dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 20930614 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 25, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks classification as an individual of exceptional ability in business, 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) . U.S . Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer , and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established that he was an individual of exceptional ability or that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. On appeal, the Petitioner asserts 
that the Director erred in his decision . In these proceedings, it is the Applicant's burden to establish 
eligibility for the requested benefit by a preponderance of evidence. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 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) [Noncitizens] who are members of the professions holding advanced degrees or 
[noncitizens] 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. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that [a noncitizen's] services in the sciences, arts, professions, 
or business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least 
three of which an individual must meet to qualify as an individual of exceptional ability in the sciences, 
the arts, or business: 
(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 of letter(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 remuneration 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. 
Furthermore, 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 
2 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 2 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. 3 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner seeks employment as an IT coordinator, asserting that he "will make important 
contributions to the U.S. through introducing automated purchasing processing systems and 
infrastructure services through his company, [E-]. As stated above, the first step to establishing 
eligibility for a national interest waiver is demonstrating qualification for the underlying EB-2 visa 
classification, as either an advanced degree professional or an individual of exceptional ability. 4 
The Petitioner does not assert nor does the record establish that he is eligible for the EB-2 classification 
as a member of the professions holding an advanced degree. Therefore, he must establish that he 
qualifies as an individual of exceptional ability. To do so, a petitioner must provide documentation 
that satisfies at least three of six regulatory criteria to meet the initial evidence requirements for this 
classification. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). If a petitioner satisfies these initial requirements, 
we then consider the entire record to determine whether the individual has a degree of expertise 
significantly above that ordinarily encountered. See Matter of Chawathe, 25 I&N Dec. at 
376 (holding that the "truth is to be determined not by the quantity of evidence alone but by its 
quality"). See also Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the evidence is first counted and then, if it satisfies the required number of criteria, considered 
in the context of a final merits determination); See USCIS 6 Policy Manual F.2, 
https ://www.uscis.gov/policy-manual/volume-6-part- f-chapter-2. 
In denying the petition, the Director determined that the Petitioner fulfilled the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (E). On appeal, the Petitioner asserts that he meets five of the criteria. We 
have reviewed the evidence in the record and conclude that it does not support a finding that the 
Petitioner meets the requirements of at least three criteria. 5 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner does not assert nor does the record establish that he is eligible for the EB-2 classification as a member of 
the professions holding an advanced degree. 
5 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
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 Petitioner submitted an official academic transcript indicating that he earned a diploma in 
systems analysis from I in 2003. We agree with the Director that this 
criterion has been met. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
[individual] has at least ten years of fit/I-time experience in the occupation for which 
he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Petitioner filed the petition in October 2020; thus, the Petitioner must establish that he had at least 
ten years of full-time experience in the occupation sought as of that date. 8 C.F.R. § 103.2(b)(l). The 
Petitioner indicates that he "seeks employment in the [information technology] IT networking 
industry." He provided a copy of the Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook) subchapter entitled "Network and Computer Systems Administrators," which shows that 
individuals employed in this occupation typically: 
[ A ]re responsible for the day-to-day operation of [computer] networks. They organize, 
install, and support an organization's computer systems, including local area networks 
(LAN s ), wide area networks (WAN s ), network segments, intranets, and other data 
communication systems. 
As the occupation in which the Petitioner seeks to be employed falls under this occupational category, 
we reviewed the evidence to determine whether he had the requisite years of employment within this 
occupation. The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) 
from current or former employer(s) showing that the [individual] has at least ten years of full-time 
experience in the occupation for which he or she is being sought." Moreover, the regulation at 8 
C.F.R. § 204.S(g)(l ), provides in pertinent part that "[e ]vidence relating to qualifying experience or 
training shall be in the form of letter(s)from current or former employer(s) or trainer(s) and shall 
include the name, address, and title of the writer, and a specific description of the duties performed by 
the [individual] or of the training received." 
On appeal, the Petitioner outlines his qualifying employment experience with five employers, 
asserting that the letters confirm that he has more than 10 years of experience in the occupation. Taken 
together, the letters from 11 and thel I show that he has five 
years and five months of full-time work experience in the occupation. However, without more the 
letters from the other employers are insufficient to show that he has at least the additional four years 
and seven months of required work experience in the occupation. 
For instance, the July 2020 affidavit from an individual attesting to the Petitioner's employment with 
I I [D-] states that he was hired in November 2011 as a systems analyst and 
worked for this company until March 2015. While the affiant provides a generic description of the 
duties that the Petitioner performed during the course of his employment, the affiant does not identify 
how he came to have knowledge about the Petitioner's employment there. Though the document is 
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signed, the affiant' s signature is illegible, and he did not indicate the nature of his own employment 
with D-, if any, therein. The Petitioner also provides an undated affidavit from a former work 
colleague who outlines the Petitioner's work experience with D-, noting"[ m ]y professional experience 
with [ the Petitioner] was during the period that we worked together at [D-], which does not substantiate 
the Petitioner's period of employment with D-. Notably, neither affiant appears to have been the 
Petitioner's former employer or supervisor, nor do they indicate whether his employment with D- was 
fulltime. 
The Petitioner self-reported his employment history from September 2014 to September 2018, 
indicating that he worked as the owner and technical manager (part-time) in his own business. He 
described the operational activities of his business, stating that the company "provided various IT 
services including installation of security equipment for both residences and business locations, 
electrical maintenance of computer networks, maintenance of computers and peripheral equipment, as 
well as communication equipment." 
