dismissed EB-2 NIW Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 23, 2024 InRe : 31522413 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business consultant, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability in the sciences, arts, or business, 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
meet the criteria for the EB-2 immigrant classification as an individual holding an advanced degree or 
as an individual of exceptional ability. She also indicated the Petitioner had not shown a waiver of 
the required job offer, and thus of the labor certification, would be in the national interest. 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. 
To establish eligibility for a national interest waiver, a petitioner must fust demonstrate their 
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. Here, the Petitioner claims to be an individual of exceptional ability. 
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). The analysis for this classification is a two-part 
analysis. 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. If a petitioner does so, we will then conduct a 
final merits determination 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. 
The Director found the Petitioner met three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). Specifically, the Director indicated the Petitioner satisfied the following criteria: an 
official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A), a salary commensurate with exceptional 
ability at 8 C.F.R. § 204.5(k)(3)(ii)(D), and membership in a professional association at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). 
A. Salary Commensurate with Exceptional Ability 
Unlike the other two criteria above, the Director's decision lists the evidence submitted in support of 
the category related to salary, 8 C.F.R. § 204.5(k)(3)(ii)(D), but does not provide an analysis of how 
she made the determination that the Petitioner commanded a salary commensurate with exceptional 
ability. To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. Id. Although the Petitioner appears to have been paid more than the average 
junior administrative analyst in 2016, this alone does not necessarily indicate she received a salary 
commensurate with her claimed exceptional ability. For instance, the Petitioner is claiming to have 
exceptional ability in the field ofbusiness consulting as a Chief Executive Officer (CEO) for a business 
consulting company but does not provide documentation showing she commanded a salary above 
others working in this field as a CEO or in another higher-level position. However, as we are affirming 
the Director's final merits determination, we need not reach a decision on whether she in fact does 
have a salary commensurate with exceptional ability. Accordingly, we reserve this issue. 1 
B. Final Merits Determination 
Because the Director found the Petitioner fulfilled at least three criteria, she then conducted a final 
merits determination, concluding the Petitioner did not possess a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. The Director explained that the 
evidence presented in relation to the Petitioner's academic record, salary, and membership in a 
professional association did not show she possessed a degree of expertise significantly above that 
ordinarily encountered in her field of business consulting. More specifically, the Director described 
how 78% of CEOs, the position the Petitioner will hold, had a bachelor's degree or more, but the 
Petitioner has only the equivalent of 3 years of university study in the United States. Similarly, pay 
stubs from 2016 show that in Brazil the Petitioner was receiving a salary higher than the average junior 
administrative analyst, the position she held at the time, but not a salary significantly above that which 
a business consultant (her area of exceptional ability) would receive. Finally, the Director 
acknowledged the Petitioner's membership in a professional association but indicated that this 
membership was not significantly above what would normally be encountered in a career as a business 
consultant. 
On appeal, the Petitioner does not contest the finding that she does not hold an advanced degree. She 
contends that the Director made a biased decision and applied evidentiary requirements beyond the 
scope allowed by law when she found the evidence submitted insufficient on exceptional ability. The 
Petitioner states further that the Director's request for evidence did not indicate there was an 
evidentiary deficiency in the final merits determination of an individual of exceptional ability, thus 
1 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). 
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taking away her ability to address the deficiency and violating her right to due process. Moreover, the 
Petitioner asserts that she should have been judged by the advancement of her career in Brazil and 
how that compares to other Brazilians, noting that she is a woman CEO when 90% of CEOs in Brazil 
are male. She also asserts how despite her lack of academic credentials she was able to succeed in her 
career, indicating that her knowledge is thus above what would ordinarily be encountered. Finally, the 
Petitioner contends that the Director, in analyzing the three criteria mentioned individually, did not 
consider her expertise in its totality. In support of her appeal, she submits a news article on CEOs in 
Brazil, a report on a national initiative to support small businesses, and her business plan. 
As an initial matter, although the Director appears to have omitted in his request for evidence, 
specifically, the issue of a potential deficiency in a final merits determination, 8 C.F.R. 
§ 103.2(b )(8)(iii) gives USCIS the discretion to issue a request for evidence on any given issue, but 
neither the Act nor the regulations compels us to do so. Moreover, the final merits determination, a 
totality of the circumstances analysis, is such that the request for evidence issued, provided adequate 
notice regarding deficiencies in the petition without needing to specifically articulate the potential for 
an insufficiency in the final merits determination. In addition, the Director's final decision provided 
adequate notice regarding deficiencies in the petition and yet, as we will discuss more below, the 
Petitioner has not submitted sufficient documentation to establish eligibility on appeal. 
Overall and considering the factors as they are presented by the Petitioner, we will affirm the 
Director's decision that the Petitioner has not demonstrated a degree of expertise significantly above 
that ordinarily encountered in her field of business consulting. Here, the Petitioner provided evidence 
showing she completed the equivalent of three years of university study in the United States; served 
as a financial assistant for approximately five years; served as a junior administrative analyst in her 
field for approximately 3 years; and trained as a financial analyst in 2020 for an unknown period. Her 
reference letters also indicate she was well regarded as an exemplary employee. However, the 
Petitioner has not shown how her expertise through her education, job experience, and/or professional 
accomplishments significantly differentiates her from what is ordinarily encountered in the field of 
business. We acknowledge that the Petitioner appears to have developed a career in business in Brazil 
despite her lack of education and the lack of gender diversity amongst CEOs, however, these factors 
are not the standard by which she is being evaluated as a claimed individual with exceptional ability. 
She must demonstrate, by a preponderance of the evidence, that she possesses a degree of expertise in 
the field of business significantly above what is normally encountered. The current record does not 
provide the detail and specifics necessary to show how her accomplishments, knowledge, and ability 
to consult in the field of business, would be significantly above what is normally encountered in the 
careers of other CEO business consultants. 
The record, in its totality, does not establish the Petitioner's eligibility as an individual of exceptional 
ability. