dismissed EB-2 NIW Case: Advertising And Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WLY 26, 2023 In Re: 27887480 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, who describes himself as an "advertising and marketing specialist," seeks classification 
as an individual of exceptional ability in the sciences, arts or business. 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 
qualify for classification as an individual of exceptional ability. 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 Christa's, Inc., 26 I&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) of the Act. For the purpose 
of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business ." 
8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at least three of which must be 
satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the [noncitizen] has a degree, 
diploma, certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the [noncitizen] has at least ten years of foll-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the [noncitizen] has commanded a salary, or other renumeration 
[sic] for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
8 C.F.R. § 204.5(k)(3)(ii). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "If the above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Director concluded that the record does not satisfy at least three of the six exceptional ability 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) and, therefore, the Petitioner is not eligible for second preference 
classification. More specifically, the Director found that the record satisfies the criteria at 8 C.F.R. 
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§ 204.5(k)(3)(ii)(A) and (C) but that the record does not satisfy the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), (D), or (F). The Director did not comment in the decision on whether the record 
satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E); however, in a prior request for evidence (RFE), 
the Director specifically observed that the Petitioner had not submitted any evidence to establish that 
he satisfies that criterion. On appeal, the Petitioner reasserts that he satisfies the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), (D), and (F), in addition the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (C). The 
Petitioner farther asserts on appeal that comparable evidence, as contemplated by 8 C.F.R. 
§ 204.5(k)(3)(iii), establishes his eligibility. For the reasons discussed below, we will withdraw the 
Director's conclusion that the record satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
Furthermore, for the reasons discussed below, the record does not establish that the Petitioner satisfies 
at least three of the exceptional ability criteria. 
First, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form of letter(s) from 
current or former employer(s) showing that the [noncitizen] has at least ten years of foll-time 
experience in the occupation for which he or she is being sought." The Director acknowledged that 
the record contains "contract information that the [P]etitioner worked on." However, the Director 
found that "the [P]etitioner's experience does not appear to be related to the proposed endeavor." 
Therefore, the Director concluded that the record does not satisfy the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
On appeal, the Petitioner generally asserts that he has "more than ten ( 10) years of foll-time experience 
within the field of occupation, holding positions of high responsibilities" and he discusses the general 
duties of a "sports marketing professional." However, the Petitioner does not specifically state which 
particular items of evidence satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). We note, however, 
that in response to the Director's RFE, the Petitioner listed the names of nine companies that have 
employed him since 1992, and he asserted that "evidence marked as Exhibit B" attached to his RFE 
response is "proof of [his] foll-time experience within the occupation." 
We first note that the Petitioner entirely omitted information in Part 6. Basic Information About the 
Proposed Employment on the Form I-140, Immigrant Petition for Alien Workers, such as the proposed 
employment's job title. Likewise, the Petitioner omitted his existing occupation from Part 5. 
Additional Information About the Petitioner. Despite the omission of basic information from the Form 
I-140, in support of the filing the Petitioner generally described the proposed endeavor as "act[ing] as 
an [a]dvertising and [m]arketing [s]pecialist ... to maximize sales and increase revenues for his 
clients, which will range from print to TV to digital media providers." Therefore, the "occupation for 
which [the Petitioner] is being sought," for the purposes of 8 C.F.R. § 204.5(k)(3)(ii)(B), is an 
advertising and marketing specialist. 
Neither the documents referenced by the Petitioner in response to the Director's RFE nor the remainder 
of the record satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). Exhibit B of the Petitioner's RFE 
response consists of three one-page certificates written in a language other than English, and 
corresponding English translations of them. The documents certify that the Petitioner "correctly 
participat[ ed] in the FIFA Litigation Course" in October 2022, that he "participat[ ed] and correctly 
pass[ ed] with a grade of 100/100 the Sports Law Course" in September 2022, and that he "correctly 
comp let[ ed] the FIFA Agent Course" in May of some unspecified year. 
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A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Neither of the certificates dated 2022 may establish eligibility because they are dated after the petition 
filing date in 2021. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. at 49; Matter of 
Izummi, 22 I&N Dec. at 176. In tum, the undated certification bears minimal probative value because 
it does not establish the year in which the Petitioner acquired such certification; therefore, it does not 
establish that he held such certification at the time of filing. See id. 
