dismissed EB-2 NIW Case: Not Specified In Excerpt

U.S. Citizenship 
and Immigration 
Services 
In Re : 13137100 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 21, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree and as an individual of exceptional ability, as well as a national interest 
waiver of the job off er 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 eligibility for EB-2 classification 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 as 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. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and 
evidence in the form of letters from current or former employer(s) showing that the alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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 
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 imp01iance, 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 ce1iification. In performing 
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 offerorforthepetitionerto 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 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 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an exceptional ability individual. 
A. Member of the Professions Holding an Advanced Degree 
In order to show that an individual holds an advanced degree, the petition must be accompanied by 
"[ a ]n official academic record showing that the alien has a United States advanced degree or a foreign 
equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form ofletters from cun-entorformeremployer(s) showing that 
the alien has at least five years of progressivepost-baccalaureate experience in the specialty." 8 C.F.R 
§ 204.5(k)(3)(i)(B). 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
3 
At initial filing, the Petitioner claimed that he possessed a foreign equivalent of a United States 
baccalaureate degree, along with five years of progressive post-baccalaureate experience in the 
specialty. The Director indicated in the request for evidence (RFE) that the presented evidence did 
not demonstrate the Petitioner's possession of an advanced degree. In response, the Petitioner did not 
address the Director's findings or submit additional evidence regarding this issue. In the decision 
denying the petition, the Director repeated his conclusions and determined that the Petitioner did not 
qualify as a member of professions holding an advanced degree. 
On appeal, the Petitioner does not contest the Director's decision concerning this matter. Therefore, 
we deem this issue to be waived. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009); 
see also Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011 )(finding that issues not raised in a 
brief are deemed waived). 
B. Exceptional Ability 
Because he has not established that he qualifies as a member of the professions holding an advanced 
degree, the Petitioner must first 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 the Petitioner fulfilled the following three regulatory criteria: official academic 
record at 8 C.F.R. § 204.5(k)(3)(ii)(A), ten years of full-time experience at 8 C.F.R. § 204.5(k)(3)(ii)(B), 
and membership in professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E). Despite satisfying three 
criteria, the Director concluded that the Petitioner did not demonstrate that he possessed a degree of 
expertise significantly above that ordinarily encountered. 
After reviewing the record, we agree with the Director's decision relating to 8 C.F.R 
§ 204.5(k)(3)(ii)(A) and (B). However, for the reasons discussed below, we do not concur with the 
Director regarding 8 C.F .R. § 2 04 .5 (k )(3 )(ii)(E), and the record does not show that the Petitioner meets 
any additional regulatory criteria. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner did not claim eligibility for this criterion at either initial filing or in response to the 
Director's RFE. Accordingly, the Petitioner did not demonstrate that he satisfies this criterion. 
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). 
At initial filing, the Petitioner asserted the submission of a "[l]etter from Employer demonstrating [his] 
high salary (see Expert evaluation of salary in Exhibit below)." The Petitioner, however, did not 
identify the "Expert evaluation of salary" to which he referenced, nor is it shown in the "Exhibit 
below." The record does contain a letter fro~ I president ofl I 
who indicated that the Petitioner "has been working with I" J as our Software Engineering 
Specialist" and "[t]orhis excellent work, he is being compensated $65]000.00 per year." In addition, 
the record includes two letters froni~-----.....------~--...,.....that discussed his roles and 
employment but make no mention of his salary. The Petitioner also provided a letter from[ I 
4 
~---ladjunctprofessoratthe Universityo~~--~~' who referenced Is letterandopined 
that "it makes sense to me that [the Petitioner] would be well-compensated for his exceptional 
services," and "[t]he trust that the company has put in [the Petitioner] is evident based on the 
remuneration he has been awarded for his exceptional service." 
In response to the Director's RFE, the Petitioner did not further claim eligibility for this criterion. 
