dismissed EB-2 NIW Case: Automotive Repair

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 14, 2024 In Re: 32291035 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an auto repair entrepreneur, seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § ll 53(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for EB-2 classification. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. On appeal, the Petitioner argues that the Director did not consider the 
evidence provided in line with the preponderance of the evidence standard. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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 the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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. 
Id. 
II. ANALYSIS 
The Petitioner, a citizen and national of Brazil residing in the United States, seeks to start an 
automotive repair endeavor in three locations across the United States. The Director determined that 
the Petitioner meets all three prongs of the Dhanasar framework but did not establish that they were 
a professional with an advanced degree or an individual of exceptional ability. 
On appeal, the Petitioner contends that the Director "did not apply the proper standard of proof ..., 
instead imposing a stricter standard, and erroneously applied the law .... " (emphasis omitted). The 
Petitioner further argues that the Director "did not give due regard" to the evidence submitted, 
specifically the Petitioner's resume outlining his experience, the business plan describing his 
credentials, and the projected benefits he offers the United States. The Petitioner also argues that the 
Director's decision does not provide a coherent explanation for the discretionary determination that 
even though the Petitioner meets three of the six regulatory criteria, he did not establish that he is a 
person of exceptional ability. 
The standard of proof in this proceeding is a preponderance of the evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter ofChawathe, 25 
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 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
I&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner provided evidence that he received a bachelor's degree in 2022. He did not provide 
evidence of a post-graduate degree. The Director correctly determined that the Petitioner was unable 
to meet the five years of progressive post-degree experience in his specialty because he had received 
his bachelor's degree within 5 years of the date of filing. The Petitioner does not argue this point on 
appeal and we deem it 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)). 
B. Exceptional Ability 
The Petitioner asserts 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 the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C) and (E) but that the Petitioner did not 
demonstrate a level of expertise significantly above that ordinarily encountered in the field required 
in the second step of the exceptional ability analysis. 8 C.F.R. § 204.5(i)(3)(i). For the reasons 
specified below we will withdraw the Director's determination that the Petitioner meets the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(A) and evaluate the evidence de novo. 
In the appeal brief, the Petitioner maintains that he meets the academic criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), the ten years of full-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the 
license or certification criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the membership criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E), and the recognition for achievements and significant contributions criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we disagree with the Director that the 
record supports a finding that the Petitioner satisfies the requirements of at least three criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner presented his Bachelor of Science in Production Engineering from 
and associated transcript. The Petitioner has not established that his 
degree in production engineering relates to his claimed area of exceptional ability as an automotive 
repair entrepreneur. As a result, the Petitioner has not established that he has a degree relating to his 
area of exceptional ability as required by the plain language of the regulation. For the aforementioned 
reasons, we withdraw the Director's determination that the Petitioner meets this criterion. 
Evidence in the form ofletter(s) from current or former employer(s) showing that the alien 
has at least ten years offull-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
3 
As evidence of his ten years of business experience, the Petitioner submitted letters from former 
employers and colleagues discussing his professional accomplishments to address this criterion. The 
Director determined that the letters did not provide sufficient information to establish ten years of full­
time experience in the occupation of automotive repair entrepreneur because they only accounted for 
work experiencing beginning six years prior to the date of filing. On appeal, the Petitioner argues that 
the Director did not adequately review the available letters in line with the Petitioner's resume. 
However, the Petitioner failed to address the determinative issue, his years of experience. Namely, 
that he has only accounted for his work experience from 2015 onward and did not have ten years of 
working experience in his field at the time of filing. Accordingly, the Petitioner has not established 
that he meets the requirements of this regulatory criterion. 
A license to practice the profession or certification for a particular profession or 
occupation 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Director concluded that the Petitioner met this criterion by showing he had a certificate of good 
standing from Regional Council of Engineering and Agronomy of the State of Espirito Santo. As 
such, the Petitioner has demonstrated that he meets this criterion. 
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 did not provide evidence to satisfy this criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director concluded that the Petitioner met this criterion by virtue of his membership in ABM­
Brazilian Association of Metallurgy, Materials, and Mining. Based on the evidence included in the 
record, we find that this is an association of engineering professionals engaged in a specific subsection 
of that field and qualifies as a professional association. The Petitioner has met his burden to establish 
this criterion. 
Evidence ofrecognition 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)(F). 
As evidence for this criterion, the Petitioner provided letters from individuals with whom he worked. The 
letters generally describe his duties, demeanor, and competence in performing his role with the 
organization. In the present case, the petitioner's proposed field is business owner and entrepreneur for 
an automotive repair shop. The letters provided discuss the Petitioner's work as a thermal control operator 
in a steel production facility. The Petitioner has not clearly articulated how the letters from fellow 
employees at his former place of work reflect his significant contributions to the field of automotive repair 
and entrepreneurialism. Moreover, the Petitioner has not provided evidence from government entities or 
professional or business organizations recognizing his significant contributions to his field of endeavor. 
4 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) or achieved the level of expertise required for exceptional 
ability classification. 
