dismissed EB-2 NIW Case: Robotics And Automation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 19, 2024 In Re: 31285355 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, who has experience working in robotics, digitization, and automation within the steel 
industry, seeks employment-based second preference (EB-2) immigrant classification as an individual 
of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
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 record did not 
establish that the Petitioner qualifies for EB-2 immigrant classification as an individual of exceptional 
ability. The matter is now before us on appeal pursuant to 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
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). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confinned the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,3 grant a national interest waiver if 
the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner's proposed endeavor is to "build on [his] extensive experience with Robotics and 
advanced industrial automation in the steel industry to invent, prototype, develop and deploy robots" 
to perform tasks in the steelmaking process, thereby "increasing safety and reducing the costs of 
manual labor" in the steel industry. In reviewing the Petitioner's eligibility for the underlying EB-2 
visa classification, the Director concluded that the evidence did not establish that he met the requisite 
three of the six evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) to demonstrate his eligibility as an 
individual of exceptional ability. Specifically, the Director stated that the Petitioner met the criteria 
related to his membership in a professional association and recognition for achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations under 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F), respectively. However, the Director 
concluded that the Petitioner did not meet the requirements of three other criteria for which he 
submitted evidence. 
In the appeal brief, the Petitioner maintains that he also meets the degree or diploma relating to the 
area of exceptionally ability criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), the ten years of full-time 
experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), and the salary criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). After reviewing the evidence, we agree with the Director that the record does not 
support a finding that the Petitioner satisfies the requirements of at least three criteria. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner initially submitted a vocational training certificate for the basic training qualification of 
Electrical Operator from the Vocational Training and Education Service,! 
Italy. As the Director correctly stated, the Petitioner did not submit evidence that this relates to his 
claimed area of exceptional ability. On appeal, the Petitioner now submits a printout of the vocational 
school's website describing the Electrical Operator course. He also submits for the first time on appeal a 
GED testing transcript and Florida high school diploma issued in 2022 and argues that his testing in 
mathematical reasoning and science relate to his claimed exceptional ability in robotics and software 
development. 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given 
an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first 
time on appeal. Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988). The Director's request for evidence 
(RFE) sought further information to demonstrate that the Petitioner possesses a degree of expertise 
significantly above that ordinarily encountered in the field, noting specifically that the record did not 
contain evidence to show that the vocational training certificate relates to the claimed area of 
exceptional ability. The Petitioner did not submit additional evidence on that point in response to the 
RFE. We will therefore not consider this new evidence submitted on appeal. Even if we were to 
consider it, the Petitioner does not explain how testing for a general high school equivalency diploma 
relates to his claimed area of exceptional ability. Additionally, he took the GED test and obtained the 
diploma in September 2022, after the filing of his petition in July 2022, and has not shown that he met 
the eligibility criteria as of the date the petition was filed, as required by 8 C.F.R. § 103.2(b)(l). 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
In support of his petition, the Petitioner initially submitted a March 2022 letter from his employer 
listing his positions with the company since May of 2006. The letter lists the names of the positions 
he has held, the years he held each position, his current salary, and general descriptions of some of his 
job duties. In response to the Director's RFE, the Petitioner submitted an updated letter from his 
employer, providing the months and years of each position he held there from May 2006 through the 
date of the letter in March 2023 and listing some of the duties he had performed during his 
employment. The Director stated that the letters lacked full dates and detailed descriptions of the 
positions the Petitioner held. On appeal, the Petitioner asserts that he did provide the required evidence 
and the Director failed to address it. Although the updated letter in response to the RFE does provide 
the months and years the Petitioner held each position, we agree with the Director that neither letter 
contains details regarding the Petitioner's employment sufficient to show that he has at least ten years 
of experience in the occupation for which he is being sought. 
The 2022 letter provides some details indicating that the Petitioner has work experience in the relevant 
occupation but is insufficient to show at least ten years of experience. It states that from 2006 to 2010 
he held the position of Software Developer, and from 2010 to 2012 he was a Software Developer and 
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robotics engineer. The letter does not specifically address his role as robotics engineer, but states that 
as Software Developer he developed "advanced automation industrial software for the steel industry," 
developed "robotics applications," and led teams dedicated to these efforts. From 2012 to 2015, he 
was Head of Automation Robotics, which involved leading automation and robotics teams, 
"choos[ing] technologies and products to be integrated into the robotics cells," defining "strategies 
and standards," and coordinating with customers. As Country Manager between 2015 and 2018, the 
Petitioner "[s ]pread the robotics culture in the steel industry by participating in panels and forums," 
defined "technical details and options for the end-users," provided technical support to customers, and 
found new partners, customers, and investors. Finally, as "President and CTO" beginning in 2018, he 
managed the company's growth in the American market, structured company development, supported 
hiring of new engineers, "[s ]pread the robotics culture," and located new investors. The 2023 letter 
lists the same job positions but adds the months and years the Petitioner held each role. It does not 
contain additional details about the Petitioner's specific duties in each position but provides a general 
list of "a wide range of duties" he has performed while employed there. The descriptions of the 
Petitioner's roles between 2006 and 2015 indicate full time work in an area related to the proposed 
occupation during those years. However, the descriptions of his work since 2015 are general in nature 
and appear to be more related to administrative and financial duties, customer and public relations, 
and human resources management rather than his proposed endeavor to "invent, prototype, develop 
and deploy robots" in the steelmaking industry. Taken together, the letters do not contain a detailed, 
specific description of the duties performed, as required by the regulation at 8 C.F.R. § 204.5(g)(l ), 
covering a period of at least ten years in the occupation sought sufficient to show that the Petitioner 
meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
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). 
