dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 20517881 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 09, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an information technology professional, 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability, and that he had not established that a 
waiver of the required job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits a brief asserting that he is eligible for a national interest waiver. 
In these proceedings , it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. ... [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. 
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 in order 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. 
Only those who demonstrate "a degree of expertise significantly above that ordinarily encountered" 
are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
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 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 
II. ANALYSIS 
The Director found that the Petitioner did not meet at least three of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). More specifically, the Director found the Petitioner 
only met the criteria under id (A)-(B) and therefore did not qualify as an individual of exceptional ability. 
A. Evidentiary Criteria for Exceptional Ability 
As discussed below, a review of the record indicates that the Petitioner does not meet at least three of the 
relevant evidentiary criteria. 
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 a diploma and certificate of completion granting the professional title of Data 
Processing Technician from thel !Business School. Accordingly, the Petitioner has 
established that he meets this regulatory criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-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 provided employment verification letters detailing his job duties while employed by 
I from May 2011 until the time of filing as well as employment with 
Accordingly, the Petitioner has established that he meets this regulatory 
criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Petitioner provided a copy of his Microsoft Certified Professional certificate as part of his initial 
petition. The Director, in a request for evidence (RFE), requested the Petitioner provide more information 
regarding this certificate such as whether it is required for a particular profession or occupation. The 
Petitioner declined to submit additional evidence regarding this criterion in his response to the RFE and 
the Director found the Petitioner did not qualify for this criterion for failing to submit additional evidence 
and therefore failing to pursue this criterion. Now, on appeal, the Petitioner argues the information 
technology field does not require a license and the licensure or certification requirement does not readily 
apply to the Petitioner's occupation, pursuant to 8 C.F.R. § 204.5(k)(3)(iii). 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if 
the above standards "do not readily apply to the beneficiary's occupation." Aside from his argument 
on appeal, the Petitioner does not provide any documentary evidence indicating that his certificate is 
comparable evidence or that licensure and certification requirements are not readily applicable to his 
occupation. In this case, the Petitioner has not submitted evidence showing that his Microsoft Certified 
Professional certificate is a license to practice the profession or a certification for a particular 
profession or occupation. Additionally, the Petitioner has not demonstrated that the standards at 
8 C.F.R. § 204.5(k)(3)(ii)(C) are not readily applicable to his occupation, or that any of his documentation 
is "comparable" to the specific objective evidence required at id. Therefore, the Petitioner has not 
established that he meets this regulatory criterion. 
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) 
The Director determined the Petitioner did not meet this criterion because the submitted wage surveys, 
valid from August 201 7 to August 2018, did not establish whether the listed wages were based on an 
hourly, weekly, monthly, or annual basis. Additionally, the Petitioner's income taxes from 2015 to 
201 7 did not establish that the wages of a computer technician were comparable to an information 
system manager and were earned prior to the survey's validity period. However, neither the 
Petitioner's appellate brief nor the evidence submitted on appeal address his qualification under this 
criterion. When dismissing an appeal, we generally do not address issues that were not raised with 
specificity on appeal. Issues or claims that are not raised on appeal are deemed to be "waived." 3 Since 
the Petitioner did not address this issue with specificity on appeal, we deem the issue waived and find 
the Petitioner has not established that he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner did not provide evidence of membership in professional associations. Therefore, the 
Petitioner has not established that he meets this regulatory 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 Petitioner submitted letters of reference and maintains that he meets this regulatory criterion. The 
Director determined the Petitioner did not meet the requirements of this criterion because the 
submitted letters did not provide specific examples of how the Petitioner's work was recognized as an 
achievement or significant contribution to the information technology field or industry. On appeal, 
the Petitioner resubmits letters previously provided in the response to the Director's RFE. 
3 See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies from circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder. 559 
F .3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief). 
4 
!The record contains letters of reference from various individuals who previously worked with the 
Petitioner. 4 users may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (eomm'r 1988). However, 
users is ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought. Id. The submission of letters of support from the petitioner's 
personal contacts is not presumptive evidence of eligibility; users may evaluate the content of those 
letters as to whether they support the individual's eligibility. See id. at 795-796; see also Matter of V­
K-, 24 I&N Dec. at 500 n.2 (BIA 2008). Thus, the content of the writers' statements and how they 
became aware of the petitioner's reputation are important considerations. Even when written by 
independent experts, letters solicited by an individual in support of an immigration petition are of less 
weight than preexisting, independent evidence. 