In his describing his ownership and technical manager role with the company, the Petitioner indicates 
that he performed a variety of tasks involving "business development, management and administration 
of sales and technical teams," "[i]mplementation of network IT projects including cabling, support 
outsourcing, system administration and IT supplies," and "[c ]onfiguring Cisco routers and switches .. 
. . ," among other things. The Petitioner has not provided sufficient evidence regarding the scope and 
nature of his business' operations to establish the nature of his role therein, nor has he explained how 
much time he allocated to the various duties that he performed. While the Petitioner indicates that he 
was employed parttime as a technical manager, but he does not detail whether he was employed in 
this business on a fulltime basis. We also note that performing duties such as business development 
and performing administrative and management oversight of the company's sales teams do not 
comport to the typical duties performed within the network and computer systems administrators 
occupation. 
Additionally, the affidavits regarding his employment with D- assert that he commenced employment 
with that firm in 2011 and remained employed there until March 2015, while the Petitioner indicates 
in his own letter that he was employed in his own business from September 2014 until September 
2018. These overlapping employment timeframes add further ambiguity to the record. The Petitioner 
must resolve the aforementioned inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
We also conclude that the evidence provided regarding the Petitioner's employment from 2011 to 
2018 does not comport with the evidentiary requirements specified in 8 C.F.R. § 204.5(g)(l) for work 
experience letters. It appears that the Petitioner appears to be submitting this documentation as 
"comparable evidence" to meet this criterion. 8 C.F.R. § 204.5(k)(3)(iii) provides that "[i]f the 
[regulatory] standards do not readily apply to the [petitioner's] occupation, the petitioner may submit 
comparable evidence to establish [his] eligibility." The Petitioner has not adequately explained how 
the evidence required under the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) does not readily apply to his 
occupation. Here. the Petitioner's documentation falls short in demonstrating that he has at least ten 
years of full-time experience in the Network and Computer Systems Administrators occupation. This 
criterion has not been met. 
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A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
As discussed, the Petitioner seeks employment in the network and computer systems administrators 
occupation. However, he did not submit evidence sufficient to show that a license or certification is 
required for his occupation, or that he possesses such a license or certification. On appeal, the 
Petitioner points to certificates issued by private computer technology training firms that document 
his "participation in training" focused on various IT programming languages and tools, such as 
Modern Javascript, object-oriented programing with Java, and full stack. The Petitioner has not 
explained how attending computer-related training courses constitutes his certification for the 
occupation. This criterion has not been met. 
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) 
Since the Petitioner does not challenge the Director's determination that he does not meet the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(D) , we consider this issue waived on appeal. See Matter of R-A-M-, 25 
I&N Dec. 657, 658 n.2 (BIA 2012), (stating that when a filing party fails to appeal an issue addressed 
in an adverse decision, that issue is waived). 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." 6 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
"Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any 
occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry in the occupation." 
The Director determined the Petitioner met this criterion. Based on our de nova review of the record, 
we withdraw his determination for the following reasons. In response to the Director's request for 
evidence (RFE) the Petitioner provided evidence showing that as of July 2020 he became a member 
of thel I [B-]. The information provided about B- indicates that it is a non­
profit scientific society that "brings together students, teachers, professionals, researchers, and 
enthusiasts in Computer Science and Information Technology from all over Brazil." The Petitioner 
has not provided documentation to establish the membership requirements for this organization such 
that we can determine whether the association is professional in nature, and the basis used by the 
organization to admit the Petitioner as a member. Thus, the Petitioner has not established that he 
belongs to an organization that qualifies as a professional association. Accordingly, the Petitioner has 
not met 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). 
6 See 6 USCIS Policy Manual, supra, at F.5(B). 
6 
Although the Petitioner asserts eligibility for this criterion on appeal, we need not reach his assertions as 
he cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii). 
Moreover, we need not provide a final merits determination to evaluate whether the Petitioner has 
achieved the required level of expertise required for the exceptional ability aspect of the EB-2 
classification. 
Nonetheless, we will briefly discuss the Petitioner's assertion on appeal that the letters of support 
reviewed by the Director demonstrate "significant recognition" under this criterion. The Director 
indicated in the denial that the letters provide generalized information about how the Petitioner helped 
the companies that employed him, but that the letters did not establish that he has made significant 
contributions to the industry or field. Collectively considering the letters of support and the other 
evidence submitted in support of the petition, we conclude that the evidence does not show that the 
Petitioner's work has had an impact beyond his employers, clientele, and their projects at a level 
indicative of achievements and significant contributions to the industry or field. Therefore, we agree 
with the Director that the evidence of record is inadequate to demonstrate that he received recognition 
for achievements and significant contributions to the industry or field by peers, governmental entities, 
or professional or business organizations. For these reasons, the Petitioner has not established that he 
fulfills this criterion. 
As the record does not support a finding that the Petitioner has met any of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii), the Petitioner has not established eligibility as an 
individual of exceptional ability under section 203(b )(2)(A) of the Act. 
B. National Interest Waiver 
The Petitioner has not established that he is eligible for the EB-2 classification. Since this issue is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments 
regarding the remaining issues, including whether he is eligible for a national interest waiver. 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 M-F-O-, 28 
I&N Dec. 408, 417 n.14 (BIA 2021) ( declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not demonstrated that he qualifies as a member of the professions holding an 
advanced degree or as an individual of exceptional ability under section 203(b)(2)(A) of the Act. 
Accordingly, the Petitioner has not established eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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