dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 10, 2023 In Re: 25683064 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business manager, seeks classification as an individual of exceptional ability in the 
sciences, arts, or business. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. Section 203(b )(2)(B)(i) of the Act. U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner has exceptional ability in business or that he should receive a waiver of 
the job offer requirement in the exercise of discretion. 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 classification , as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S . employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. Section 203(b )(2) of the Act. 1 
1 Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016) provides that USCTS may, as matter of discretion , 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. 
A petitioner seeking to be classified as an individual of exceptional ability in the sciences, arts, or 
business must submit evidence that meets at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
If the evidence provided meets at least three of the criteria, it undergoes a final merits evaluation to 
determine whether the petitioner has a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2); see generally 6 USCIS Policy 
Manual F.5(B)(2). 
II. ANALYSIS 
The Petitioner seeks to continue running his import/export company in the United States as an 
individual of exceptional ability in business. 2 The Director concluded that the Petitioner submitted 
evidence that met two of the six exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii): 
• (B) Letter(s) from current or former employer(s) showing that the Petitioner has at least ten 
years of full-time experience in the occupation he is seeking to work in; and 
• (D) Evidence that the Petitioner has commanded a salary or other remuneration for services 
which demonstrates exceptional ability. 
Since 8 C.F.R. § 204.5(k)(3)(ii) requires evidence showing a noncitizen meets a minimum of three 
criteria, the Director found that this was insufficient to establish that the Petitioner is an individual of 
exceptional ability. On appeal, the Petitioner submits a brief stating that the Director used incorrect 
standards and reiterates his prior claim that he qualifies for the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E), 
membership in professional associations, and 8 C.F.R. § 204.5(k)(3)(ii)(F), recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations. 
A. Ten Years of Full-Time Experience 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), which the Director granted, requires evidence in the 
form of letters from former employers showing that the worker has at least ten years of full-time 
experience in the occupation that they are seeking exceptional ability classification for. The regulation 
at 8 C.F.R. § 204.5(g)(l) states that qualifying work experience should be documented using letters 
from former employers which include the writer's name, address, and title, as well as a specific 
description of the duties the worker performed. 
According to the Petitioner, he has the following relevant work experience: 
• ,...I ________ ~-------------~~ October 2011 to present; 
• i.-1 ________ ..1-~-2....;..0_17~to_.p.....r...;;..es;;_;;e_n..;...t;___________ --, 
• I ~ October 2013 
to present;
• I IApril 2018 to present: and 
• ,._I------------'-..a....:Ja:==""-.ac.=....::.aa....J===>-.:='------,1- December 2004 to September 
2015. 
2 The record does not establish, and the Petitioner does not claim, that he qualifies as an advanced degree professional. 
2 
To establish his eligibility under this criterion, the Petitioner provided: 
• Letter from H-P-J- statilg that tie Petitioner was his partner in and the sales and business 
development director for and describing his duties there from 2004 to 2012. 
• Letter from T-B-N- stating that the Petitioner is the owner and president ofl Ia real 
estate company, and describing his duties there from November 2011 through the letter date 
of January 2020. 
• Incorporation and association documents pertaining to companies for which the Petitioner was 
a director, partner, and/or manager. 
Neither of the letters provided state whether the Petitioner was employed on a foll-time basis, as 
required for this criterion. Given the number of companies and projects the Petitioner claims to be 
working for simultaneously, this evidence does not establish that he worked for eitherl I I !foll-time. Furthermore, the corporate documents are not employer letters and do not state 
the Petitioner's duties or whether he was employed at those companies on a foll-time basis. Because 
this criterion requires employer letters showing ten years of foll-time work experience in the 
Petitioner's occupation, the evidence provided does not meet the criterion's requirements. 
For the reasons above, we will withdraw the Director's finding that the Petitioner meets the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
B. Membership in Professional Associations 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." The regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as an occupation listed 
at section 10l(a)(32) of the Act, 8 U.S.C. §1101(a)(32), 3 or an occupation whose minimum 
requirement for entr is a U.S. baccalaureate de ree or its forei n equivalent. The Director found that 
the~---------------------~ of which the Petitioner is a member, 
is not a professional association for purposes of the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) because 
it does not restrict its membership to members of the professions, as defined in the regulation, and that 
the Petitioner therefore does not qualify under this criterion. 
On appeal, the Petitioner states that the Director erred in using the 8 C.F.R. § 204.5(k)(2) definition 
of "profession" in defining a professional association, contending that it only applies to defining an 
advanced degree professional under 8 C.F.R. § 204.5(k)(3)(i). The Petitioner farther contends that 
this definition of "profession" is separate and legally distinct from the definition of "professional" in 
the context of a "professional association" at 8 C.F.R. § 204.5(k)(3)(ii)(E) and states that if the 
regulations wished to define "professional association" they would have specifically done so, pointing 
to the definition of "professional" at 8 C.F.R. § 204.5(1) as support. However, the regulation at 
8 C.F.R. § 204.5(k)(2) specifically states that its definitions apply throughout that section, not only to 
specific subsections. The fact that the 8 C.F.R. § 204.5(k)(2) definition of "profession" applies to 
advanced degree professionals does not preclude it from applying to professional associations as well. 
3 The occupations listed in this section are architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries. 
3 
The Petitioner states that the Director erred by c1tmg the 8 C.F.R. § 204.5(1)(2) definition of 
"professional," which applies to third preference visa petitions rather than the second preference visa 
petition in this case. He further claims that the existence of the definition at 8 C.F.R. § 204.5(1)(2) is 
evidence that the 8 C.F.R. § 204.5(k)(2) definition of "profession" is separate and different than the 
term "professional" in the context of professional associations. However, as stated above, the 
definition of profession at 8 C.F.R. § 204.5(k)(2) applies in this matter and we are bound to follow it. 
The Petitioner further states that using the 8 C.F.R. § 204.5(k)(2) definition of "profession" to define 
a professional association imposes novel requirements, stating that there is a separate second 
preference classification for advanced degree professionals and "since it is not a requirement for the 
Petitioner to hold a baccalaureate degree, it must also logically flow that none of the qualifying criteria 
subject to the Alien of Exceptional Ability assessment would necessarily require a minimum degree 
of education ... " We disagree. Because the regulations only require workers with exceptional ability 
to provide evidence of three of the six criteria, the individual criteria may have requirements which 
are not applicable to all exceptional ability workers. Furthermore, the regulation at 8 C.F.R. 
§ 204.5(k)(3)(iii) allows for the submission of comparable evidence in cases where a criterion does 
not readily apply to a worker's occupation. The Petitioner has not attempted to do so here. 
Additionally, the advanced degree professional classification requires workers to not only be members 
of the professions, but also to have an advanced degree or a baccalaureate degree accompanied by five 
years of progressively responsible experience in their occupation. It is therefore not inclusive of all 
professional workers and does not preclude the application of the exceptional ability criteria to 
professional workers. We further note that the exceptional ability criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or certification for a particular 
profession or occupation." If the term "profession" was intended to have no particular meaning within 
the exceptional ability criteria, there would be no need to distinguish between a profession and other 
occupations in this instance. 4 The Petitioner has not provided sufficient justification for us to deviate 
from the 8 C.F.R. § 204.5(k)(2) definition of "professional" in the specific context of a "professional 
association" at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner does not provide an alternative to the use of the 8 C.F.R. § 204.5(k)(2) definition of 
"profession" for this criterion, except to state that the various organizations he belongs to are 
"professional in nature." In examining the bylaws ofl lthe Director correctly found that the 
organization is open to "all persons who are interested in furtherance of the purposes of the 
Corporation" and requires only a membership application and payment of an annual fee. We 
acknowledge that the bylaws state thatl Ipurpose is to "promote and foster the role of the import 
and/or export professional," but it is not apparent that this organization is comprised of professionals 
or centered on a profession as defined at 8 C.F.R. § 204.5(k)(2). 
The Petitioner's evidence regarding I ~razil similarly does not 
establish that any of these organizations restrict membership to professionals or are otherwise 
4 Generally, every word and every provision in a statute or regulation should be given effect and none should needlessly 
be given an interpretation that causes it to be entirely redundant. See, e.g., Kungys v. U.S., 486 U.S. 759, 778 (1988). 
4 
professional in nature. Therefore, the Petitioner has not shown that he is a member of a professional 
association, and so he does not qualify under 8 C.F.R. § 204.5(k)(3)(ii)(E). 
C. Recognition for Achievements and Significant Contributions 
On appeal, the Petitioner also claims eligibility under the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), 
which requires evidence that the petitioner has been recognized by peers, governmental entities, or 
professional or business organizations for achievements and significant contributions to his industry 
or field. 5 To establish eligibility under this criterion, the Petitioner submitted letters of support and 
several articles regarding his professional career. The Director's denial concluded that the evidence 
did not establish that the Petitioner's work impacted or influenced his field, and so it did not establish 
the Petitioner's recognition was for contributions which were significant to that field. 
The Petitioner's appeal brief states that the underlying petition contains "ample documentation" of his 
qualifications for this criterion. A review of this documentation, which largely consists of letters from 
coworkers and clients, indicates that the Petitioner is a highly capable and experienced business 
manager. 6 But while the record includes numerous examples of the contributions the Petitioner has 
made to individual companies he has worked with, such as increased efficiency and profits, it does not 
establish the significance of these contributions or achievements to the import/export field or industry. 
For example, the letter from 1-T- ofi lstates that the Petitioner "elaborated and led the 
execution of our 'Go-To-Market' strategy which was of great significance to the field," but only 
provides examples of how this work was si,nificant to I I There is also no 
documentation in the record establishing that the . I' award that 
the Petitioner won twice has significance beyond that company and its distributors. The letter from 
J-A-F-, the mayor orl IBrazil, 7 states that the Petitioner "attained a production increase for small 
and mid-sized fish producers," but does not quantify this increase or otherwise establish its 
significance to the import/export field. Similarly, the letter from A-L- states that his company's 
business relationship withl hs of the utmost importance for our industry" but does not 
specify why this is the case. The accompanying contract states that A-L-'s company provides fish 
processing services for I I but does not explain why this constitutes a significant 
contribution to the import/export industry. 
We acknowledge that the letters provided are highly complimentary about the Petitioner's skills and 
abilities. However, these are not achievements or contributions, but instead speak to the final merits 
determination of whether the Petitioner has a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 
5 We note that even if this criterion were granted, the Petitioner cannot fulfill the initial evidentiary requirement of meeting 
three criteria under 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). However, in the interest of completeness, we will address the 
evidence provided by the Petitioner on appeal. 
6 While we may not discuss every document submitted, we have reviewed and considered each one. 
7 We note that J-A-F- is not a peer in the Petitioner's industry and appears to have written his letter as an individual rather 
than on behalf of the city of Assis. It is therefore not apparent that this letter constitutes recognition from peers, 
governmental entities, or professional or business associations, as required for this criterion. 
5 
The Petitioner has not established that he has been recognized by peers, governmental entities, or 
professional or business organizations for achievements and significant contributions to his industry 
or field, and so he does not qualify under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
III. CONCLUSION 
The Petitioner has not established that he meets three of the initial evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F), and therefore does not qualify for the exceptional ability visa classification. 
Accordingly, we need not provide a final merits determination to evaluate whether the Petitioner has 
a degree of expertise significantly above that ordinarily encountered in business and hereby reserve 
this issue. 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"). Similarly, 
we need not reach and will reserve the issue of whether the Petitioner is eligible for or otherwise merits 
a national interest waiver as a matter of discretion. Id. The petition will remain denied. 
ORDER: The appeal is dismissed. 
6