dismissed EB-2 NIW Case: Mental Health

U.S. Citizenship 
and Immigration 
Services 
In Re : 20256953 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR . 23, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a mental health assistant , seeks second preference immigrant classification as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203 (b )(2), 
8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition , concluding that the Petitioner had not 
established his eligibility as an individual of exceptional ability and that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner asserts that he is eligible for exceptional ability classification and for a 
national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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 EB-2 visa classification , as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification 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 sets out this sequential framework: 
(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. ... [T]he Attorney General 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)(2) contains the following relevant definitions: 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest" 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
2 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In perfonning 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate that on balance, it would be beneficial to the United States 
to waive the requirements of a job offer and thus of a labor certification. 3 
II. ANALYSIS 
Because he has not indicated or established that he qualifies as a member of the professions holding 
an advanced degree, the Petitioner must meet at least three of the regulatory criteria for classification 
as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying the petition, 
the Director determined that the Petitioner did not fulfill any of the regulatory criteria. On appeal, the 
Petitioner maintains that he satisfies four criteria. After reviewing the evidence, we conclude that the 
record does not support a finding of his eligibility for at least three 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). 
On appeal, the Petitioner contends that he "submitted an official certificate of training and completion 
from Hospital (on the job training) in Mental Health Assistance. Which 
falls under the category of mental Health Tech since it's basically the same duties and responsibilities 
carried out in the field." The record reflects that he provided a "Ce1tificate of Training and Completion" 
from thel I certifying that the Petitioner "has successfully 
completed 180 days (June - November 2008) on the job training in Mental Health Assistant." The issue 
for this criterion is whether an individual provided"[ a ]n 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" as required by the regulation at 8 C.F.R 
§ 204.5(k)(3)(iiXA).4 The Petitioner, however, did not establish that the presented certificate represents 
an "official academic record" consistent with this regulatory criterion. In addition, the Petitioner did not 
demonstrate that or I I qualify as "a college, university, school, or other institution of 
learning" pursuant to this regulatory criterion; he did not support the record with background 
information or other evidence reflecting status as a college, university, school, or other institution of 
learning. 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual. 
3 
Furthermore, the Petitioner claims that he "also submitted [a]I I Senior High School 
Certificatewhichis a basic reguirementformentalhealthtechnicianjobin the United States." The record 
reflects that he offered a I Senior School Ce1iificate" from thel I Examinations 
Council" indicating that the Petitioner "sat the I Senior School Certificate Examination and 
obtained the results." The Petitioner, however, did not show that the certificate constitutes an "official 
academic record." Moreover, the Petitioner did not demonstrate that thel I Examinations 
Council is tantamount to "a college, university, school, or other institution of learning" rather than an 
entity that administers testing. In addition, the Petitioner did not establish that the evidence "relat[es] 
to the area of exceptional ability." While he claims that the certificate "is a basic requirement for 
mental health technician job in the United States," the Petitioner did not provide any suppmiing 
evidence to corroborate his assertions. In fact, the ce1iificate lists general high school subjects, such 
as social studies, English language, mathematics, integrated science, economics, geography, and 
government, rather than an official academic record relating to his area of exceptional ability in mental 
health assistance. 
Moreover, the Petitioner asserts that he "provided a [bachelor of science] Procurement and supply 
chain management, which fit perfectly in the field of mental health technician." The record reflects 
that he submitted a certificate from the University of Education, I certifying that the 
Petitioner received a bachelor of science in "Procurement and Supply Chain Management" and a 
signed registrar transcript from the University College of Management Studies. However, the 
Petitioner did not demonstrate that his bachelor of science degree "relat[ es] to the area of exceptional 
ability" of mental health assistance. The Petitioner did not show through documentary evidence how 
his degree in procurement and supply chain management corresponds to the mental health field. The 
transcript of courses focuses on business, finance, and economic related subjects rather than the mental 
health arena. 
Finally, the Petitioner contends that he presented a "transcript froml !University where I was 
studying Post-baccalaureate Biology (Pre professional health)." The record reflects that the Petitioner 
provided an "Advisor Transcript." However, the Petitioner did not show that the document represents 
an "official academic record" from I University, nor did he establish that he received "a degree, 
diploma, certificate, or similar award" froml I University. In fact, the record contains the 
Petitioner's Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, indicating a 
program ending date of May 2022 to receive his degree. Similarly, the Petitioner submitted an 
"AMCAS Report - 2021 Entering Class" from the Association of American Medical 
Colleges (AAMC) reflecting his academic record. Although the report reflects his enrollment at 
University, it indicates: "No Degree Expected." Thus, the Petitioner has not received a degree, 
diploma, ce1iificate, or similar award froml I University. 5 
Without evidence of official academic records of a degree, diploma, certificate, or similar award from a 
co Hege, university, schoo 1, or other institution oflearning relating to his area of exceptional ability, the 
Petitioner has not sufficiently shown that he meets this criterion. 
5 We note that the AAMC report indicates that the Petitioner previously received a bachelor of science degree from the 
University College of Management Studies in "Business Administration." 
4 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner claims that he "provided a document and a bank statement which is evidence that [he 
has] commanded a salary or other remuneration for service." The record reflects that the Petitioner 
submitted copies of his paystubs from and letter from 
confinning the Petitioner's employment as a mental health enhanced supported housing residential 
technician. 6 The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]videncethat the alien has 
commanded a salary, or other remuneration for services, which demonstrates exceptional ability ."7 
While the evidence indicates that he earned a salary from the Petitioner did not establish that he 
commanded a salary "which demonstrates exceptional ability" consistent with this regulatmy 
criterion. The Petitioner, for instance, did not off er comparative wage infonnation to show the 
significance of his earnings, such that he commands a salary commensurate with exceptional ability. 
Without further evidence, simply submitting evidence of remuneration from an employer is 
insufficient to meet this criterion. 
For the reasons discussed above, the Petitioner did not demonstrate that he satisfies this criterion. 
III. CONCLUSION 
The Petitioner did not establish eligibility for any of the criteria discussed above. Although the Petitioner 
claims eligibility for two additional criterion on appeal relating to ten years of full-time experience at 8 
C.F.R. § 204.5(k)(3)(ii)(B) and recognition for achievements at 8 C.F.R. § 204.5(k)(3)(ii)(F), we need 
not reach these further claims as he cannot fulfill the initial evidentiary requirement of three criteria 
under 8 C .F .R. § 2 04. 5 (k )(3)(ii). Moreover, we need not provide a final merits determination to evaluate 
whether the Petitioner has achieved the required level of expe1iise required for exceptional ability 
classification. In addition, we need not reach a decision on whether, as a matter of discretion, he is 
eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework. 
Accordingly, we reserve these issues. 8 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. 
6 Although he submitted copies of bank statements, the Petitioner did not explain how they show, nor do the statements 
reflect, any salary deposits from 
7 See also 6 USCIS Policy Manual,supra, atF.5(8)(2). 
8 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
5