dismissed EB-2 NIW Case: Industrial Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 14759499 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 01, 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 and/or as an individual of exceptional ability, 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. § 1 l 53(b )(2). 
After initially approving the petition, the Director of the Texas Service Center revoked the approval, 
concluding that the petition had been approved in error and that the record did not establish that the 
Petitioner was eligible for and otherwise merited a national interest waiver of the classification's job 
offer requirement. In addition, the Director found that the Petitioner made a willful misrepresentation 
of a material fact. On appeal , the Petitioner asserts that she is eligible for a national interest waiver, 
and disputes the finding of fraud or willful misrepresentation . 
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 of job offer-
(i) National interest waiver. ... [T]he 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. 
While 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, 26 T&N Dec. 884. 1 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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. 2 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge, and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department o( 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). Although the Petitioner filed her petition prior 
to our issuance of the Dhanasar precedent decision, since it was pending at the time that the Dhanasar decision was issued, 
the Director issued a Request for Evidence (RFE) and provided her with an opportunity to submit additional evidence 
under this new standard. The Petitioner timely responded to this RFE with additional evidence. 
2 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expeitise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expeitise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar, 26 l&N Dec. at 886 n.3. 
2 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition .... " Section 205 of the Act, 8 U.S.e. § 1155. By regulation 
this revocation authority is delegated to any users officer who is authorized to approve an immigrant 
visa petition. 8 e.F.R. § 205.2(a). USeTS must give the petitioner notice of its intent to revoke the 
prior approval of the petition and the opportunity to submit evidence in opposition thereto, before 
proceeding with written notice of revocation. See 8 e.F.R. § 205.2(b) and (c). The Board of 
Immigration Appeals has discussed revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be sustained 
where the evidence of record, at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intent to 
revoke, would warrant such a denial. 4 
II. ANALYSIS 
The Petitioner is an industrial designer who has specialized in the area of exhibition booth design. She 
earned a bachelor of fine arts degree in industrial design froml !University in 1997, and a master 
of business administration degree in marketing from I University in 2003. The Director 
concluded that she qualifies as a member of the professions holding an advanced degree, and we 
agree. 5 The remaining issues therefore concern her eligibility for a national interest waiver and the 
Director's finding of willful misrepresentation of a material fact. 6 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 Matter of Ho, 19 I&N Dec. 592, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). Upon the 
proper issuance of a notice of intent to revoke for good and sufficient cause, the petitioner bears the burden of proving 
eligibility for the requested immigration benefit. Id. at 589. 
5 Since the Petitioner has established that she is a member of the professions with an advanced degree, we need not analyze 
her claim to qualify as an individual of exceptional ability. 
6 We note that the Petitioner filed her petition on January 20, 2015 under the previous NYSDOT standard for national 
interest waivers. However, the Director issued a second request for evidence (RFE) on May 15, 2017 to advise the 
Petitioner of the new Dhanasar standard and allow her an opportunity to respond and provide additional evidence. 
3 
A. Substantial Merit and National Importance of the Proposed Endeavor 
Initially, the Petitioner described her endeavor as "involved in the design, deployment and strategic 
utilization of marketing booths for different types of business in a variety of trade shows and 
exhibitions ... " She confirmed her proposed focus on exhibition booth designs in response to the 
Director's initial RFE, which sought further evidence in support of the previous NYSDOT standard for 
national interest waivers, and did not provide further information regarding her prosed endeavor in 
response to the second RFE under the Dhanasar standard. The Director initially approved her petition 
based upon this proposed endeavor. 
In his notice of intent to revoke (NOIR), the Director stated that, after review, the substantial merit of 
this proposed endeavor had been established. However, he went on to state that the Petitioner did not 
show how her proposed endeavor would benefit the industry or field or have broader implications, as 
much like the petitioner's teaching activities in the Dhanasar decision, her work would only directly 
benefit her employer and clients. This conclusion was based upon the Petitioner's description of her 
proposed endeavor at the time of filing, and in response to the Director's initial RFE. We note that in 
response to the Director's second RFE, which was issued to allow the Petitioner to respond and provide 
further evidence under the new Dhanasar framework, she did not submit new evidence or address her 
eligibility under this new framework. The Director therefore issued the NOIR for good and sufficient 
cause. 
