dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 14, 2024 In Re: 32457167 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a chief executive officer, 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 EB-2 classification. 1 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 that the Petitioner did not 
qualify for classification as an individual of exceptional ability. 2 The matter is now before us on 
appeal. 
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 
"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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 3 If a petitioner does so, we will then conduct a final merits detennination 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. 
1 The Petitioner does not claim eligibility as a member of the professions holding an advanced degree. 
2 Although the conclusion of the Director's decision briefly mentioned that the Petitioner had not established that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest, the decision mainly focused 
on the Petitioner 's eligibility for exceptional ability classification. 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in determining eligibility for 
exceptional ability classification. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy­
manual/volume-6-part- f-chapter-5 . 
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,4 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 
In Parts 5 and 6 of the Form 1-140, under "Additional Information About the Petitioner" and "Basic 
Information About the Proposed Employment," the Petitioner listed both her "Occupation" and "Job 
Title" as "Chief Executive Officer."5 The Petitioner asserted that she 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 only the official academic record criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(A). In the appeal brief, the Petitioner maintains that she also meets 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 salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), 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 
conclude that the record does not support a finding that the Petitioner satisfies the requirements of at 
least three criteria. 
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Based on the specific information the Petitioner provided in her Form 1-140, Form ETA-750B, and 
September 2022 business plan for her company, the occupation sought in this matter is "chief executive 
officer."6 As evidence for this criterion, the Petitioner provided a letter from her spouse, Managing 
Partner of T-R-C- Ltda., stating that the Petitioner "was employed since February 26, 2007, until 
August O1, 2022, at the company T-R-C- Ltda. . . . We also inform that the above mentioned employee 
4 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 USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
5 Likewise, in box 9 of the Petitioner's accompanying Form ET A-750B, Statement of Qualifications of Alien, she listed 
the "Occupation in which Alien is Seeking Work" as "Chief Executive Officer." In addition, the September 2022 business 
plan forthe Petitioner's U.S. company states that she will serve as its "Chief Executive Officer." 
6 The Petitioner's business plan states that she "will serve as Chief Executive Officer of the company. where she will 
provide leadership for all aspects of the company's operations with an emphasis on long-term goals, growth, profit. and 
return on investment." 
2 
worked in a full time position as Sales Representative." This information does not indicate that the 
Petitioner has at least ten years of full-time experience in the occupation of chief executive officer. 
Without evidence showing that the Petitioner has at least ten years of full-time experience in the 
occupation sought, she has not established that she satisfies this criterion. 
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). 
The Petitioner presented the business registration certificate for T-R-C- Ltda. issued by the Regional 
Council of Commercial Representatives of the State of Parana. This certificate states that the company 
was "in Regular Situation with this professional supervisory board, until the date of validity of this 
certificate." Registering a company under the supervision of a regional council is not a license to practice 
a profession or a certification for a particular profession or occupation. The Petitioner has not 
demonstrated that this business registration certificate constitutes a certification for her occupation, rather 
than simply permission to operate a business. Accordingly, the Petitioner has not established that she 
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). 
To qualify under this criterion, a petitioner must show that they have "commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field." 7 
As documentation for this criterion, the Petitioner presented company invoices and her individual 
income tax statements for 2019, 2020, and 2021. The Petitioner also provided a declaration from a 
certified public accountant (C-C-F-) stating that she "has received a monthly salary equivalent to R$ 
30.000,00 (trinta mil reais), in the period corresponding to the years 01/01/2019-31/12/2021." Page 8 
of her individual income tax statements list 'Total Taxable Income" amounting to 24,000.00 in 
"Calendar Year 2019," 30,000.00 in "Calendar Year 2020," and 30,517.00 in "Calendar Year 2020." 
