dismissed EB-2 NIW Case: Oil And Gas

U.S. Citizenship 
and Immigration 
Services 
In Re: 24807904 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 10, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an oil and gas specialist, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 immigrant 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 the underlying EB-2 classification as an individual of exceptional ability. 1 
The matter is now before us on appeal. 8 C.F.R . § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of 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 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. Section 203(b )(2)(B)(i) of the Act. 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 
1 The Director concluded that the Petitioner does not qualify as an advanced degree professional in the request for evidence 
(RFE) issued on February 22, 2022. On appeal, the Petitioner does not contest this finding. 
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 ofjob 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. 
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). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) sets forth the following six criteria, at least three 
of which an individual must meet in order to qualify as an individual of exceptional ability in the 
sciences, the arts, or business: 
(A) An official academic record showing that the [individual] 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 [individual] 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 [individual] has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If a petitioner satisfies these initial requirements, we then consider the entire record to determine 
whether the individual has a degree of expertise significantly above that ordinarily encountered. See 
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence 
is first counted and then, if it satisfies the required number of criteria, considered in the context of a 
final merits determination); See USCIS 6 Policy Manual F.2, https://www.uscis.gov/policy­
manual/volume-6-part-f-chapter-2. 
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II. ANALYSIS 
A. Individual of Exceptional Ability 
The Director found that the Petitioner satisfied only two criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and 
(C) out of the required three to demonstrate eligibility for an individual of exceptional ability. On 
appeal, the Petitioner contends that he meets the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
(D), (E), and (F). As discussed below, a review of the record indicates that the Petitioner does not 
meet at least three of the relevant criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
1. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires 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. 
The Petitioner initially described his occupation as an "oil and gas specialist" 2 and identified his 
proposed endeavor in which he claims exceptional ability to include "Oil and Gas project management, 
petroleum quality control, equipment usage and maintenance, technical team leadership, ensuring 
safety protocols are being carried out, as well as the safe and efficient extraction and processing of 
petroleum." 
We will first address whether the Petitioner's "Ensino Medio Tecnico em Informatica" or "Vocational 
Secondary School in Information Technology" diploma froml in Brazil meets this 
criterion, as the Director found that this diploma is not related to his area of exceptional ability. The 
school transcript froml I includes general education courses commonly taken during 
a secondary school such as language, history, mathematics, biology, physics, chemistry, physical 
education, and introduction to computer science. The American Association of Collegiate Registrars 
and Admission Officer (AACRAO) Electronic Database for Global Education (EDGE) confirms that 
the Ensino Medio diploma is awarded following three years of secondary education and represents 
attainment of a level of education comparable to completion of a senior in high school in the United 
States. 
On appeal, the Petitioner contends that this vocational school degree in information technology is 
related to his area of exceptional ability because such degree was required for the Petitioner's 
employment at I I a large oil company in Brazil. The Petitioner then refers to pages from 
I I showing that a position of "Operator I" requires a "certificate 
of completion of a high school technical professional education course in Electronics (any major)." 
However, this document demonstrates that many positions within the company generally requires a 
high school equivalent diploma and does not explain how an information technology degree relates to 
the Petitioner's exceptional ability in oil and gas processing and production than those of an individual 
2 The Petitioner did not provide any information in Part 6 of the Form 1-140 "Basic Information About the Proposed 
Employment." 
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with actual degrees in petroleum engineering. 3 Therefore, we find that the Petitioner's vocational 
school diploma in information technology does not meet this criterion. 
We will now address the Petitioner's claim that there are three "Technical Operation Training 
Certificates in 2007 from I I professional training courses" that should meet this criterion. The 
Petitioner states that while working at I I he attended "foll-time classes and passed the 
demanding exams on the strict training courses provided by I I professional educational 
branch." We acknowledge that the Petitioner has worked atl lover 13 years as an operations 
technician, supervised various aspects of oil production processing and equipment maintenance, and 
took courses offered by to increase his work knowledge and understanding 4 However, the 
Petitioner has not submitted evidence related to I professional educational branch to 
demonstrate it is a qualifying academic institution. We find that the record does not establish the 
Petitioner's professional training courses taken during his employment at I I are academic 
record or certificates from "college, university, school, or other institution of learning" as delineated 
by the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
2. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The criterion at 8 C.F .R. § 204.5(k)(3 )(ii)(D) requires "[ee ]vidence that the alien has commanded a 
salary, or other renumeration for services, which demonstrates exceptional ability." The Petitioner 
previously submitted average salaries for technicians at I I from indeed.com to satisfy this 
criterion. The Director found that such information is insufficient to show that the Petitioner's salary 
is based upon exceptional ability. We agree. This criterion requires demonstration of exceptional 
ability by salary or other renumeration compared to other individuals in the field, not just employees 
at the Petitioner's place of employment. See 6 USCIS Policy Manual F.5(8)(2), 
https://www.uscis.gov/policymanual. 
