remanded EB-2 NIW Case: Logistics Software

U.S. Citizenship 
and Immigration 
Services 
In Re: 25693532 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 17, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a provider of logistics software and services, seeks to permanently employ the 
Beneficiary as head of its operations. The company requests his classification as a noncitizen of 
exceptional ability and a waiver of this immigrant visa category's normal requirement for a 
certification from the U.S. Department of Labor (DOL). See Immigration and Nationality Act (the 
Act) section 203(b )(2)(B)(i), 8 U.S.C. § 1153(b )(2)(B)(i) . U.S. Citizenship and Immigration Services 
(USCIS) has discretion to forgo the labor certification requirement if a waiver is "in the national 
interest." Id. 
The Director of the Texas Service Center denied the petition . The Director concluded that the 
Petitioner demonstrated neither the Beneficiary's exceptional ability nor his proposed employment in 
the national interest. On appeal, the Petitioner contends that the Director's national interest analysis 
overlooked evidence and that, contrary to the decision, the Beneficiary meets preliminary evidence 
standards for a noncitizen of exceptional ability. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Exercising 
de novo appellate review, see Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015), we 
conclude that the Beneficiary satisfied the preliminary evidence standards for a noncitizen of 
exceptional ability. We will therefore withdraw the Director's contrary decision and remand the 
matter for entry of a new decision consistent with the following analysis. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate a beneficiary's 
qualifications for the underlying immigrant visa category, as either a member of the professions 
holding an advanced degree or its equivalent, or a noncitizen of exceptional ability in the sciences, 
arts, or business. Section 203(b )(2)(A) of the Act. In this visa category, a U.S. employer must 
normally seek a noncitizen's services and obtain DOL certification to permanently employ them in 
the country. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . To avoid the need for a 
job offer/labor certification , a petitioner must demonstrate that waiving the requirement is in the 
national interest. Section 203(b )(2)(B)(l) of the Act. 
Neither the Act nor regulations define the term "national interest." But we have established a 
framework for adjudicating requests for national interest waivers. See Matter of Dhanasar, 26 I&N 
Dec. 884, 889 (AAO 2016). If a noncitizen otherwise qualifies as an advanced degree professional or 
noncitizen of exceptional ability, USCIS may waive the job-offer/labor certification requirement if the 
petitioner establishes that: 
Id. 
• The noncitizen's proposed U.S. work has "substantial merit" and "national importance;" 
• They are "well-positioned" to advance their intended endeavor; and 
• On balance, a waiver of the normal job-offer/labor certification requirement would benefit the 
United States. 
II. ANALYSIS 
The Beneficiary, a native and citizen of the United Kingdom (UK), earned a Business and Technical 
Education Council (BTEC) Higher National Certificate in computing and worked for a UK software 
company from 1997 to 2010. From 2010 to 2015, two of the company's customers employed him in 
U.S. nonimmigrant work visa status as a software consultant. The Beneficiary then founded the 
Petitioner in the United States and began heading its operations. The Petitioner sells the UK 
company's supply chain and logistics software in the United States and supports the company's U.S. 
customers, which include large, multinational companies in the automotive, railroad, chemical, and 
logistics industries. The Petitioner asserts the Beneficiary's qualifications as a noncitizen of 
exceptional ability in the field of "process execution technology, working in the global multimodal 
supply chain market." 
A. Exceptional Ability 
The term exceptional ability means "a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." 8 C.F.R. § 204.5(k)(2). When assessing exceptional 
ability, USCIS uses a two-step analysis. See generally 6 USCIS Policy Manual F.(5)(B)(2), 
https://www.uscis.gov/policy-manual. First, a petitioner must submit at least three of the following 
types of evidence: 
• An official academic record showing the noncitizen's possession of a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
• Letters from current or former employers showing that the noncitizen has at least 10 
years of full-time experience in the proposed occupation; 
• A license to practice the profession or certification for the profession or occupation; 
• Evidence of the noncitizen's receipt of a salary or other remuneration demonstrating 
exceptional ability; 
• Proof of membership in professional associations; or 
• Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
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8 C.F.R. § 204.5(k)(3)(ii). If these types of evidence do not "readily apply" to a beneficiary's 
occupation, a petitioner may establish eligibility by submitting "comparable evidence." 8 C.F.R. 
§ 204.5(k)(3)(iii). 
