dismissed EB-2 NIW Case: Sales

U.S. Citizenship 
and Immigration 
Services 
In Re: 20504355 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a sales director, seeks second preference immigrant classification as a member of the 
professions holding an advanced degree, 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability . On appeal, the Petitioner submits a 
brief asserting that he is eligible 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 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 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 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 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)(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 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. 
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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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). 
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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 
The Director found 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). More specifically, the Director found the Petitioner 
only met the criteria under the criteria related to letters from former employers and salary and therefore 
did not qualify as an individual of exceptional ability. 
A. Evidentiary Criteria for Exceptional Ability 
As discussed below, a review of the record indicates that the Petitioner does not meet at least three of the 
relevant evidentiary 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) 
At the time of filing, the Petitioner submitted certificates from the I 
Engineering School, his employers, the __________ I andl I 
The Director issued a request for evidence (RFE) indicating the submitted certificates only showed course 
completion but the Petitioner had not provided documentation showing the certificates were official 
academic records and requested the Petitioner provide officially certified records, entries on official 
records, or official statements from the granting institutions. In response to the Director's RFE, the 
Petitioner stated he would not be submitting evidence for this criterion. The Director then found the 
Petitioner did not meet this criterion. 
On appeal, the Petitioner provides evidence already submitted at the time of filing and argues the Director 
did not give due regard to this evidence. We disagree. The Director noted the certificates submitted in 
the record did not appear to be official academic records and provided the opportunity to the Petitioner to 
submit additional evidence to establish eligibility. On appeal, we agree with the Director's finding, noting 
that the record lacks evidence demonstrating the certificates submitted are official academic records 
showing the Petitioner has a degree, diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to sales. Id. Therefore, the Petitioner has not established 
that he meets this regulatory criterion. 
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) 
The Petitioner rovided em ent verification letters detailin his job duties while employed by 
and __________ covering over 10 years of full-time expenence. 
Accordingly, the Petitioner has established that he meets this regulatory criterion. 
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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) 
The Petitioner did not provide evidence of a license to practice the profession or certification for a 
particular profession. Therefore, the Petitioner has not established that he meets this regulatory 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 the time of filing, the Petitioner did not submit evidence or claim to meet this criterion. However, 
in response to the Director's RFE, the Petitioner provided comparable salary information and tax 
statements indicating his salary was significantly higher than the typical salary for a sales director with 
his experience. Accordingly, the Petitioner has established that he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner did not provide evidence of membership in professional associations. Therefore, the 
Petitioner has not established that he meets this regulatory 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 submitted letters of reference and maintains that he meets this regulatory criterion. The 
Director determined the Petitioner did not meet the requirements of this criterion because the 
submitted letters did not provide specific examples of how the Petitioner's work was recognized as an 
achievement or significant contribution to the sales field or industry. On appeal, the Petitioner 
resubmits letters previously provided in the record. 
The record contains letters of reference from various individuals who previously worked with the 
Petitioner. 3 The submission of letters of support from the petitioner's personal contacts is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether 
they support the individual's eligibility. See Matter of Caron International, 19 I&N Dec. 791, 795-
796 (Comm'r 1988); see also Matter of V-K-, 24 I&N Dec. at 500 n.2 (BIA 2008). Thus, the content 
of the writers' statements and how they became aware of the petitioner's reputation are important 
considerations. The authors of the letters of reference describe the Petitioner as a highly successful 
sales director and claim the Petitioner has earned a high salary by bringing in revenue for his employer 
and clients. However, the letters of recommendation did not provide specific examples of how the 
Petitioner's work was recognized as an achievement or significant contribution to the industry or field 
rather than as an achievement for an employer or client. 
While the Petitioner has earned praise from his peers for his role in obtaining sales contracts for his 
employer and clients, these letters do not specify that he has been recognized by peers, governmental 
3 While we discuss a sampling of these letters, we have reviewed and considered each one. 
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entities, or professional or business organizations for achievements and significant contributions to the 
industry or field. 