Even to the extent that the certificates can establish eligibility, none of the certificates, as translated in 
English, nor any other documents in the record, purport to be from a current or former employer of 
the Petitioner, nor do they describe duties the Petitioner performed while employed in order to 
establish whether the experience is in the occupation for which he is being sought, nor do they indicate 
whether the experience the Petitioner gained was on a full-time basis and the duration of his 
experience. Because the record does not contain evidence in the form of letters from current or former 
employers showing that the Petitioner has at least 10 years of full-time experience in the occupation 
for which he is being sought, it does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Next, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." As noted above, the Director concluded that 
"[t]he submitted evidence meets this criterion." 
The record does not support the Director's conclusion that the record satisfies the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). As noted above, the Petitioner describes himself as an "advertising and 
marketing specialist." The record does not establish that advertising and marketing requires a license 
to practice the profession or the type of certification for a particular profession or occupation, as 
contemplated by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). Moreover, even if advertising and 
marketing required the type of license or certification contemplated by the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C), the record does not contain evidence of a qualifying license or certification. As 
discussed above, the Petitioner submitted three one-page certifications written in a language other than 
English, and corresponding English translations of them. The documents certify that the Petitioner 
"correctly participat[ ed] in the FIFA Litigation Course" in October 2022, that he "participat[ ed] and 
correctly pass[ed] with a grade of 100/100 the Sports Law Course" in September 2022, and that he 
"correctly complet[ ed] the FIFA Agent Course" in May of some unspecified year. These certifications 
relate to information regarding athletic competitions in general, and soccer more specifically; 
however, the record does not establish that the profession of advertising and marketing specialists­
which covers subjects not limited to athletic competitions in general, and soccer more specifically­
requires such certifications in order to advertise goods or services. Furthermore, as discussed above, 
none of the certifications establish that the Petitioner held such certification-regardless of their 
relevance to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C)-at the time of filing. See 8 C.F.R. 
§ 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. Based 
4 
on the foregoing, we withdraw the Director's conclusion that the record satisfies the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
Next, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]vidence that the [noncitizen] has 
commanded a salary, or other renumeration [sic] for services, which demonstrates exceptional ability." 
The Director acknowledged that the record contains "information regarding payments for contract 
work the [P]etitioner received on various projects." However, the Director found that "the [P]etitioner 
did [not] submit evidence how [his] claimed exceptional ability led to a high salary or other 
remuneration relative to others in the field." Therefore, the Director concluded that the record does 
not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
On appeal, the Petitioner asserts that "[the record] shows different pieces of evidence showing the 
attainment ofremuneration for services within the field," which he describes as follows:
•• l !School [ c ]ontract to carry out the execution of a sports facility project; 
l...._____ _____,I Neighborhood Sports League ([i]ndoor football) contract for 
[ m ]aintenance [ s ]ervices of [f]ootball fields; 
• College of Civil Engineers! synthetics grass maintenance ontract: I I
• Construction of [ c ]ivil [ w ]orks of [ a ]thletic [ t ]rack inside the _
I I stadium in the city of Ecuador "contract"; I I ~----~ 
• Athletic [t]rack ESMA advisory services contract; 
• Soccer [c]ourt [s]ynthetic [l]awn [m]aintenance contract (7,020 M[]2); and 
• Purchase agreement contract "Sale and installation of sports synthetic grass for 
children's play area." 
The record contains contracts written in a language other than English, and corresponding English 
translations of them, matching those described by the Petitioner. However, we first note that the 
I 
document titled 
I
"Contract for the 'Construction 
I 
of Civil Works of Athletic Track Inside the I I
Stadium in the City of IProvince I I" as translated in the record, 
does not identify the Petitioner or any entity apparently related to the Petitioner as a party to the 
contract or as a recipient of any remuneration. Therefore, the record does not establish how that 
contract relates to any remuneration the Petitioner has received. We next note that the evidence 
relating to the Petitioner's six hours of maintenance services for thel !neighborhood sports 
league's "synthetic football fields" is a half-page letter confirming completion of the task, rather than 
a contract per se. 
