dismissed EB-2 NIW Case: Micropigmentation

U.S. Citizenship 
and Immigration 
Services 
In Re : 13334499 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 22, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a micropigmentation professional, 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 Texas Service Center denied the petition, concluding that the Petitioner had not 
established her 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 submits additional documentation and a brief asserting that she is eligible as 
an individual of exceptional ability 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: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 1 0l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
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 interesi" 
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 
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 discretionaiy in nature). 
2 
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 importance, 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 
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 perf01ming 
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 too btain 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 wan-ant 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 she has not indicated or established that she 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 fulfilled only one of the regulatory criteria, a license to 
practice the profession at 8 C.F.R. § 204.5(k)(3)(ii)(C). On appeal, the Petitioner maintains that she 
satisfies two additional criteria. After reviewing the evidence, we conclude that the record does not 
support a finding of her eligibility for at least three criteria. 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
3 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award fi'om 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). 
The Petitioner argues: 
[She] has provided a certificate from the ~-------~ demonstrate ding [sic] 
that on September 27, 2017 she completed a training course titled "Laser Pigment 
Removal." Also attached is an additional certificate from I J t with photo 
of the [Petitioner] and her professor documenting that she completed a course in 
"Formacao de Micropigmentadores." Both certificates are directly related to her area of 
exceptional ability .... These training certifications do not come with a [sic] transcripts 
or syllabus[ es]. The certificate( s) themselves are proof that the [Petitioner] completed the 
training and so state that the training is concluded. The standardofproofis preponderance 
of the evidence and the attached certificates and those contained in the record from the 
.__ _______ ~and.__ ___________ ~from 2017 and2018 
establish that it is more likely than not that the [Petitioner] completed these trainings. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires"[ a]n official academic record."4 The Petitioner, 
however, did not establish how the presented ce1iificates, as well as the photograph mentioned above, 
represent "official academic record[s]" consistent with this regulatory criterion. Fmihermore, the 
Petitioner did not corroborate her assertions that "training certificates do not come with []transcripts or 
syllabus[es]." Besides the certificates, the Petitioner did not provide supporting evidence from the 
organizations reflecting official academic records. In addition, the Petitioner did not submit evidence 
demonstrating that the I I 01.__ __________ ____. 
qualifies as "a college, university, school, or other institution of learning" pursuant to this regulatory 
criterion. 
Without evidence of official academic records from a college, university, school, or other institution of 
learning, the Petitioner has not sufficiently shown that she meets this criterion. 
Evidence o.f membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner contends that her membership with the~----------------~ 
meets this criterion. As evidence, the Petitioner submitted a ~-------------' photograph of a membership card indicating validity until January 2019. The record also contains a 
document, dated July 2018, from the I I president declaring the Petitioner's approval of 
validation. 5 The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in 
professional associations. " 6 However, at the time she filed her petition in July 2019, her membership 
had been expired for approximately six months. Thus, the Petitioner did not demonstrate her eligibility 
4 Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual. 
5 On appeal, the Petitioner claims "[s]ee attached July 18, 2019 letterdocumentingthenature ofthel I association 
and that the association closed." However, the record does not contain the letter, nor does it show that the Petitioner 
submitted it with her appeal. 
6 Sec also 6 USCISPolicy Manual, supra,atF.5(B). 
4 
at the time of filing through her membership withl Moreover, the Petitioner did not offer 
supporting evidence establishing that I I has a membership body comprised of individuals who 
have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization otherwise 
constitutes a professional association. 7 
The Petitioner also argues to meet this criterion based on membership with thd.__ ________ __. 
I I and submits a photograph of a membership card. 
However, as the Petitioner did not make this claim of eligibility and submit this document before the 
Director, either at the time she filed the petition or in response to the Director's notice of intent to deny 
(NOID), we will not consider this claim and document in our adjudication of this appeal. See Matter 
o__fSoriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing that if "if the petitioner was put on notice of 
the required evidence and given a reasonable opportunity to provide it for the record before the deniaL 
we will not consider evidence submitted on appeal for any purpose" and that "we will adjudicate the 
appeal based on the record of proceedings" before the Chief); see also Matter of Obaigbena, 19 I&N 
Dec. 533 (BIA 1988). 8 Regardless, besides that the membership card does not show her dates of 
membership, the Petitioner did not present evidence establishing that I I qualifies as a 
professional association. 
Accordingly, the Petitioner did not demonstrate that she fulfills this criterion. 
III. CONCLUSION 
The Petitioner did not establish that she satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3 )(ii). 
As a result, 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. 9 In addition, 
we need not reach a decision whether, as a matter of discretion, she he is eligible for or otherwise 
merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reseive 
these issues. 10 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. 
7 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section IO l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minirnumrequirementforentry in the occupation." 
R Although the Director informed the Petitioner in the NOID of issues involving her membership withl I and 
afforded her the opportunity to submit evidence of eligibility regarding otherprofessionalassociations, the Petitioner did 
not address the membership criterion in her response, nor did she offer additional membership material. 
9 Seealso6 USCISPolicyManual,supra,atF.5(8). 
10 SeeINSv. Bagamasbad,429U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessaiy 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