dismissed EB-2 NIW Case: Business

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: 'MAR 302012 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality. Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
<JQ@,_h 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner, identified on the petition as a "cam[p]ground/RV park," seeks to classifY the beneficiary 
under section 203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.c. § 1 1 53(b)(2), as an 
alien of exceptional ability in business. The petitioner seeks employment as a partner/principal of 
The petitioner asserts that an exemption from the requirement of a job offer, and 
thus of a labor certification, is in the national interest ofthe United States. The director found that the 
petitioner has not shown that the beneficiary qualifies for classification as an alien of exceptional ability 
in business, and therefore didnot proceed to a determination on the question of whether an exemption 
from the requirement of a job offer would be in the national interest ofthe United States. 
On appeal, the petitioner submits a brief from counsel and various supporting exhibits. 
The AAO notes that the director received the petitioner's properly filed Form 1-290B Notice of Appeal 
and accompanying materials on May 31, 2011. On June 2, 2011, the director received a second Form 1-
290B with a second fee, brief, and supporting exhibits. The second appeal is largely identical to the 
first, except that it is missing one exhibit (a letter from _, and it includes new printouts from 
two web sites. Both appeals include briefs from counsel. Both briefs bear the same date (May 26, 
2011) and contain the same basic assertions, but they are not identical. The regulations do not permit 
the filing of multiple simultaneous or overlapping appeals from a single decision. Furthermore, the 
second appeal was not timely filed under the U.S. Citizenship and Immigration Services (USCIS) 
regulation at 8 C.F.R. § 103.3(a)(2)(i). The AAO, therefore, cannot accept the second appeal as an 
independent filing. The AAO will, instead, consider the new exhibits to be supplements to the 
petitioner's properly-filed frrst appeal. 
Section 203(b) ofthe Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
Page 3 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
ioner filed the Form 1-140 petition on October 5,2010. The record includes a document on 
letterhead, which stat~as_ (a sole 
the business now operates as '-----" ~ifies the 
The beneficiary is an owner of both ••••• 
and both have used the name but the record includes no 
documentary evidence that the petitioner and 
Form 1-140 lists the petitioner's Tax 
documents submitted on appeal list 
filing records show an August 13, 2003 
in Pennsylvania, and a December 2, 2008 "Initial Filing Date" for in 
Tennessee. Both entities are still in "active" status.! Therefore, the available evidence indicates that 
_ and separate corporate entities. 
The issue under consideration is whether the beneficiary qualifies for classification as an alien of 
exceptional ability in business. The USeIS regulation at 8 e.F.R. § 204.5(k)(3)(ii) states that, to 
show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition 
must be accompanied by at least three of the following: 
(A) 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 of exceptional ability; 
(B) Evidence 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; 
(e) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
1 Sources: hups://www.corporations.state.pa.us/corp/soskb/Corp.asp?2051242 and http://tnbear.tn.gov/ECommerce/ 
FilingDetai1.aspx?CN=255020 195042244118121180048144110247031168104123 (printouts added to record March 14, 
2012). 
Page 4 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
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. 8 C.F.R. § 204.5(k)(3)(iii). 
The petitioner's initial submission included a letter from counsel stating that the petitioner seeks 
classification as an alien of exceptional ability in business, and a list of supporting exhibits, but 
neither the petitioner nor counsel addressed the six regulatory standards at 8 C.F.R. § 204.5(k)(3)(ii). 
In an introductory statement, the beneficiary stated: 
I am immersed in the Recreation Industry here in the USA and pleased to report that 
my efforts to date have created jobs and helped other business owners and some 
governing bodies realize their potential. ... 
During the past 
including the 
the product has 
the US Military as being suitable for their recreation facilities provided for the 
families 0 f serving and ex-serving person[ ne] 1. 
... With each growth step and with installation it is estimated 
that we create the following impact: 
1. Create one job at the point ofthe installation 
2. Create one additional manufacturing job with every additional 50 installations 
3. Create one additional installer job with every 30 installations 
4. Provide fun and entertainment to an additional 1200 children and teenagers 
with every installation 
5. Prevent one child from becoming obese with every installation 
6. Help 25 obese children embrace physical activity 
7. Provide 15 seriously disabled children with the opportunity to experience "life 
on the playground" in the same way as an able-bodied child. 
The beneficiary indicated that he operates two pUblications: 
Campground & RV Park E-News: 
This is the only weekly newspaper circulated to 9600 Campground owners and 
Campground Industry associates and is currently producing its 1 1 5th edition. It 
provides industry news, industry statistics, education on a variety of subject matter[ s] 
Page 5 
(including renewable. energy, recycling, law, regulation etc.) and a platform for 
industry suppliers to showcase product and services. 
is widely read and embraced by all state and 
national governing bodies and franchises. 
