dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 26158883 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 3, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software engineer, seeks classification as an individual of exceptional ability in the 
sciences. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(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, 8 U.S.C. § 1153(b)(2)(B)(i). 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 does not 
establish the Petitioner qualifies for classification as an individual of exceptional ability or, in the 
alternative, as a member of the professions holding an advanced degree. The Director further 
concluded that the Petitioner had not established that a waiver of the required job offer, and thus of 
the labor certification, would be in the national interest. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's, Inc., 26 I&N Dec . 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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. See section 203(b )(2) of the Act; see also 
8 C.F.R. § 204.5(k)(3) . To qualify as an individual of exceptional ability , the Form 1-140, Immigrant 
Petition for Alien Workers, must be accompanied by at least three of the six criteria provided at 
8 C.F.R. § 204.5(k)(3)(ii). However, if the criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply 
to the occupation sought, a petitioner may submit comparable evidence to establish eligibility. 
8 C.F.R. § 204.5(k)(3)(iii) . 
As noted above, the Director found that the record does not establish the Petitioner qualifies as an 
individual of exceptional ability . Specifically, the Director found that the record satisfies the criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (E) but none of the other criteria at 8 C.F.R. § 204.5(k)(3)(ii). The 
Director also found that the record does not establish, in the alternative, that the Petitioner qualifies as 
a member of the professions holding an advanced degree. 
On appeal, the Petitioner reasserts that she satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (E), 
and (F). The Petitioner does not assert on appeal that the criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not 
readily apply to the occupation sought, see 8 C.F.R. § 204.5(k)(3)(iii), or that the record establishes 
she qualifies as a member of the professions holding an advanced degree. See 8 C.F.R. § 204.S(k)(l), 
(3)(i). Therefore, we limit our review to whether the record satisfies the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F) in order to establish second-preference eligibility. For the reasons discussed 
below, the Petitioner has not established that a waiver of the requirement of a job offer is warranted. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence of recognition for achievements 
and significant contributions to the industry or field by peers, governmental entities, or professional 
or business organizations." The Petitioner asserts on appeal: 
The background and professional experience, and superb skills of the [Petitioner] 
enabled the [Petitioner] to contribute to his [sic] field and will allow her to continue to 
do so in the future. Based on the evidence in the record, the [Petitioner] established 
that this criterion has been met, and USCTS erred in finding otherwise. 
The Petitioner does not elaborate on appeal which particular item of evidence in the record she believes 
demonstrates recognition for achievements and significant contributions to the industry by peers, 
governmental entities, or professional business organizations, as required by the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), and how the Director's analysis of that evidence erred. However, in response to 
the Director's request for evidence (RFE), the Petitioner generally asserted that "attached Exhibit #4 
... established that this criterion has been met." 
Contrary to the Petitioner's assertions, the document identified as Exhibit #4 in the RFE response does 
not relate to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). Exhibit #4 consists solely of a 21-page 
document titled "Project business plan 'Programming school for children with disabilities,"' generally 
dated "2022." The business plan does not clearly indicate who prepared it; however, it refers to the 
Petitioner in an "applicant contact details" table. The business plan does not appear to have been 
prepared by peers, governmental entities, or professional or business organizations, nor does it 
constitute evidence of recognition for achievements and significant contributions to the industry that 
the Petitioner may have already performed. See id. Instead, it addresses potential activities the 
Petitioner has yet to perform. Therefore, it does not relate to the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 
Although the Petitioner does not specifically identify on appeal any particular evidence that relates to 
the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), in the decision the Director acknowledged that the record 
contains various training certificates, such as an Oracle Certified Professional Certificate and an 
Award of Completion from Oracle. However, as the Director explained, none of the certificates in the 
record address how they indicate the Petitioner may have made any specific, significant contributions 
to the field of software engineering in order to have received the certificates. Moreover, as the Director 
also explained, although the Petitioner submitted an undated document that purports to be an English 
translation of a certificate from the Academy of Public Administration,! the Petitioner 
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did not submit, as required, a copy of the original foreign language document. We further note that, 
even if the record contained the original foreign language document, the purported English translation 
of the certificate bears significant errors that reduce its credibility and undermine the reliability and 
sufficiency of the remaining evidence in the record. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Specifically, the purported English translation of the certificate from the Academy of Public 
Administration, I I states: "This is certifi [sic] that [ the Petitioner] ... was awamed 
[sic] the 3 place in the nomination .... " These significant typographical errors undermine the 
reliability and sufficiency of the certificate in question and of the remaining evidence in the record. 
See id. 
Although we have reviewed the record in its entirety, it does not contain evidence that satisfies the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F); therefore, the Petitioner has not satisfied at least three of the 
six criteria provided at 8 C.F.R. § 204.5(k)(3)(ii). 
In summation, the Petitioner has not established that she qualifies as an individual of exceptional 
ability and she does not assert, in the alternative, that she qualifies as an advanced degree professional; 
therefore, she is not eligible for second-preference classification. Section 203(b )(2) of the Act. We 
reserve our opinion regarding any remaining issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter of L-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). 
As the Petitioner has not met the requisite second-preference classification, we conclude that the 
Petitioner has not established eligibility for, or otherwise merits, a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is dismissed. 
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