dismissed EB-2 NIW Case: Business And Investment

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUNE 22, 2023 In Re : 26785881 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as an individual of exceptional ability in the sciences, arts or 
business. See 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. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). 
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 does not 
establish the Petitioner qualifies for classification as an individual of exceptional ability. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2) of the Act. For the purpose 
of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business ." 
8 C.F.R. § 204 .5(k)(2) . The regulations further provide six criteria, at least three of which must be 
satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the [noncitizen] 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 ofletter(s) from current or former employer(s) showing 
that the [noncitizen] has at least ten years of foll-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the [noncitizen] has commanded a salary, or other renumeration 
[sic] for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) 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). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
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. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "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." 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Director concluded that the record does not satisfy at least three of the six exceptional ability 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). More specifically, the Director found that the record satisfies the 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E) but that it does not satisfy any of the other criteria at 
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8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner references the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F) and he reasserts that he "meets at least 3 of the 6 criteria to demonstrate he 
possesses a degree of expertise above that ordinarily encountered in his field." The Petitioner does 
not reference on appeal any of the other criteria at 8 C.F.R. § 204.5(k)(3)(ii), nor does he assert that 
the standards at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply in this matter. See 8 C.F.R. 
§ 204.5(k)(3)(iii). 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence ofrecognition for achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations." Although the Petitioner describes himself as "an [ e ]ntrepreneur/[i]nvestor of 
[ e ]xceptional [ a ]bility," the record does not elaborate on what the Petitioner may be exceptionally able 
to do or, as specifically contemplated by 8 C.F.R. § 204.5(k)(3)(ii)(F), the industry or field in which 
the Petitioner is exceptionally able to do so. However, we note that the Petitioner describes the four 
current or former positions on his resume whose duties involve investment activity as being a 
generalized "[w]hole sales import and export business," an "[i]nvestment on real estate business," an 
"[i]nvestment company focused on land, commercial and residential real estate businesses, as well as 
construction and trade (imports and exports)," and "in the household goods sector," respectively. 
The Director acknowledged that the record contains 11 letters of recommendation; however, the 
Director found that "[t]he letters praise the [P]etitioner's work but they are not sufficient to show 
recognition of significant contributions within a profession or business organization" and, thus, do not 
satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
On appeal and in relevant part, the Petitioner asserts that he "has achieved significant acclaim during 
his over thirty (30) years of experience, specifically based on his solid professional background." 
However, the Petitioner does not elaborate on how the Director may have erred in analyzing any 
particular item of evidence relevant to recognition for achievements and significant contributions to 
the industry or field. We note, though, that in response to the Director's prior request for evidence 
(RFE), the Petitioner described five of the 11 letters of recommendation in particular as "conclusive 
evidence of recognition for achievements and significant contributions to the industry or field by peers, 
government entities or professional or business organizations," referencing the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). (The six other letters of recommendation were submitted at the time of filing 
rather than as a part of the RFE response.) 
None of the RFE response letters of recommendation satisfy the requirements at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). We first note that none of the RFE response letters ofrecommendation are from 
governmental entities, or professional or business organizations-they are from individuals writing in 
their individual capacity. Although the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) contemplates 
individuals writing in their individual capacity, it does so in the context of "peers." However, four of 
the five signatories inform that they are former clients of the Petitioner, not his peers, and the 
remaining signatory informs that the Petitioner was his client, again not his peer. The letter from 
I I discusses his satisfaction with the Petitioner's renovation of a house and, later, an 
apartment. Likewise, the letter froml Idiscusses his satisfaction with the Petitioner's 
renovation of his "preformed building" that "double[ d] the storage in [his] villa." Similarly, the letter 
froml !discusses his satisfaction with the Petitioner "supervis[ing] the final added 
modification to my new apartment." In tum, the letter from I I discusses his 
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satisfaction with the Petitioner "arranging details for the move from Canada to Lebanon specifically 
paperwork, legal customs, and handling all our personal belongings ... including a few vehicles." 
In contrast to four of the RFE response recommendation letters from the Petitioner's former clients, 
the fifth RFE response recommendation letter is from a former investment advisor to the Petitioner. 
The letter from.__ _______ _. relates that the Petitioner "became one of our most important 
clients, since ... he always demonstrated great responsibility when it came to fulfilling his financial 
commitments as a bank client." Because none of the letters of recommendation the Petitioner 
identified in response to the RFE as "conclusive evidence of recognition for achievements and 
significant contributions to the industry or field by peers, government entities or professional or 
business organizations" are from peers, government entities, or professional or business organizations, 
they do not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
We farther note that, even if the letters of recommendation were from qualifying signatories, their 
discussions of projects that benefitted the Petitioner's clients and their individual project requirements 
(or that benefitted the bank of which the Petitioner was a client) are not "[e]vidence ofrecognition for 
achievements and significant contributions to the industry or field," as required by the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F) (emphasis added). 1 Additionally, the record does not establish how the 
Petitioner's prior work experience as an investor and developer in real estate relates to his proposed 
endeavor. Specifically, the Petitioner described his proposed endeavor in a document titled, 
"Definitive Statement," submitted at the time of filing, as "using [his] expertise and knowledge to 
work as an [e]ntreprenuer/[i]nvestor managing and operating [his] own company ... based out of the 
state of Florida [that] will support U.S. and foreign companies to distribute critical medical supplies 
in the U.S. market and export U.S. products to foreign markets," which is unrelated to real estate 
investment and development. 
Because the Director found that the record satisfies less than three of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), and because the Petitioner does not establish that the record satisfies the only 
additional criterion at 8 C.F.R. § 204.5(k)(3)(ii) discussed on appeal, the record does not satisfy at 
least three of the exceptional ability criteria. 
In summation, the Petitioner has not established that the record satisfies at least three of the exceptional 
ability criteria; therefore, we need not determine whether the record shows sustained national or 
international acclaim and demonstrates that the individual is among the small percentage at the very 
top of the field of endeavor. See section 203(b )(2)(A) of the Act; see also 8 C.F.R. § 204.5(k)(2); 
Kazarian, 596 F.3d 1115. Furthermore, because the record does not establish that the Petitioner 
satisfies at least three of the exceptional ability criteria, it does not establish that he qualifies for 
second-preference classification as an individual of exceptional ability. See section 203(b)(2)(A) of 
the Act. We reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth 
in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 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 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
1 Although, for brevity, we do not address the six other letters ofrecommendation in the record, submitted at the time of 
filing, we have reviewed the record in its entirety and the letters contain deficiencies similar to those described above. 
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III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference 
classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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