dismissed EB-2 NIW Case: Industrial Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 19640823 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an industrial designer, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that he qualifies as a member of the professions holding an advanced degree, nor that he is 
an individual of exceptional ability. The Director also concluded that the Petitioner did not establish 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. 
Section 203(b) of the Act sets out this sequential framework: 
(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 ofjob offer-
(i) National interest waiver. ... 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. 
For the purpose of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations farther provide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability: 
(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 ofletter(s) from current or former employer(s) showing 
that the alien has at least ten years of foll-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 renumeration 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. 
8 C.F.R. § 204.5(k)(3)(ii). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
2 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Director found that the Petitioner did not have an advanced degree or its equivalent and, moreover, 
did not establish he is an individual of exceptional ability. If the Petitioner does not establish eligibility 
either as an advanced degree professional or as an individual of exceptional ability, we need not 
determine whether a waiver of the job offer requirement, and thus of a labor certification, would be in 
the national interest. See section 203(b)(2) of the Act. For the reasons discussed below, the Petitioner 
did not establish that he is either an advanced degree professional or an individual of exceptional 
ability. 
First, the record does not establish that the Petitioner is an advanced degree professional. In relevant 
part, to show that a self-petitioner is a member of the professions holding an advanced degree, "the 
petition must be accompanied by ... evidence in the form ofletters from current or former employer( s) 
showing that the [self-petitioner] has at least five years of progressive post-baccalaureate experience 
in the specialty," in addition to evidence of a foreign degree equivalent to a U.S. bachelor's degree. 
8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner asserts on appeal that he "has a foreign equivalent degree to a U.S. [b ]accalaureate 
degree has [sic] almost 7 years of progressive post-baccalaureate work experience in the field of 
industrial design." The Petitioner submits a photocopy of a bachelor's degree in industrial design 
granted to him in 2007 by the University! • I in Brazil, 
accompanied by an English-language translation. However, neither the copy of the degree nor its 
translation in the record indicates that the foreign bachelor's degree is equivalent to a U.S. bachelor's 
degree, in order for the Petitioner to satisfy the threshold criterion as a member of the professions 
holding an advanced degree. See 8 C.F.R. § 204.5(k)(2) (providing "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" ( emphasis added)). 
The Petitioner also references on appeal a letter from an employer and a letter froml ,I an 
associate professor of graphic design atl I University. Neither letter referenced on appeal 
is "a credentials evaluation performed by an independent credentials evaluator who has provided a 
credible, logical, and well-documented case for such an equivalency determination." See 6 USCIS 
Policy Manual E.9, https://www.uscis.gov/policy-manual. The letters also are not, in the alternative, 
3 
"a comparable evaluation performed by a school official who has the authority to make such 
determinations and is acting in his or her official capacity with the educational institution." 1 See id. 
On the contrary,! !expressly states that his letter is "strictly my opinion and is not the 
opinion of the university with which I am affiliated or any of its departments or affiliates." We note 
that the record also contains a letter froml l a professor emeritus of design at the 
University I I however, his letter focuses on whether the endeavor may satisfy the criteria 
discussed in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), and is silent on whether the Petitioner 
is an advanced degree professional. 2 The record does not otherwise contain an evaluation of the 
Petitioner's foreign degree. Based on the foregoing, the record does not establish whether the 
Petitioner's foreign degree is equivalent to a U.S. bachelor's degree. 
Setting aside the preliminary issue of whether the Petitioner possesses a degree equivalent to a U.S. 
bachelor's degree, the record also does not establish the extent of the Petitioner's experience after 
receiving that degree. The employer letter, noted above, is written by the majority partner of a 
company founded by the Petitioner 2014. 3 However, as the Director observed in the decision, "[t]he 
letter does not offer specific dates of [the Petitioner's] roles and the amount of hours invested, whether 
full-time or part-time or if his experience is progressive in the specialty. It is also not evident when 
the [Petitioner] moved to [another company] in the United States and if his remote work at [the 
company he founded] is part-time or on an irregular basis." On appeal, the Petitioner does not directly 
address the Director's analysis of the employer letter; instead, he references the letter froml I 
I , lwhich opined that the Petitioner's work experience is equivalent to a master's degree. For 
the reasons noted, the record does not support I Is opinion. Regardless of the issue of 
whether the foreign degree may establish eligibility, given the limited information in the letter from 
the Petitioner's current or former employer about his post-baccalaureate experience, the record does 
not establish he may qualify as a member of the professions holding an advanced degree, or the 
equivalent of such. See 8 C.F.R. § 204.5(k)(3)(i)(b). 
Turning to the exceptional ability factors in the alternative, the Director concluded that the Petitioner 
did not satisfy any of the criteria at 8 C.F.R. § 204.5(k)(3)(ii), of which three must be satisfied to 
establish exceptional ability. On appeal, the Petitioner does not assert, and the record does not support 
the conclusion, that he satisfies any of the exceptional ability factors. 
In summation, the Petitioner has not established that he is a member of the professions holding an 
advanced degree. See 8 C.F.R. § 204.5(k)(3)(i)(B). In the alternative, the Petitioner has not satisfied 
at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), and therefore has not established he is an 
individual of exceptional ability. Because the Petitioner did not establish eligibility as either a member 
of the professions holding an advanced degree or an individual of exceptional ability, we need not 
address the Petitioner's assertions on appeal regarding whether a waiver of the job offer requirement, 
and thus of a labor certification, would be in the national interest. See section 203(b )(2) of the Act. 
1 In any event, "[a]ny educational equivalency evaluation performed by a credentials evaluator or school official is solely 
advisory in nature; the final determination continues to rest with the [adjudicating USCTS] officer." See 6 USCIS Policy 
Manual E.9, https://www.uscis.gov/policy-manual. 
2 Moreover, the professor emeritus's letter does not establish whether it is an "evaluation performed by a school official 
who has the authority to make such determinations and is acting in his or her official capacity with the educational 
institution." See 6 USC1S Policy Manual E.9, https://www.uscis.gov/policy-manual. 
3 The petition filing date is February 2020. 
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III. CONCLUSION 
The Petitioner has not established that he is a member of the professions holding an advanced degree. 
Additionally, as the Petitioner has not satisfied at least three of the six criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), we conclude that the Petitioner has not established that he is an individual of 
exceptional ability. 
ORDER: The appeal is dismissed. 
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