dismissed EB-2 NIW Case: Journalism

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-E-G-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
' 
DATE: OCT. 31,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a political editor and journalist, seeks classification as an individual of exceptional 
ability. 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 normally 
attached to this immigrant classification. See § 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). 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. 
The Director, Texas Service Center, denied the petition. Th~ Director found that the Petitioner did 
not qualify for classification as an individual of exceptional ability, and that he had not established 
that a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In his appeal, the Petitioner provides additional 
documentation and lists six evidentiary criteria he contends he has met. The listed criteria 
correspond to the requirements for eligibility an individual of extraordinary ability under 8 C.F.R 
§ 204.5(h)(3), which is a different classification. The Petitioner's appeal does not mention the 
regulatory criteria for individuals of exceptional ability set forth at 8 C.F.R. § 204.5(k)(3)(ii), or the 
national interest waiver requirements. Additionally, the Petitioner indicates that he is "willing to 
appear in person to plead [his] case," but we decline his request for oral argument. See 8 C.F.R. 
103.3(b). 
Upon de novo 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 visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences arts or business. Because this classification normally 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 states, in pertinent part: 
Matter of K-E-G-
(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 of job offer-
(i) National interest waiver. ... the Attorney General1 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 alien 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 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 alien has commanded a salary, or other remuneration for 
services, which\demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
1 Pursuant to section 1517 of the Homeland Security Act of2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135,2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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(b)(6)
Matter of K-E-G-
(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). 
Furthermore, with regard to eligibility for the national interest wavier, neither the statute nor the 
pertinent regulations define the term "national interest." Additionally, Congress did not provide a 
specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
report to the Senate that the committee had "focused on national interest by increasing the number 
and proportion of visas for immigrants who would benefit the United States economically and 
otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must 
establish that he or she will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. !d. at 217-18. 
II. ANALYSIS 
In Part 2 of the Form I-140, Immigrant Petition for Alien Worker, the· Petitioner checked box "l.i.," 
indicating that he seeks classification as an individual "applying for a National Interest Waiver (who 
is a member of the professions holding an advanced degree or an alien of exceptional ability)." As 
supporting evidence, the Petitioner provided his profile listing his 
filmography work as a sound mixer, boom operator, and audio assistant; an online news article 
he 
wrote for a webpage printed from and three video images of 
himself appearing on various news programs. As the Petitioner did not indicate or demonstrate that 
he qualified as a member of the professions holding an advanced degree, the Director issued a request 
for evidence (RFE) asking the Petitioner to submit documentation that meets at least three of the 
regulatory criteria for exceptional ability set forth at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner's 
response included his Bachelor of Arts degree in sociology from a copy of his 
previously submitted profile, a June 2013 job placement confirmation from 
reflecting his assignment to film credits for identifying 
the Petitioner as a "sound recordist," and another webpage printed from 
describing an event at the 
The Director determined 
that the Petitioner's documents did not meet 
any of the regulatory categories of 
evidence for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Although the Petitioner had checked 
box "l.i." under Part 2 of the Form I -140 petition requesting a national interest waiver as an 
advanced degree professional or an individual of exceptional ability, the Petitioner contends on 
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(b)(6)
Matter of K-E-G-
appeal that he meets the regulatory criteria for extraordinary ability at 8 C.F.R § 204.5(h)(3)(iii), (v), 
(vi), (vii), (viii), and (ix). The Petitioner, however, has not stated that he seeks classification as an 
individual of extraordinary ability at any time throughout these proceedings. Regardless, there is no 
statute, regulation, or case law that permits a petitioner to change the classification of a petition on 
appeal. In addition, the Ninth Circuit has determined that once USCIS concludes that an individual 
is not eligible for the specifically requested classification, the agency is not required to consider, sua 
sponte, whether he is eligible for an alternate classification. Brazil Quality Stones, Inc., v. Chertoff, 
286 Fed. Appx. 963 (9th Cir. July 10, 2008). 
Furthermore, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications 
for a single petition with a single fee. The initial filing fee for the Form I -140 covered the cost of the 
Director's adjudication of the I-140 petition under section 203(b)(l)(A) of the Act. Pursuant to 
section 286(m) of the Act, 8 U.S.C. § 1356, USCIS is required to recover the full cost of 
adjudication. In addition to the statutory requirement, Office of Management and Budget (OMB) 
Circular A-25 requires that USCIS recover all direct and indirect costs of providing a good, resource, 
or service. 2 If the Petitioner seeks classification under a different immigrant visa classification, then 
he must file a separate Form I -140 petition, with the accompanying fee, requesting the new 
classification. 
The Petitioner's appeal does not specifically challenge any of the Director's findings pertaining to 
the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). The appellate submission includes a July 2016 
mortgage statement and loan information from video images of himself 
appearing on the and television networks as an 
spokesman; a June 2015 job offer letter from two emails from the 
an email from the and a May 2016 utility 
bill. 
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) 
While the Petitioner submitted his Bachelor of Arts degree in sociology, he did not provide his official 
academic record from showing that the degree relates to journalism. 
Accordingly, the Petitioner has not established that he meets this regulatory criterion. 
2 See http://www.whitehouse.gov/omb/circulars/a025/a025.html. 
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(b)(6)
Matter of K~E-G-
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she 
is being sought. 8 C.P.R. § 204.5(k)(3)(ii)(B) 
The Petitioner provided a job placement confirmation from reflecting his assignment 
to 'beginning June 28, 2013. In addition, the Petitioner submitted a June 2015 
letter from offering him an unspecified position with the company. The letter 
stated that "[t]his offer will expire June 22, 2015, unless accepted [ 
] prior to such date." As the 
Petitioner signed and dated both the job offer and its appendix on July 23, 2016, the offer would appear 
to have expired. Regardless, the letters do not reflect 10 years of experience and there is no 
documentary evidence indicating that the preceding jobs were for a journalist or political editor. 