The record does not establish how the contracts to which the Petitioner is a party are evidence that the 
Petitioner has commanded a salary or other remuneration for services, which demonstrates exceptional 
ability, as required by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). As noted above, the Petitioner 
purports to have an exceptional ability as an advertising and marketing specialist. However, the 
respective contracts in the record are generally for the construction, installation, or maintenance of 
athletic surfaces, not for advertising or marketing. The record does not establish how evidence of 
remuneration for the cost of goods and labor for the construction, installation, or maintenance of 
athletic surfaces is evidence of remuneration the Petitioner has received for advertising or marketing 
services. We note that, as an exception, the "[a]thletic [t]rack ESMA advisory services contract" 
referenced by the Petitioner indicates that he would provide "consulting services" and "advice of the 
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contracted goods," rather than construction, installation, or maintenance of athletic surfaces directly; 
however, again the record does not establish how evidence of remuneration for consulting services 
regarding the construction, installation, or maintenance of athletic surfaces is evidence of 
remuneration the Petitioner has received for advertising or marketing services. 
Even to the extent that the contracts may relate to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), as the 
Director noted, the record does not establish how the various remuneration the Petitioner received in 
connection with the contracts demonstrates any particular level of ability, whether exceptional or 
otherwise. For example, the record does not establish the context for the respective contracts' 
remuneration, whether they are relatively higher, lower, or average as compared to other remuneration 
for similar circumstances. Because the record does not contain evidence that the Petitioner has 
commanded a salary or other remuneration for services that demonstrates exceptional ability, it does 
not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
Next, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence of recogmt10n for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations." The Director concluded that the record does not satisfy the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) because "the evidence does not indicate that the achievements 
and significant contributions to the industry have been recognized by peers, governmental entities, or 
professional or business organizations." 
On appeal, the Petitioner asserts that "several commercial and work references form multiple 
distinguished clients [sic]" satisfy the criterion at 8 C.F .R. § 204.5(k)(3 )(ii)(F), which the Petitioner 
summarizes as follows: 
• installation of 400 square meters of 20 mm syntetic grass~------~ project [sic]; 
• I !Civil Work I.S.M. & ESMIL; 
• Green [f]ields accreditation of distribution and installation of synthetic grass, 
construction of bases and drains, construction of perimeter gutters and maintenance 
work;
• I lri]ndoor football [s]ports [l]eague maintenance service for synthetic 
football fields; 
• Evolux 680 square meter 13mm EPDM synthetic floor fo~~--------~ 
[sic]; and 
• Arkano 13 mm cast in situ synthetic material at 67 5m2 for the Performance inl I ._________ __. 
The record contains one-page letters from the parties identified by the Petitioner, written in a language 
other than English, and corresponding English translations. However, none of the letters, as translated 
in the record, constitute evidence of recognition for achievements and significant contributions to the 
industry or field of advertising and marketing-or any other industry or field. The respective letters 
assert that the Petitioner "carried out [work] to satisfaction," "is our client," was "our distributor of 
Sports, Flooring and Equipment Sports Partner in the territory of Ecuador," "performed the 
maintenance service for the synthetic football fields," "provided us with the materials and installation 
of a 680-square-meter 13mm EPDM synthetic floor ... adhering to the requirements and demands of 
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the construction site," "installed us 13 mm cast-in-situ synthetic material ... complying with 
installation times," and "[m]aintained the [s]ynthetic [s]occer [f]ield." Regardless of whether the 
completion of discrete projects between a contractor and a client constitute the type of contributions 
to an industry or field, as contemplated by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), the plain 
language of the letters from the Petitioner's clients merely indicate that he completed the projects for 
which the parties contracted, without stating how any of the work amounts to the type of achievements 
or significant contributions contemplated by 8 C.F.R. § 204.5(k)(3)(ii)(F). Moreover, as discussed 
above, the record does not establish how the Petitioner's completion of contracts for the construction, 
installation, or maintenance of athletic surfaces relate to the field of advertising and marketing. 
Because the client letters confirming the Petitioner's completion of construction, installation, or 
maintenance work for which he contracted do not establish how such work amounts to significant 
contributions to the industry or field of advertising and marketing, they do not satisfy the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The criterion at 8 C.F.R. § 204.5(k)(3)(iii) contemplates "comparable evidence to establish the 
beneficiary's eligibility" if the criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply to the 
occupation. On appeal, the Petitioner asserts that the Director "failed to make a final merit 
determination based on ... comparable ... evidence of eligibility." More specifically, the Petitioner 
asserts that he "has achieved numerous important contracts and sales within the sports field, thanks to 
his marketing exceptional abilities," and thus demonstrates "commercial success in the field" as 
comparable evidence of exceptional ability. The Petitioner also asserts that he "has established proof 
performance of [sic] a critical role in distinguished organizations in the field of sports marketing and 
sales such as I I among others," and thus demonstrates "evidence of 
performance of a critical role in distinguished organizations" as comparable evidence of exceptional 
ability. 
