Immigration Attorney in Indiana – National Interest Waiver (NIW) Denial Based on Exceptional Ability Without an Advanced Degree

NIW/Degree Requirement/Exceptional Ability

This case, a non-precedent decision from the Administrative Appeals Office (AAO), highlights the challenges faced by petitioners seeking an EB-2 classification under the National Interest Waiver (NIW). In this case, the petitioner, working in the manufacturing industry, claimed exceptional ability to qualify for the waiver, as they did not hold an advanced degree. However, the petition was denied due to insufficient evidence meeting the exceptional ability criteria under U.S. immigration law.

Background of the Case

The petitioner, a general and operations manager in the manufacturing sector, lacked an advanced degree—one of the standard qualifications for the EB-2 visa category. Instead, they applied under the exceptional ability category, which requires meeting specific regulatory criteria. As an experienced immigration attorney in Indiana, I’ve seen how challenging it can be to qualify under exceptional ability without an advanced degree, which makes understanding and addressing the specific legal requirements essential.

Legal Framework for Exceptional Ability

Under U.S. immigration law, petitioners must meet at least three out of six criteria outlined in the regulations (8 C.F.R. § 204.5(k)(3)(ii)) to qualify for exceptional ability:

• An academic degree related to the field.
• Ten years of full-time work experience.
• A license or certification in the field.
• A salary indicative of exceptional ability.
• Membership in professional associations.
• Recognition of significant achievements in the industry.

While meeting three of these criteria is necessary, it doesn’t guarantee approval. A final merits determination assesses whether the petitioner’s expertise is “significantly above that ordinarily encountered” in the industry.

Case Analysis

In this case, the petitioner claimed to meet all six criteria. However, the Texas Service Center determined that only two criteria—related to work experience and salary—were met. The petitioner appealed, arguing that the remaining criteria were also satisfied, but the AAO upheld the denial based on several shortcomings.

1. Academic Degree

Petitioner’s Claim: The petitioner held a bachelor’s degree in aeronautical engineering, claiming it provided a strong foundation for their role in manufacturing management.

AAO’s Finding: The AAO found the degree unrelated to the manufacturing industry, stating that aeronautics does not directly apply to manufacturing. The petitioner did not provide independent evidence demonstrating how the degree was relevant to their claimed area of exceptional ability.

2. License or Certification

Petitioner’s Claim: The petitioner presented a license to practice aeronautical engineering in Brazil.

AAO’s Finding: The AAO agreed with the Director that a license was not relevant to the role of a general and operations manager in the manufacturing industry. This criterion was not satisfied.

3. Membership in Professional Associations

Petitioner’s Claim: Membership in the Brazilian Association of Asset Maintenance and Management (ABRAMAN) was submitted.

AAO’s Finding: The AAO determined that ABRAMAN did not qualify as a professional association under U.S. regulations, as it did not consist exclusively of professionals holding a bachelor’s degree or higher.

4. Recognition for Achievements

Petitioner’s Claim: The petitioner submitted a book publication, participation in YouTube live streams, and letters of recommendation.

AAO’s Finding: The evidence did not demonstrate significant contributions to the industry. The book publication and YouTube streams lacked evidence of widespread industry impact, such as citations or viewership metrics.

Conclusion

The AAO dismissed the appeal, stating that the petitioner did not satisfy the minimum of three criteria required for exceptional ability. Additionally, the petitioner failed to demonstrate that their expertise was “significantly above that ordinarily encountered” in the manufacturing industry. As a result, the AAO did not proceed to evaluate whether the petitioner merited a National Interest Waiver under the Matter of Dhanasar framework.

Significance for NIW Applicants

This case is a critical reminder for those applying for a National Interest Waiver based on exceptional ability. As an immigration attorney in Indiana, I often emphasize the importance of providing specific, objective, and relevant evidence to meet the exceptional ability criteria. It’s not enough to claim that skills or qualifications are transferable—there must be clear, documented proof that supports how they apply to the petitioner’s field of expertise. Furthermore, when claiming industry recognition, it’s vital to demonstrate that contributions are acknowledged beyond immediate circles and have had a significant impact on the industry.

For those seeking an NIW without an advanced degree, it is essential to prepare a thorough and well-supported case. If you’re navigating the complexities of a National Interest Waiver and need expert guidance, I can help ensure your application meets the specific requirements of U.S. immigration law. Contact my office today to discuss your case and learn how we can build a strong petition for your EB-2 visa.