dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 15, 2023 In Re: 29338003 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a chief executive, seeks employment-based second preference (EB-2) immigrant 
classification as 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
the Petitioner qualified for the underlying EB-2 classification. 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. 
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 
We will then conduct a final merits determination to decide whether the evidence in its totality shows 
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. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
that they are recognized as having adegree of expertise significantly above that ordinarily encountered 
in the field. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 te1m "national interest," Matter of 
Dhanasar, 26 l&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 discretion3, 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. 
11. ANALYSIS 
Upon de nova review, we agree with the Director that the Petitioner has not established his eligibility as 
an individual of exceptional ability.4 Although the Director concluded that the Petitioner met two of the 
relevant evidentiary criteria, we conclude he does not meet any of the required criteria. Accordingly, he 
has not established eligibility for a national interest waiver. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The Petitioner has not submitted evidence for our consideration under this criterion. Therefore, the record 
does not establish the Petitioner has met this criterion. 
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) 
Although the Director determined the Petitioner established eligibility under this criterion, we withdraw 
that finding. The Petitioner's evidence under this criterion consists of two letters :froml l 
one letter from the Petitioner's business co-owner, and documents evidencinl that in 2008, the Petitioner 
became a co-owner and shareholder of a registered Brazilian business, I 
I I first letter is unsigned and his contact information, only an email address, does not appear to 
have a domain name related to the comp~, whose logo appears at the top of the letter. It is not 
apparent whol lis in relation toL_jor whether he has authority to write on the company's 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 The Petitioner has not asserted that he qualifies as an advanced degree professional. 
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behalf. As the letter is unsigned and contains little verifiable information about the author, we cannot rely 
upon it as probative evidence under this criterion. 
____ ......!_,second letter contains a I I logo and states that the Petitioner worked for 
._________.I as an independent consultant since~ 2019. The letter contains a list of seven 
responsibilities the Petitioner had as an independent consultant. However, it does not explain what 
relationship! Ihas with I I, how he is aware of the Petitioner's duties and employment 
dates, or whether! lis the Petitioner's client or his employer. Further, the letter does not 
provide definitive staii and end dates for the Petitioner's employment or clarify whether the Petitioner's 
consultant work was full-time. Accordingly, this letter does not meet the plain language of the criterion. 
I I the Petitioner's business co-owner, wrote that since April 2008, the Petitioner has 
been his partner andl Iadministrator, ChiefExecutive Officer (CEO) and ChiefFinancial Officer 
~ Although the letter provides a bulleted list of the Petitioner's responsibilities in this role, D 
L__J does not state when the Petitioner ended his employment as administrator, CEO, or CFO, nor 
does the letter state whether the Petitioner worked full-time. Additionally, based upon the similarity 
between their names, it appears that the Petitioner and I I are related. Without further 
explanation and evidence, the possible familial relationship between the Petitioner and the author calls 
into question the objectivity of a letter. For these reasons, we conclude that this letter is not sufficient to 
establish at least ten years of full-time experience. 
As explained, we conclude that the Petitioner's evidence does not meet the plain language of regulation 
or establish that he has at least ten years of full-time experience in the occupation. 
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 the Petitioner did not submit evidence for consideration under this criterion. We 
understand the basis for this conclusion, as the evidence rovided does not appear to be a license. The 
Petitioner submitted documentation indicating that 7is regulated under the authority of the Central 
Bank of Brazil, as well as that the Petitioner is asignatory tori land aregistered corporate controller 
of it. The Petitioner has not explained how this evidence constitutes a license or certification to practice 
the profession of chief executive. While these documents may demonstrate the Petitioner has authority 
over his company, they do not signify that a license is required to serve in the position of chief executive 
or that the Petitioner has such a license. Therefore, the Petitioner has not established eligibility 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) 
The Petitioner submitted a letter from accountant.I l which lists the 
Petitioner's annual income from 2008 to 2018. It is unclear whether I I is the 
Petitioner's orl Iemployee, which is relevant, as it bears upon the objectivity of the evidence. 
Moreover, the accountant's claims regarding the Petitioner's salary are not corroborated by other 
evidence in the record, such as bank statements, income tax filings, and paystubs. 
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~----~I concluded that the Petitioner's salary is substantially high, "considering the average 
monthly income received for professionals in the same job position in Brazil." The Director noted, 
however, that the Petitioner "did not submit probative comparative evidence to show that he has 
commanded a salary[] that demonstrates exceptional ability." We agree. The Petitioner referenced 
2023 salary data from Glassdoor.com, which is not a proper comparison for salaries earned from 2008 
to 2018. Even if the Petitioner had provided salary data for the same occupation and corresponding 
to the correct year(s) and geographic location, he would still need to explain how the data establishes 
that his salary demonstrates exceptional ability. 
On appeal, the Petitioner asserts the Director erred in not considering the evidence as a whole, 
requesting acknowledgement that providing evidence to establish eligibility under this criterion is 
more complex for entrepreneurs and chief executives. The Petitioner offers little basis or explanation 
for this conclusion, but even if he had, the Petitioner has not explained how this would exempt him 
from providing relevant, credible, and probative evidence to support his assertions. 
For the foregoing reasons, the Petitioner has not established eligibility under this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
Although the Director determined the Petitioner established eligibility under this criterion, we withdraw 
that finding. The Petitioner provided evidence to establish his memberships in the~--------' 
The letter evidencing his membership in 
,______,states that his membership will expire in January 2023. The Petitioner has not offered evidence to 
suggest that he renewed his membership. The Petitioner's~membership certificate states that it was 
awarded in 2022 but contains no membership expiration date. The Petitioner has not provided any further 
information about this certificate or its current validity, and we will not assume that his membership in 
~ continues in perpetuity. The Petitioner must establish eligibility at the time of filing for the 
requested benefit and must continue to be eligible for the benefit through the adjudication of it. 8 C.F.R. 