However, as evidence of his employment, he submitted copies of his paystubs frame=] and income 
tax documentation froml I 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]vidence that the alien has commanded a 
salary, or other remuneration for services, which demonstrates exce tional ability." 4 Although the 
record contains evidence that he earned salaries from.___----1-'"~~---,.____. the Petitioner did not 
demonstrate the significance of such salaries. Moreover, whil _.__ ___ _.offered his opinion, he did 
not elaborate and sufficiently explain how the Petitioner's salary reflects exceptional ability besides 
repeating the language of the regulation. Repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), ajj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). In addition, the Petitioner did not provide, for example, comparative 
occupational salary information showing that his salary rises to the level of exceptional ability. 
For the reasons discussed above, the Petitioner did not establish that he commanded a salaiy 
commensurate with exceptional ability. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(kX3)(ii)(E). 
The Director determined that the Petitioner met this criterion based on his membership with Agile 
Alliance. Because the record does not support the regulatory requirements, we will withdraw the 
Director's decision for this criterion. 
At initial filing, the Petitioner did not claim eligibility for this criterion. In response to the Director's 
RFE, the Petitioner indicated his membership and stated that "Agile Alliance is a global nonprofit 
member organization dedicated to promoting the concepts of Agile Software Development." The 
Petitioner also submitted photographs depicting attendance at an Agile Alliance event and screenshots 
from agilealliance.org showing his membership status and background information about the 
organization. Specifically, Agile Alliance describes itself as "a nonprofit member organization 
dedicated to promoting the concepts of Agile Software Development as outlined in the Agile 
Manifesto." Moreover, "Agile is a mindset informed by the values contained in the Agile Manifesto 
and the 12 Principles behind the Agile Manifesto" and "[t]he Agile Manifesto and the 12 Principles 
were written by a group of software developers (and a tester)to address issues that software developers 
faced." 
The regulation at 8 C.F.R. § 204 .5 (k)(3 )(ii)(E) requires "[ e ]vidence of membership in professional 
associations." 5 Although the screenshots indicate that Agile Alliance promotes its software and 
principles, the Petitioner did not explain how this evidence demonstrates the professional status of the 
4 Sec also 6 USCJS Policy Manual,supra, atF.5(B)(2). 
5 Sec also 6 USC JS Policy Manual, supra, at F .5 (B)(2). 
5 
organization. The documentation does not show that Agile Alliance 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 consistent with this regulatory criterion. 6 
Because the Petitioner did not sufficiently establish that Agile Alliance qualifies as a professional 
association, we withdraw the Director's determination for this criterion. 
Evidence of recognition 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). 
On appeal, the Petitioner's brief repeats his response to the Director's RFE and argues that his evidence 
"satisfied the applicable burden of proof, demonstrating by a preponderance of the evidence that [he] 
achieved such recognition and rendered vital contributions in his field." The record reflects that the 
Petitioner rovided a letter fro project manager at L...---~~~~-~---_., and an article from sun-sentinel.com, which indicate that .__ ______________ _. 
"was one of the 50 Brazilian companies chosen out of a total of 2,409 applicants ... for.__ ___ __, 
'business accelerator' program" that "assist[s] the 50 Brazilian companies to launch U.S. operations, 
creatingjobs in Florida and strengthening ties with the state's largest trade partner." 
According to~I --~ 
Since I I was chosen to participate of this program, [the Petitioner] was working 
diligently in order for the technology to pass all qualifications phases, and after showing 
his potential and commitment, the multi-billion dollar U.S. company j I entered 
in collaboration with L J and its technology as a potential solution to help the U.S. 
market in automating businesses' sales processes, no matter their locations .... 
[The Petitioner's] technology was considered b~ las a strongly viable tool for 
bringing technology and services to remote parts of the U.S., even where no internet 
connection existed. Using [the Petitioner's] expertise in combination with the best 
technologies available, him and his team created a solution that continues to facilitate the 
ease and efficiency of business operations by helping to store all information into a local 
database even in small devices. This bringing security, high performance, and 
intelligence,allatthe hands of many companies' managers and employees who need work 
remotely. 
