Date of Decision: November 9, 2023
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Nursing
Petitioner Information
Profession: Nurse
Field: Nursing
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Motion to Reopen: Dismissed
Motion to Reconsider: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- None: The Petitioner did not meet the criteria necessary for classification as an individual of exceptional ability.
Criteria Not Met:
- Exceptional Ability: The Director concluded that while the Petitioner met three out of the six criteria listed at 8 C.F.R. § 204.5(k)(3)(ii), the evidence provided did not demonstrate a degree of expertise significantly above that ordinarily encountered in the nursing field. The Director acknowledged the Petitioner’s educational credentials, professional license, and membership in a professional association but found that the record lacked sufficient evidence of the Petitioner’s professional achievements setting her apart from others in the industry.
National Importance: Because the Petitioner did not establish her eligibility for the underlying EB-2 classification as an individual of exceptional ability, the issue of qualifying for a national interest waiver became moot. The Petitioner did not provide evidence to demonstrate that her work would have a significant impact beyond her immediate employment or on a national scale.
Key Points from the Decision
Final Merits Determination:
The Director performed a comprehensive qualitative analysis of the evidence but determined that the Petitioner did not meet the threshold of demonstrating exceptional ability in the nursing field. The Petitioner argued on appeal that the Director erred by not issuing a follow-up Request for Evidence (RFE) before the denial. However, the Director and the Administrative Appeals Office (AAO) found that there was no legal requirement for a follow-up RFE if the record already established ineligibility.
Conclusion
Final Determination: The appeal was denied because the Petitioner did not establish that she qualifies for classification as an individual of exceptional ability. The motions to reopen and reconsider were also denied as they did not present new evidence or legal arguments that would change the outcome of the case.
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