dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 05, 2024 In Re: 34867479 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this 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 record did not 
establish that the Petitioner qualifies for EB-2 classification as an alien of exceptional ability or that 
the Petitioner was eligible for the requested national interest waiver. The matter is now before us on 
appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) . 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (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 has not claimed she is a member of the professions holding an advanced degree, nor 
does the record contain evidence that the Petitioner previously earned a U.S. baccalaureate degree or 
its foreign equivalent. Therefore, to qualify for EB-2 immigrant classification, the Petitioner must 
establish she is an individual with exceptional ability in the sciences, arts, or business. 
A. Individual of Exceptional Ability 
The Director concluded that the Petitioner is not an individual of exceptional ability because she only 
satisfied two of the six regulatory criteria, 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (B), relating to 
attainment of a degree, diploma, certificate, or similar award and ten years of full-time experience in 
the occupation. On appeal, the Petitioner contends that, in addition to these two criteria, she meets the 
evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D) and (F), relating to commanding a salary or 
remuneration demonstrating exceptional ability and recognition of achievements and significant 
contributions to her industry. The Petitioner does not assert error in the Director's conclusions 
regarding the remaining criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(C) and (E), nor does she claim to meet 
these criteria on appeal; therefore, we consider the issue of eligibility under these criteria to be waived. 
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). 
Upon de novo review of the record, we agree with the Director's determination that the Petitioner has 
not established she is an individual of exceptional ability as she has not met at least three of the 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
Evidence that the Petitioner has commanded a salary, or other remuneration for services, 
which demonstrate exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. 4 
On appeal, the Petitioner asserts the Director did not provide an explanation as to why the submitted 
evidence was insufficient to meet this criterion and contends that, "contrary to [the Director's 
conclusion]," the record did establish that the Petitioner's salary was due to her exceptional ability. 
However, while we acknowledge the brevity in which the Director discussed this criterion, the 
Director's decision does address the Petitioner's salary evidence in the record as well as her 
employment letters, and explains that the evidence did not establish that she commanded a salary 
which demonstrated exceptional ability. Moreover, for the reasons discussed herein, we agree with 
the Director's conclusion that the record does not establish the Petitioner's satisfies this criterion. And 
therefore, any alleged error is, at most, harmless. See generally Matter of O-R-E-, 28 I&N Dec. at, 
350 n.5 (citing Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (stating that error is harmless 
where there is no "reason to believe that . . . remand might lead to a different result" ( citation 
omitted))). 
To support this criterion the Petitioner highlights the letter provided by S-B- in which they commend 
the Petitioner for her successful execution of multiple projects surrounding the centralization of data 
centers, asserting that the Petitioner is among the "highest top data center and [c]yber [s]ecurity 
specialists in the industry." However, while this letter is complimentary to the Petitioner's expertise 
and her execution of the data center centralization projects, the letter does not discuss the Petitioner's 
remuneration, or otherwise establish that the Petitioner commanded a salary or remuneration that is 
demonstrative of her claimed exceptional ability. 
We are also not persuaded by the pay records and salary data submitted in the record. The Petitioner 
provided evidence of her salary earnings and bonuses received in the years between 2019 to 2022, 
with her highest earnings occurring in 2019 with a cumulative remuneration of 233,796 Brazilian real 
(BRL) inclusive of a base salary ofBRL 198,032.28 and bonuses totaling BRL 35,763.96. The record 
also contains a letter from her employer between 2018 to 2020, stating that she held the position of 
delivery lead and noted that her earnings were the result of "her significant contribution to I I 
as well as her achievements compared to her peers," and that the Petitioner was a recipient of a top 
percentage bonus reserved for "the most valued and high-performing individuals in the company." 
Notably, while her employer compared her achievements to other employees within their company, 
the letter does not establish that her salary relevant to others working within her field demonstrated 
exceptional ability. 
And the salary reports from payscale.com and salary explorer also do not establish the Petitioner's 
salary is demonstrative of exceptional ability. First, the Petitioner asserted that the printout from 
payscale.com showed that the average salary for an information technology project manager is 
$89,000. However, the printout from payscale.com indicates that the information provided is for 
4 See 6 USCIS Policy Manual, supra, at F.5(B)(2). 
3 
"support analyst, information technology" salaries, and was calculated based on 11 salaries provided, 
without identify the area of employment of these individuals. And the printout from payscale.com 
states that support analysts, information technology generally are responsible for day-to-day technical 
support of technological systems, whereas the letter froml Iconfirming the Petitioner's salary 
indicates that in her role of delivery lead she was responsible for managing projects and operational 
teams. Accordingly, the Petitioner has not shown that the payscale.com report provides a comparison 
to others working in her position within the field. Likewise, the additional salary information from 
salary explorer provides "information technology average salaries in Brazil," and indicates that a 
person working in the information technology field typically earns BRL 8,820 per month (BRL 
105,840 annually) with the highest average salary reaching BRL 14,000 per month (BRL 168,000 
annually). Here again, while the Petitioner asserts in the record that this salary report establishes the 
average salary for information technology project managers, the report itself only refers to individuals 
"working in [i]nforrnation [t]echnology," without identifying both the source of the salaries or the 
positions covered. Moreover, these reports do not indicate whether they are for a specific area in 
Brazil or the country as a whole, and therefore do not constitute a basis for comparison of the 
Petitioner's earnings to other working in her field in the same location and time period. 
