dismissed EB-2 NIW Case: Tax Preparation

MATTER OF S-T-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 11, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a tax preparation service, seeks second preference immigrant classification for the 
Beneficiary, its owner, as a member of the professions holding an advanced degree or 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. § l 153(b)(2). After a petitioner has established ·eligibility for EB-2 
classification, U.S. Citizenship_ and lmmignition Services (USCIS) may, as matter of discretion, 
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 offer and thus of a labor certification. Matter of 
. Dhqnasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
- Worker, finding that the Beneficiary did not qualify for classification either as a member of the 
professions holding an advanced degree or as an individual of exceptional ability, and 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 Petitioner appealed the matter to us, and we dismissed the appeal. 1 The matter is now before us 
on combined motions to reopen and reconsider. For _the reasons discussed below, we will deny the 
motions. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence. of new facts. The requirements of a motion to reconsider are 
located at 8_ C,F.R. § I 03.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion.that satisfies these requirements and demonstrates eligibility 
for the,requested immigration benefit. • · 
1 See Matter oJS~T-, LLC, ID# 1218240 (AAO May 3, 2018). 
Matter ofS-T-: LLC 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate that the 
beneficiary qualifies for the underlying EB..:2 visa classificati0n, 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 ouUhis 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 na~ional 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)(i) provides that, in order to show an individual 1s a 
professional holding an advanced degree, the petition must be accompanied by: 
(A)An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
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 for the beneficiary that satisfies ·at least three of the six categories of evidence 
listed at 8 C.F.R. § 204.5(k)(3)(ii). 
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Matter of S-T-, LLC 
Furthermore, 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. 884.2 Dhanasar states that after EB-2 
eligibility has been established, USCIS may, as a matter of discretion, grant a national interest 
waiver when the three prongs of the framework are met.3 
II. ANALYSIS 
The Petitioner previously submitted the Beneficiary's bachelor of arts degree in French language and 
literature from in South Korea. In om' prior decision, we noted that the record 
did not include an academic credentials evaluation to establish the Beneficiary's foreign degree's 
equivalency to a United States degree as required under 8 C.F.R. § 204.5(k)(3)(i)(A). Thus, the 
Petitioner did not show that the Beneficiary holds the foreign equivalent of a degree above that of 
baccalaureate. Alternatively, the record did not indicate that the Beneficiary's degree is the foreign 
equivalent of a United States baccalaureate degree and establish that she has progressive post-, 
baccalaureate experience in her specialty equivalent- to an advanced degree under the regulation at 
8 C.F.R. § 204.5(k)(3)(i)(B). Accordingly, we affirmed the Director's detem1ination that the 
Beneficiary did not qualify for classification as a member of the professions holding an advanced 
degree. We also noted that the Petitioner had not claimed that the Beneficiary qualified as an 
individual of exceptional ability. As the Petitioner did not establish the Beneficiary's eligibility for the 
underlying immigrant classification, we found that discussion of the national interest waiver would 
serve no meaningful purpose. 
A. Motion to Reconsider 
Oh motion, the Petitioner does not contest our finding that the Beneficiary did not qualify for 
classification as a member of the professions holding an advanced degree. Instead, it lists the 
regulatory criteria for individuals of, exceptional ability and asserts that the Beneficiary meets four of 
those criteria: 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), and (E). The Petitioner's evidence relating to 
the Beneficiary's eligibility for these criteria will be considered below in our discussion of the motion to 
reopen. 
The Petitioner has not met the requirements for a motion to reconsider as it has not demonstrated that 
we erred in our previous analysis based on the record before us on appeal. Further, the motion to 
reconsider does not establish that our previous findings were based on an incorrect application of the 
law, regulation, or USCIS policy. 
2 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). 
3 See Dhana sar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
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Matter of S-T-. LLC 
B. Motion to Reopen 
As discussed below, a review of the record and the evidence presented on motion does not indicate that 
the Beneficiary has met at least three of the exceptional ability evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). . 
