dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26609775 Date : MAY 16, 2023 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, 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. § 1 l 53(b )(2). 
The Director of the Nebraska 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. 
The matter is now before us on appeal. 
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 Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
"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 a degree of expertise 
significantly above that ordinarily encountered in the field. 
1 If these types of evidence do not readily apply to the individua l's occupation , a petitioner may submit comparab le 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confinned the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov /policy-manual/volume-6-
part-f-chapter-5. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
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. 
II. ANALYSIS 
A Exceptional Ability 
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the membership 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In the appeal brief, the Petitioner maintains that he also meets the license to practice criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(C) and the recognition for achievements and significant contributions 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we agree with the Director that 
the Petitioner has not demonstrated he satisfies the requirements of at least three criteria. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner indicates on appeal that he has offered comparable evidence for this criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(k)(3)(iii). This regulation allows for the submission of 
"comparable evidence" if the standards at 8 C.F.R. § 204.5(k)(3)(ii) "do not readily apply to the 
beneficiary's occupation." See 8 C.F.R. § 204.5(k)(3)(iii). A petitioner should explain why the 
regulatory criteria do not readily apply to his occupation, as well as why the evidence he has submitted 
is "comparable" to that required under 8 C.F.R. 204.5(k)(3)(ii). 4 
The Petitioner states that because "the licensing requirement is not applicable to the [Petitioner's] field 
of endeavor as it is not subject to licensing requirements, comparable evidence submitted herewith ... 
should be considered by USCIS." The Petitioner, however, did not support his assertion that 
entrepreneurs in the field of information technology are "not subject to licensing requirements" with 
corroborating documentation. The fact that the Petitioner did not receive a licensure or certification 
3 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). 
4 When evaluating such comparable evidence, officers consider whether the criteria are readily applicable to a petitioner's 
occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in the regulation. See 
generally 6 USC1S Policy Manual F.5(B). supra. 
2 
in his profession is not evidence that the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) does not apply to his 
occupation. In addition, the Petitioner does not identify the "comparable evidence submitted 
herewith" in support of the appeal. 5 
In addition, the Petitioner contends that "USCIS should accept documentation presented in the 
previously submitted and/or attached exhibits in lieu of a license and should find that [the Petitioner] 
has met this criterion via comparable evidence." Again, the Petitioner does not identify the specific 
documents or exhibits he requests to be considered as comparable evidence of a professional licensure 
or certification. Nor has he demonstrated that any of his documents reflect the same caliber of 
expertise as receiving a license to practice the profession or a certification for a particular profession. 
Here, the Petitioner has not established that this criterion does not apply to his occupation and that his 
evidence is truly comparable to receiving a license to practice or a professional certification. 
Accordingly, he has not demonstrated that he meets this criterion through the submission of 
comparable evidence. 
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 Petitioner states on appeal that his "educational background, professional experience, and superb 
skills ... enabled [him] to contribute to his field and will allow him to continue to do so in the future. 
Based on the documentation previously submitted and attached hereto, [the Petitioner] clearly 
established that this criterion has been met." 6 The Petitioner does not identify the specific documents 
or exhibits he requests to be considered as evidence of his recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations.While the Petitioner provided letters of support from both his former employer and 
L__JUniversity, this evidence does not show that his work has been recognized at a level indicative 
of achievements and significant contributions to the industry or field. 7 The Petitioner therefore has not 
established that he fulfills this criterion. 
For the reasons set forth above, the Petitioner has not shown that he meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. 
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. In order to qualify for a national interest 
waiver, the Petitioner must first show that he qualifies for classification under section 203(b )(2)(A) of 
the Act as either an advanced degree professional or an individual of exceptional ability. The Petitioner 
has not shown that he is an advanced degree professional or that he has satisfied the regulatory criteria 
5 The Petitioner's appellate submission was unaccompanied by any documentary evidence relating to his exceptional 
ability. 
6 The Petitioner's appellate submission did not include evidence relating to this criterion. 
7 The letter from his former employer discusses only his job responsibilities and the letter from his alma mater focuses on 
his dedication as a student. 
3 
and achieved the level of expertise required for exceptional ability classification. 8 Accordingly, 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 his eligibility for a national interest waiver under the Dhanasar analytical 
framework. 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 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability. The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
8 Although the Director's request for evidence provided the Petitioner an opportunity to do so, he has not claimed or 
demonstrated eligibility as a member of the professions holding an advanced degree. 
4