dismissed EB-2 NIW Case: Baking And Pastry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 11, 2024 In Re: 30968670 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a bakery and pastry chef who seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, as well as a national interest waiver 
(NIW) of the job offer requirement attached to this classification. See Immigration and Nationality 
Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition) and dismissed three subsequent motions, concluding that the record did not establish that 
the Petitioner qualified for the underlying visa classification, nor did she merit a discretionary waiver 
of the job offer requirement in the national interest. The Petitioner bears the burden of proof to 
demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of 
the evidence. Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). We 
review the questions in this matter de novo. Matter ofChristo '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 an NIW, a petitioner must first demonstrate qualification for the underlying 
EB-2 visa classification, as an individual of exceptional ability in the sciences, arts, or business. 
Section 203(b )(2)(B)(i) of the Act. 
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). 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). Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 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. 
USCIS has previously confinned the applicability ofthis two-part adjudicative approach in the context 
of individuals of exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual. 
Once a petitioner demonstrates eligibility for the 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 NIW petitions. Dhanasar states that USCIS may, as matter of discretion, 
grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
II. ANALYSIS 
Qualifying for a national interest waiver requires a petitioner to first establish eligibility for the 
underlying EB-2 immigrant classification. Meeting the exceptional ability standards requires the 
foreign national to submit documentation that satisfies at least three of the six categories of the 
following types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
Before the Director, the Petitioner claimed she met all six of the criteria listed above, but the Director 
did not agree and only granted paragraphs (A) and (B). In doing so, the Director determined the 
Petitioner was not eligible for the EB-2 classification as an individual of exceptional ability. The 
Petitioner claims the remaining four criteria on appeal. 
A license to practice the profession or cert[fication for a particular profession or occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
In the initial filing before the Director, the Petitioner offered various copies of certificates in a foreign 
language and an accompanying translation, which showed that she had completed various short-term 
training courses. She indicated the certificates allow her to work in her occupation. The Director 
determined the certificates did not establish that her profession or occupation requires such certificates. 
In her motion before the Director, the Petitioner offered the same attenuated eligibility arguments and 
the same evidence that she previously offered. On appeal, the Petitioner does not offer any analysis 
to contest the Director's reasoning for not granting this criterion. Instead, she refers to the same 
2 
evidence that appear to be certificates of instrnctional courses such as taking "part in the Wedding 
Cakes and Fine Chocolates Course." 
The certificates the Petitioner offers showing she has completed short-term training courses do not 
establish she holds a "certification for a particular profession or occupation," as the regulation requires. 
Even though the Association of Cake Designers and Sugar Artists identifies the Petitioner as a 
member, she did not submit analysis or evidence to establish that this document is a license to practice 
the profession or certification for a particular profession or occupation. Consequently, she has not 
persuaded us that the Director was incorrect to decide against her under 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). 
Because exceptional ability is defined as a degree of expertise significantly above that ordinarily 
encountered in one's area of claimed exceptional ability (8 C.F.R. § 204.5(k)(2)), a petitioner should 
submit evidence demonstrating they have commanded a salary or other remuneration commensurate 
with that standard. 
The Director's original decision on the petition acknowledged the evidence the Petitioner presented, 
but determined that articles on the topic of salaries was not sufficient to demonstrate she met this 
criterion's requirements. In the motion, the Petitioner offered evidence from a salary website, but this 
still did not carry the Petitioner's burden. 
The Director acknowledged the Petitioner's statements and evidence offered and noted that the 
average monthly salary for a professional in her area was R$1,900 (Brazilian Reals) and that she 
asserted her earnings were above that amount. But because the Petitioner failed to offer any evidence 
in support of her assertions, the Director did not offer any further analysis relating to those claims and 
they made an adverse determination under this criterion. 
On appeal, the Petitioner not only offers the evidence she submitted before the Director, but she also 
provides new evidence she did not previously claim under this criterion in the form of a letter attesting 
to her earnings. This letter is in a foreign language and its translation into English is not accompanied 
by a translator's certification as the regulation requires. Any document in a foreign language must be 
accompanied by a full English language translation. 8 C.F.R. § 103.2(b )(3). The translator must 
certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. Because the Petitioner did not 
submit this document's properly certified English language translation, we cannot meaningfully 
determine whether the translated material is accurate and thus supports her claims. 
Despite those shortcomings, the letter reflects the Petitioner worked for a company as an administrator 
with no indication that she performed duties as a bakery and pastry chet: which is her claimed area of 
exceptional ability. And even if none of those deficiencies were present, we still would not consider 
the letter in these proceedings because both the regulation and the Director's request for evidence put 
the Petitioner on notice and gave her a reasonable opportunity to provide this evidence. Consequently, 
we will not consider it for the first time on appeal. See 8 C.F .R. § 103 .2(b )(11) (requiring all requested 
evidence be submitted together at one time); Matter ofFurtado, 28 I&N Dec. 794, 801-02 (BIA 2024) 
3 
( declining to consider new evidence on appeal when the filing party was put on notice of the required 
evidence and given a reasonable opportunity to provide it for the record before the denial); see also 
Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533,537 
(BIA 1988). 