In the analysis's second part - the final merits determination - USCIS evaluates all evidence, 
considering the petition in its entirety. See generally 6 USCIS Policy Manual F.(5)(B)(2). The Agency 
must determine whether a petitioner, by a preponderance of evidence, has demonstrated a beneficiary's 
possession of a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. Id. 
B. Evidentiary Standards 
The record supports the Director's finding that the Petitioner demonstrated the Beneficiary's 
satisfaction of one evidentiary standard: letters showing his possession of at least 10 years of 
experience in the proposed occupation. See 8 C.F.R. § 204.5(k)(3)(ii)(B). Contrary to the Director's 
decision, however, we conclude that the Beneficiary meets at least two additional evidentiary 
standards. 
1. Possession of a Certificate from an Institute of Leaming 
First, the Petitioner submitted an academic record showing the Beneficiary's possession of a certificate 
from a learning institution relating to his area of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner submitted a copy of the Beneficiary's 2005 BTEC higher national certificate from the 
UK. The certificate states his completion of a program in "computing" at the 
Institute of Higher Education. An independent, professional evaluation of the credential states its 
equivalence to two years of U.S. university-level credit in computer technology. 1 
In a request for additional evidence (RFE), the Director questioned whether the Beneficiary's higher 
national certificate constitutes an "official academic record." See 8 C.F.R. § 204.5(k)(3)(ii)(A). In 
response, the Petitioner submitted evidence of its request for additional documentation regarding the 
Beneficiary's certificate but stated that the materials did not arrive in time to meet the response 
deadline. The Director's decision finds that the Petitioner did not meet the evidentiary standard 
because "[n]o new evidence was submitted with the RFE response." 
Contrary to the Director's decision, we conclude that the Beneficiary's higher national certificate is 
an official academic record and meets the requirements of the evidentiary standard. In a decision that 
USCIS adopted as binding on all Agency employees, we considered the term "official academic 
record" in a similar evidentiary requirement for advanced degree professionals. See Matter of O-A-, 
Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017) (citing 8 C.F.R. § 204.5(k)(3)(i)). We found 
that "[a]n 'official academic record' is not limited to a diploma" and noted that, for a noncitizen of 
1 The Electronic Database for Global Education (EDGE), an on line resource that federal judges have found to be a reliable 
source of foreign education equivalencies, states that a BTEC higher national certificate compares to one year of U.S.­
university level credit. See Am. Ass'n of Collegiate Registrars & Admissions Officers (AACRAO), EDGE, "About 
EDGE," https://www.aacrao.org/edge/about-edge; see also Viraj, LLC v. US. Att'y Gen., 578 Fed. Appx. 907, 910 (11th 
Cir. 2014) (describing EDGE as "a respected source of information"). 
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exceptional ability, USCIS may more broadly accept "a degree, diploma, certificate, or similar award." 
Id. at *3, *3 n.3. Also, a college or university need not issue an academic credential to a noncitizen 
of exceptional ability. Rather, a credential for a noncitizen of exceptional ability may more broadly 
derive from "a college, university, school, or other institution of learning." See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). 
The copy of the Beneficiary's higher national certificate meets the evidentiary standard at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). Consistent with the regulation, the document constitutes a "certificate" from "an 
institute of learning." Also, the certificate's field of study - "computing" - "re lat[ es] to the area of 
exceptional ability" because the Beneficiary uses computer software in his field of improving business 
supply chains. The certificate is also an "official academic record" because it demonstrates the 
Beneficiary's completion of all substantive certificate requirements and the institution's approval of 
the certificate. See Matter of O-A-, at *4. Further, the RFE did not identify a reason to doubt the 
certificate's authenticity or, under 8 C.F.R. § 103.2(b)(5), request the original certificate. The copy of 
the Beneficiary's higher national certificate therefore satisfies the evidentiary standard at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). 
2. Remuneration for Services 
Also, the Petitioner submitted evidence that the Beneficiary's remuneration for his services 
demonstrates exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(D). Copies of the Beneficiary's 
federal income tax returns reflect the following annual amounts of wages and total incomes from 
combined wages and dividends: $81,000 and $216,260 in 2017; $56,250 and $235,915 in 2018; and 
$70,000 and $253,922 in 2019. Copies of the Petitioner's federal income tax returns for the same 
years indicate that the Beneficiary, the petitioning corporation's sole shareholder, derived most of his 
remuneration from the company's net income, which he received in annual dividends. The Petitioner's 
RFE response also included a copy of a salary survey stating an average annual salary for a "senior 
director" in the company's geographical area of $172,000. 