An official academic record showing that the alien has a degree. diploma. cert(ficate. 
or similar award.from a. college. university. school. or other institution ql learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner provided the Beneficiary's bachelor of arts degree in French language and literature 
from in South Korea, but it has not established that this degree relates to her area 
of exceptional ability as a tax consultant. In addition, the Petitioner offered transcripts from 
in California and in California indicating that 
the Beneficiary completed some coursework in an associate's degree in arts. The record, however, 
does not include evidence showing that she received an associate's degree from either college. 
Furthermore, the Petitioner has not established that this coursework relates to her area of exceptional 
ability. For these reasons, the Petitioner has not established that the Beneficiary meets this criterion. 
Evidence in the form of letter(s) .fi'om current or former employer(.s) showing that the 
alien has at least ten years qffitll-time experience in the occupation.for which he or she 
is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) ' 
On motion, the Petitioner submits a May 2018 letter from the Beneficiary· asserting that she "has more 
than 10 years of experience in payroll, tax preparation while running a business with her husband from 
2007-2018." 4 In addition, the record includes a letter from the Beneficiary's spouse stating that they 
operated a sushi restaurant together in Oregon from 2007 until 2014. 
In this matter, the occupation sought for the Beneficiary is tax consultant. The Petitioner's evidence 
does not sufficiently demonstrate that the Beneficiary's experience operating a restaurant constitutes 
full-time experience as a tax consultant. Specifically, the regulation at 8 C.F.R. § 204.5(g) provides, 
in pertinent part: "Evidence relating to qualifying experience or training shall be in the form of 
letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien or of the training 
received." The aforementioned letters lack specificity regarding the Beneficiary's duties and the 
amount of time she devoted to payroll and tax preparation versus her other responsibilities associated 
with running the restaurant. Regardless, the Fo1m I-140 in this matter was filed in July 2016, and the 
Petitioner has not demonstrated that the Beneficiary had at least ten years of full-time experience as a 
tax consultant at the time of filing, as it indicates that her claimed qualifying experience began in 2007. 
See 8 C.F.R . § 103.2(6)(1) . The record therefore does not establish that the Beneficiary satisfies this 
criterion. 
4 We note that in part 5 of the Form 1-140, the Petitioner indicated that its business was established on December 21 , 2015. 
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Matter of S-T-. LLC 
A license to practice the profession or certification for a .particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
In support of the motion, the Petitioner submits two "tax consultant" licenses for the Beneficiary from 
the with expiration dates of May 2018 and May 2019. In 
addition, in response to the Director's request for evidence, the Petitioner previously provided a July 
2017 notice from inviting her to take its "Tax Consultant State Only examination." As the 
record shows the Beneficiary received her tax consultant licenses after the Form 1-140 was filed, they 
do not demonstrate her eligibility for this criterion at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
Regardless, the record contains an October 2015 certificate from the Internal Revenue Service stating 
that the Beneficiary "met the requirements to become an enrolled agent" and that she is thereby 
"granted unrestricted rights to represent taxpayers before the [nternal Revenue Service." The 
Petitioner's motion also includes a credenti'al from the Internal Revenue. Service reflecting the 
Beneficiary's "Enrollment to Practice" with an October 2015 issue date. Thus, the Beneficiary meets 
this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner provided evidence of the Beneficiary's membership in the Natiorial Association of Tax 
Professionals and the National Association of Professional Women. Accordingly, she satisfies this 
criterion. 
III. CONCLUSION 
The Petitioner's motion does not show that our previous decision was based on an incorrect 
application of law or policy and does not include new inforn1ation or evidence that overcomes the 
grounds underlying our previous decision. The Petitioner has not demonstrated that the Beneficiary 
meets at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) to qualify as an individual 
of exceptional ability. In addition, the record does not show that she qualifies as a member of the 
professions holding an advanced degree. The Petitioner therefore has not established the Beneficiary's 
eligibility for the underlying EB-2 visa classification . 
ORDER: .The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter ofS-T-. LLC, ID# 1788689 (AAO Feb. 11, 2019) 
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