remanded EB-2 NIW Case: Business

(b)(6) ll.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUl 0 1 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
IN RE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
www.uscis.gov 
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NON-PRECEDENTDEC~ION 
Yage L 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We will 
withdraw the director's decision and remand the petition for further consideration and action. 
The petitioner seeks to classify the beneficiary under section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in business. The 
petitioner describes itself as an environmental services company that seeks to employ the beneficiary as 
vice president of its oil and sales divisions. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner has not established that the beneficiary qualifies for 
classification as an alien of exceptional ability in business. The director reached no conclusion 
regarding the exemption from the requirement of a job offer, because the beneficiary cannot qualify for 
the exemption without first qualifying for the underlying immigrant classification. 
On appeal, the petitioner submits a legal brief. 
Section 203(b)(2)(A) of the Act makes immigrant visas available to qualified immigrants 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. Section 
203(b )(2)(B) of the Act permits a waiver of the job offer requirement when the Attorney General deems 
it to be in the national interest. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on May 3, 2012. To 
establish exceptional ability in the sciences, the arts, or business, the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(3)(ii) requires the petitioner to 
submit evidence that qualifies under at least three of the following categories: 
(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 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; and 
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rag~:: .J 
NON-PRECEDENT DECISION 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Where the petitioner fails to submit the reqms1te evidence, the proper conclusion is that the 
petitioner failed to satisfy the regulatory requjrement of three types of evidence. See Kazarian v. 
USC IS, 596 F .3d 1115 (9th Cir. 201 0) (a decision pertaining to section 203(b )(1 )(A) of the Act but 
containing legal reasoning pertinent to the classification in the current proceeding). If the petitioner 
has submitted the requisite evidence, users makes a final merits determination as to whether the 
evidence demonstrates "a degree of expertise significantly above that ordinarily encountered." 
8 C.F.R. § 204.5(k)(2); see also Kazarian at 1121, 1122, aff'd Rijal v. USCIS, 683 F.3d 1030 (9111 
Cir. 20 12). Only aliens who have demonstrated "a degree of expertise significantly above that 
ordinarily encountered" are eligible for classification as aliens of exceptional ability. 8 C.F.R. 
§ 204.5(k)(2); see also Kazarian at 1120. 
The petitioner does not contest the procedural use of the final merits determination. The petitioner 
asserts, however, that the director did not follow the procedure properly. Upon review of the 
director's decision, we agree with the petitioner that the director erred, and that this error warrants 
withdrawal of the decision and the issuance of a new decision. 
The petitioner claims that the beneficiary satisfies all six of the above regulatory standards listed at 
8 C.F.R. § 204.5(k)(3)(ii). When the director denied the petition on July 10, 2013, the director stated 
that the petitioner met criteria (A), (B) and (E). In the final merits determination, the director took 
back criterion (E), stating that, while the beneficiary belongs to professional associations, the 
petitioner did not show that those memberships required a level of expertise consistent with the 
regulatory definition of "exceptional ability" at 8 C.F.R. § 204.5(k)(2). On this basis, the director 
concluded that the petitioner had not established that the beneficiary qualifies for classification as an 
alien of exceptional ability. 
On appeal, the petitioner asserts that the director addressed only three of the six regulatory criteria 
that the petitioner claims to have met, and that the director cannot render a proper finding regarding 
the exceptional ability claim without addressing the petitioner's evidence regarding all six criteria. 
We find the petitioner's assertion to be procedurally correct. The USCIS regulation at 8 C.F.R. 
§ 103.3(a)(l)(i) requires the director to explain in writing the specific reasons for denial. Here, the 
director did not do so. The director did not explain why the petitioner had not met criteria (C), (D), 
and (F) as claimed. The petitioner cannot render a complete decision on the petitioner's exceptional 
ability claim without addressing those f?,ctors. 
This is not a finding that the petitioner has, in fact, satisfied those regulatory criteria. Rather, it is a 
finding that the director did not make a proper initial determination regarding those criteria, which 
would then be subject to our later appellate review. 
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(b)(6)
NON-PRECEDENTDECL~ON 
Page 4 
The petitioner, on appeal, also asserts that much of the director's final merits determination revolved 
around language taken from In reNew York State Dep't ofTransportation (NYSDOT), 22 I&N Dec. 
215, 217-18 (Act. Assoc. Comm'r 1998), a precedent decision concerning the national interest 
waiver. For instance, page 3 of the decision includes this passage: "Special or unusual knowledge or 
training, while perhaps attractive to the prospective U.S. employer, does not inherently meet the 
national interest threshold. The issue of whether similarly-trained or experienced workers are 
available in the U.S. is an issue under the jurisdiction of the Department of Labor." This passage is a 
direct quotation from page 221 of NYSDOT. 
The petitioner states: "Inclusion of the citation from NYSDOT is logically inappropriate in the 
context of determining whether the beneficiary is an alien of exceptional ability." The petitioner 
notes that, as stated in NYSDOT, the threshold for exceptional ability is lower than the threshold for 
the national interest waiver. !d. at 218-19. We agree with the petitioner that the appropriate context 
to discuss and quote NYSDOT is in discussing the national interest waiver, not the underlying 
immigrant classification. The petitioner need not satisfy the NYSDOT national interest test in order 
for the beneficiary to qualify for classification as an alien of exceptional ability (although the 
petitioner must then satisfy the NYSDOTtest for the beneficiary to qualify for the waiver). 
Because the director's decision contains an incomplete discussion of the regulatory standards for 
exceptional ability at 8 C.P.R. § 204.5(k)(3)(ii), and relied improperly on the NYSDOT standards for 
the initial determination regarding exceptional ability, the director's decision cannot stand as written. 
Nevertheless, the petition is not approvable in its present state. We will withdraw the director's 
decision and remand the petition for a new decision that more thoroughly sets forth the grounds for 
denial, as required by the regulation at 8 C.F.R. § 103.3(a)(l)(i). The burden remains on the petitioner 
to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision which, if adverse to 
the petitioner, is to be certified to the Administrative Appeals Office for review.