dismissed EB-2 NIW Case: Power Lineman

U.S. Citizenship 
and Immigration 
Services 
In Re: 18403942 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 16, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a journeyman power lineman, 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established his eligibility as an individual of exceptional ability 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 for exceptional ability classification 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: 
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, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating 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). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interes~" 
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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national impmiance, 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 importance, 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 
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). 
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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 certification. In perf01ming 
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 
Because he has not indicated or established that he qualifies as a member of the professions holding 
an advanced degree, the Petitioner must 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 that the Petitioner did not fulfill any of the regulatory criteria. On appeaL the 
Petitioner maintains that he satisfies five criteria. After reviewing the evidence, we conclude that the 
record does not support a finding of his eligibility for at least three criteria. 
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). 
The Director determined: 
The plain language of this criterion has been met However, while the evidence may show 
the petitioner is a capable Journeyman Line Worker in Canada, the certificates/transc1ipts 
do not demonstrate the petitioner has a degree of expertise significantly above that 
ordinarily encountered in his field. 
As such, this criterion has not been met. 
The issue for this criterion is whether an individual provided"[ a ]n official academic record showing that 
the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other 
institution oflearning relating to the area of exceptional ability" as required by the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). 4 The issue of whether an indvidual has achieved the required level of expertise 
required for the exceptional ability classification, however, is conducted in a final merits determination if 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual. 
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the individual satisfies at least three criteria. 5 We will review the record to determine whether the 
Petitioner's evidence complies with the plain language of this regulatory criterion. 
The record reflects that the Petitioner claimed eligibility based on: 
• A "Journeyman Certificate" stating that he "has completed ad I Apprenticeship Pro~ 
and having achieved the standards established under the I 7 
.__ ____ .....,l is hereby auth01ized to w01k in the trades as a journeyman to use the title certified 
journeyman',....'-----------, 
• A card from.__ _________ __.certifying that the Petitioner successfully completed 
"Advanced Boom Truck Safety" 
• A "Statement of Recognition" froml I College of Applied A1is and 
Technology reflecting that the Petitioner successfully completed the "Excavator/Backhoe 
Operator Course" 
• A "Ce1iificate of Completion" from lce1iifying that the Petitioner 
completed "Basic Chainsaw Safety & Maintenance" ,-----------, 
• A "Certificate of Achievement" from~--------- College recognizing the 
Petitioner's participation and training on "Excavator & Backhoe/Loader" 
• A "Certificate of Achievement" from.__ ___________ ___. for "Live Line 
Techniques (25 kV and Below)" 
The Petitioner also submitted a "Lesson Outline" for the National Electrical Course for Apprentice 
Linemen and "Live Line Trainee" learning guides for levels 1 and 2. 
As indicated above, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic 
record. "6 ThePetitioner,however, did not establish that the presenteddoumentation, such as a certificate, 
represents "official academic record[s ]" consistent with this regulatory c1iterion. Here, the Petitioner did 
not show that he provided official academic records from the organizations. In addition, the Petitioner 
did not demonstrate that the entities qualify as "a college, university, school, or other institution of 
learning" pursuant to this regulatory criterion; he did not support the record with background 
information or other evidence reflecting their status as a college, university, school, or other institution 
of learning. 
Without evidence of official academic records from a college, university, school, or other institution of 
learning, the Petitioner has not sufficiently shown that he meets this criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(kX3)(ii)(C). 
The Director referenced several of the documents discussed above and concluded that "there is no 
evidence the profession itself requires them," and "the evidence does not demonstrate the Journeyman 
license demonstrates a degree of expertise significantly above that ordinarily encounter[ ed] in his field." 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C), however, only requires "[a] license to practice the 
5 Id. 
6 Sec also 6 USCIS Policy Manual,supra, atF.5(B)(2). 
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profession or certification for a particular profession or occupation" 7 rather than "evidence the 
profession itselfrequires them." Here, the Petitioner's submission of his "Journeyman Certificate," 
showing his authorization to work in the trades as a journeyman, meets the plain language of this 
regulation. Moreover, the significance of his licenses or ce1iificates is analyzed in a final merits 
determination if the individual satisfies at least three criteria. 8 
Accordingly, the Petitioner established that he meets 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 provided copies of his paystubs from I I located in ~I __ __. 
