dismissed EB-2 NIW Case: Lighting Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 17, 2024 In Re: 31381433 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a chief executive officer (CEO) of a lighting event design group, 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 a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The Director specified the Petitioner did not demonstrate he is eligible for the 
underlying visa classification; his proposed endeavor is of substantial merit and national importance; 
he is well-positioned to advance her proposed endeavor; and, on balance, waiving the job offer 
requirement would benefit the United States. 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). 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 
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 T&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. ADV AN CED DEGREE AND EXCEPTIONAL ABILITY 
A. Member of the Professions Holding an Advanced Degree 
The Director determined the Petitioner did not establish he qualifies for EB-2 classification as either 
as an advanced degree professional or an individual of exceptional ability. The Director found that, 
though the Petitioner submitted evidence of several completed courses and certificates, he did not 
submit evidence of a bachelor's degree or foreign equivalent degree. The regulations at 8 C.F.R. 
§ 204.5(k)(2) require submission of a bachelor's degree or foreign equivalent degree to qualify as an 
advanced degree professional. Petitioners may not combine experience, training, or education to 
substitute this requirement. See id. Accordingly, we concur with the Director's determination that the 
Petitioner has not established he holds an advanced degree for EB-2 classification. The Petitioner 
does not dispute this finding on appeal. 
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(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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 
B. Exceptional Ability 
On appeal, the Petitioner asserts he is a professional of exceptional ability, as he meets at least three 
of the regulatory criteria for this classification. A petitioner is initially required to submit 
documentation that satisfies at least three of the following criteria: 
• An official academic record showing the noncitizen's possession of a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution oflearning 
relating to the area of exceptional ability; 
• Letter from current or former employers showing that the noncitizen has at least 10 years of 
full-time experience in the proposed occupation; 
• A license to practice the profession or certification for the profession or occupation; 
• Evidence of the noncitizen's receipt of a salary or other renumeration demonstrating 
exceptional ability; 
• Proof of membership in professional associations; or 
• 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). 
In denying the petition, the Director determined the Petitioner did not fulfill any of the exceptional 
ability criteria listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). After reviewing the evidence, we agree with 
the Director that the record does not support a finding the Petitioner meets at least three criteria to 
demonstrate exceptional ability for EB-2 visa classification. 
1. Official Academic Record 
The Petitioner previously submitted a certificate from ______________ 
for participating in a web design course from 
September 2000 to November 2000, for a total of 160 hours. The Petitioner also submitted similar 
certificates for his participation in a webinar with and training with 
On appeal, the Petitioner relies upon these previously submitted documents in asserting he meets this 
criterion. However, these certificates do not constitute official academic records 4 and the Petitioner 
has not demonstrated that 
or I I constitute "a college, university, school, or other 
institution of learning" under 8 C.F.R. § 204.5(k)(3)(ii)(A). Accordingly, the Petitioner has not 
established he meets the plain language of this criterion. 
2. Ten Years of Pull-Time Experience 
The Petitioner previously submitted a May 2023 letter from the Petitioner's partner at ___ 
stating the Petitioner has been working full-time as a director since February 2019, two subcontractor 
4 The Petitioner also submitted untranslated documents from ________________ The 
Petitioner is required to submit a copy of documents accompanied by a full English language translation. See 8 C.F.R. 
§ 103.2(b)(3). Absent a certified English translation, we are unable to consider this evidence on appeal. 
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agreements for lighting projects, and a May 2023 letter from the Petitioner's partner at __ 
stating the Petitioner had been working full-time as a director from November 2009 to November 
2012. Although the letters from the Petitioner's partners both characterize the Petitioner's work as 
full-time, both letters also indicate the Petitioner was responsible for the creation and execution of 
holiday lighting projects including Christmas, New Year's Eve, Carnival, Easter, Mother's Day, 
Father's Day, and Children's Day. It is not clear that the holiday-related job duties articulated by the 
Petitioner's partners support the indication that the Petitioner's work was on a full-time basis 
throughout the year. In addition, the two subcontractor agreements do not address whether the work 
performed by the Petitioner was part- or full-time. 
On appeal, the Petitioner asserts the letters from his partners constitute "substantial evidence of his 
comprehensive experience and proficiency in lighting design." Though the Petitioner acknowledges 
that some of his roles have been part-time, he contends we should "recognize the cumulative 
experience amassed across various positions and companies." While we do not question the 
Petitioner's varied experience in holiday lighting design, the Petitioner has not demonstrated that he 
has accumulated at least ten years of full-time experience, as required under the regulations at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
3. License or Certification to Practice 
The Petitioner submitted before the Director contracts from several clients, including the I[ Iand the 
l I These contracts indicate the clients' satisfaction with the work performed and the 
Petitioner's compliance with technical standards in his work. On appeal, the Petitioner relies upon 
these previously submitted documents in asserting he meets this criterion. However, the Petitioner 
does not assert that a license or certification is required to practice his profession or that he possesses 
such a license or certification. Accordingly, the Petitioner has not demonstrated he has a license to 
practice the profession or certification for the profession or occupation under 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). 
4. Salary or Other Renumeration 
The Director indicated the Petitioner did not submit any evidence that he has commanded a salary or 
other renumeration for services that demonstrates exceptional ability. The Petitioner does not contest 
this finding on appeal or otherwise submit related documentation. We concur with the Director that 
the Petitioner has not demonstrated he meets this criterion. 
5. Additional Criteria and Eligibility 
As the Petitioner has not met his burden of satisfying at least three of the six exceptional ability criteria 
at 8 C.F.R. § 204.5(k)(3)(ii), we need not determine whether he satisfies the additional criteria at 8 
C.F.R. § 204.5(k)(3)(ii)(E), (F), and reserve our opinion on this matter. 5 
5 See INS v. Bagamashad. 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessmy to the ultimate decision); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
4 
Similarly, as the record does not establish the Petitioner qualifies for EB-2 classification either as an 
advanced degree professional or an individual of exceptional ability, further analysis as to whether he 
is also eligible for a national interest waiver under Matter of Dhanasar would serve no meaningful 
purpose. We also reserve our opinion on this matter. 
The appeal will be dismissed for the above-stated reasons. 
ORDER: The appeal is dismissed. 
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