dismissed EB-2 NIW Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 22415857 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 15, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner 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. § l 153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for the EB-2 classification, and that she had not established 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 a brief asserting that she is an individual of exceptional ability and 
is eligible for a national interest waiver. In these proceedings, it is the Applicant's burden to establish 
eligibility for the requested benefit by a preponderance of evidence . Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). Upon de nova 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 
[individuals] 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 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 [individual'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)(3)(ii) 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. 
A petitioner must provide documentation that satisfies at least three of six regulatory criteria to meet 
the initial evidence requirements for this classification. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 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. 
2 
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). 
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. 
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 individual of exceptional ability. On appeal, the Petitioner does not assert nor does the record 
establish that she is eligible for the EB-2 classification as a member of the professions holding an 
advanced degree. Therefore, she must show that she qualifies as an individual of exceptional ability. 
A Area of Exceptional Ability 
As a preliminary matter, we conclude that the Petitioner has presented insufficient and inconsistent 
evidence regarding the nature of the occupation in which she is seeks employment in the petition. 3 She 
indicated that her prospective job title is "entrepreneur," in the initially submitted Application for Alien 
Employment Certification, Form ETA-750 Part B, and in part 6 of the petition, and noted in part 6.3 of 
the petition that her nontechnical job description was described in an attachment to the petition. However, 
she did not provide an attachment that explains what her prospective employment as an "entrepreneur" 
will specifically entail with the petition, other than her resume in which she indicates that she is "looking 
for a challenging, fast-paced environment with the corporate field to utilize my accounting and analytical 
skills and develop my skill set further whilst adding value to my employer." She also listed photography 
as one of several hobbies that she engages in. 
The Director determined that the record did not sufficiently detail the substantive nature of her prospective 
employment as an "entrepreneur," and he issued a request for evidence (RFE) asking for a detailed 
description of the Petitioner's proposed employment, supporting by documentary evidence. In response, 
the Petitioner provided a statement indicating that her "proposed future employment [ will be] as an 
entrepreneur in the field of photography," indicating: 
[The Petitioner] intends to establish her diverse photography business in the United States, 
leveraging her accounting and photography expertise. The company, which will be 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
headquartered in Florida, will offer exceptional photography services and sell framed 
photographs to customers of U.S. restaurants, helping to advertise and promote the 
restaurant's meals, services, and events. 
On appeal, the Petitioner reiterates the Petitioner's intention to establish and operate a photography 
business in the United States. The Petitioner's initial description of her proposed endeavor did not 
include plans for employment in the field of photography; instead, the Petitioner initially indicated 
that she would seek employment in the accounting field with a U.S. corporation. We conclude the 
RFE response and appeal brief present a new set of facts regarding the occupation in which the 
Petitioner seeks employment through this petition, which is material not only to establishing eligibility 
as an individual of exceptional ability, but also to her eligibility for a national interest waiver. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N 
Dec. at 889-90. 
The Petitioner must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 
103.2(b)(l). Here, the Petitioner's intention to seek employment in the field of photography presented 
after the filing date cannot retroactively establish eligibility. A petitioner may not make material 
changes to a petition that has already been filed to make an apparently deficient petition conform to 
USCIS requirements. See Matter oflzwnmi, 22 I&N Dec. 169, 175 (Comm'r 1998); see also Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which requires that beneficiaries seeking 
employment-based immigrant classification must possess the necessary qualifications as of the filing 
date of the visa petition. We conclude that the Petitioner has not provided sufficient and consistent 
evidence to establish what her prospective occupational field will be, in order to demonstrate that she 
possesses "a degree of expertise significantly above that ordinarily encountered" within that 
occupation. 8 C.F.R. § 204.5(k)(2). The Petitioner must resolve this inconsistency and ambiguity in 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Therefore, the Petitioner has not demonstrated that she is an 
individual of exceptional ability and that she qualifies for the EB-2 classification. 
B. Evidentiary Criteria for Exceptional Ability 
The Petitioner asserted that she meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). In the appeal brief, the 
Petitioner maintains that she also meets the licensure criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), and the 
recognition for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
As discussed, the Petitioner asserted at the time of filing the petition that she is seeking employment in 
the accounting occupation. We reviewed and considered the evidence of record within the context of 
this occupation to determine whether the Petitioner satisfies at least three of six regulatory criteria to 
meet the initial evidence requirements for this classification, but conclude for the following reasons 
that she has not done so. 
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) 
4 
The Petitioner submitted a "Diplom Spetsialista" diploma for a program of study in the field of 
accounting, issued by the I I University of Economics in Belarus in 2017. The Petitioner 
has met this criterion. 
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) 
On appeal, the Petitioner indicates that "USCIS should have found that the [Petitioner] qualifies for 
classification as a person of exceptional ability via comparable evidence as presented in the record," but 
she does not identify or discuss the specific evidence, if any, in the record that should be considered as 
part of this determination. When dismissing an appeal, we generally do not address issues that were 
not raised with specificity on appeal. Issues or claims that are not raised on appeal are deemed to be 
"waived." 4 Since the Petitioner did not address this issue with specificity on appeal, we deem the 
issue waived and conclude 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 Director concluded that the evidence of record was insufficient to meet this criterion. On appeal, 
the Petitioner asserts that the Director erred in his determination, but she does not identify the basis 
for her assertions regarding error on the part of the Director. Since the Petitioner did not address this 
issue with specificity on appeal, we deem the issue waived. The Petitioner has not established that she 
meets this criterion. 
In summary, the record supports the Director's finding that the Petitioner did not meet at least three of the 
six regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we need not provide 
a final merits determination to evaluate whether the Petitioner has achieved the required level of 
expertise required for the exceptional ability aspect of the EB-2 classification. 
C. National Interest Waiver 
The Petitioner has not established that she is eligible for the EB-2 classification. Since this issue is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments 
regarding the remaining issues, including whether she is eligible for a national interest waiver. 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 M-F-O-, 
28 I&N Dec. 408, 417 n.14 (BIA 2021) ( declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
4 See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies from circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 
F .3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief). 
5 
III. CONCLUSION 
The Petitioner has not demonstrated that she qualifies as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. Accordingly, the Petitioner has not established eligibility for the 
immigration benefit sought. 
ORDER: The appeal is dismissed. 
6