dismissed EB-2 NIW Case: Interior Design

Non-Precedent Decision of the
Administrative Appeals Office 
U.S. Citizenship 
and Immigration 
Services 
In Re: 30681069 Date: MAY 31, 2024 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner was in the United States on a student visa when she filed the petition and she plans to 
become an interior designer in this country. She seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or as an 
individual of exceptional ability. She further pursues a national interest waiver (NIW) 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 Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the record did not establish that the Petitioner qualified for the underlying visa 
classification, nor did she merit a discretionary waiver of the job offer requirement in the national 
interest. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de novo. 
Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will 
dismiss the appeal. 
I. LAW 
To establish eligibility for an NIW, 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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 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. USCIS has previously confirmed the applicability of this two-part adjudicative approach in 
the context of individuals of exceptional ability. See generally 6 USCJS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual. 
Once a petitioner demonstrates eligibility for the 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 T&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating NIW petitions. Dhanasar states that USCIS may, as matter of discretion, 
grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
TT. ANALYSTS 
A. Eligibility for the EB-2 Classification 
The Director determined that the Petitioner was not eligible for the EB-2 classification as a member 
of the professions holding an advanced degree and evidence of at least five years of progressive 
post-baccalaureate work in this field. The Director further concluded the Petitioner did not qualify as 
an individual of exceptional ability. We agree with the Director's conclusion that she does not qualify 
for the underlying immigrant classification necessary for USCIS to consider whether she warrants a 
waiver of the job offer requirement. 
1. Advanced Degree Professional 
The Director acknowledged that the Petitioner holds a three-year degree, but they found her ineligible 
for this provision because the advance degree professional classification requires a four-year degree. 
On appeal, the Petitioner argues that the statute does not contain a "requirement that the 
degree-granting program last four years. Therefore, [her] diploma [] qualifies as a professional 
degree." 
While we agree the statute is not the legal authority that requires the degree-granting program to 
consist of four years, Matter ofShah, 17 7 I&N Dec. 244, 245 (BIA 1977) does make that a requirement 
and the Director cited to the Shah decision in the denial. We also note that although it is not 
precedential, a U.S. Circuit Court of Appeals confirmed that Shah properly interpreted a U.S. 
baccalaureate degree to usually require four years of study. See Viraj, LLC v. US. Atty. Gen., 578 F. 
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App'x 907, 910 (11th Cir. 2014). Consistent with Shah and Viraj, USCIS has long considered a 
baccalaureate degree as one that requires four years of education. 
Despite the Petitioner contesting the Director's overall determination about her degree, she did not 
address the Shah decision or the degree requirements that emanate from it. Based on that shortcoming, 
we conclude that the Petitioner has forfeited or abandoned their ability to address the four-year degree 
requirement grounded in the Shah decision. Matter of F-C-S-, 28 I&N Dec. 788, 789 n.3, 791 n.6 
(BIA 2024) (finding issues not challenged on appeal are waived); Moore v. Harper, 600 U.S. 1, 36 
(2023) (finding that issues not presented to the appellate body are forfeited on appeal). 
Setting aside the lack of evidence to demonstrate the Petitioner earned the equivalent of a four-year 
U.S. bachelor's degree, we also agree with the Director that the letter from V-Y-R-, the co-owner of 
their business J-S-, does not meet the regulatory requirements to demonstrate she has at least five years 
of progressive post-baccalaureate experience in the specialty. Even overlooking the Director's 
concern ofV-Y-R-'s position in the organization, the letter does not contain "a specific description of 
the duties performed by the alien or of the training received." 8 C.F.R. § 204.5(k)(2). 
Although V-Y-R-' s letter discusses some of the functions both she and the Petitioner performed in the 
organization, we cannot discern from the letter that the Petitioner accumulated and performed the 
duties of an interior designer for at least five years following her attainment of the equivalent of a U.S. 
baccalaureate degree. We also agree with the Director that a letter from A-S-, one of J-S-'s clients, 
did not satisfy the regulatory requirements to show she held the requisite amount and type of evidence. 
Not only was this letter from a client instead of what the regulation requires-from a former employer 
or trainer-but A-S- described the work that the company J-S- performed rather than the "specific 
description of the duties performed by the" Petitioner. See 8 C.F.R. § 204.S(g). Put differently, what 
J-S- did for this client does not equate to the Petitioner performing those duties. 