Without more, we agree with the Director that the Petitioner does not satisfy this criterion. 
Evidence ofrecognition 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 plain language of this criterion requires the Petitioner to establish that she has received recognition 
for "achievements and significant contributions to the industry or field." The Director acknowledged 
the evidence in the record, including multiple recommendation letters attesting to the Petitioner's 
competency and success in her prior positions, but concluded that the record did not demonstrate the 
Petitioner had made significant contributions to her field. 
On appeal, the Petitioner generally disagrees with the Director's conclusions, asserting that the letters 
contained in the record do establish the Petitioner's "recognition of achievements and significant 
contributions to IT." And the Petitioner claims that even though she was working in the capacity of 
an employee, this does not limit "her significant achievements in the field," asserting that the evidence 
in the record shows that that her work led to broader contributions because she was providing "critical 
services for IT infrastructure that [benefited] people in entire regions." Additionally, she asserts that 
her work led to the creation of jobs ultimately benefiting her employer's customers and employee. 
Upon de novo review, we agree with the Director that, while the record contains numerous letters from 
the Petitioner's former employers, colleagues, and peers praising her skills and abilities, along with 
evidence of various awards and recognition she received from her prior employers, she has not shown 
significant contributions to her field. While we agree that a person's designation as an employee does 
not diminish their ability to significantly contribute to their field, the Petitioner has not shown that her 
contributions benefiting her employers and their customers resulted in significant contributions to her 
field. The letters also do not substantiate the Petitioner's assertions of the greater benefit derived from 
her work, as they focus specifically on the benefits to their respective company's operations and 
4 
customer base. A petitioner must support assertions with relevant, probative, and credible evidence. 
See Matter ofChawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner points again to the letter form S-B- detailing the Petitioner's success in 
executing two critical data center centralization projects, which resulted in reduced costs for the 
company and the centralization of data center employment resulting in an increase of employees in 
the centers located in the United States and Brazil. But, while we acknowledge the writer's assertions 
commending the Petitioner's successful execution of this complex project, the letter does not explain 
how her work contributed to the field more broadly, beyond impact the company's operations and its 
employees. 
The letter from M-L- who worked with the Petitioner on a project to update the business service 
management tool (BSM) for _______ group commended the Petitioner's expertise and 
execution of their assigned projects. In particular, M-L- states that due in part to the Petitioner's work 
on the BSM project, the company was able to substantially reduce its monthly maintenance costs and 
reduce lost revenue. And M-L- also confirms that the project team was able to drastically reduce 
downtime in the I I environment and improve the experience for its end users. While this letter 
details the contributions the Petitioner helped make for her employers and customers, the letters do 
not explain how this resulted in significant contributions to her field. Similarly, the expert opinion 
letter provided in the record also concludes that the Petitioner's contributions outlined in her letters of 
recommendation indicate that the benefits were limited to her employers, as the expert confirms that 
these letters "describe not only her role and responsibilities but also her professional accomplishments 
and, thus, how she has benefited the company. " 
We have also reviewed the evidence of awards the Petitioner received during her employment, 
including multiple awards received from her employers and colleagues recognizing her contribution 
to the success of their company, and conclude that these do not indicate significant contributions to 
the field more widely, as they appear to be limited to her employer. For the reasons discussed, we 
agree that the Petitioner did not meet this criterion. 
While we acknowledge the Petitioner has had a successful career, the record does not establish that 
she meets at least three of the evidentiary criteria at 8 C.F.R. §§ 204.5(k)(3)(ii). Because the Petitioner 
did not satisfy the initial evidence requirements, we need not conduct a final merits analysis to 
determine whether the evidence in its totality shows that she 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, concluding 
that it does not support a finding that the Petitioner has established the recognition required for 
classification as an individual of exceptional ability. 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. Here, the Petitioner has not established 
eligibility for the underlying EB-2 immigrant classification. Since this issue is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the 
Petitioner's eligibility for a national interest waiver under the Dhanasar analytical framework. 
5 
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 
L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not established that she qualifies for EB-2 classification, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
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