The Petitioner stated for the first time in her response to the Director's NOIR that her proposed 
endeavor "is to revitalize public marketplaces throughout the United States." She included a section 
from a book on farmer's markets in the United States in her response, which touts the positive public 
opinion regarding farmer's markets and concludes that public spaces should be designed with these 
markets in mind. The Director noted in his decision that although this evidence shows the positive 
effects of the revitalization of public markets, the Petitioner's description of her proposed endeavor 
was not sufficiently detailed to show that her work would have the same effect. Further, the Director 
concluded that the evidence submitted in response to the NOIR did not demonstrate that the 
Petitioner's proposed endeavor would have national or even global implications in the industrial 
design field, or that it would offer substantial positive economic effects, and thus failed to show the 
endeavor's national importance. 
On appeal, the Petitioner includes the same evidence she presented in response to the NOIR regarding 
public markets, a copy of which also comprises the majority of the section of her brief concerning the 
first prong, and again concludes by stating that "because revitalizing public markets creates positive 
effects in urban design and public health, my proposed endeavor has national importance for the 
United States." However, as stated in Dhanasar, 26 I&N Dec. at 889, the first prong of the framework 
focuses on the specific endeavor that a petitioner proposes to undertake. Therefore, broad statements 
such as this about the national importance of a particular field are insufficient to demonstrate that a 
petitioner's specific proposed endeavor meets the first prong. 
In addition, because the Petitioner's proposed endeavor lacks sufficient detail, such as specifics about 
design projects she would undertake, we are unable to determine that this work would be of national 
importance. We note that she submits on appeal an email from an executive at a design firm inD 
4 
~~-~I which provides "branding strategy and customer experience as well as architecture and 
interior design for various type of projects." The executive thanks her for applying for a position with 
the firm, but does not name a specific position or type of work that the Petitioner would potentially 
perform for this employer. Although a job offer is not required in conjunction with a petition for a 
national interest waiver, this email serves as an additional example of the lack of specificity in the 
record regarding the Petitioner's proposed endeavor. Accordingly, she has not established that she 
meets the first prong of the Dhanasar framework. 
B. Whether the Petitioner is Well Positioned to Advance the Proposed Endeavor 
In the second prong of the Dhanasar framework, we determine whether the petitioner has established 
that they are well positioned to advance the endeavor, in terms of a number of factors including 
education, experience, record of success, plan for future activities, and the interest of relevant entities 
or individuals in the proposed endeavor. As stated above, the record shows that the Petitioner holds 
an advanced degree with a specialization in marketing, as well as a degree in industrial design, and 
thus meets the educational requirements as a member of the professions with an advanced degree. 
However, this education by itself is not sufficient to demonstrate that she is well positioned, as a 
petitioner seeking a national interest waiver must go beyond establishing that they possess a degree of 
expertise significantly above that ordinarily encountered in the field. 7 
In reviewing her experience in his revocation notice, the Director stated that the record lacks evidence 
of the Petitioner's specific roles in projects listed on her curriculum vitae, and thus does not 
demonstrate a record of success in her field. He also noted that the evidence from the Petitioner's 
portfolio did not provide objective information about the success of the exhibition projects on which 
she worked, and concluded that the record did not show that she was well-positioned to advance her 
endeavor. 
On appeal, the Petitioner submits additional evidence, some of which includes photographs of 
exhibition booths similar to those previously submitted in her portfolio. These photographs provide 
further information about some of the Petitioner's projects represented in her portfolio. According to 
a previously submitted a certificate of employment froml I she was employed 
as director of the company's design planning team from March 1, 2000 to August 8, 2014. 8 We note 
that several of the photographs in the Petitioner's portfolio show this company's logo. 
The record also includes copies of articles written by the Petitioner in 2012, in which she identifies 
herself as the department head forl I and describes several exhibition projects she lead, 
including one for the Korean Navy. Although she writes that these projects were successful in that 
her clients were satisfied with the booths, the record does not include independent verification of the 
projects' success from those clients. We also note that the record does not include information 
concerning Juil News, the periodical in which these articles were published, such as its circulation or 
whether it is a professional publication in the Petitioner's field. This evidence does not therefore 
demonstrate that others in her field considered these projects to be successful. 
