dismissed EB-2 NIW Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 24570782 
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 Workers (National Interest Waiver) 
The Petitioner, a photographer, seeks classification as a member of the professions holding an 
advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this employment based second preference (EB-2) classification. See 
section 203(b )(2)(B)(i) of the Act, 8 U.S.C . § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. See Poursina v. USCIS, 936 F.3d 868 (9th Cir. 
2019) ( finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). 
The Director of the Texas Service Center denied the petition, concluding that analysis of whether a 
discretionary waiver of the job offer requirement, and thus a labor certification, was not required 
because the record did not establish that the Petitioner qualified for classification as an individual of 
exceptional ability. 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 ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 53 7 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petition 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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business." To demonstrate 
exceptional ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 
204.5(k)(3)(ii): 
(A) 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; 
(B) Evidence in the form of letter( s) from current or former employer( s) showing that 
the alien has at least ten years of foll-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 alien 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 the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
We will then conduct a final merits determination to decide whether the evidence in its totality shows 
that they are recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate 
the national interest in waiving the requirement of a job offer and thus a labor certification. 
Whilst 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). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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. 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exemptional ability. See generally 5 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
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II. ANALYSIS 
The Petitioner is a photographer seeking to demonstrate eligibility in the EB-2 classification based on 
their exceptional ability. A Petitioner must demonstrate expertise significantly above that ordinarily 
encountered to show that they are of exceptional ability. In support, the Petitioner submitted an official 
academic record showing that they had earned a certificate in photography from a national vocational 
institution of learning, letters purporting to indicate more than 10 years of foll-time work experience 
as a self-employed or independently contracting/freelance photographer who has made significant 
contributions and achievements to the field, a Federal Aviation Administration (FAA) license to pilot 
drone aircraft purported as required for the occupation, and evidence of membership in "professional 
organizations." 
We agree with the Director's ultimate decision that the Petitioner is not of exceptional ability and 
therefore categorically ineligible for the EB-2 classification. Although the Petitioner has demonstrated 
that they met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A), we disagree with the Director that 
the Petitioner met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(B), (C), and (E). And we do not 
find that the Petitioner demonstrated eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F). So the Petitioner 
has not demonstrated that they have exceptional ability for the reasons set forth below. 2 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
noncitizen has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
We disagree with the Director's conclusion that the Petitioner met this criterion and hereby withdraw 
it. The Petitioner has submitted unexplained conflicting information about their foll-time engagement 
in the occupation for a 10-year period. Unexplained and conflicting information casts doubt on 
whether the Petitioner has the requisite foll-time experience they attest to. It is incumbent upon the 
Petitioner to explain and resolve any inconsistencies in the record. See Matter of Ho, 19 I&N Dec. 
582, 591 (BIA 1988). 
With their initial submission, the Petitioner attempted to establish that they had 10 years of foll-time 
employment as a photographer with numerous recommendation letters from individuals who had 
engaged them for their services from time to time at individual milestone events in the writer's 
families. With their RFE response, the Petitioner supplemented the recommendation letters with three 
letters. One letter was written by an individual representing themselves as an accountant who worked 
with the Petitioner's businesses in Brazil attesting that they worked full time as a photographer 40 to 
50 hours per week from August 2007 to November 2019. One letter was written by a person on behalf 
of a company attesting to have utilized the Petitioner's photography services but not specifying 
whether this was on a full time or part time basis for the period that they worked with the Petitioner. 
One final letter was written by the representative of an event center, who stated that the event center 
had utilized the Petitioner's services from 2003 to 2018. 
2 The Petitioner did not provide evidence of a salary, or other remuneration for services, which demonstrates exceptional 
ability under 8 C.F.R. § 204.5(k)(3)(ii)(D). So the Petitioner has abandoned that ground. 
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The Petitioner also submitted their personal statement with the RFE within which they expressed that 
they started their photography career at the age of 16 and enjoyed a military career from the age of 18 
in 1985 to 2015 when they retired. There is no objective evidence in the record of the Petitioner's 
career between the ages of 16 and 18. It is also unclear from the record how the Petitioner could have 
dedicated themselves full time to their military career and simultaneously been working 40 to 50 hours 
a week as a photographer. The Petitioner states that they restricted their activities as a photographer 
so as not to interfere with their military career despite the photography activities being more financially 
lucrative. The Petitioner also states in their personal statement that their photography activities during 
their military career were "extra activities." It appears that the Petitioner's photography activities 
during their military career were a hobby or part time employment and not the full-time employment 
the Petitioner is representing. 
The record contains documents that could tend to show that the Petitioner took on photography as a 
full-time pursuit after their 2015 retirement from their military career. But the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) requires "[e]vidence in the form of letter(s) from current or former employer(s) 
showing that the alien has at least ten years of full-time experience in the occupation for which he or she 
is being sought." And less than 10 years have elapsed from 2015 to the date of filing of this petition. 
The Petitioner has the burden to establish eligibility for the requested immigration benefit. See section 
291 of the Act; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Specifically, the Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing of the application or petition and continuing through the issuance of the final decision 
(unless otherwise specified in the Act or regulations). See 8 C.F.R. § 103.2(b ). Because of the 
unresolved inconsistencies in the documents and information the Petitioner has submitted into the 
record, we cannot conclude that the Petitioner has the requisite 10 years of full-time experience in the 
occupation of photographer. 