On appeal, the Petitioner submitted evidence of a news article, other work contributions, lectures, 
additional certificates, and his participation in seminars and congresses. The news article quotes the 
Petitioner's estimate of the average time to complete a project but does not recognize the 
Petitioner for any achievement or significant contribution to the industry or field. The other work 
contributions contain pictures of the Petitioner being recognized for visiting work sites, meetings, and 
presentations but does not specifically recognize the Petitioner for any achievement or significant 
contribution to the industry or field. The Petitioner provided certificates of attendance for his participation 
in seminars, congresses, and lectures but the certificates lack specific detail regarding any achievements 
or significant contributions to the industry or field. Likewise, the additional certificates indicate the 
Petitioner participated in trainings and was recognized for his work contributions by his employer but 
they do not specifically mention any achievements or significant contributions to the overall industry or 
field. 
On appeal, the Petitioner also submits the above evidence on appeal as comparable evidence for this 
criterion. The regulation at 8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable 
evidence" if the above standards "do not readily apply to the beneficiary's occupation." Here, the 
Petitioner does not argue and does not provide any documentary evidence indicating that the standards 
at 8 C.F.R. § 204.5(k)(3)(ii)(F) are not readily applicable to his occupation, or that any of his 
documentation is "comparable" to the specific objective evidence required at id. Therefore, the Petitioner 
has not established that he meets this regulatory criterion. 
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). In addition, the regulation at 
8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if the above standards 
"do not readily apply to the beneficiary's occupation." In this case, the Petitioner has not demonstrated 
that the standards at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his occupation, or that any of 
his documentation is "comparable" to the specific objective evidence required at 8 C.F.R. § 
204.5(k)(3)(ii)(A) - (F). 
The Petitioner in this matter has not established eligibility as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. As previously outlined, the Petitioner must show that he is either an 
advanced degree professional or possesses exceptional ability before we reach the question of the 
national interest waiver. The Petitioner does not claim that he is an advanced degree professional, and 
as previously discussed, has not shown that he meets regulatory criteria for classification as an 
individual of exceptional ability. 
B. National Interest Waiver 
Because the Petitioner has not first established that he is an individual of exceptional ability, further 
analysis of his eligibility for a national interest waiver under Dhanasar would serve no meaningful 
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purpose. 4 On appeal, the Petitioner argues that the Constitution's Due Process Clause required the 
Director provide a determination regarding the Petitioner's qualification for a national interest waiver 
which the Director declined to do in this case. Specifically, the Petitioner argues he was deprived of 
the opportunity to address his qualifications for the national interest waiver under the Dhanasar 
analysis. USCIS administers the EB-2 program pursuant to statutory and regulatory authorities, and 
the Petitioner does not argue that a specific provision of the EB-2 statute or regulations is 
unconstitutional. To the extent that the Petitioner's due process argument had been grounded in the 
constitutionality of the EB-2 statutes and regulations, we lack jurisdiction to rule on the 
constitutionality oflaws enacted by Congress or ofregulations promulgated by DHS. See, e.g., Matter 
of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997); Matter of C-, 20 I&N Dec. 529, 532 (BIA 
1992). Therefore, we will consider the Petitioner's process concerns as they relate to whether USCIS 
complied with the applicable statute and regulations. 
We find that USCIS sufficiently complied with the relevant regulations and did not violate the 
Petitioner's procedural due process requirements. A national interest waiver of a job offer is available 
to members of the professions holding advanced degrees or individuals of exceptional ability under 
section 203(b )(2)(B)(i) of the Act. A petitioner must first demonstrate they qualify as a member of 
the professions holding an advanced degree or as an individual of exceptional ability before 
demonstrating they qualify for a national interest waiver. Dhanasar, 26 I&N at 886; see also section 
203(b)(2)(C) of the Act (providing that possession ofrequisite academic degree or professional license 
"shall not by itself be considered sufficient evidence of exceptional ability"). The record shows the 
Director determined the Petitioner did not demonstrate he qualified as a member of the professions 
holding an advanced degree or an individual of exceptional ability and therefore need not make a 
determination on whether the Petitioner qualifies for a national interest waiver of the job offer. In this 
case, the Petitioner was given sufficient notice of his ineligibility to satisfy the agency's procedural 
due process requirements. 
III. CONCLUSION 
The Petitioner has not met at least three of the six regulatory criteria for exceptional ability at 8 C.F.R. § 
204.5(k)(3)(ii). 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. 
4 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, USCIS may, as matter of 
discretion, grant a national interest waiver. 
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