted above, according to the 
Petitioner's personal statement and responses he provided on the Form ETA 750 Part B, the Petitioner 
did not earn a bachelor's degree; as such, even if the transcript was in compliance with the relevant 
regulatory provisions, it would not be sufficient to establish that the Petitioner is an advanced degree 
professional. See 8 C.F.R. § 204.5(k)(2). 
The RFE notified the Petitioner that the evidence he submitted shows that he does not have either a 
U.S. advanced degree (or its foreign equivalent) or a baccalaureate degree (or its foreign equivalent) 
followed by at least five years of progressive post-baccalaureate work experience in the specialty and 
that he therefore does not qualify as an advanced degree professional. The RFE also discussed the 
Petitioner's resume, 5 noting that even if he had attained a baccalaureate degree, his work history does 
not show the required post-baccalaureate work experience in the specialty. Because the Petitioner's 
RFE response only discussed his claimed eligibility for a national interest waiver, the Petitioner did 
not establish eligibility for the EB-2 classification as an advance degree professional. 
On appeal, the Petitioner points out that he entered the ~------------~Univ ersity 
in 2016, noting that he "passed professional practice" and "received a 'final state attestation,"' which 
he contends is "evidence that his studies concluded." He also points to his transcript, which shows 
that completed 122 credits while attending the university; he argues that "122 credits is a substantial 
enough amount to raise the presumption that [he] received a degree from the institution, an inference 
supported by the fact that he received a 'final state attestation."' As discussed above, the Petitioner 
has stated both in his personal statement and on the Form ETA 750 that he has not obtained a 
bachelor's degree or its foreign equivalent. And although he argues that "[t]aken together, these 
credentials are clearly equivalent to a U.S. baccalaureate degree," he does not cite to a precedent 
decision or USCIS policy in support of this argument. Therefore, the Petitioner has not established 
that he is an advanced degree professional. 
In light of the discussion above, we conclude that the Petitioner has not demonstrated qualification for 
the underlying EB-2 visa classification either as an advanced degree professional or as an individual 
of exceptional ability. As noted earlier, because this threshold issue is dis positive of the appeal, we 
will not address the Petitioner's appellate arguments regarding his eligibility for a discretionary waiver 
of the job offer requirement under the three-prong framework set forth in Matter ofDhanasar, 26 I&N 
Dec. 884,889 (AAO 2016). See INSv. Bagamasbad, 429 U.S. at 25. 
ORDER: The appeal is dismissed. 
5 The Director observed that according to his resume, the Petitioner had the following employment history: self-­
employment as a part-time architect from September 1, 2018, to May 10, 2019, working as a waiter for approximatelfi two 
months in 2019. as a driver for approximately three months in 2020, and as a manager for I from 
June 2020 to March 2021 and again from October 2021 to April 2022. 
5