Without mentioning the salary survey, the Director's decision finds insufficient evidence "that the 
beneficiary earned salaries" or that his salaries demonstrate exceptional ability. But the federal income 
tax returns of the Petitioner and Beneficiary demonstrate his receipt of salaries. Also, the Director errs 
by focusing on salaries. The evidentiary standard requires "[ e ]vidence that the alien has commanded 
a salary, or other remuneration for services, which demonstrates exceptional ability." 8 C.F.R. 
§ 204.5(k)(3)(ii)(D) (emphasis added). Thus, the fact that most of the Beneficiary's income 
constituted dividends rather than salaries does not bar him from satisfying this evidentiary standard. 
Also, the survey shows that the Beneficiary received substantially more remuneration - including both 
salaries and dividends - for his services than most others in similar positions in his geographical area, 
suggesting his possession of exceptional ability. The Beneficiary's proposed job title with the 
Petitioner is not "senior director" as stated in the survey. But the survey position reasonably compares 
with the Beneficiary's duties as head of the Petitioner's operations. We therefore conclude that the 
Petitioner has sufficiently demonstrated that the Beneficiary's remuneration reflects exceptional 
ability. 
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The Petitioner has met three of the six evidentiary standards for exceptional ability at 8 C.F.R. 
§ 204.5(k)(3)(ii). We will therefore withdraw the Director's contrary decision. 
C. Final Merits Determination 
After finding insufficient proof to meet the preliminary evidentiary standards, the Director did not 
make a final merits determination on the Beneficiary's claimed exceptional ability. We will therefore 
remand the matter. 
On remand, the Director should review the entire record, evaluate the evidence, and conduct a final 
merits determination to ascertain whether the Petitioner has demonstrated the Beneficiary's possession 
of a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. See generally 6 USCIS Policy Manual F.(5)(B)(2). 
D. National Interest 
If the Director finds sufficient evidence of the Beneficiary's claimed exceptional ability, the Director 
should then reconsider whether the proposed employment is in the national interest. 
Under the first Dhanasar prong, the Director found that the Petitioner did not demonstrate the national 
importance of the proposed endeavor. The decision states that the evidence "fails to demonstrate how 
working toward the shortage of U.S. computer professionals has national or even global implications." 
The Petitioner, however, did not contend that the United States has a shortage of computer 
professionals. Rather, the Petitioner asserted that the Beneficiary's knowledge of the company's 
logistics software and his experience with the global supply chain will help major U.S. companies 
create jobs, avoid future supply chain disruptions, and secure critical U.S. infrastructure sectors. 
Also, under Dhanasar's second prong, the Director did not clearly explain why he found insufficient 
evidence of the Beneficiary's ability to advance the proposed endeavor. See 8 C.F.R. § 103.3(a)(l)(i) 
(requiring a denial notice to "explain in writing the specific reasons for denial"). The decision states: 
The beneficiary submitted evidence of support letters and certificates of training, which 
he claims significantly succeeded from his work. Therefore, this evidence does not 
demonstrate the beneficiary's work as a Head of U.S. Operations served as an impetus 
for progress in the field, has affected the technology field, or otherwise demonstrates 
his work constitutes a record of success or progress. 
The Director also found the Beneficiary's academic accomplishments insufficient to demonstrate his 
ability to advance the proposed endeavor. But education is only one of many factors for consideration. 
See Matter of Dhanasar, 26 I&N Dec. at 890. The Director did not consider the Beneficiary's 
experience, skills, or knowledge, or the interests of potential software customers. Id. 
Finally, in finding insufficient evidence that a waiver would benefit the United States under 
Dhanasar's final prong, the Director's decision makes conclusory statements without citing evidence 
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or explaining the Director's reasoning. See 8 C.F.R. § 103.3(a)(l)(i) (requiring a denial notice to 
"explain in writing the specific reasons for denial") ( emphasis added). 
III. CONCLUSION 
The Petitioner met preliminary, evidentiary standards for classifying the Beneficiary as a noncitizen 
of exceptional ability. To ascertain eligibility for the requested immigrant visa category, the Director 
must perform a final merits determination. If the Petitioner demonstrates eligibility for the category, 
the Director should then reconsider whether the proposed employment is in the national interest. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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