In addition, the Petitioner submitted a letter fro ormer employee oti I who 
furthered described the Petitioner's,__ ___ _.' as a "CRM [customer relationship management] 
platform that essentially speeds up and opens new doors to salefpeop;e inlyny company using it." 
Furthermore, the Petitioner provided background information about romotional material for 
I ~ thd luser manual, and a reseller agreement between and I 
6 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 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 minirnumrequirementforentry in the occupation." 
6 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence ofrecognition for achievements and 
significant contributions to the ind us tty or field bypeer~mental entities or professional or business 
organizations. " 71 I letterand article shows thaL_Jwas selected for I Is program rather 
than recognition of the Petitioner's achievements and significant contributions. Moreover, although the 
letters from I land I credit the Petitioner for developing! I they do not further 
elaborate and sufficiently explain ho"1 I qualifies as a "significant contribution[] to the industty 
or field." Again, this regulatory criterion not only requires the Petitioner to demonstrate contributions to 
the industry or field but that those contributions be "significant." Here, the Petitioner did not establish 
the impact ofi I to the field rather than limited trl I Furthermore, whild I 
indicated thatl I "evidently continues to be used," she did not articulate the influence of 
I I to the field or industry to be considered a significant contribution. 8 
The Petitioner also referenced the letter froml I discussed above, who opined that the Petitioner 
meets the criteria relating to official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A), ten years of full­
time experience at 8 C.F.R. § 204.5(k)(3)(ii)(B), and membership in professional associations at 8 C.F.R 
§ 204.5(k)(3)(ii)(E)j I however, does notofferan opinion relating to this criterion. Regardless, 
while he summarized documentation presented to him by the Petitioner] ldoes not explain how 
the Petitioner has received recognition for his achievements and made significant contributions to the 
field or industry rather than repeating the Petitioner's employment history. I ldoes not 
demonstrate that the Petitioner's work resulted in recognition for achievements and significant 
contributions. 
Similarly, the Petitionerprovided a letter froni I computer engineer at~I ---~ 
who indicated that he worked with the Petitioner for two years and described the duties performed, such 
as "he planned the software architecture and all the workf1ow of the sales web portal" and it "was of huge 
value because it made the company increase their business as well distribute and make mobile the sales 
process, improving its revenue." Moreover, the Petitionerreferenced the previously discussed letter fmm 
I r7ho stated that"[ s ]ince his staii with our finnl I, he has already helped bolster the 
creat1v1ty and technical tact of our IT management team, which in tum has divulged his advice to 
supporting IT staff." Furthermore, the Petitioner submitted a letter froml I who 
indicated that the Petitioner was "a professor atth~ I on a part time basis" and"[ a]lthough 
he worked as a software engineer fo~ l he still made his time available to teach and share with 
youth who dreamed of entering the computer science profession." 
While the letters praise the Petitioner for his professional abilities, they do not indicate how he has been 
recognized for his achievements, nor do they explain how his contributions rise to the level of 
"significant" consistent with this regulation. The letters, for instance, do not show how his contributions 
have somehow impacted or influenced the field or industry in a significant manner beyond his employers. 
Without detailed, probative information, the letters do not sufficiently demonstrate his recognition for 
achievements and significant contributions to the industry or field. 
For the reasons discussed above, the Petitioner did not establish that he satisfies the criterion. 
7 See also 6 USCIS Policy Manual,supra, atF.5(B)(2). ~ 
R While the record also contains some customer reviews 011 ..... __ __.lfrom._l __ _,l's website, they do not reflect 
significant contributions to the field orindustty. 
7 
III. CONCLUSION 
The Petitioner has not established that he meets at least three of the criteria. As a result, we need not 
provide a final merits determination to evaluate whether the Petitioner has achieved the required level of 
expertise required for exceptional ability classification. 9 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. 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. 
9 See6 USCISPolicyManual,supra,atF.5(8)(2). 
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 o/L-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
8