7 See Dhanasar, 26 I&N Dec. at 886 n.3. 
8 We note that the CEO of the company as listed on the certificate is the Petitioner's husband. 
5 
Other evidence in the record regarding the Petitioner's work as an industrial designer includes a 
reference letter froml I who writes that he served as CEO for I I I I "which was an environmental design company," during the time the Petitioner was 
employed there. His letter does not specify the dates of the Petitioner's employment, which the 
Petitioner's curriculum vitae indicates was 1998-2000. He describes three projects completed by her, 
including the design of a logo for a university's anniversary, the design of "street furniture," and as 
"one of the main designers of'.__ _______________ ____.' Although he concludes 
the letter by stating that the Petitioner is "one of the most talented individuals who are capable of 
balancing art and science," he does not elaborate on whether these projects were successful. 
The evidence discussed above serves to demonstrate the Petitioner's experience in the design of 
exhibition booths and related physical space design and branding, but does not show a record of 
success in her updated and slightly related endeavor of revitalizing public spaces such as markets. 
Although she highlights projects in her portfolio which she states involved "the revitalization of 
traditional markets," the evidence relating to these projects consists only of a few photographs and 
very brief descriptions, and does not include details concerning the scope of the projects or her role in 
them. 
~g her plan for future activities, we again refer to the previously discussed email from a[J 
L___Jdesign firm. As we stated above, this evidence provides no detail regarding the position for 
which she applied or any other positions the firm indicates it may be willing to offer her. As such, the 
email does not show interest from potential employers in her pursuit of the revitalization of traditional 
marketplaces, nor is there additional evidence in the record regarding her plans to advance that 
endeavor. 
Upon consideration of the evidence as detailed above, we conclude that the Petitioner has not 
established that she is well-positioned to advance her endeavor, and therefore does not meet the second 
prong of the Dhanasar framework. 
Since the Petitioner has not established that she meets the first and second prong of the Dhanasar 
framework, she is not eligible for a national interest waiver and we need not consider whether, on 
balance, it would be beneficial to the United States to waive the requirements of a job offer and thus 
of a labor certification. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
Noncitizens who fraudulently or willfully misrepresent material facts in immigration proceedings 
render themselves inadmissible to the United States. Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 
§ 1182(a)(6)(C)(i). Misrepresentations are willful if they are "deliberately made with knowledge of 
their falsity." Matter of Valdez, 29 I&N Dec. 496, 498 (BIA 2018) ( citations omitted). A 
misrepresentation is material when it has a "natural tendency to influence, or [be] capable of 
influencing, the decision of the decision-making body to which it was addressed." Id. ( citation 
omitted). 
In making a finding of inadmissibility under section 212(a)(6)(C)(i) of the Act, there must be evidence 
in the record showing that a reasonable person would find that a noncitizen used fraud or that he or 
6 
she willfully misrepresented a material fact in an attempt to obtain a visa, other documentation, 
admission into the United States, or any other immigration benefit. 8 USCIS Policy Manual J.3(A)(l), 
https://www.uscis.gov/policymanual. 
Here, the record includes a reference letter purportedly from.__ ________ _. of I I I I University in which he describes several of the Petitioner's exhibition projects and their 
success. However, whenl I was contacted by the U.S. Embassy in Seoul, Korea regarding 
the letter, he stated in a telephone interview that he did not write a recommendation letter for the 
Petitioner and did not know which exhibitions or events she had worked on, including those described 
in detail in the letter. He also stated that he got to know the Petitioner through a college friend in the 
mid- l 990s and that they only briefly worked together. Based on this information, and on the review 
of the national importance of her proposed endeavor discussed above, the Director issued a NOIR. 
In responding to the NOIR, the Petitioner provided a statement froml I in which he wrote 
that he did write the initial letter but was caught by surprise when contacted by the consular officer 
and could not remember writing the letter or the details due to the passage of time. However, the 
Director noted in his decision to revoke approval of the petition that this statement did not reaffirm 
the professor's description of exhibition booth projects described in the initial letter, and therefore 
found that the initial letter was fraudulent. 