As is apparent from the above analysis, the Petitioner has not met this criterion's requirements. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
To satisfy the requirements here, a petitioner must show membership in a "professional association." 
8 C.F.R. § 204.5(k)(3)(ii)(E). The regulations define "profession" to include "architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, 
or seminaries" or "as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2) 
(incorporating by reference Section 10l(a)(32) of the Act, 8 U.S.C. § 110l(a)(32)). 
The Director discussed the certificates the Petitioner offered and briefly explained why the evidence 
fell short of satisfying this criterion's requirements. The appeal brief does not contest the Director's 
findings, but instead identifies a single piece of evidence and claims it "certifies me to work in my 
field and also regulates my profession." The identified evidence is her registration in the Association 
of Cake Designers and Sugar Artists. But the Petitioner does not explain, nor does she offer evidence 
to demonstrate, that this association is a professional association. 
As the Petitioner presents essentially the same argument on appeal that it offered before the Director 
without identifying an error, we conclude that she has abandoned or waived this issue. Matter of 
Garcia, 28 I&N Dec. 693, 693 (BIA 2023) ( citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 
2012) and finding issues that are not meaningfully challenged in the appeal are waived). As such, she 
has not submitted evidence to satisfy this criterion's requirements. 
Evidence ofrecognition for achievements and significant contributions to the indust,y or field by 
peers, governmental entities, or professional or business organizations. 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 
The regulation here requires more than a simple showing of achievements as it mandates achievements 
and significant contributions that extend their reach to the industry or field as a whole, rather than 
simply to a project, an organization, or anything lesser than the industry or field. Further, the 
Petitioner's achievements and significant contributions must have already been realized rather than 
being potential, future improvements. And finally, the regulation requires evidence under this 
criterion to have originated from the Petitioner's peers, government entities, or professional or 
business organizations. The Petitioner must submit evidence satisfying all of these elements to meet 
the plain language requirements of this criterion. 
The Director listed several recommendation letters the Petitioner offered and found they were not 
accompanied by documentation to establish the author's credentials relating to whether each letter was 
from her peers, governmental entities, or professional or business organizations, as the regulation 
requires. On appeal, the Petitioner makes no effort to refute the Director's findings, nor does she 
4 
explain how the Director might have erred. Instead, she identifies the support letters that the Director 
considered and found inadequate. 
The first letter was from a peer-a pastry chef-who infused her narrative with flavors of camaraderie 
and professional indebtedness. But nothing in her letter addressed the Petitioner's achievements and 
significant contributions to the industry or field. The remaining letters also share this same fault in 
that they do not speak to this criterion's requirements. 1 In the appeal brief, the Petitioner highlights 
that she impacted the authors' professional lives, but the record lacks evidence to illustrate that her 
impact in these careers has somehow resulted in achievements and significant contributions to the 
industry or field. 
The Petitioner has not submitted arguments or evidence sufficient to satisfy this criterion's 
requirements. 
Comparable evidence based on the claim that the standards at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) 
do not readily apply to the Petitioner's occupation. 8 C.F.R. § 204.5(k)(3)(iii). 
Within the appeal, the Petitioner claims that "awards, workshops, magazine articles, etc." meet this 
comparable evidence criterion. But she asserts this claim on appeal without explaining how any of 
the six standard criteria do not readily apply to her occupation as a baker and pastry chef. And it 
appears the Petitioner now claims eligibility for comparable evidence on appeal after the Director 
evaluated this evidence under the standard criteria listed above, but found it wanting. 
Similar to the new evidence prohibition noted above, the Petitioner may not simply shift her claims 
on appeal to qualify under a different standard that she did not assert in the most recent adverse 
decision. New assertions advanced for the first time to an administrative appellate body are not 
properly before us. Matter ofM-F-O-, 28 I&N Dec. 408,410 n.4 (BIA 2021) (refusing to consider an 
appellant's humanitarian claims that were presented for the first time on appeal). Because the 
Petitioner did not raise her comparable evidence claims in the decision just below, naturally the 
Director did not address them in the motion dismissal, and we generally are not the proper authority 
to now decide that issue. Harrow v. Dep 't ofDef, No. 23-21, 2024 WL 2193874, at *6 (U.S. May 16, 
2024). 
But still, we will briefly address this issue to offer the Petitioner a better understanding of how a 
comparable evidence claim normally should occur. Generally, foreign nationals seeking to rely on 
comparable evidence must explain why an individual regulatory criterion does not apply to their 
occupation. Then, they should explain how the evidence in the record is comparable to that specific 
criterion. See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). General assertions that any of 
the six objective criteria do not readily apply to a foreign national's occupation are not sufficient. See 
generally 6 USCJS Policy Manual, supra, at F.5(B)(2). Where an individual is simply unable to meet 
or submit sufficient documentary evidence of at least three of these criteria, the plain language of the 
regulation at 8 C.F.R. § 204.5(k)(3)(iii) does not allow for the submission of comparable evidence. 
1 We note one letter was from a journalist and the Petitioner has not established how a journalist is one of the acceptable 
sources to recognize her for her achievements and significant contributions to the field or the industry. 
5 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
6