Appeal Case Study: NIW Appeal Dismissed due to Insufficient Evidence on Exceptional Ability
by Victoria Chen, Esq., J.D.
Background: The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as an alien of exceptional ability. The petitioner seeks to employ the beneficiary as its president. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States.
USCIS Decision: : The petitioner does not satisfy the criterion it claims:
Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
AAO Decision: The Office opines that informal reference letters from the alien's immediate circle of colleagues and clients prepared in support of the petition are not sufficient to satisfy the criterion claimed. AAO states that while the recognition obviously need not rise to the level of a lesser nationally or internationally recognized award or prize as required for classification as an alien of extraordinary ability pursuant to section 203(b)(1)(A) of the Act, the petitioner must demonstrate some type of formal recognition issued independently of the preparation of the petition in order to meet the criterion.
AAO therefore concludes that the petitioner has not sustained the burden of prof. The denial is without prejudice to the filing of a new petition by a United States employer accompanied by an alien employment certification certified by the Department of Labor, appropriate supporting evidence and fee.