B. Final Merits Determination 
Even if the Petitioner did meet the regulatory requirements above, he has not demonstrated that his 
expertise in the field of auto repair or business ownership is significantly above that ordinarily 
encountered in his field. 
On appeal, the Petitioner argues that the Director's final merits determination was unsupported by the 
law because he had met three of the six regulatory criteria to establish himself as an individual of 
exceptional ability. This argument misstates the eligibility criteria under 8 C.F.R. § 204.5(k)(2) which 
requires that the Petitioner meet three of the six criteria and a demonstrate that he has the high level 
of expertise required for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
Where a petitioner meets the initial evidence requirements, we then consider the totality of the material 
provided in a final merits determination and assess whether the record shows the petitioner possesses 
exceptional ability. See id (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 "trnth 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 trne." Matter ofChawathe, 25 I&N Dec. at 376. 
We acknowledge the Petitioner's recent graduation with a bachelor's degree, his work history in the 
field of steel production, his claims that he has been a business owner since 2015, and the letters from 
his colleagues regarding his work ethic and abilities. We further acknowledge the submission of 
company formation documents labeling the Petitioner as a minority investor in two automotive repair 
companies in Brazil. However, the Petitioner focuses his argument on the evidence regarding his work 
in steel processing rather than as a business owner. The letters of support from his co-workers appear 
unrelated to rnnning an auto repair shop and they do not establish that the Petitioner's expertise as an 
entrepreneur in auto repair is significantly above that ordinarily encountered in his field. He did not 
provide business records demonstrating the solvency of the auto repair business he co-owns with his 
father and only provided a brief letter enumerating his duties with the automotive repair organization 
in Brazil. As such, the Petitioner has not provided sufficient evidence to support the finding that he 
has made substantial contributions to the field of automotive repair entrepreneurialism. As such, the 
Director was correct in finding that the Petitioner had not met his burden of proof in establishing that 
he is a person of exceptional ability. 
The record, in its totality, does not establish the Petitioner's eligibility as an individual of exceptional 
ability. Although the Director determined that the Petitioner satisfied three of the initial categories of 
evidence, the record does not demonstrate that the Petitioner has obtained a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 
204.5(k)(2). 
5 
III. NATIONAL INTEREST W AIYER 
The Director concluded, without analysis, that the Petitioner's proposed endeavor met the three prongs 
of Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016). Though not necessary for our final 
determination, we withdraw the Director's decision as it relates to prong 1 of the Dhanasar framework 
with the comments below. 
The Petitioner seeks to open an automotive repair business with three locations in the first five years 
of operation. These locations will be in three different cities in different parts of the country including 
I I Washington:! IMassachusetts; and I I Florida. The Petitioner's endeavor seeks to 
employ 33 U.S. workers across the three cities and envisions $2.3 million in revenue in year five. The 
Petitioner's endeavor will "offer a range of regular repair and mechanic jobs" in high demand such as 
"oil changes, engine checks, inspection and testing." The Petitioner also states that his three businesses 
will "decrease the technician shortages" by "training professionals to offer qualified services." 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Id. at 889. 
The Petitioner's business plan anticipates that the Petitioner's company will reach a total of 33 
employees in year five, with payroll expenses growing from $310,000 in year one to $1 million in 
year five. He also projected generating $515,000 in revenue in year one, increasing to $2.3 million in 
year five. Nonetheless, the plan does not explain how these forecasts were calculated, or adequately 
clarify how these projections will be realized, nor does the record contain evidence to support the 
business plan's financial projections. The preponderance of the evidence standard requires that the 
evidence demonstrate that the petitioner's claim is probably true, where the determination of trnth is 
made based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 
at 3 76. In evaluating the evidence, trnth is to be determined not by the quantity of evidence alone but 
by its quality. See id. Here, the lack of supporting details detracts from the probative value of the 
business plan. 
Even if we assumed all the projections in the business plan were accurate, the record lacks evidence 
demonstrating that its impact would be nationally important. The Petitioner's business plan and expert 
opinion letter in support of the petition contend that his business will increase access to needed 
automotive services and training for qualified automotive technicians. Yet the Petitioner did not 
provide documentation to support his statements that the company will result in substantial economic 
growth on the level of national importance. The record does not illustrate how creating 33 jobs in 
three markets and generating the projected revenue in the business plan would have substantial 
positive economic effects on the level of national importance. The Petitioner must support assertions 
with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. The 
Petitioner has therefore not provided sufficient information and evidence to demonstrate the 
6 
prospective impact of his proposed endeavor rises to the level of national importance. Accordingly, 
the record does not sufficiently demonstrate that the Petitioner's proposed endeavor is of national 
importance. 
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. As 
the above stated grounds are dispositive of the Petitioner's appeal, we need not reach, and therefore 
reserve, whether the Petitioner meets prongs two and three of the Dhanasar framework. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 T&N 
Dec. 516, 526 n.7 (BIA 2015) ( declining to reach alternative issues on appeal where the applicant did 
not otherwise meet their burden of proof). 
ORDER: The appeal is dismissed. 
7