On appeal, the Petitioner provides a one-page chart purportedly from a collective agreement between 
labor unions andl I and claims that his salary of R$28, 700 a month is higher than the highest 
salary of R$16,880.29 shown in the chart. However, the Petitioner does not provide an English 
translation of this document per 8 C.F.R. 103.2(b)(3). Therefore, we are unable to determine the 
evidence's relevance and reliability on the issue of whether the Petitioner's salary demonstrates his 
exceptional ability. Furthermore, the record does not establish that his higher salary or remuneration 
is a result of his exceptional ability, as opposed to the standardized pay scale for his position and time 
at his employment. 
3 Although the Petitioner's academic evaluation report states that he has a bachelor of science in petroleum engineering, 
upon careful reading of the report, we note that the evaluator equated the Petitioner's 13 years of work experience at the 
oil company to a bachelor's degree in petroleum engineering. 
4 The Petitioner's experience and learning at the job fit the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) which requires at least 
ten years of full-time experience in the occupation. The Director previously determined that the Petitioner has met this 
criterion. 
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3. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." The Petitioner submitted his "Professional Identity Card" issued by the Federal Council 
oflndustrial Technicians, registered on February 7, 2020, and valid until July 31, 2020. On appeal, 
the Petitioner asserts that his "mandatory membership with the Federal Council of Industrial 
Technicians as a Computer Technician should be considered valid to comply with this criterion." The 
Petitioner also contends that his membership to the I I a labor union of oil and gas 
professionals in the state of I I where the Petitioner worked meets this criterion. 
We note that the term "profession" is defined at 8 C.F.R. § 204.5(k)(2) as "any occupation for which 
a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation." The Petitioner has not demonstrated that his occupation requires a U.S. 
bachelor's degree or foreign equivalent, and thus, these associations are not "professional associations" 
within the meaning of the regulation. We conclude that the Petitioner's registration with the Federal 
Council of Industrial Technicians and labor union membership do not satisfy this criterion. 
4. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) 
The only other remaining criterion under which the Petitioner asserts eligibility on appeal is 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), which requires "[e]vidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations." 
The Petitioner's evidence for this criterion consists of six letters of support from his colleagues at 
I I and one letter from a general manager of ( a company providing FPS Os or floating 
production storage and offloading platforms to oil and gas industries) who worked with the Petitioner 
on an emergency response in 2020. 5 The letters from his peers atl I contain general praise for 
the Petitioner's work expertise, supervision and leadership skills, and work ethics, along with 
additional details about his specific responsibilities, but provide no indication that the Petitioner's 
contributions go beyond being a dedicated and competent employer. The letter from !credits 
the Petitioner's assistance in responding to a particular emergency event in 2020 but does not mention 
any other substantive recognition or contribution besides this single episode. 
The Petitioner further claims serving as the president ofl I internal accident prevention 
commission) for two years (2018-2020) shows recognition by his peers since members are 
"most respected professionals in the company." The Petitioner's co-workers at mention this 
in their letters of support and commend the Petitioner for "implementing a very well planned and 
coordinated work leading the committee," "reducing number of accidents ... of the workers involved," 
and "mobilizing all workers to adopt safe behaviors and achieving ... healthy work environment." 
However, these letters do not provide specific examples of how the Petitioner's work was recognized 
as an achievement or significant contribution to the industry or field rather than as an achievement for 
his employer. The Petitioner also submitted an article from http:I br quoting his 
5 The Petitioner also submitted a reference letter from a lieutenant colonel of the Brazilian army, but it does not contain 
any relevant information regarding the Petitioner's exceptional ability as an oil and gas specialist. 
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statement on the topic of occupational accident prevention but the article does not recognize the 
Petitioner for any achievement or significant contribution to the industry or field. 
Aside from personal reference letters, we find two journal articles co-authored by the Petitioner 
published on the Brazilian Journal of Development, I acknowledgement of the Petitioner 
along with other employees in 2020, and evidence of the Petitioner's merit raise from his employer in 
2021. The record lacks evidence demonstrating that the Petitioner's authorship of the journal articles 
has been considered an achievement or significant contribution to the industry. The recognition and 
merit raise by the Petitioner's own employer do not demonstrate impact or influence beyond that 
employer. Therefore, we find that the evidence is insufficient in demonstrating evidence of 
recognition and significant contributions in the industry or field as contemplated by the regulations. 
For the reasons set forth above, the evidence does not establish that the Petitioner has not satisfied at 
least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), and thus, we need not conduct a final merits 
determination. Nevertheless, we have reviewed the record in the aggregate and examined "each piece 
of evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). While we acknowledge that the Petitioner has had a 
successful career atl I in Brazil, he has not demonstrated exceptional ability that rises above 
that ordinarily encountered in his field. 
B. National Interest Waiver 
Because the Petitioner did not establish eligibility as an individual of exceptional ability, we need not 
address the Petitioner's assertions on appeal regarding whether a waiver of the job offer requirement, 
and thus of a labor certification, would be in the national interest. See section 203(b )(2) of the Act. 
We reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth in the 
precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another independent 
issue is dispositive of the appeal); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not met at least three of the six regulatory criteria for exceptional ability at 8 C.F.R. 
§ 204.5(k)(3)(ii). 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. 
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