dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 04, 2024 In Re: 33404714 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an information technology specialist, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability in the sciences, arts, or business. 
See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The 
Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this 
EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate his eligibility for the underlying EB-2 immigrant classification or for 
the requested national interest waiver. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Chri sta 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. 
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: 
(A) An official academic record showing that the individual 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 individual has at least ten years of full-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 individual 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).1 
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 that the 
petitioner is recognized as having adegree of expertise significantly above that ordinarily encountered 
in the field. 2 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 l&N Dec. at 376. 
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 eligibility for a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. 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. While neither the 
1 If these types of evidence do not readily apply to the individual 's occupation , a petitioner may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 We have 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(8)(2), https: //www.uscis.gov/policy-manual. 
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statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 l&N 
Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. 
Dhanasar states that 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. 
Id. 
II. ANALYSIS 
The Petitioner proposes to establish a software and game development business in the United States 
for which he would be its chief executive officer. The Director found that the Petitioner did not 
establish eligibility for the underlying EB-2 classification as an individual of exceptional ability. The 
Director further found that the Petitioner did not merit a discretionary waiver of the job offer 
requirement in the national interest. 
With respect to the underlying EB-2 classification, the Petitioner submitted evidence to meet four of 
the six criteria for exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii). The Director concluded that 
the Petitioner only met two of the regulatory criteria, salary or remuneration for services demonstrating 
his exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(D) and membership in professional associations at 
8 C.F.R. § 204.5(k)(3)(ii)(E). However, as discussed below, the record does not support the conclusion 
that the Petitioner meets either criterion. 
On appeal, the Petitioner reasserts being an individual of exceptional ability by satisfying two criteria, 
academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A) and recognition for achievements and significant 
contributions to the industry at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence in the 
record, the Petitioner has not demonstrated satisfying at least three of the six initial evidentiary criteria 
for being an individual of exceptional ability and is not otherwise eligible for the requested benefit.4 
An official academic record showing that the individual 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). 
To meet this criterion, the Petitioner claims to have a degree in software engineering and submitted 
two academic evaluations and a document entitled "information about period of study" from I 
in Russia. The information document states that the Petitioner studied software 
engineering at _______ for three years and two months from September 2015 to 
November 2018, and that the "[s]tandard period of completion of education program in full-time 
education format" is four years. The document also includes a list of the courses he completed. With 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
Circuit Court in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
4 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
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his petition, the Petitioner included an academic evaluation stating the Petitioner "attained a Diploma 
in Software Engineering from Russia in the year 2018" and that "the 
Diploma in Software Engineering attained by [the Petitioner] is equivalent of Bachelor of Science in 
Software Engineering granted by an accredited university in the United States." The Director issued 
a request for evidence notifying the Petitioner that the evaluation stated he attained a diploma in 
software engineering, however, a diploma was not submitted with his petition. The Director also 
notified the Petitioner that the evaluation contradicted evidence in the record about his completion of 
the program. 
With his RFE response, the Petitioner stated that he "holds a degree in Software Engineering from
I Iand submitted a second academic evaluation. Similar to the initial 
academic evaluation, this second evaluation indicates that the Petitioner has a diploma in software 
engineering from _______ However, this second evaluation indicates that a diploma 
in software engineering is a three-year degree program, which differs from the initial evaluation which 
states it is a two-year program and the information document from which 
states it is a four-year program. The second evaluation also states that the courses completed for the 
diploma in software engineering "is equivalent to completing three years of post-secondary education 
from an accredited University in the United States" and "to an Associate Degree in Information System 
Development Technologies awarded by an accredited university in the United States." 
On appeal, the Petitioner argues that the evidence establishes he met the criterion. He explains that he 
was enrolled in the software engineering program at and completed three 
years of the four-year program as demonstrated in the information document from I I I IAlthough he did not graduate with a diploma, the Petitioner claims that he completed a 
"substantial portion" of the software engineering program which shows his exceptional ability. In 
addition, he argues that the second academic evaluation states that his completed coursework is 
equivalent to an associate degree in information system development technologies from an accredited 
U.S. university, which is in his area of exceptional ability. 
Although the Petitioner submitted evidence showing he completed a portion of a diploma program in 
his area of exceptional ability, he did not submit an official academic record showing he has a degree, 
diploma, certificate, or similar award from a learning institution relating to his area of exceptional 
ability. Therefore, the Petitioner has not established that he meets the plain language of the criterion. 
Evidence that the individual has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Director found that the Petitioner met this criterion based on his statement of income for his work 
with ________ during the years 2020 and 2021, as well as salary information from 
the Federal State Statistics Service of Russia relating to average salaries for information and 
communication activities. 