GetawayUSA: 
A monthly magazine which showcases the travel destinations and recreation 
opportunities of 4 states each issue. It has a focus on the wonders that abound in 
State and National Parks as well as travel and accommodation alternatives .... 
The fIrst issue was circulated to 66mil. USA citizens and the second issue is about to 
be released. 
(Emphasis in original.) The petitioner submits no evidence to support a number of assertions, such 
as the claim that 66 million people received copies of GatewayUSA. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
An overview of 
that "[ w ]hilst 
employment 
indicates that the benefIciary is one of nine employees, and 
keeps employment to a minimum it is responsible for the 
the services of [seven] USA businesses to manufacture a 
broad range of components.". 
The petitioner submitted copies of the benefIciary'S publications, along with witness letters and 
business documentation such as invoices and contracts. These materials establish that the 
benefIciary is, as claimed, involved· and related publishing ventures, but 
they do not self-evidently establish the regulatory standards at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
of 
indicated that the beneficiary ''was invo 1ved with the 
m 1997)." 
On December 22, 2010, the director issued a request for evidence. The director quoted the list 0 f six 
regulatory standards in full and asserted that the petitioner had to meet at least three of them. In this 
way, the director noted that the petitioner had not yet submitted the required evidence, and provided 
the petitioner with a fmal opportunity to do so before the director issued a decision. In response, the 
petitioner submitted a small number of exhibits, and counsel requested "an additional 30 days to 
send the remaining information." Additional time to respond to a request for evidence or notice of 
intent to deny may not be granted. 8 C.F.R. § 103.2(b)(8)(iv). All requested materials must be 
submitted together at one time, along with the original USCIS request for evidence or notice of 
Page 6 
intent to deny. Submission of only some of the requested evidence will be considered a request for a 
decision on the record. 8 C.F.R. § 103.2(b)(1l). 
The petitioner's response to the request for evidence included a letter from counsel. The closest 
counsel came to addressing the regulatory requirements for exceptional ability was in the following 
passage: 
[The beneficiary] has over a decade of experience in his field of Campground/Agri­
tourism and creation of innovative products, which qualify him as an exceptional 
professional, thereby qualifying him for eligibility to document the national interest 
value of his achievements, under INA §203(b)(2)(C), and the Miscellaneous and 
Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-
232, 105 Stat. 1733 (MTINA). Moreover, his distinguished record of 
accomplishment and documented track record of professional recognition 
conclusively demonstrate that he is already serving U.S. national interests to a 
significantly greater extent than other contributors to the field of Campgroundl Agri­
tourism. 
The above paragraph addresses 8 C.F.R. § 204.5(k)(3)(ii)(B) (ten years of experience) and 8 C.F.R. 
§ 204.5(k)(3)(ii)(F) (recognition for achievements and contributions). Neither counsel nor the 
petitioner specifically claimed that the beneficiary meets a third regulatory criterion. The petitioner 
submitted five witness letters, with no explanation apart from counsel's general assertion that they 
were "from national and international authorities." 
Counsel did not explain how the cited sections 0 f law established the petitioner's eligibility. Section 
203(b)(2)(C) of the Act reads, in its entirety: 
In determining under subparagraph (A) whether an immigrant has exceptional abil· 
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. 
_ which counsel also cited, is simply a list of amendments and technical corrections. It does 
not address exceptional ability in business at all. 
The petitioner also submitted a copy of the beneficiary's resume and five additional witness letters. 
The resume listed seven employers from 1971 to the present, and indicated that the beneficiary 
belonged to four professional associations: 
Page 7 
The director denied the petition on April 26, 2011. The director acknowledged that the witness 
letters attested to the petitioner's achievements and contributions under the regulation at 8 C.F.R. § 
204.5(k)(3)(ii)(F), but found that the petitioner had not met any other criterion of exceptional ability 
in business. The director stated: "The petitioner has not submitted the initial required evidence" to 
show membership in associations, and that the petitioner submitted "[ n]o evidence other than the 
beneficiary's resume" to establish the beneficiary's employment experience. The director also found 
that the petitioner had submitted no evidence at all relating to the beneficiary's education, licensure 
or certification, or compensation. The director concluded: "As the petitioner has failed to establish 
that the beneficiary ... qualifies as an alien of exceptional ability, the issue of whether a waiver of 
the job offer ... would be in the national interest is moot." 
