dismissed EB-2 NIW Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2024 In Re: 29547630 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an accounting professional and entrepreneur, seeks classification as an individual of 
exceptional ability. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he qualifies as an individual of exceptional ability or that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,3 grant a national interest waiver if 
the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
As stated above, in order 
to be eligible for a national interest waiver, a petitioner must first establish 
that they are eligible for the EB-2 classification, either as a member of the professions holding an 
advanced degree or as an individual of exceptional ability. Here the Petitioner asserts that he qualifies 
as an individual of exceptional ability. The Petitioner has not asserted that he qualifies for the EB-2 
classification as an advanced degree professional. 
A. Exceptional Ability 
The Petitioner contends that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the official academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
On appeal, the Petitioner maintains that he also meets the regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), which requires "[e]vidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time experience in the occupation for 
which he or she is being sought," and 8 C.F.R. § 204.5(k)(3)(ii)(D), which requires "evidence that the 
alien has commanded a salary, or other remuneration for services, which demonstrates exceptional 
ability." The Petitioner does not address or contest on appeal the Director's finding that he does not meet 
the license criterion under 8 C.F.R. § 204.5(k)(3)(ii)(C), the membership criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E), or the criterion relating to recognition for achievements and significant contributions 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCTS has previously confirmed the applicability of this two-palt adjudicative approach in the context of aliens of 
exceptional ability. 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
to the field at 8 C.F.R. § 204.5(k)(3)(ii)(F). Accordingly, we deem these grounds to be waived. An issue 
not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing 
Matter ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). 
Evidence in the form ofletter(s) from current orformer employer(s) showing that the noncitizen 
has at least ten years offitll-time experience in the occupation for which he or she is being sought. 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner claims to have worked as an accounting professional for.____________ __, a 
limited liability company in Brazil, and submitted corporate registration documents for this company 
identifying him as a partner in the business. The Petitioner also submitted a letter from his accountant 
stating that the Petitioner, as managing partner of the company, withdraws a monthly salary ofR$ 12,500. 
In the decision denying the petition, the Director determined that the Petitioner had not met the 
requirements of the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), noting that the provided 
documentation did not identify the Petitioner's job duties, his dates of employment, or whether the 
position he held in Brazil was full-time. On appeal, the Petitioner resubmits the same documentation and 
asserts that it is sufficient to demonstrate that he has the requisite 10 years of full-time experience in the 
occupation. 
Upon review, we agree with the Director's determination. The Petitioner did not submit evidence in the 
form of letters(s) from current or former employer(s) to demonstrate that he had at least 10 years of 
full-time experience as an accounting professional. The letter from his foreign accountant is not sufficient 
evidence of employment from current or former employers because the accountant was not the 
Petitioner's current or former employer. Moreover, while the Petitioner's Brazilian-based business 
registration supports a finding that the Petitioner is a business owner, the documents do not contain 
sufficient details about the Petitioner's duties as a business owner such that we could assess whether he 
has experience as an accounting professional. Even ifwe concluded that he has the requisite experience 
based solely upon business ownership alone, these documents would not establish eligibility under this 
criterion, as they do not sufficiently describe the duties the Petitioner performed and provide little 
indication that his work was full-time. The record does not contain letters from current or former 
employers that address the Petitioner's experience as an accounting professional, nor does the 
documentation indicate that he had at least 10 years of full-time experience accrued at the time of filing 
the petition. Accordingly, the record does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner contends that as an accounting professional and entrepreneur, he has commanded a salary, 
or other remuneration for services, which demonstrates exceptional ability. In support of this assertion, 
he submitted letters from his accountant attesting to his salary, along with documentation from Salario 
BR and GlassDoor reflecting the average salary of accounting technicians and entrepreneurs in Brazil. 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others working 
3 
in the field. 4 Rather than submit evidence that compares his salary to those of others similarly employed, 
he sought to show that he earned a high salary compared to accounting technicians and entrepreneurs in 
his home country of Brazil. The amount ofthe salary, however, should reflect exceptional ability, a factor 
that is not contingent on an individual's country of origin. The Petitioner did not provide a basis to 
compare his salary to those of others similarly employed, and to establish the extent to which differences 
in salary were related to exceptional ability. There is no evidence in the record which would permit us to 
evaluate the duties an accounting professional/ entrepreneur of exceptional ability would perform for their 
salary or remuneration as a point of comparison. Moreover, the broad job description and job title of 
accounting technician contained in the materials the Petitioner submitted did not readily correspond to 
the description of services and duties the Petitioner has described for his proposed endeavor. 
We agree with the Director that the Petitioner has not met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
because we cannot evaluate from information in the record whether the Petitioner's salary or 
remuneration demonstrated his exceptional ability. 
B. Final Merits Determination 
The Petitioner has not established 
that he meets at least three of the evidentiary criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). As the Petitioner has not met the initial evidence requirement, a final merits 
determination is not required. Although he has successfully progressed in the field and earned the respect 
of his colleagues, the record does not establish the Petitioner's experience is beyond that which is 
ordinarily encountered in the occupation. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner does not claim that he is an advanced degree professional and, as 
discussed above, has not shown that he meets the regulatory criteria for classification as an individual 
of exceptional ability. Since the identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding his eligibility for a 
national interest waiver under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 
ORDER: The appeal is dismissed. 
4 See 6 USC1S Policy Manual, supra, at F.5(B)(2). 
4