In support of this criterion, the Petitioner also submitted an English translation of a letter from his 
previous employer, which explains the Petitioner's dates of employment 
from 2018 to 2021, his job duties, and its inclusion of the Petitioner's salary information compared to 
others in his field. However, while the English translation letter is accompanied by a foreign language 
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translation certification stating the letter was translated from Russian to English, the record does not 
include the foreign language letter. The Petitioner is required to submit a copy of foreign language 
documents accompanied by a full English language translation. See 8 C.F.R. § 103.2(b)(3). Without 
the foreign language document, we are unable to determine the evidence's relevance and reliability on 
the issue of whether the Petitioner has commanded a salary or other renumeration for services 
demonstrating his exceptional ability. 
Had the Petitioner submitted the required foreign language employment letter, the evidence would 
nevertheless be insufficient to meet the criterion. The comparison salary information in the Federal 
State Statistics Service of Russia relates to average salaries for information and communication 
activities. Without further evidence explaining what constitutes information and communication 
activities, we are unable to determine that the comparison salary is in the Petitioner's field of software 
and game development. 
For these reasons, we withdraw the Director's determination for this criterion, as the Petitioner has not 
established that he commanded a salary indicative of his claimed exceptional ability relative to others 
working in the field. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner met this criterion based on his membership in the 
International Game Developers Association and in the American Management Association. 
This criterion requires evidence of membership in a professional association. The regulation at 
8 C.F.R. § 204.5(k)(2) defines "profession" as any occupation having a minimum requirement of a 
U.S. bachelor's degree or foreign equivalent for entry into the occupation. The record includes 
information about each of the associations, however it does not show that either the International Game 
Developers Association or the American Management Association is comprised of individuals who 
have earned a U.S. baccalaureate degree or its foreign equivalent, or that it otherwise constitutes a 
professional association. Therefore, the Petitioner has not demonstrated his membership in a 
professional association under this criterion. We withdraw the Director's determination for 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 found that the Petitioner did not meet the criterion after considering letters from the 
Petitioner's colleagues in the field. On appeal, the Petitioner claims that his education, professional 
experience, and skills "have enabled him to contribute significantly to his field .... " 
The Petitioner argues the letters of recommendation detail his development of immersive software and 
gaming applications which show "his expertise and influence in the industry" and his contributions to 
technological advancements. He also maintains the letters of recommendation attest to his 
"professional reputation and standing within his network" and "serve as a testament to [his] 
recognition by peers and professional organizations." As pointed out by the Director, the letters of 
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recommendation from his colleagues explain the Petitioner's previous projects and work experience 
in the field. While they also provide general support and praise for the Petitioner's work and his 
abilities to start his software and game development business, his colleagues do not identify, and thus 
do not demonstrate that the Petitioner has been recognized for achievements and significant 
contributions to his industry or field, as required under the criterion. 
The Petitioner claims he has been recognized for his achievements pointing to his awards, including a 
I I Award and the Award. The record includes a certificate 
indicating the project was awarded "the most creative project" of the I I 
I I Other certificates indicate the Petitioner participated in certain events, including a 
"students hackathon" and an However, the certificates do not show 
recognition for the Petitioner's achievements and significant contributions to his field. 
The record also includes published articles about the Petitioner detailing his academic and professional 
experience with software and game development. However, the articles do not include the names of 
the authors. We reviewed the websites for the articles published in New York Weekly, CEO Weekly, 
and Entertainment Post, and the website articles also do not include the names of the articles' authors. 
Instead, the articles on the websites include the statement, "This article features branded content from 
a third-party. Opinions in this article do not reflect the opinions and beliefs" of the publication. 
Without an author, we cannot determine whether the articles are marketing material or independent, 
objective published articles about the Petitioner for consideration as evidence of his achievements and 
significant contributions to his field by peers, government entities, or professional or business 
organizations. 
Based on the above, the Petitioner has not demonstrated he meets this criterion. 
Because the Petitioner has not established that he meets at least three of the initial evidentiary criteria 
at 8 C.F.R. § 204.5(k)(3)(ii){A) through (F), we need not conduct a final merits analysis to determine 
whether the evidence in its totality shows that he is recognized as having a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. 
§ 204.5(k)(2). Nevertheless, we advise that we have reviewed the record in the aggregate and conclude 
that it does not support a finding that the Petitioner has established the recognition required for 
classification as an individual of exceptional ability. 
Ill. CONCLUSION 
The Petitioner has not established his qualification for the EB-2 classification as an individual of 
exceptional ability in the sciences, arts, or business, and is therefore ineligible for a national interest 
waiver. While the Petitioner asserts on appeal that he meets all three of the prongs under the Dhanasar 
analytical framework and is otherwise eligible for the national interest waiver, we reserve our opinion 
regarding these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (noting that "courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
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they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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