We first note that the Petitioner does not assert on appeal-nor does the record support the 
conclusion-that the criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply to the occupation of 
advertising and marketing specialists. 1 Instead, the Petitioner simply requests comparable evidence 
to be considered in lieu of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). Even if the record established why 
the criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply to advertising and marketing specialists, 
the Petitioner's assertion on appeal that the contracts, discussed above, constitute comparable evidence 
of his exceptional ability, is misplaced. As noted above, the Petitioner purports to have an exceptional 
ability as an advertising and marketing specialist. However, as discussed above, the respective 
contracts in the record are generally for the construction, installation, or maintenance of athletic 
surfaces, not for advertising or marketing. The record does not establish how evidence of contracts 
for the construction, installation, or maintenance of athletic surfaces is evidence of the Petitioner's 
commercial success in the field of advertising and marketing. For example, the record does not 
establish that any of the parties to the contracts for the Petitioner's goods or services contracted with 
him as a result of his advertising or marketing, rather than for any other reason such as a referral, 
convenience, availability, more competitive bidding, or any other reason unrelated to the Petitioner's 
advertising or marketing. 
1 On the contrary, as discussed above, the Petitioner asserts that he satisfies five of the six exceptional ability criteria. The 
record furthermore does not reconcile why the exceptional ability criteria would not readily apply to advertising and 
marketing specialists if, as the Petitioner also asserts, he satisfies five of the six criteria. 
7 
Next, the Petitioner's assertion that he has performed a critical role of.__ _________ ____. 
and unspecified others is misplaced. More specifically, the Petitioner asserts that he "has become the 
authorized supplier/distributor of products manufactured by these distinguished companies in his 
country of origin" and that "[ t ]his must be considered a critical role for these companies, since no one 
except [him] has been designated as the representatives of products in his company." The record 
contains a document titled "Authorization Certificate," indicating that the Petitioner "is an authorized 
dealer ofl I' The record also contains a similar, one-page letter from 
I Iwritten in a language other than English and an accompanying English translation, 
acknowledging that the Petitioner's "company is credited as general representative of I I 
I INeither the certificate nor the letter establishes that the Petitioner's role as supplier, distributor, 
or dealer is significant among other existing or potential suppliers, distributors, or dealers in Ecuador 
specifically or throughout the companies' areas of operations in general. In tum, the record does not 
establish how the Petitioner's performance of the role as supplier, distributor, or dealer for the 
respective companies has affected the companies' business operations, whether in Ecuador 
specifically or throughout the companies' areas of operations in general. More specifically, neither 
the certificate, nor the letter, nor any other evidence in the record establishes how the Petitioner's role 
as supplier, distributor, or dealer for the respective companies performs a critical role for the 
companies. In summation, even if the record established that the criteria at 8 C.F.R. § 204.5(k)(3)(ii) 
do not readily apply to the occupation of advertising and market specialists, it does not establish that 
the referenced evidence establishes the Petitioner's eligibility for an individual of exceptional ability. 
In summation, the Petitioner has not established that the record satisfies at least three of the exceptional 
ability criteria. The record also does not establish, in the alternative, that the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii) do not readily apply to the occupation and that comparable evidence establishes 
exceptional ability. Therefore, we need not determine whether the record shows sustained national or 
international acclaim and demonstrates that the individual is among the small percentage at the very 
top of the field of endeavor. See section 203(b )(2)(A) of the Act; see also 8 C.F.R. § 204.5(k)(2); 
Kazarian, 596 F.3d 1115. We note, however, that if we were to conduct a final merits determination 
of the record, it would not support the conclusion that the Petitioner shows sustained national or 
international acclaim and demonstrates that he is among the small percentage at the very top of the 
field of endeavor. Furthermore, because the record does not establish that the Petitioner satisfies at 
least three of the exceptional ability criteria, it does not establish that he qualifies for second-preference 
classification as an individual of exceptional ability. See section 203(b )(2)(A) of the Act. 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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