The appeal, in this instance, is the petitioner's opportunity to cite errors of law or fact in the 
director's decision. It is not an opportunity to perfect the record by submitting evidence that the 
petitioner should have submitted previously; the request for evidence served that function. If the 
director requested specific evidence prior to the denial, and the petitioner did not submit it in 
response to that notice, then it is too late to submit that evidence on appeal. See Matter of Soriano, 
19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). If the petitioner had wanted particular evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. The AAO cannot find that the 
director erred by failing to consider unsubmitted evidence. 
On appeal, counsel asserts "the Beneficiary "has met at 4 categories (B); (D); (E) and (F) pursuant to 
8 C.F.R. section 204.5(k)(3)." The petitioner had originally failed to specifically identify the criteria 
under the regulation at 8 C.F.R. § 204.5(h)(3) that the beneficiary claimed to meet. It was not generally 
apparent from the review of the evidence to which criteria, if any, the evidence pertained. For this 
reason, among others, the director issued a request for additional evidence listing the complete 
regulatory standards under 8 C.F.R. § 204.5(k)(3)(ii). The burden is on the petitioner to establish the 
beneficiary's eligibility, not on the director to infer or guess the intended criteria. Counsel's 
statement in response to the notice mentioned only two criteria specifically, pertaining to the 
beneficiary's experience and achievements. 
The four criteria claimed on appeal are as follows: 
Evidence 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. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
Counsel observes that the petitioner had previously submitted a "Company Letter from the 
[beneficiary'S] current employer," indicating that the beneficiary "has been the Managing Principal 
of the company since 1999 through the Present." The himself' the letter, as an 
official of his own company. The petitioner had also letter attesting to 
the beneficiary's employment in Australia from 1997 to 2003. These letters did not indicate whether 
or not the beneficiary's employment was full-time, and therefore they fail to meet the plain wording 
Page 8 
of the regulation. The AAO notes that the petitioner acknowledges the seasonal nature of its 
business (outdoor recreation). Even if this were not the case, USCIS is under no obligation to 
presume past employment to have been full-time. 
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) 
Counsel notes that the petitioner had previously submitted copies of purchase orders, contracts, and 
other materials "showing the fiscal progress of the company." is a legally 
distinct entity from the . and the beneficiary is not owner 
_ The income of is not identical to the beneficiary's salary or other 
remuneration for services. The petitioner did not submit any evidence of the beneficiary's personal 
compensation either in the initial submission or in response to the request for evidence. 
On appeal, the petitioner submits a copy of orm 
1065 U.S. Return of Partnership Income for 2009. The return shows $610,994 in gross receipts or 
sales. After expenses an~any reported an ordinary business loss of $63,848. 
The return indicates that_ paid no salaries, which appears to contradict the 
claim (elsewhere in the record) that the company employs several full-time workers. 
Also on submits, for the first time, an undated letter from certified public 
who prepared the tax return described above. _ stated that the 
beneficiary "currently draws $8,333.00 per month from reflecting 
compensation amount of $100,000 yearly." The petitioner submitted no evidence to show that this 
level of . "demonstrates exceptional ability" as the regulation requires. _ 
owner of states in a new letter that the beneficiary's "remuneration is 
commensurate a semor executive in the playground equipment supply industry," but that 
is not the standard that the beneficiary's remuneration must meet. Status as a "senior executive" is 
not synonymous with exceptional ability, particularly in an industry where one can establish one's 
own company and name oneself a senior executive of that company. 
Furthermore, the assertion as to the salary the beneficiary "currently draws" does not establish his 
compensation at the time of filing. An applicant or petitioner must establish that he or she is eligible 
for the requested benefit at the time of filing the application or petition. 8 C.F.R. § 103.2(b)(1). 
USCIS cannot properly approve the petition at a future date after the petitioner or beneficiary 
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 that has already been filed 
in an effort to make an apparently deficient petition conform to USCIS requirements. See Matter of 
/zummi, 22 I&N Dec. 169, 175 (Comm'r 1998). The 2009 tax return does not reflect a $100,000 
annual salary paid to the beneficiary, and a salary increase after the filing date cannot retroactively 
establish eligibility. 
-Page 9 
Beyond the facial sufficiency ofthe salary evidence, there is a more fundamental consideration. The 
director, in the request for evidence, had already instructed the petitioner to submit evidence of the 
beneficiary's compensation. The petitioner did not do so. Therefore, the petitioner did not choose to 
make any evidence of the beneficiary's compensation available to the director before the director 
rendered the decision. 
