dismissed EB-2 NIW Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re : 24734710 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 9, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a photographer, seeks classification as an individual of exceptional ability in the 
sciences, arts or business. See 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 EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act. 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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the classification sought. 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. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver , a petitioner must first show eligibility 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. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in 1he 
sciences, arts, or business. 8 C.F.R . § 204 .5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 1 If 
a petitioner satisfies the initial criteria, we will then conduct a final merits determination to decide 
1 USCIS has previously confirmed the applicability ofthis two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2) , https: //www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
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. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
II. ANALYSIS 
The Petitioner initially claimed to qualify for classification as a member of the professions with an 
advanced degree. After the Director issued a notice of intent to deny (NOID), the Petitioner asserted 
an alternative claim of exceptional ability and she has not further pursued her initial claim to be a 
member of the professions holding an advanced degree. We therefore consider the initial claim to be 
abandoned. When an appellant does not off er argument on an issue, that issue is abandoned. 
Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005), citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). See also Hristov v. Roark, No. 09-CV-
27312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (holdingthattheplaintiff abandoned 
his claims as he failed to raise them on appeal to the Administrative Appeals Office). 
To establish 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). If the 
above standards do not readily apply to the individual's occupation, the petitioner may submit 
comparable evidence to establish eligibility. 8 C .F .R. § 2 04. 5 (k )(3 )(iii). If an individual meets at least 
three of the regulatory criteria, we then consider the totality of the material provided in a final merits 
determination and assess whether the record shows a degree of expe1iise significantly above that 
ordinarily encountered in the individual's field. SeeKazarianv. USCIS, 596 F.3d 1115 (9th Cir.2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination). See also. 
generally, 6 USCIS Policy Manuaf F.5 (B)(2), https://www.uscis.gov/policy-manual. 
The Petitioner claims to have submitted evidence to satisfy four of the regulatory criteria, as discussed 
below. 
An offical 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). 
We agree with the Director that the Petitioner's bachelor's degree in photography satisfies this criterion. 
Evidence in the.form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years of full-time experience in the occupationforwhichhe or she is being 
sought. 8 C.F.R § 204.5(k)(3)(ii)(B). 
The Petitioner claimed to satisfy this criterion. A petitioner must meet all eligibility requirements at 
the time of filing the petition. 8 C.F.R. § 103 .2(b )(1 ). The Petitioner filed the petition in early April 
2021, shortly before she reached the age of 26. Therefore, to satisfy this criterion at the time of filing, 
the Petitioner would have to have begun working full-time no later than early April 2011, at age 15. 
2 
The Petitioner did not submit employers' letters meeting the regulatory requirements. Her own resume 
and other statements do not show at least ten years of full-time experience. Rather, the Petitioner 
claimed only intermittent employment from September 2012 to 201 7, and for less than six months 
from August 2020 to January 2021. The Petitioner did not establish that this claimed employment 
was full-time as the regulation requires. Also, the Petitioner was a student in New York from 2017 to 
2019, in F-1 nonimmigrant status which would have significantly limited her ability to consistently 
work full-time as a photographer throughout her time in the United States. 
Based on the above information, the Director concluded that the record lacks required evidence of 
employment, and observed that the Petitioner's earliest claimed employment was less than ten years 
before she filed the petition. 
On appeal, the Petitioner states, without elaboration, and without further evidence, that she "has the 
requisite 10 years of experience in the occupation .... Based on the documentation in the record, the 
Beneficiary clearly established thatthis criterion has been met, and USCIS erred in finding otherwise." 
The Petitioner does not identify any specific evidence in the record that would establish the necessary 
experience and show that the Director erred. 
The Petitioner has not documented at least ten years of foll-time employment as a photographer. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(kX3)(ii)(E). 
In the denial notice, the Director acknowledged the Petitioner's submission of a membership card from 
Professional Photographers of America (PPA) dated 2022, but concluded that the Petitioner had not 
shown that she was a member of any association at the time of filing in April 2021. 
On appeal, the Petitioner correctly observes that the initial submission in April 2021 included 
documentation of her PPA membership; she later submitted an updated membership card issued in 2022. 
This evidence overcomes the Director's specific determination regarding the date of membership. But 
the Petitioner has not shown that PPA qualifies as a professional association. 
A "professional association" is a group of professionals organized for education, social activity, or 
lobbying, such as a bar association. Association, Black's Law Dictionary (11th ed. 2019). A 
"profession," in turn, is defined as any occupation that requires at least a U.S. baccalaureate degree or 
its foreign equivalent for entry into the occupation. 8 C.F.R. § 204.5(k)(3). 2 
The Petitioner has not shown that employment as a photographer requires at least a baccalaureate 
degree. 3 She herself claims to have worked as a photographer for several years before she earned such 
a degree. Therefore, the record does not establish that an association of photographers qualifies as a 
professional association. 
2 The definition also includes the occupations listed in section 10l(a)(32) of the Act, 8 U.S.C. § l 101(a)(32), but 
"photographer" is not one of the occupations listed there. 
3 The Department of Labor's O*NETwebsiteindicatesthatmostoccupations in photography require a level of training or 
education below a bachelor's degree. See https:/ /www.onetonline.org/link/summary /2 7-4021.00. 
3 
The Petitioner has not established membership in professional associations as the regulation requires. 
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). 
The Director concluded, without further comment, that the Petitioner satisfied this criterion. We 
disagree. 
The Petitioner had not set forth any specific claim in this regard. The first time she claimed this 
criterion, in her response to the NOID, the Petitioner stated that she satisfied this criterion because: 
"The educational background, professional experience, and superb skills of the Beneficiary enabled 
the Beneficiary to contribute to her field and will allow him [sic] to continue to do so in the future." 
This general statement does not identify any specific evidence of recognition; any specific 
achievements or significant contributions; or the parties or entities conveying that recognition. The 
Petitioner added: "Please see exhibits previously submitted." The Petitioner did not say which 
previously submitted exhibits supported this very vague and general claim. Her initial submission did 
not include any claim of exceptional ability or any materials identified as evidence of recognition for 
achievements and significant contributions to the field. 
The Petitioner cannot meet her burden of proof by asserting, without further explanation, that 
unidentified evidence in the record meets the regulatory requirements. Therefore, we withdraw the 
Director's conclusion that the Petitioner satisfied the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(F). 
For the above reasons, the evidence does not establish that the Petitioner satisfies at least three of the 
exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
III. CONCLUSION 
The Petitioner has not established that she qualifies for EB-2 classification as an individual of 
exceptional ability. The national interest waiver is limited to individuals eligible for EB-2 
classification. Therefore, we need not consider the evidence and arguments that the Petitioner 
presented in support of her national interest waiver claim. 
ORDER: The appeal is dismissed. 
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