dismissed EB-2 NIW Case: Audiovisual Production

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 04, 2024 In Re: 29095485 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of audiovisual production, seeks second preference 
immigrant classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established eligibility for the underlying EB-2 classification as a member of the advanced degree 
professionals or an individual of exceptional ability. In addition, the Director concluded that the 
Petitioner did not establish eligibility for a national interest waiver. 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)(B)(i) of the Act. Only those 
who demonstrate "a degree of expertise significantly above that ordinarily encountered" are eligible 
for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) sets forth the following six criteria, at least three 
of which an individual must meet in order to qualify as an individual of exceptional ability in the 
sciences, the arts, or business: 
(A) An official academic record showing that the [individual] 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 of letter(s) from current or former employer( s) showing that 
the [individual] has at least ten years of full-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 [individual] has commanded a salary, or other remuneration 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. 
If a petitioner satisfies these initial requirements, we then consider the entire record to determine 
whether the individual has a degree of expertise significantly above that ordinarily encountered. See 
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence 
is first counted and then, if it satisfies the required number of criteria, considered in the context of a 
final merits determination); See USCIS 6 Policy Manual F.5(B)(2), https://www.uscis.gov/policy­
manual. 
Once a petitioner first demonstrates qualification for the underlying EB-2 visa classification, they must 
then demonstrate they merit a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1, grant 
a national interest waiver if the petitioner shows: 
• 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 
The Petitioner's proposed endeavor is "to advance his career as an entrepreneur by establishing □ 
lin the United States, which will operate as a full-service audiovisual production company, 
focusing on providing high end visual storytelling services." The Petitioner also submitted a business 
plan which states: 
1 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). 
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[The Petitioner] is a Brazilian citizen with vast experience in the Video Producing Industry. 
[The Petitioner] will direct the U.S.-based Company in Florida. He will also be the sole owner 
of thel ~ Upon approval of his EB-2 visa, [the Petitioner] will manage the I I 
and work as its Owner and Video Producer. 
A. Qualification for the EB-2 Classification 
We will 
first address the threshold requirement that the Petitioner must qualify for classification under 
Section 203(b)(2)(B)(i) of the Act, either as an advanced degree professional or an individual of 
exceptional ability. 
The Director concluded that the Petitioner did not qualify for the EB-2 classification as an advanced 
degree professional. On appeal, the Petitioner does not acknowledge or rebut the Director's specific 
finding on this issue, and thereby abandons this issue. An issue not raised on appeal is waived. See, 
e.g., Matter of O-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)). 
The Director also concluded that that the Petitioner satisfied only two criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (E) out of the required three to demonstrate eligibility for an individual of 
exceptional ability. On appeal, the Petitioner contends that he meets the remaining criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), (C), (D), and (F). On appeal, the Petitioner contends that the Director erred by 
not considering comparable evidence in his analysis. Upon de novo review, we agree with the Director 
that the Petitioner has not met three of the six criteria for qualifying as an individual of exceptional 
ability, as discussed below. 
1. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Director found that the Petitioner did not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) which 
requires "evidence in the form of letter(s) from current or former employer(s) showing that the 
[individual] has at least ten years of foll-time experience in the occupation for which he or she is being 
sought." On appeal, the Petitioner asserts that he submitted comparable evidence on record to 
demonstrate that he meets this criterion, namely his Employment and Social Security Book issued by 
the Brazilian government and reference letters from his previous employers. However, as the Director 
stated in the denial, neither the Employment and Social Security Book nor the letters of reference 
provide necessary details about the Petitioner's duties, the length of his employment, or whether he 
worked foll time. 
Although the Petitioner claims that the evidence provided "is sufficient and comparable to letters from 
current or former employers," for comparable evidence to be considered, the petitioner must explain 
why a particular evidentiary criterion listed in the regulations is not readily applicable to his or her 
occupation. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
Here, the Petitioner merely asserted that evidence on record be accepted as comparable evidence but 
did not explain why he is not able to provide letters from previous and current employers attesting to 
the Petitioner's ten years of experience with relevant dates of employment, hours worked, and 
description of duties. Therefore, the Petitioner did not demonstrate that he meets this criterion. 
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2. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) 
This criterion requires "[a] license to practice the profession or certification for a particular profession 
or occupation." On appeal, the Petitioner contends that the submitted evidence, such as "his bachelor's 
degree in journalism, his work ID badges, press badges, certificates of completion for extended 
education courses, and other press credentials," are comparable evidence that meets this criterion. 
A petitioner can submit comparable evidence to establish eligibility if the regulatory standards do not 
readily apply but must explain 1) why he has not submitted evidence that would satisfy the criteria set 
forth in 8 C.F.R. 204.5(k)(3)(ii); and 2) why the evidence he has submitted is "comparable" to that 
required under 8 C.F.R. 204.5(k)(3)(ii). See generally 6 USCIS Policy Manual F.5(8)(2). General 
assertions that any of the six objective criteria do not readily apply to the Petitioner's occupation are 
not acceptable. Id. 
The Petitioner asserts that only "12.1 % of Arts, design, entertainment, sports, and media professionals 
hold either a license or certification to practice the profession" according to the U.S. Bureau of the 
Labor Statistics (BLS). 2 While the cited page from BLS does not completely rule out license and 
certification requirements for media professionals, it supports that the regulatory standards may not 
readily apply to this profession. However, the Petitioner has not sufficiently demonstrated that the 
evidence he submitted is comparable to having a license to practice the profession. 