Based on our analysis, the Petitioner has not established eligibility for the advanced degree 
professional immigrant classification. 
2. Individual of Exceptional Ability 
The Director concluded that the Petitioner offered adequate evidence of an official academic record 
showing she 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, as required by the regulation at 
8 C.F.R. § 204.5(k)(3)(ii)(A). However, the Director decided the Petitioner's evidence did not satisfy 
any of the following criteria and we agree. 
Evidence in theform ofletter(s) from current orformer employer(s) showing that the alien 
has at least ten years offull-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
As evidence under this criterion the petitioner provided two letters. For the first letter from V-Y-R-, 
the Director indicated it did not discuss the specific projects the Petitioner was involved in, nor did it 
provide details about her duties or experience. Regarding the second letter from the business' client 
A-S-, the Director noted it did not specifically address her work but instead provided details about 
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projects the J-S- studio completed as a business. The Director also addressed statements from the 
Petitioner's counsel claiming she has more than 10 years of experience in the occupation, but 
concluded the record did not include evidence to corroborate her attorney's assertions. 
Regarding the first letter from V-Y-R-, it is missing key information that the regulation requires. First, 
she did not state the Petitioner worked full time during their tenure together. Second, she did not state 
that the Petitioner attained l 0 years of experience, as she indicated they ran the J-S- studio together 
from 2013 to 2022. The Petitioner's appeal brief does not address the second letter and as such, she 
has abandoned those claims here and in any subsequent proceeding relating to this petition. F-C-S-, 
28 T&N Dec. at 789 n.3, 791 n.6; Philipp, 77 F.4th at 709-10. 
The Petitioner has not offered arguments and evidence that satisfies this criterion's requirements. 
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 Director determined that the Petitioner did not initially claim eligibility under this criterion and 
stated as much in the request for evidence. In response, the Petitioner referenced her certificate in 
interior design and claimed it demonstrated eligibility under this criterion. Before the Director, the 
Petitioner presented an interior design certificate, and the Director indicated it did not establish that 
the profession requires a license or certification. In tum, the Director declined to grant this criterion 
to the Petitioner. 
Within the appeal, the Petitioner argues that certificates do not generally state requirements of the 
profession for which they are issued, and that the purpose of the certificate is to establish the 
Petitioner's training and credentials for potential clients. She then surmises that the Director erred in 
concluding she did not meet this criterion. 
But it is the Petitioner that commits error on appeal in two ways. First, by not explaining how the 
Director's determination was incorrect. And second, she did not illustrate how the previously 
submitted evidence satisfies this criterion's requirements. The certificate in question merely reflects 
the Petitioner completed her studies at the advanced course of the Preparatory Department at the 
The Petitioner has not provided "a license to practice the profession" 
or a "certification for a particular profession or occupation" as contemplated by the regulation. 
The Petitioner has not submitted evidence that meets the requirements of this criterion. 
Evidence that the alien has commanded a sala,y, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
Before the Director, the Petitioner relied on a statement in the letter from V-Y-R-, her own bank 
statements from 2021, evidence of the salary statistics for "designers" in Russia. In the Director's 
decision, they acknowledged the letter from V-Y-R- but found that it was did not sufficiently elaborate 
on what she specifically meant when she stated the Petitioner made significant contributions to the 
business. The Director also noted a lack of payroll records to support the Petitioner's claims that her 
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banking records represented her compensation from the business. In the appeal, the Petitioner 
essentially restates their previous claims relating to this criterion. 
We begin with the letter from V-Y-R- in which she indicated that the organization was "able to carry 
out many successful interior design projects" and that they "receive[ d] payment for their work, which 
was higher than the average payment in our field." As the Director noted, such simple statements are 
not enough here. We agree that V-Y-R-'s unsupported and subjective statements have no evidentiary 
value and will not satisfy the Petitioner's burden of proof. See Matter ofMariscal-Hernandez, 28 I&N 
Dec. 666, 673 (BIA 2022); see also Matter ofAzrag, 28 I&N Dec. 784, 787 (BIA 2024). 
Next, we address the Petitioner's banks statements. The Director noted that the Petitioner did not 
prove what amount of the funds, or if any, were attributable to the Petitioner's salary or other 
remuneration in exchange for her interior design services for the company J-S-. We agree, and the 
Petitioner makes no effort to overcome that conclusion on appeal. We therefore consider this topic to 
be waived here. F-C-S-, 28 I&N Dec. at 789 n.3, 791 n.6. 