The regulations require the petitioner to submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). The petitioner submitted no evidence of the beneficiary's compensation either 
initially or in response to the request for evidence. Therefore, the director justifiably concluded that 
the petitioner has not met this regulatory requirement. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
Counsel notes that the petitioner claimed several memberships on his resume. The resume consists 
of a series of claims, rather than evidence in support of those claims. As noted previously, the 
claims of the beneficiary and/or the petitioner cannot take the place of documentary evidence. 
IJ""<UU'U"'< submits letters from executives of the and 
the As, new WItness on 
appeal cannot overcome the director's finding that such evidence was not already in the record prior 
to the denial. 
Counsel's ~ertion is the observation that the petitioner had previously submitted a 
letter from ____ 
RV Parks and Campgrounds. . -..' -. I -. • -. - ;/,'.. - • -.. - - • 
Profaizer referred to the petitioner as a member of her organization. 
USCIS is bound by the evidentiary requirements set forth in the regulations at 8 C.F.R. § 204.5. See 
Kazarian v. USCIS, 596 F.3d 1115, 1221 (9th Cir. 2010), citing Love Korean Church v. ChertofJ, 
549 F.3d 749, 758 (9th Cir. 2008). Thus, before consideration can proceed any further, the petitioner 
must satisfy the plain wording ofthe regulatory requirements. 
The plain language ofthe regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires evidence of membership in 
professional associations, in the plural. Significantly, not all ofthe criteria at 8 C.F.R. § 204.5(k)(3)(ii) 
are worded in the plural. Other exceptional ability regulations refer to evidence in the singular (such 
as "a degree" or "a salary"), or a combination of singular and plural (such as "letter(s) from current 
or former employer(s)"). Thus, the AAO can infer that, when the regulatory language uses only the 
plural, that construction is integral to the meaning of the regulation. In a different context, federal 
courts have upheld USCIS's ability to interpret significance from whether the singular or plural is used 
in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.c. Cir. March 26, 
2008); Snapnames.com Inc. v. ChertofJ, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree 
at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic credentials). 
letter was the only evidence of any membership that the petitioner submitted before 
the denial of the petition. Therefore, the petitioner did not submit evidence of membership in 
professional associations. Furthermore, the plain language of the regulation refers to "professional 
associations." The regulation at 8 C.F.R. § 204.5(k)(2) defmes a "profession" as "one of the 
occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United 
States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation." The beneficiary's occupation is not listed in section 101(a)(32) of the Act, and the 
petitioner has not shown or even claimed that the beneficiary holds a bachelor's degree, let alone 
that his one. Therefore, the record does not show that the ••••••••• 
o is a "professional association" as contemplated by the regulation. 
For the above reasons, the AAO fmds that the evidence that the petitioner submitted with the initial 
petition, and in response to the request for evidence, failed to establish the beneficiary's membership 
in professional associations. Under Soriano, the AAO will not consider evidence of additional 
memberships that the petitioner withheld until the appeal. 
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)(F) 
The director had asserted that the petitioner had satisfied this requirement by submitting witness 
letters. Such letters, however, do not demonstrate the formal recognition contemplated by the 
regulation as worded. Awards, prizes, certificates, and similar honors are some of the means by 
which peers, governmental entities, or professional or business organizations "recognize" the 
achievements and contributions of exceptional persons in a given field. Witness letters, on the other 
hand, exist only because the petitioner or the beneficiary has selected friendly witnesses and 
solicited statements from them, for the specific purpose of supporting the petition. Exhibits that 
exist only in service of the petition are poor evidence of recognition by peers, governmental entities, 
or professional or business organizations. The AAO therefore withdraws the director's finding that 
the witness letters, by themselves, constitute evidence of recognition under the USCIS regulation at 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
Had the petitioner submitted the requisite evidence under at least three of the evidentiary categories at 8 
C.F.R. § 204.5(k)(3)(ii), in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated that a waiver of a job offer would be in the national interest ofthe United States. 8 C.F.R. 
§ 204.5(k)(4)(ii); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not submitted the 
Page 11 
requisite evidence under at least three evidentiary categories, the appeal will be dismissed on this basis 
alone. The AAO will not conduct a final merits determination? 
For the reasons discussed above, the AAO affirms the director's finding that the petitioner has not 
established that the beneficiary qualifies for classification as an alien of exceptional ability in 
business. The AAO also agrees with the director's finding that, without a showing of eligibility for 
the underlying immigrant classification, a discussion of the national interest waiver application 
would be moot. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
2 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 P.3d at 145. In any 
future proceeding on motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits 
determination as the official who made the last decision in this matter. 8 C.P.R § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.P.R 
§ 2.1 (2003); 8 C.P.R § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).