First, we agree with the Director's conclusion that the Petitioner's bachelor's degree diploma "is not 
comparable to a license or certification to practice his occupation" as this type of evidence has already 
been addressed in the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) (requiring an official academic record 
showing that the individual has a degree, diploma, certificate or similar award from a college, 
university, school, or other institution ofleaming to the area of exceptional ability). In addition, while 
the Petitioner has submitted certificates of participation in various audiovisual workshops, he has not 
explained how these certificates are comparable to a license to practice his profession. 
Secondly, we also find that the Petitioner did not demonstrate that his work ID or press badges are 
truly comparable evidence. Although the Petitioner claims that these badges establish his exceptional 
ability in audiovisual production, the record does not sufficiently demonstrate that the badges show 
the same caliber of expertise as receiving a license to practice the profession or a certification for a 
particular profession. Licensure to practice a profession and certification for a profession or 
occupation generally demonstrate a level of knowledge or skill associated with the related occupation. 
Here, the Petitioner has not provided any supporting evidence to establish the requirements, if any, for 
obtaining his badges. The Petitioner's general assertions, without more, are not probative evidence 
and do not demonstrate that possessing work ID or press badges is comparable to obtaining a license 
or certification commensurate with the criterion. Therefore, the Petitioner did not demonstrate that he 
meets this criterion through the submission of comparable evidence. 
2 Bureau of Labor Statistics. U.S. Dep't of Labor, Current Population Survey, Certification and licensing status of the 
employed by occupation (January 25, 2023), https://www.bls.gov/cps/cpsaat53.htm. 
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3. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
This criterion requires "[e]vidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability." 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 in the field. 
The Director noted insufficient and inconsistent information about the salary information presented 
by the Petitioner. For example, the Director stated that the copy of the Petitioner's salary information 
for the position of "Entrepreneur" from a Brazilian language website "did not indicate if the salaries 
presented were monthly, yearly, or weekly remunerations." The Director further stated that the 
Petitioner's remunerations for his prior work positions from 2016 to 2020 were not for the position of 
"Entrepreneur." In addition, the Petitioner did not submit evidence to demonstrate how his salaries as 
either "Entrepreneur" or as audiovisual employee were due to his exceptional ability. Therefore, we 
find that the record does not contain evidence to establish how the Petitioner's compensation compares 
to other entrepreneurs or other audiovisual employees in the same geographical area or that his income 
is a direct result of his exceptional ability. 
On appeal, the Petitioner again requests that submitted evidence be reconsidered "as comparable 
evidence to show the Petitioner's salary or other remuneration for services that demonstrates his 
exceptional ability." However, the Petitioner has not explained how the regulatory standards do not 
readily apply in his case according to 8 C.F.R. 204.5(k)(3)(iii). 
Moreover, the Petitioner initially submitted evidence of his salary but when the Director requested 
additional evidence to address insufficiencies in meeting this criterion, the Petitioner acknowledged 
in his response that this criterion is "will not be met." With the appeal, the Petitioner generally refer 
to articles on how compensation motivates performance and achievement but has not provided 
complete and probative evidence to satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). Therefore, 
we conclude that the Petitioner has not met this criterion. 
4. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence ofrecognition for achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations." On appeal, the Petitioner claims that his reference letters demonstrate "his 
achievements and significant contributions to the field of audiovisual production" and "well-noted by 
his peers and employers." However, the support letters are from those who worked with the Petitioner 
in the past and contain general praise for the Petitioner's expertise and work ethics, but they do not 
indicate that the Petitioner's contributions go beyond being a dedicated and competent employee. The 
record lacks evidence demonstrating this represents a significant achievement or recognition in the 
field. 
On appeal, the Petitioner specifically reference the letter from the senator of Brazil in the State of 
I I who expresses familiarity of the Petitioner's "growth in the field of social 
communication" and "rapid professional development in the media outlets in Brazil" as well as his 
"prominent positions in national live broadcasts, as coverage of presidential visits and press 
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conferences." However, the senator does not offer any details regarding the level of prestige with the 
Petitioner's purported "prominent positions" or show how the Petitioner's contribution to the "field of 
social communication" is equal to significant achievement and contribution to the field of audiovisual 
production or entrepreneurship. Furthermore, the Petitioner has not offered any independent and 
corroborating documentation to support claims made in this reference letter. Therefore, we find that 
the evidence is insufficient in demonstrating evidence for this criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
For the reasons set forth above, the evidence does not establish that the Petitioner has not satisfied at 
least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), and thus, we need not conduct a final merits 
determination. Nevertheless, we have reviewed the record in the aggregate and examined "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 of 
Chawathe, 25 I&N Dec. at 376. While we acknowledge that the Petitioner has had a successful career 
in the field of audiovisual production, he has not demonstrated exceptional ability that rises above that 
ordinarily encountered in his field. 
B. 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, the Petitioner has 
not established eligibility for the underlying EB-2 immigrant classification. Since this issue is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
his eligibility for a national interest waiver under the Dhanasar analytical 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 met at least three of the six regulatory criteria for exceptional ability at 8 C.F.R. 
§ 204.5(k)(3)(ii). The appeal will be dismissed for the above stated reasons, with each considered as 
an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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