The Petitioner's "monthly salary equivalent" claimed by C-C-F- does not correspond to the Total 
Taxable Income in the Petitioner's yearly individual income tax statements. The Petitioner must 
resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner contends on appeal that "Glassdoor data indicates that the average salary for a sales 
representative is R$11,605, while entrepreneurs earn around R$18,077 on average." The Petitioner, 
however, did not submit documentary evidence of the Glassdoor data she references. 8 Nor has the 
Petitioner demonstrated that the Glassdoor data she references is relevant to the time periods covered 
by her earnings evidence. Furthermore, the specific information the Petitioner provided in her Form I-
140, Form ETA-750B, and September 2022 business plan for her company, indicates that the occupation 
sought in this matter is "Chief Executive Officer." Here, the Petitioner has not presented documentation 
showing that her earnings are indicative of exceptional ability relative to other chief executive officers 
in Brazil. Instead, she points to average salaries for sales representatives and entrepreneurs in Brazil. 
7 See generally 6 USC1S Policy Manual F.5(B)(2), supra. 
8 An individual cannot meet this criterion without providing evidence of comparative salary or compensation data. 
3 
Without evidence demonstrating that she has commanded a salary, or other remuneration for services, 
which demonstrates her exceptional ability, the Petitioner has not established that she meets this 
regulatory criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner asserts on a eal that she meets this criterion based on her membership in the 
_________________ She presented a November 2022 letter 
from indicating that she has been a "member since 2010." This letter further states: 
[The Petitioner] actively participates in the meetings and events of and also of the 
Council of the Woman Entrepreneur ( CME), contributing much with her experience and 
professionalism, in the preparation and development of women entrepreneurs, committed 
to succeed in their businesses. The also conducts trainings to enable and update 
entrepreneurs, service providers and workers in trade and industry. 
The Petitioner also presented a copy ofl Ibylaws. Under "Chapter IV Membership," the bylaws 
state: I Imembership shall consist of legal entities engaged in economic activities .... Legal 
entities are represented by qualified individuals, such as owners, partners, directors and legally 
constituted proxies with a management mandate." The evidence, however, does not demonstrate that 
I lhas a membership body comprised of individuals who have earned a U.S. baccalaureate degree 
or its foreign equivalent, or that the organization otherwise constitutes a professional association. 9 
Accordingly, the Petitioner has not established that she meets 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). 
The Director's decision adequately addressed the letters of support and other evidence submitted for 
this criterion. Based on a de novo review, we will adopt and affirm the Director's determination that 
the Petitioner has not established she meets this criterion. See Matter ofBurbano, 20 I&N Dec. 872, 
874 (BIA 1994); see also Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996) (joining "every 
court of appeals that has considered this issue" holding that an appellate body may affirm the lower 
court's decision for the reasons set forth therein); Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) 
(noting the practice of adopting and affirming the decision below has been "universally accepted by 
every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F3d. 5, 8 (1st Cir. 1996) 
(joining eight U.S. Courts of Appeals in holding that appellate adjudicators may adopt and affirm the 
decision below as long as they give "individualized consideration" to the case). Here, the Director's 
decision gave proper consideration of the submitted evidence and correctly concluded that it did not 
satisfy the requirements set forth at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
9 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 10l(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 in the occupation." 
4 
III. CONCLUSION 
For the reasons set forth above, we agree with the Director that the Petitioner has not shown she meets at 
least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 10 Since this issue is dispositive of 
the Petitioner's appeal, we need not provide a final merits determination to evaluate whether the 
Petitioner has achieved the required level of expertise required for exceptional ability classification. 11 
In addition, we need not reach a decision on whether, as a matter of discretion, she is eligible for or 
otherwise merits a national interest waiver under the Dhanasar analytical framework. Accordingly, 
we reserve these issues. 12 The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
10 Because the Petitioner did not meet at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii), it was unnecessary for the Director 
to conduct a final merits determination to decide whether the evidence in its totality shows that she is recognized as having 
"a degree of expertise significantly above that ordinarily encountered" in the field. See 8 C.F.R. § 204.5(k)(2). 
II See 6 users Policy Manual, supra, at F.5(B)(2). 
12 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 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
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