remanded EB-2 NIW Case: Wrestling

U.S. Citizenship 
and Immigration 
Services 
In Re: 12010728 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 14, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a wrestler, seeks second preference immigrant classification as an individual of 
exceptional ability in the sciences, arts, or business, 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). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as an individual of exception ability, but that he had not established that a waiver of 
the required job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver. 
In these 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. Upon de nova review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification ( emphasis added), 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: 
(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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, to demonstrate 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 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a 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. 3 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
II. ANALYSIS 
The Petitioner is a I I wrestler and he proposes "to continue working in [his] area of 
expertise." 4 In this matter, the Director determined that the Petitioner qualifies as an individual of 
exceptional ability, but concluded that he did not meet any of three prongs set forth in the Dhanasar 
analytical framework. 
A. Exceptional Ability 
For the reasons discussed below, upon review of the record, we must withdraw the Director's finding that 
the Petitioner established that he qualifies as an individual of exceptional ability. 5 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Director determined that the Petitioner's "Master of Sports" certificates from the Committee of 
Physical Education and Sport Under the Government of the Republic o~ I satisfy this criterion. 
As the record does not establish that I I wrestling meets the definition of profession at 
8 C.F .R. § 204.5(k)(2), the Petitioner must demonstrate that these two "certificates" are certifications for 
his occupation. 
In response to the Director's request for evidence, the Petitioner claimed that the certificates "are official 
titles issued by ... the official and highest governing body for athletes in I O I in recognition of a 
substantial contribution made []to the particular athletic field." While we acknowledge that the 2019 
letter from the I I Wrestling Federation repeats this claim, the Petitioner has not provided any 
supporting evidence to establish the requirements for receiving these certificates or sufficiently 
explained how they are a certification for his occupation. Without more, such general assertions are 
not probative evidence and do not demonstrate that these certificates meet the plain language of this 
criterion. 
Evidence o_f membership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Beneficiary's membership on the.__ ____________ _, 
Wrestling Team satisfied this criterion. 6 However, the Petitioner did not submit any evidence to 
establish that it is a professional organization. As noted above, profession is defined as "one of the 
occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States 
4 As explained by the Director, the Petitioner provided little information regarding his specific proposed endeavor. 
5 We also note that the Petitioner does not claim that he meets any of the criteria based upon comparable evidence. For 
comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the 
regulations is not readily applicable to his or her occupation and establish that the submitted evidence is "comparable" to 
that criterion. 8 C.F.R. § 204.5(k)(3)(iii). 
6 As will be discussed later in this decision, the Petitioner has not established that he is a member of the team. 
3 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the occupation." 
8 C.F.R. § 204.5(k)(2). 
Evidence of recognition for achievements and sign[ficant contributions to the industry or.field by 
peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The plain language of the criterion requires recognition for both achievements and significant 
contributions to the industry or field. As noted above, the Petitioner holds two "Master of Sports" 
certificates and the 2019 letter from the I I Wrestling Federation states that the certificates are 
awarded for "substantial contributions." However, without additional evidence, such as objective 
information regarding the requirements to receive these certificates and the Petitioner's specific 
contributions to the sport, the Petitioner has not established that he meets this criterion. 
Finally, in this matter, the Director failed to conduct a final merits determination, but concluded that the 
Petitioner qualified as an individual of exceptional ability. The Director should discuss the submitted 
evidence and, if the Petitioner establishes that he meets at least three of the six criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), determine whether he has also demonstrated that he possesses a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business in a final merits 
determination. 
For all of these reasons, we withdraw the Director's finding on this threshold issue and remand the matter 
to the Director to determine anew whether the Petitioner qualifies for EB-2 classification. 
B. Inconsistencies in the Record 
In addition to the above, we must also note our concerns regarding inconsistencies in the submitted 
documentation. According to the record, the Petitioner was born in 1998. It is, therefore, unclear why the 
Petitioner submitted a number of certificates for age categories that do not accurately reflect his year of 
birth. For example, 
• Certificate of Honor from the Management of Youth Affairs, Sports and Tourism o_fl ___ ~ 
I lfor "Pt place in the wei~ht of I I among youth born in 1995-1997 in the open 
championship o~,__ ____ ~j' 
• Diploma from re ~ammitt:e for Youth Affairs, Sports and Tourism Under the Government of 
the Republic o_ ~ ~ I for "D-2 weight~ I for taking the first place in the 
republican tournament [i]n I I wrestling' among youth of 1994-1996 year of birth." 
• Diploma froml I "for taking the second place in the republican tournament on I I I I wrestling' among juniors of 1995-1997 year of birth in celebration of 20th anniversary of 
• 
16th Congress of the Supreme Council of the Republic ofi I and Day of national flag." 
,.....,.........,.......,,""""'......,_,"'--~ chievement from the Department for Youth Affairs, Sports and Tourism of 
r----r----.===-=-'"f:..::o:.::.r..:;ta=k.:::;;ing the 1st place in weight oc=]in the Open Championship o~ 
[for ______ ~wrestling among youth of 1995-1997 year of birth in weight~ 
4 
We also have questions regarding the 2019 letter from the I !wrestling Federation, which claimed 
that the Petitioner had been a member of the I J !National Wrestling Team since 2010 and its team 
captain since 2012. Not only was the Petitioner fourteen years old at the time, but he was still competing 
in the junior and/or youth category at a mostly local and/or regional level. According to the letter, at the 
time of his selection, their National Team included a "silver medalist in the 2013 Asian Championship 
and the winner of[] 12th place [at] the 2012 Olympic games." Further, the letter indicates that the team 
captain is the "chief assistant to the head coach in matters of technical, tactical, and special training" and 
"advis[ es] the coach on [the] success of his methods for improving the skills of [the] athletes." In contrast, 
the February 13, 2020 "reference letter," purportedly from the same author at th~Wrestling 
Federation, stated only that the Petitioner in "2010 became [a] member of [the]L__J Wrestling 
Federation (emphasis added) and has achieved a number of sporting results," but makes no mention of 
being either a member of the National Team or its captain. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
C. Dhanasar Analysis 
Regarding the Petitioner's claims of eligibility under the Dhanasar analysis, we agree with the 
Director's ultimate conclusions that the Petitioner has not meet any of the three prongs. 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider anew 
whether the Petitioner qualifies for EB-2 classification, the threshold determination in national interest 
waiver cases. The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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