Canada; salary information for line installers and repairers in the United States from bls.gov, 
glassdoor.com, indeed.com, chron.com, payscale.com, and salary.com; and job postings of various 
journeyman positions in the United States from indeed.com. The regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D)requires "[ e]vidence that the alien has commanded a salary, orotherremuneration 
for services, which demonstrates exceptional ability." 9 The Petitioner compared his salary to non­
journeyman positions in the United States rather than to the salaries of other journeyman power 
linemen in the I I Canada area. Thus, the Petitioner did not show that he commanded a salaiy 
commensurate with exceptional ability. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a job letter from 
I I confirming his salary and employment as a "Journeyman Power Linemen"; copies of 
additional paystubs from I a salary survey for several powerline technician positions in 
Canada from redsealrecruiting.com, and a screenshot reflecting the average powerline technician 
salary in Canada from payscale.com. Again, the comparative evidence indicates the average salaries 
for powerline technicians rather than the salary range for journeyman power linemen, the Petitioner's 
specific occupation. 
On appeal, the Petitioner offers additional screenshots from payscale.com. However, as the Petitioner 
did not submit these documents before the Director, either at the time he filed the petition or in 
response to the Director's RFE, we will not consider this evidence in our adjudication of this appeal 
SeeMatterofSoriano, 19 I&NDec. 764, 766(BIA 1988) (providingthatif"ifthepetitionerwasput 
on notice of the required evidence and given a reasonable opportunity to provide it for the record 
before the denial, we will not consider evidence submitted on appeal for any purpose" and that "we 
will adjudicate the appeal based on the record of proceedings" before the Chief); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
For the reasons discussed above, the Petitioner did not show that he commanded a salary reflective of 
exceptional ability. 
7 See also 6 USCIS Policy Manual,supra, atF.5(B)(2). 
g Sec 6 USCJS PolicyManual,supra, atF.5(B)(2). 
9 Sec also 6 USCJS Policy Manual,supra, atF.5(B)(2). 
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Evidence o.f membership in professional associations. 8 C.F.R. § 204.5(kX3)(ii)(E). 
The Petitioner contends that his membership with the International Brotherhood of Electrical Workers 
(IBEW) meets this criterion. Specifically, the Petitioner argues that "[b ]y definition, the IBEW is a 
professional labor association. It was established in 1891 and represents some 1 million electrical 
professionals. The IBEW states that it is a professional labor association." As evidence, the Petitioner 
submitted a confirmation letter of his membership from IBEW and screenshots from various websites 
describing ibew.org, for example, as "represent[ing] approximately 750,000 active members and 
retirees who work in a wide variety of fields, including utilities, construction, telecommunications, 
broadcasting, manufacturing, railroads and government," "anon-profit labor organization," and "[t]he 
IBEW exists solely to represent the interests of workers in the electrical industry." 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." 10 However, the evidence submitted by the Petitioner does not show that IBEW 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. 11 
Accordingly, the Petitioner did not demonstrate that he fulfills this criterion. 
III. CONCLUSION 
The Petitioner established eligibility for only one criterion discussed above. Although the Petitioner 
claims eligibility for an additional criterion on appeal,relatingto recognition for achievements at 8 C.F.R 
§ 204.5(k)(3)(ii)(F), we need not reach this additional claim as he cannot fulfill the initial evidentiaiy 
requirement of three criteria under 8 C.F.R. § 204.5(k)(3 )(ii). Moreover, 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, he is eligible for or otherwise merits a national interest waiver under the 
Dhanasar analytical framework. Accordingly, we reserve these issues. 12 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. 
10 See also 6 USCISPolicyManual,supra,atF.5(B). 
11 The regulation at8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section IO l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry in the occupation." 
12 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). 
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