Furthermore, both jobs commenced after the Petitioner filed the Form I-140 on March 19, 2013. 
Eligibility must be established at the time of filing. 8 C.P.R. § 103.2(b)(1), (12); Matter of Katigbak, 
14 I&N Dec. 45,49 (Reg'l Comm'r 1971). We cannot consider any occupational experience gained 
after the date the petition was filed as evidence to establish the Petitioner's eligibility at the time of 
filing. Therefore, the Petitioner has not established that he meets this regulatory criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.P.R. § 204.5(k)(3)(ii)(C) 
'-The Petitioner contends that he is a but did not provide evidence of his 
credentials. In addition, the and the 
emails were sent in 2015 and 2016, and thus do not establish the Petitioner's eligibility at 
the time of filing. See 8 C.P.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&J'.! Dec. at 49. 
Furthermore, the emails do not mention the Petitioner by name, or constitute a license or professional 
certification. Accordingly, 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.P.R. § 204.5(k)(3)(ii)(D) 
In addition to his work as a journalist and political editor, the Petitioner states that he works "as an 
Analyst on commanding a salary in excess of [$] 130,000 for that role due to [his] 
expertise in the financial field." As previously mentioned, the Petitioner submitted a June 2015 letter 
from offering him an unspecified position paying "$130,000 in gross base 
salary per year." The Petitioner received this salary offer after he filed the Form I-140 on March 19, 
2013. Again, eligibility must be established at the time offiling. 8 C.P.R. § 103.2(b)(l), (12); Matter 
of Katigbak, 14 I&N Dec. at 49. We cannot consider salary or remuneration received after the date 
the petition was filed as evidence to establish the Petitioner's eligibility at the time of filing. 
Regardless, the salary offered to the Petitioner does not relate to his work as a journalist or political 
editor. Furthermore, the Petitioner offers no bases for comparison to show that his salary demonstrates 
exceptional ability. For the reasons outlined above, the Petitioner has not established that he meets 
this regulatory criterion. 
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(b)(6)
Matter of K-E-G-
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner maintains that he is a As noted previously, he did not 
provide evidence ofhis credentials, the submitted 
and the emails do not mention the Petitioner's name, and the emails were 
sent after the petition's filing date. See 8 C.F .R. § 103 .2(b )(I), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. Furthermore, the emai1s do not constitute documentation of his membership in a professional 
association. Accordingly, 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 did not provide evidence of recognition for achievements and significant contributions 
to the industry or field by peers, governmental entities, or professional or business organizations. 
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 
The remaining issue is whether the Petitioner has established that a waiver ofthe job offer requirement, 
and thus a labor certification, is in the national interest according to the three-pronged analysis set forth 
in NYSDOT. As the Petitioner has not established eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. The waiver is available only to foreign 
workers who otherwise qualify for classification under section 203(b )(2)(A) of the Act. However, 
because the Director addressed the issue in his decision, we will review the national interest waiver 
analyis under NYSDOT. 
6 
(b)(6)
Matter of K-E-G-
As a journalist, political editor, and commentator, the Petitioner informs the public about current 
news events. The Petitioner offered evidence indicating that his news reports and commentaries are 
disseminated to the public online and through national media outlets such as the and 
television networks. As there is value in providing news coverage to a widespread 
audience, we find that the Petitioner's work is in an area of substantial intrinsic merit, and the 
Director's determination on this issue is withdrawn. Furthermore, the record supports the Director's 
finding that the Petitioner meets the second prong of the NYSDOT national interest analysis. 
It remains, then, to determine whether the Petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The Director 
determined that the Petitioner's impact and influence on his field did not satisfY the third prong of the 
NYSDOT national interest analysis. 
On appeal, the Petitioner does not specifically contest any of the Director's findings under the third 
prong of NYSDOT. The Petitioner states: 
I'm a and for 
a global news website, in addition to freelancing in my role as a 
for several other outlets both national and international including 
as well as 
In this capacity, I have appeared on and 
and and been quoted on new media both nationally and globally 
including 
as well as various radio shows. I have an 
to film and TV. 
page showcasing my contribution 
The Petitioner mentions his various media roles and filmography work, but he does not submit any 
letters of support or other documentary evidence indicating that his work as a journalist, political editor, 
commentator, or correspondent has influenced the field as a whole. See NYSDOT, 22 
I&N Dec. at 219, n.6. While the Petitioner has documented some of his activities in the field, there 
is no evidence showing that his news coverage or political commentaries have affected the field of 
journalism. In this matter, the Petitioner has not established by a preponderance of the evidence that 
he has a past record of demonstrable achievement with some degree of influence on the field as a 
whole or that he will otherwise serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. Accordingly, we uphold the 
Director's finding that Petitioner has not met the third prong of the NYSDOT national interest 
analysis. 
III. CONCLUSION 
The Petitioner has not demonstrated that he qualifies for classification as an individual of exceptional 
ability under section 203(b )(2)(A) of the Act. In addition, he has not shown that a waiver of the job 
7 
Matter of K-E-G-
offer requirement will be in the national interest of the United States. Accordingly, he has not 
established eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. · 
Cite as Matter of K-E-G-, ID# 87725 (AAO Oct. 31, 20 16) 
8