dismissed EB-2 NIW Case: Search Engine Optimization

MATTER OF N-M-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY23,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, chief executive officer (CEO) of a search engine optimization firm, seeks 
classification as an individual of exceptional ability. 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 normally attached to this immigrant classification. See 
§ 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services 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 Texas Service Center denied the petition, finding that the Petitioner did not 
qualify for classification as an individual of exceptional ability, and that he had not established that a 
waiver of a job offer requirement would be in the national interest. 
The matter is now before us on appeal. In his appeal, the Petitioner contends that he is an individual 
of exceptional ability and that his digital marketing work is in the national interest. 
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 visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences arts or business. Because this classification normally 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 states, in pertinent part: 
(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 
Matter of N-M-S-
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)(3)(ii) sets forth the following six evidentiary criteria, of which 
an individual must meet at least three in order to qualify as an alien 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 ofletter(s) from current or former employer(s) showing that 
the alien 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 certifi.cation 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. 
1 
Pursuant to section 1517 ofthe Homeland Security Act of2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135,2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Matter of N-M-S-
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). 
II. ANALYSIS 
The Petitioner indicates that he is CEO of a search engine optimization firm located in 
Florida.2 He explains that he "focuses his abilities to reduce complex, instructional matters to 
lay terms and levels of understanding existent in the public domain," and that he "deploys an innovative 
approach to cross-referencing subject-specific materials," so that complex matters are "presented in an 
understandable and accessible way." The Petitioner describes as a "full 360 digital 
marketing agency," and he indicates that he employs 10 part-time content writers who are based 
throughout the United States. He further explains that he has built over 75 websites since January 2012 
and has seven more under contract, and that he has "built a stock of some 620 premium domain names 
sold through our website affiliation." Additionally, the Petitioner states that 
"the viability and success of this business revolves around [his] over 20 years of experience in the IT 
industry." 
A. Evidentiary Criteria for Exceptional Ability 
As discussed below, a review of the record indicates the Petitioner does not meet at least three of the 
relevant evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii). Specifically, the Petitioner does not address 
the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(E), either in his initial submission, in response 
to the Director's request for evidence, nor does the record demonstrate that he meets any of those 
criteria.3 The only criterion discussed is found at 8 C.F.R. § 204.5(k)(3)(ii)(F), which requires 
"[e]vidence of recognition for achievements and significant contributions to the industry or field by 
peers, governmental entities, or professional or business organizations. " In support of this criterion, 
the Petitioner submits several reference letters prepared in support of the petition. 
president of comments that the Pet!tioner's firm was 
"instrumental" in helping his firm set up a website, delivery process and membership program that 
"has been directly responsible for the substantial growth of our enterprise. " Similarly 
a practicing attorney in Florida, attests that the Petitioner is "single handedly 
responsible for more than tripling the number of visitors to our website, launching our social media 
campaigns , our blogging platform , and increasing our web presence and search engine page results 
2 
The Petitioner submitted a Form G-325A in conjunction with this petition. On that form, he indicates that he has been 
employed by at Florida, from September 2010 until present. The 
business address listed is the same as the Petitioner's home address. The Petitioner has not addressed this employment 
or explained the circumstances of his employment with In addition , he has not provided corroborating 
documentation of his business interests in such as, for example, formation documents, corporate registration 
or tax documentation , or employee payroll. 
3 
We note that while the Petitioner claims more than I 0 years of experience in the IT industry, the record does not 
include evidence in the form of letters from current or former employers documenting his experience as required under 
8 C.F.R. § 204.5(k)(3)(ii)(B) . 
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Matter of N-M-S-
more than three hundred (300%) percent." He also notes that the continued use of the Petitioner's 
company is critical to his firm's business. While both letters are complementary of the Petitioner's 
work, they do not explain how the Petitioner has made significant contributions to the field of search 
engine optimization, beyond his work for their individual firms. While the Petitioner's has 
established successful job performance and commendable work for his clients, he has not 
documented how his work represents achievements and significant contributions to the industry or 
field as required. 
'The remaining letters address the Petitioner's character, charitable work, and standing in his 
community. While complementary, they are insufficient to document that he has been recognized for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations. Therefore, the Petitioner has not overcome the Director's 
finding that he does not meet the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Accordingly, the evidence does not establish that the Petitioner meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). Further, a review of the record in the aggregate does not 
support a finding that he 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. As previously outlined, 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 does not claim, nor does the record demonstrate, that he is an 
advanced degree professional and, as discussed above, he has not shown that he is eligible for 
classification as an individual of exceptional ability. As the Petitioner has not established eligibility 
for the underlying immigrant classification, the issue of the national interest waiver is moot. 
III. CONCLUSION 
The Petitioner has not demonstrated that he qualifies for classification as an individual of exceptional 
ability under section 203(b)(2)(A) ofthe Act. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-M-S- ID# 457743 (AAO May 23, 2017) 
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