§ 103.2(b){l). Accordingly, for the memberships to serve as evidence of eligibility under this criterion, 
they must continue to remain valid through the adjudication of the petition. 
Even ifthe Petitioner's memberships in these organizations were valid at the time of filing and remained 
valid during the adjudication of this appeal, they would not establish his eligibility under this criterion. 
The Petitioner provided website printouts that explain whatl Iare, but he has not provided 
information regarding the qualifications for membership in these organizations. "Profession" is defined 
as 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.5 8 C.F.R. § 204.5(k)(3). It stands to reason that the word "professional" pertains to a 
profession and as such, a "professional association" is a more restrictive category than just any 
association. Here, the Petitioner has not offered sufficient evidence to establish the professional nature 
of the organizations of which he is amember. Accordingly, we conclude the Petitioner has not established 
his eligibility under this criterion. 
5 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
4 
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 determined that the Petitioner had not established eligibility under this criterion. We agree. 
The evidence is insufficient to demonstrate that the Petitioner has been recognized by peers, government 
entities, or professional or business organizations for achievements and significant contributions to the 
industry or field as awhole. 
The recommendation letter authors commend the Petitioner's work; however, they do not provide any 
specific details that explain how the Petitioner's work is representative ofreco nition for achievements 
and significant contributions to the industry or field as awhole. To illustrate,.__________ ____. 
wrote that the Petitioner managed and maintained default rates for his employer; wrote 
that the Petitioner reduced the default rate for I I and increased its sales; and
I lstated the Petitioner increased sales a~ l These authors do not explain with co._rr-ob_o_ra_t-iv_,e 
detail how the results the Petitioner achieved for his employer impacted the field or occupation of chief 
executives as awhole. 
Although ~-----~wrote that the Petitioner adopted a "differential strategy," which resulted 
in asales boom, the letter does not explain how the parties analyzed the sales to arrive at the conclusion 
that the Petitioner's strategy caused the boom. Moreover, the letter does not suggest the Petitioner 
developed the differential strategy but merely adopted it, nor does the evidence demonstrate how the 
strategy is different from other methods. While the letter states that the sales boom surprised the 
company's competitors and promoted the overall welfare of the city and its inhabitants, the author offers 
little evidence to substantiate his assertions. 
~-----~I wrote about the Petitioner's capability of generating impressive revenue figures but 
does not state whether the Petitioner actually generated such figures. He states that the Petitioner's work 
in forming a commercial agreement between two companies had excellent results, amplified fraud 
prevention, and increased brand awareness, but he does not offer a detailed explanation of how this 
constitutes achievements and significant contributions to the industry or field. 
Overall, the Petitioner has not submitted sufficient independent, objective evidence to corroborate the 
claims made in the support letters. The authors do not explain how the Petitioner's internal 
accomplishments have any relevance to the field or industry as a whole. While the Petitioner may have 
revolutionized a particular company, this does not demonstrate that he revolutionized or affected the 
industry or field as awhole. 
The Petitioner submitted a 2023 award certificate for work he performed in 2021. The Petitioner did not 
provide any information about the significance of the award, how many people were considered for the 
award, and how many other people won the award. Furthermore, the certificate does not contain any 
information about the awarding entity or institution, nor has the Petitioner explained why he received this 
certificate two years after performing the award-winning work. Without more, we conclude that this 
award does not constitute an achievement or contribution to the industry or field. 
5 
The Petitioner submitted various press releases regarding I I sales and success, including that it 
increased its sales during an economic crisis. The press releases quote the Petitioner in several instances 
but do not contain any information concerning the impact ofl Isales to the industry or field. Even 
i~ Isales had impacted the field or industry, these press releases do not attribute this success to 
the Petitioner. As such, this evidence does not demonstrate how the Petitioner has achievements or 
significant contributions in the field or industry as awhole. 
Accordingly, we agree with the Director that the Petitioner has not established eligibility under this 
criterion. 
Summary of Exceptional Ability Determination 
The record does not support a finding that the Petitioner met at least three of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). We conclude the evidence does not establish eligibility 
under any criteria. Therefore, the Petitioner has not established his eligibility as an individual of 
exceptional ability under section 203(b)(2){A) of the Act. As the Petitioner has not satisfied any of the 
criteria, a final merits determination is not required. 
On appeal, the Petitioner asserts the Director did not consider all the evidence and applied a stricter 
standard of proof. However, as our above analysis demonstrates, the Petitioner's evidence does not 
establish his eligibility for the benefit sought. The Petitioner also asserts on appeal that the Director 
erred by not considering the merits of his eligibility for a national interest waiver. However, the 
Director's decision reflects a merits discussion of the Petitioner's eligibility for the underlying EB-2 
classification, which is a threshold issue. Therefore, we do not find support for the Petitioner's 
assertion that the merits of his eligibility were not duly considered. As the Petitioner has not 
established his eligibility for the underlying EB-2 classification, discussing his eligibility under the 
Dhanasar framework would serve no meaningful purpose. 
111. CONCLUSION 
The Petitioner has not demonstrated that he qualifies as amember of the professions holding an advanced 
degree or as an individual of exceptional ability under section 203(b)(2){A) of the Act. Accordingly, the 
Petitioner has not established eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 l&N Dec. 127, 128 {BIA 2013). 
Because the identified reason for dismissal is dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve remaining arguments concerning eligibility for a national interest waiver. 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 
l&N Dec. 516, 526 n.7 {BIA 2015) (declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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