A letter from I I Partner and Managing Director ot1 • I indicated the Petitioner 
worked with clients that had national recognition. I I additionally noted the Petitioner 
distinguished himself by his ability to understand process and provide technical solutions, such as 
when he "displayed a great technical capacity by assimilating the large number of functional features 
develo ed for the com an ,, while working with a client. A letter from I President of 
L_ discussed the Petitioner's projects developed specifically for a 
client. However and did not provide specific examples of how the Petitioner's 
work was recognized as an achievement or significant contribution to the industry or field rather than 
notable achievements within an organization or on behalf of a client. Additionally, the national 
recognition of an organization is reflective of the company's achievements and significant 
contributions to a field or industry but does not itself show any particular employee has been 
recognized for achievements or significant contributions in the industry or field. 
The Petitioner provided additional letters in response to the Director's RFE. 
I ,I Strategic Planning Director atl I discussed several projects the 
Petitioner worked at the company such as managing a large database where the Petitioner showed 
"great technical knowledge in managing large volumes of data" and "actively contributed to the 
hardware s ecifications for storage, networking, load balancing, and cluster and RAID with the IBM 
team." concluded the Petitioner "was essentially important in significantly helping 
the optimize their operations through integral business solutions." While 
isplays a high level of acclaim for the Petitioner's work at _________ 
particularly as it relates to the management of database systems at his employer, he does not provide 
specific examples of how the Petitioner's work was recognized as an achievement or significant 
contribution to the industry or field. 
Technology Manager at stated his company asked 
___ to "develop a tailored system for monitoring company indicators in 2015" and "[ t ]he target 
audience for this solution would be the partners, so the survey stage would be very crucial." The 
Petitioner was involved in the project through ] and facilitated communication between 
teams while contributing his own knowledge . ____ I indicated a prototype was presented and 
"several suggestions from [the Petitioner] were incorporated into the indicator mana ement model" 
which remains active in the company. I !Director of 
for I also discussed the Petitioner's work with clients of ___ 
4 While we discuss a sampling of these letters, we have reviewed and considered each one. 
5 
stated[Jcontracted withl I where the Petitioner led a team to carry out a demand study and 
the Petitioner "managed to absorb all the needs, elaborating the best functional package that was 
offered to us. The solution was developed and implemented in about six months, with [the 
Petitioner]' s direct participation in the key moments of the approval process, including his direct 
performance in clients, assisting them in extracting information and supporting the criteria adopted 
by the consulting team from While I land I I praise the Petitioner's achievements 
for I I clients, neither provide specific examples of how the Petitioner's work was 
recognized as an achievement or significant contribution to the industry or field rather than as an 
achievement for an employer or client. 
While the Petitioner has earned praise from his peers for his role in successful projects completed for 
his employer and clients, these letters do not specify that he has been recognized by peers, 
governmental entities, or professional or business organizations for achievements and significant 
contributions to the industry or field. Therefore, the Petitioner has not established that he meets this 
regulatory criterion. 
Summary 
The record supports the Director's finding that the Petitioner did not meet at least three of the six 
regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). In addition, the regulation at 
8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if the above standards 
"do not readily apply to the beneficiary's occupation." In this case, the Petitioner has not demonstrated 
that the standards at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his occupation, or that any of 
his documentation is "comparable" to the specific objective evidence required at 8 C.F.R. § 
204.5(k)(3)(ii)(A) - (F). 
The Petitioner in this matter has not established eligibility as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. As previously outlined, the Petitioner must show that he is either an 
advanced degree professional or possesses exceptional ability before we reach the question of the 
national interest waiver. The Petitioner does not claim that he is an advanced degree professional, and 
as previously discussed, has not shown that he meets regulatory criteria for classification as an 
individual of exceptional ability. 
B. National Interest Waiver 
Because the Petitioner has not first established that he is an individual of exceptional ability, further 
analysis of his eligibility for a national interest waiver under Dhanasar would serve no meaningful 
purpose. 5 
III. CONCLUSION 
The Petitioner has not met at least three of the six regulatory criteria for exceptional ability at 8 C.F.R. § 
204.5(k)(3)(ii). The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
5 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, USCIS may, as matter of 
discretion, grant a national interest waiver. 
6 
ORDER: The appeal is dismissed. 
7