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.