Case Study: AAO Dismissed NIW Appeal Case for Failing to Satisfy EB-2 Requirements

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as an alien of exceptional ability as the president of a company engaged in the business of exporting technological products to India. 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.

USCIS Decision: The director found that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.

AAO’s Decision: The AAO decided that the petitioner does not establish herself as a qualified alien of exceptional ability, which is the requirement of second preference employment-based immigration given that the petitioner does not have an advanced degree. The AAO stated that the regulation at sets forth six criteria, at least three of which an applicant must meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. Due to the following reasons, the petitioner failed to distinguish herself as an alien of exceptional ability:

1. The petitioner does not claim to have an advanced degree.

2. The petitioner is self-employed and therefore cannot satisfy this criterion of working experience.

3. The petitioner does not claim to have a license.

4. The petitioner does not claim to have met this criterion of high compensation.

5.The petitioner is a member of the Santa Cruz Art League, the Monterey Bay Women’s Caucus for Art, and the Pacific Grove Art Center. However, the record contains no evidence that these associations are professional

Given that petitionsers seeking NIW benefits need to qualify themselves for the second preference employment-based immigration category first, the appeal is dismissed by the AAO.

from Chen Immigration Law Associates

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability) and EB1-B (Outstanding Researcher/Professor).

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With 12,000 EB-1A, EB-1B and EB-2 NIW approvals, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

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