Finally, we will discuss the salary statistics evidence. The Petitioner claims this evidence originated 
from GorodRabot.ru and it represented the average monthly salary for "designers" was 49,128 Russian 
Rubles. First, although the documentation makes a reference to GorodRabot.ru, it lacks any identifiers 
that would reveal the source of this evidence. This tends to diminish the value of the evidence as it 
leaves us unable to verify the accuracy of the data with the original source. Second, the document 
only reflects that the salary statistics relates to "Designers," and it is unclear to what type of designer 
the salary information applies. In fact, the material's final page had a section titled "Recommended 
vacancies," and it contained a job announcement for a web designer and a separate one for a graphic 
designer. This further undermines this evidence's value as it does not demonstrate the salary data 
relates to interior designers in Russia. 
Lying just beneath our above analysis is the deleterious issue that the Petitioner provided claims and 
evidence relating to interior design workers-as in employees of a company-instead of those in her 
situation as a co-owner of an interior design company. She did not provide any supporting materials 
reflecting salaries or other remuneration for those who operate interior design businesses. To satisfy 
this criterion, the evidence must show that the Petitioner has commanded a salary or remuneration for 
services that is indicative of her claimed exceptional ability relative to others working in the field. See 
generally 6 USCIS Policy Manual, supra, at F.5(B)(2). It is indisputable that owners of an interior 
design company, even those who might carry out interior design duties, are likely to perform work 
distinct from interior design employees. 
In the end, the Petitioner offered claims that lacked necessary corroboration, and evidence that she did 
not prove was directly derived from her interior design work, other material that may-or may not-be 
associated with interior designers, and she ultimately did not provide evidence that was a proper 
comparison to her previous work. For all these reasons, we agree with the Director that the Petitioner 
has not satisfied her evidentiary burden to establish she meets this criterion. 
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Evidence ofrecognition for achievements and significant contributions to the indust,y or 
field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
Under this criterion, the Director acknowledged the Petitioner's award and letters she submitted for 
the record. The Director noted a lack of details and supporting documentary evidence to substantiate 
the claims within the letters and concluded they did not show the Petitioner received recognition for 
achievements and significant contributions to the industry or how her work had impacted the field. 
Now in the appeal, the Petitioner asserts the two letters in the record show she "has played a key role 
in the successful completion of interior design projects." She further indicates the letters reflect "she 
has made significant contributions to projects" and she "continues to amaze her colleagues with ideas 
and fresh perspective which indicates she has a unique and valuable perspective that is appreciated by 
others in the industry." She further posits that the letters emphasized her "high professional qualities 
and potential, stating that she has 'extraordinary abilities' and can contribute to the future of U.S. 
architecture and design." 
We observe that the regulation requires recogmt10n for achievements and significant 
contributions-not to individual projects or to a business in general-but to "the industry or field." 
8 C.F.R. § 204.5(k)(3)(ii)(F). While the letters the Petitioner provided contain general praise for her 
expertise and abilities, they do not indicate that her achievements and significant contributions extend 
to the industry or field. 
For example, V-Y-R- only expressed benefits to their company and their projects, but she did not 
describe any impact the Petitioner had on the interior design industry or field. Similarly, in the letter 
from A-S- we reiterate our above analysis in which this letter's author primarily focused on the 
company itself and on his projects where the company performed work to their satisfaction. But 
nothing specifically about the Petitioner's work, nor about how she may have impacted the industry 
or the field. In summary, the Petitioner has not met this criterion's evidentiary requirements. 
In light of the above analysis, the Petitioner has not met her burden of proof to show that she qualifies 
for EB-2 classification, either as a member of the professions holding an advanced degree or as an 
individual of exceptional ability. Because the Petitioner does not qualify for EB-2 classification, by 
extension she cannot qualify for the national interest waiver, and a detailed discussion of her waiver 
claim cannot change the outcome of this appeal. 
As a result, we will not address and we reserve the issue of the Petitioner's eligibility for the national 
interest waiver under the Dhanasar framework. Patel v. Garland, 596 U.S. 328, 332 (2022) ( citing 
INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (finding agencies are not required to make "purely 
advisory findings" on issues that are unnecessary to the ultimate decision)); see also Matter of Chen, 
28 I&N Dec. 676, 677 n.1, 678 (BIA 2023) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
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III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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