Evidence of a license to practice the profession or certification for a particular 
profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
We disagree with the Director's conclusion that the Petitioner met this criterion based on their FAA 
license to pilot a drone and hereby withdraw it. The Petitioner's occupation is that of a photographer. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires a petitioner present a license to practice their 
profession or certification for their particular profession or occupation. A profession as defined at 
section 10l(a)(32) of the Act, 8 U.S.C. § l 10l(a)(32), includes but is not limited to architects, 
engineers, lawyers, physicians, surgeons, teachers in elementary or secondary schools, colleges, 
academies, or seminaries. The U.S. Department of Labor maintains a non-dispositive list of 
professional occupations that customarily requires a bachelor's or higher degree. See Update to 
Appendix A to the Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor 
Certification for Permanent Employment of Immigrants in the United States and Procedures To 
Establish Job Zone Values When O*NET Job Zone Data Are Unavailable, 86 Fed. Reg. 63070 (Nov. 
15, 2021). The occupation of photographer is not included in the statutory list, nor does it appear as 
an occupation that customarily requires a bachelor's or higher degree. Additionally, the DOL's 
Occupational Outlook Handbook (Handbook) reflects that the typical entry-level education 
requirement for a photographer is a high school diploma. See Bureau of Labor Statistics, U.S. Dep't 
of Labor, Occupational Outlook Handbook, Photographers (Sept. 8, 2022), 
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https://www.bls.gov/ooh/photographers.htm. So a photographer is not a member of the professions 
per the statute. 
And an FAA license to pilot drones is not a license or certification for the photography occupation. 
Irrespective of the fact that a part of the Petitioner's work as a photographer utilizes drones for which 
he needs a license, the license is not a mandatory requirement for their job as a photographer. A person 
can be a photographer without an FAA drone license. An FAA license to pilot a drone is required for 
the occupation of a drone pilot. As drone pilot is not the endeavor the Petitioner seeks to undertake, 
it follows that the license is not required for the particular profession or occupation and is therefore 
not sufficient to meet the requirements of the regulation. Accordingly, we cannot conclude that the 
Petitioner has a license to practice the profession or certification for a particular profession or 
occupation. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
We do not agree with the Director's conclusion that the Petitioner met this criterion and hereby 
withdraw it. The Petitioner's membership in the Professional Photographers of America is not 
sufficient evidence of membership in a professional association. The Professional Photographers of 
America is not a professional association. As noted above, the occupation of photographer does not 
appear in the list of professions contained at section 101(a)(32) of the Act, and it is not included as an 
occupation that customarily requires a bachelor's or higher degree. See Update to Appendix A to the 
Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor Certification for 
Permanent Employment of Immigrants in the United States and Procedures To Establish Job Zone 
Values When O*NET Job Zone Data Are Unavailable, 86 Fed. Reg. 63070 (Nov. 15, 2021). 
Consequently, an association of photographers is not a professional association as that term is 
contemplated in the regulations, and the Petitioner has not met this criterion. 
Evidence of recognition 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)(F). 
The Petitioner argued in their RFE response and now argues at appeal that the Petitioner has been 
recognized for achievements and significant contributions to photography by peers, governmental 
entities or professional or business organizations. In support, the Petitioner submitted numerous letters 
of recommendation prepared contemporaneously with these immigrant petition proceedings. 
The evidence the Petitioner submits does not meet the standard of proof because it does not satisfy the 
basic standards of the regulations. See Matter of Chawathe, 25 I&N Dec. at 374 n.7. The regulation 
requires evidence of recognition of achievements and significant contributions. When read together 
with the regulatory definition of exceptional ability, the evidence of recognition of achievement of 
significant contributions should show expertise significantly above that ordinarily encountered in the 
field. The Petitioner's letters of recommendation contain vague statements about the Petitioner's 
photographic skills that the Petitioner would like us to conclude are recognition of achievements and 
significant contributions. But these statements are not supported by any evidence in the record which 
reflects that these are noteworthy as achievements and significant contributions. For example, a letter 
in the record supported by photos taken at altitude credits the Petitioner with the achievement of taking 
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good photographs under difficult conditions. However, the evidence in the record does not show why 
this is especially noteworthy and how it constituted an achievement in, and a significant contribution 
to, the field of photography. Numerous individuals wrote effusive statements of appreciation to the 
Petitioner for documenting major life events such as family weddings. They credited the Petitioner 
with preserving their happy memories through the skill of his work. The record contains many pictures 
purportedly taken by the Petitioner of weddings and other events. However, it is not clear from the 
evidence how the wedding pictures the Petitioner takes are achievements in, and significant 
contributions to, the field of photography significantly above that ordinarily encountered in the field 
of photography. In a similar vein, local business owners attest that the Petitioner's activities resulted 
in better web presences for their business. Again, the business owners' attestations are not supported 
by evidence in the record demonstrating an achievement in and significant contribution to the field of 
photography above that ordinarily encountered in the field. So we cannot conclude that the Petitioner 
meets this ground of eligibility. 
III. CONCLUSION 
The Petitioner has established eligibility in only one of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). So they cannot fulfill the initial evidentiary requirement of three criteria under 8 
C.F.R. § 204.5(k)(3)(ii). And 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. 
In addition we need not reach a decision on whether, as a matter of discretion, the Petitioner is eligible 
for or otherwise merits a national interest waiver under the Dhanasar analytical framework. 
Accordingly, we reserve these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternate issues on appeal where an applicant is otherwise ineligible). The appeal is 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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