With his petition, the Petitioner initially submitted a letter from his employer offering him the position 
of "President and CTO" for a gross salary of $76,667 per year beginning in May 2021. The letter also 
offers a "gross fee of $30,000 that will be confirmed based on ... MBO parameters" including 
customer satisfaction, support to the sales department, marketing activities, "[g]eneral trend of the 
company," and the success of specific projects. Additionally, he provided a copy of his 2021 W-2 
showing he earned gross wages of $108,066.08. He also submitted copies of a job listing for a robotics 
engineering position, an O*NET Online report on robotics engineers stating in part that the median 
wage for the occupation in 2021 was $100,640 annually, and data showing that the average salary for 
engineers is $98,970 in Florida and $100,640 in the United States overall. The Director indicated in 
the RFE that although the Petitioner submitted information about the average salaries of robotics 
engineers, he did not appear to hold such a position, and earning a salary above the average did not 
demonstrate exceptional ability. 
In response to the RFE, the Petitioner submitted a letter from his employer stating in relevant part that 
he "currently receives an annual salary of~ $150,000.00 (including benefits)." The letter further 
indicates that the Petitioner has "focused on his area of expertise: developing new robotics applications 
and improving prototypes," and that as president of the company's U.S. branch, he "continued to excel 
in his role as a developer ofrobotics applications." As discussed above, this letter provides a general 
list of the Petitioner's "wide range of duties" during his tenure with the company. The Petitioner also 
provided an offer letter from another company for a position as a Senior Automation Engineer for an 
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annual salary of $165,000, but the record does not indicate that the Petitioner has actually held this 
position. In denying the petition, the Director explained that the Petitioner's salary did not appear to 
be for the type of robotics engineering occupation for which he had submitted average salary data, as 
he works as the "President and CTO" of the company, and that he did not submit evidence to 
demonstrate that his salary demonstrates exceptional ability relative to others working in his field. See 
generally 6 USCIS Policy Manual F.5(8)(2). 
On appeal, the Petitioner provides additional evidence about the "scope" of the company where he is 
employed. He submits, for the first time on appeal, a description of the company from its official 
website. As discussed, where a petitioner has been put on notice of a deficiency in the evidence and 
has been given an opportunity to respond, we will not accept evidence offered for the first time on 
appeal. Matter of Soriano, 19 I&N Dec. 764. As the Director gave the Petitioner an opportunity to 
address this issue in response to the RFE, we will not consider this new evidence. 
The Petitioner also argues that because his current salary is $150,000 per year and the average annual 
wage for robotics engineers is $100,000, he "hold[s] an exceptionally high remuneration." Further, 
he notes that his employment offer "from just a year prior" was for $76,667 and "it is only thanks to 
[his] exceptional ability in the robotics field that he managed to duplicate his annual income in less 
than a year." He argues that as President and Chief Technology Officer of his company, which focuses 
on robotics and software development, he earns this high salary in a position relating to the occupation 
sought. However, a petitioner must meet the eligibility criteria as of the date the petition is filed. 
8 C.F.R. § 103.2(b)(l). A petition must include evidence that the petitioner possessed all requirements 
of the requested EB-2 classification as of that date. Matter of Wing's Tea House, 16 I&N Dec. 158, 
160 (Act. Reg'l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). As 
supporting evidence with his petition, the Petitioner initially submitted evidence that he was earning a 
salary of $76,667, an amount significantly lower than the average wage for robotics engineers as 
reported in the evidence he submitted. The Petitioner's subsequent raise, the date and circumstances 
of which are not clear, does not demonstrate that he met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
at the time of filing. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. In order to qualify for a national interest 
waiver, the Petitioner must first show that he qualifies for classification under section 203(b )(2)(A) of 
the Act as either an advanced degree professional or an individual of exceptional ability. The Petitioner 
has not shown that he has satisfied the regulatory criteria and achieved the level of expertise required 
for exceptional ability classification. Accordingly, the Petitioner has not established eligibility for the 
underlying EB-2 immigrant classification. Because this issue is dis positive of the Petitioner's appeal, 
we decline to reach and hereby reserve the appellate arguments regarding his eligibility for a national 
interest waiver under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (noting that "courts and agencies are not required to make findings on issues the decision of 
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which is unnecessary to the results they reach"); see also Matter ofL-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 evidence does not establish that the Petitioner is eligible for classification as an individual of 
exceptional ability. Therefore, we will not reach whether he has established eligibility for a national 
interest waiver of the job offer requirement. 
ORDER: The appeal is dismissed. 
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