On review, we note thatl I also indicates in his statement submitted in response to the 
NOIR that he "let [the Petitioner] teach the students" at.__~~---~ University from 2006 to 
2011 based upon his knowledge of her work when their employers collaborated on projects in the late 
1990s. He further states that he explained during the call from the U.S. Embassy in Seoul that he did 
not clearly remember writing the recommendation letter at the time of the call and was distracted by 
students, and that the officer must have misunderstood that he did not write the letter. However, this 
statement conflicts with the responses he gave to the U.S. Department of State. There, the officer's 
report clearly reflects thatl I stated during the call that the Petitioner never approached 
him about a recommendation letter, that he never wrote such a letter, that he was unaware of the 
Petitioner's intention to immigrate to the United States (specifically mentioned in the letter), and that 
he was unaware of details in the letter regarding specific projects undertaken by the Petitioner. See 
United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) ("The presumption of regularity 
supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts 
presume that they have properly discharged their official duties."). Also, records made by public 
officials in the ordinary course of their duties are generally deemed to evince "strong indicia of 
reliability." See Felzcerek v. I.NS., 75 F.3d 112, 116 (2d Cir. 1996). Accordingly, absent evidence to 
the contrary, we must presume that as public officials, the U.S. Department of State officer properly 
discharged their duties in writing the report, and accurately recorded! Is statements 
during the telephone interview. 
In addition, in his new statement I I does not explain the contradictions between the two 
statements. He does not contest the consular officer's report of other statements he made during the 
telephone call, including that he was unaware of the Petitioner's intent to immigrate to the United 
States and was not familiar with her projects, despite the letter's statements that it was because of his 
knowledge of her work that he hired or recommended her as an instructor at.__ ______ __. 
University. Moreover, he does not verify his knowledge of much of the detailed information provided 
7 
in the recommendation letter concerning specific projects undertaken by the Petitioner, nor does he 
explain his statement in the interview that he and the Petitioner "only briefly worked together" in the 
1990s despite more recently having hired or recommended her as an instructor atl I 
University for five years. The unresolved inconsistencies between the information in the letters and 
I I's interview with consular officers do not support a finding that the letter and its contents 
are authentic. 
On appeal, the Petitioner asserts that she "did not forgel f s letter," and refers to his statement 
submitted in response to the Director's NOIR, which has been discussed above. She also refers to the 
additional photographs she submits on appeal, noting that they are sufficient to show that statements 
in the initial letter describing her projects are accurate. However, while other evidence in the record 
is sufficient to establish that the Petitioner was involved in the projects described in the letter, this 
evidence does not explai~ Is lack of knowledge about the projects when asked, or the 
other inconsistencies noted above. 
The "Penalties" section at page 9 of the "Instructions for Petition for Alien Worker" corresponding to 
the instant petition includes this warning: 
If you knowingly and willfully falsify or conceal a material fact or submit a false 
document with your Form I-140, we will deny your Form I-140 and may deny any 
other immigration benefit. In addition, you will face severe penalties provided by law 
and may be subject to criminal prosecution. 
Further, the "USCIS Compliance Review and Monitoring" section on page 9 of the instructions for 
Form I-140 states, in part: 
By signing this form, you have stated under penalty of perjury (28 U.S.C. 1746) that 
all information and documentation submitted with this form are complete, true, and 
correct. You also authorize the release of any information from your records that 
USCIS may need to determine eligibility for the benefit you are seeking and consent to 
USCIS verifying such information. 
In submitting the initial letter purportedly froml I with her petition, the Petitioner 
knowingly submitted a false document, and therefore willfully misrepresented a fact. Since the 
contents of that letter were meant to not only confirm that she completed certain exhibition projects, 
but that an expert in her field considered those projects to be successful and placed her as "one of the 
most talented individuals in South Korea," it was material to whether she was well positioned to 
advance her proposed endeavor under the second prong of the Dhanasar framework. 9 We therefore 
agree with the Director and conclude tha~ I's statement is insufficient to overcome the 
finding that the Petitioner submitted with her petition a document which she knew to be false and, as 
it was intended to support her claim to a record of success in her field, was material to her eligibility 
for a national interest waiver. 
9 We note that it was also material to her eligibility under the previous NYSDOT framework in support of which it was 
initially submitted. 
8 
IV. CONCLUSION 
The Petitioner has established that she qualifies as a member of the professions holding an advanced 
degree. However, she has not shown that her proposed endeavor is of national importance, and that 
she is well-positioned to advance her proposed endeavor. She has not therefore established that she is 
eligible for or otherwise merits a national interest waiver as a matter of discretion. In addition, she 
has not overcome the Director's finding that she fraudulently or willfully misrepresented a material 
fact in submitting the letter claimed to be written and signed byl 1-
ORDER: The appeal is dismissed. 
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