remanded EB-2 NIW Case: Interior Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG 2, 2019 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an interior designer, seeks second preference immigrant classification as a member of 
the professions holding an advanced degree and 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. § 1153(b )(2). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration 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 Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Worker, 
concluding that the Petitioner had not established she qualified for classification as a member of the 
professions holding an advanced degree. 1 
On appeal, the Petitioner submits additional documentation and a brief asserting that she is eligible for 
the EB-2 classification and for a national interest waiver. 
Upon de novo review, we will remand the matter to the Director for further action and consideration. 
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: 
1 The Director did not make a finding regarding the Petitioner 's claimed eligibility as an individual of exceptional ability. 
Matter of R-K-
(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)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
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 that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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 
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 Dhanasar, 26 I&N Dec. at 888-91. for elaboration on these three prongs. 
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Matter of R-K-
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[ a ]n 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." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner presented her "Bachelor in Industrial Design" degree (March 1997) from .... I ___ _. 
University in Brazil, an English language translation of her academic record (school transcript) from that 
university, and a credentials evaluation from~----.--------~ indicating that the 
aforementioned degree is the foreign "equivalent of the U.S. degree of Bachelor of Science in Industrial 
Design earned at a regionally accredited institution of higher education in the United States."4 While the 
Petitioner submitted an English language translation of her academic record from I I University, 
she did not present a copy of the original document in Portuguese. The Director's decision stated that a 
credentials evaluation "should be accompanied by documentary evidence of the contents of its 
evaluation." On appeal, the Petitioner resubmits the English language translation of her academic 
record froml !University rather than the original document in Portuguese. Without a copy of 
the original academic record, the evidence is not sufficient to show that the Petitioner holds the foreign 
equivalent of a U.S. baccalaureate degree. 
Furthermore, the Director determined that the evidence was inadequate to demonstrate that the Petitoner 
has at least five years of progressive post-baccalaureate experience in her specialty. According to the 
Petitioner's Form ETA-750B, Statement of Qualifications of Alien, she has worked both as an 
"independent interior designer" from January 2004 until January 2018 and as "owner" ofl I a 
girls clothing store, from May 2009 until January 2018. As evidence of her work exrrience, the 
Petitioner offered a March 2017 letter from her accountant,! stating that 
he "worked for [ the Petitioner] for more than 11 years, when she was working as an Interior Designer 
in Brazil." 5 
With the appeal, the Petitioner presents a November 2018 letter froml !asserting that he 
has "provided her with accounting services over the last 12 years" and that "she has over 12 years of 
progressive work experience" "performing professional interior designing services." The 
aforementioned letters from I l however, do not indicate how the Petitioner divided her time 
between her running her clothing store and working as an interior designer, or specify the amount of time 
she devoted to interior design projects during the period he worked for her. Nor do his letters sufficiently 
explain how her work experience was progressive. 
4 The record also contains a "Career Assessment and Analysis" from USA Evaluations stating that the requirements for 
the Petitioner's coursework relating to her Bachelor in Industrial Design degree were "subtanially similar to those required 
toward the completion of a Bachelor of Industrial Design from an accredited insitituion of higher education in the United 
States." 
5 I Is March 2017 letter discussed the Petitioner's income, but did not provide any further information about 
her work experience as an interior designer. 
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Matter of R-K-
In addition, the record includes a November 2018 letter from 
Director ofl I stating that the Petition~e-r-,-,w-o_r_k_e_d_w_1-·th_o_u_r_c_o_m_p_a_n_y_as-an~ 
Independent Interior Designer from January 1997 to February 2005" on "some of our buildings and 
directly with the buyers of the units we sold." I I further indicates that the Petitioner was 
"responsible for choosing decoration and design projects in the common areas," developing 
"partnerships with architects and landscapers," researching interior and exterior "trends of 
decoration," and suggesting "styles for the proposed spaces," but does not specify the amount of time 
for which she billed his company during the above period, nor explain whether her interior design 
services were continuous, part-time, or full-time. Moreover, he does not discuss how the Petitioner's 
work experience as an interior designer was progressive. 
The Petitioner contends that the "Career Assessment and Analysis" she submitted from USA 
Evaluations proves that she qualifies as a member of the professions holding an advanced degree. 6 
This evaluation states that it "relie[ d] upon the diplomas, transcript, and resume provided by [ the 
Petitioner]." The representations made in the Petitioner's resume, however, are not sufficient to 
demonstrate that she has at least five years of progressive post-baccalaureate experience in interior 
design. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) specifies that that evidence of the progressive 
experience must be "in the form ofletters from current or former employer(s)." Further, 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. If such evidence is unavailable, other documentation relating 
to the alien's experience or training will be considered. 
Here, the Petitioner presented two letters from her accountant indicating that she has more than 11 years 
of interior design experience, and a letter froml I a former client, offering a brief description 
of her duties and noting that she performed services for his company from January 1997 to February 
2005. As required under 8 C.F.R. § 204.5(k)(3)(i)(B) and (g), we must rely on documents from her 
former employers in determining her years of experience in interior design. Without further 
information and evidence from I I or any other entities that employed her 
services, the documentation in the record does not offer sufficient information to demonstrate that she 
has at least five years of progressive post-baccalaureate experience in interior design to constitute the 
equivalent to an advanced degree in that specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. 
§ 204.5(k)(3)(i)(B). Accordingly, the record supports the Director's determination that the Petitoner has 
not established that she qualifies as a member of the professions holding an advanced degree. 
B. Exceptional Ability 
In addition to seeking classification as a member of the professions holding an advanced degree, the 
Petitioner contends that she is eligible for classification as an individual of exceptional ability. We 
6 This evaluation concludes that the Petitioner has the foreign equivalent of a U.S. baccalaureate degree and "a minimum 
5 years professional experience" in interior design. 
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Matter of R-K-
note that the Petitioner's documentation accompanying the petition listed the regulatory criteria for 
individuals of exceptional ability and that she provided evidence relating to all six of those criteria: 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). She also claimed eligibility based on comparable evidence under 
the regulation at 8 C.F.R. § 204.5(k)(3)(iii). In her appeal brief: the Petitioner maintains that she meets 
the aforementioned regulatory criteria. The Director's decision did not address whether the Petitioner 
satisfies at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) or has provided sufficient 
comparable evidence, and has achieved the level of expertise required for exceptional ability 
classification. 
C. 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. The Director did not analyze or make a 
finding on this issue. 
III. CONCLUSION 
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied 
the eligibility requirements for classification as an individual of exceptional ability. In addition, the 
Director should apply the Dhanasar analytical framework to make a determination as to whether the 
Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, 
would be in the national interest. In visa petition 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; Matter of 
Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision 
which, if adverse, shall be certified to us for review. 
Cite as Matter of R-K-, ID# 3818977 (AAO Aug. 2, 2019) 
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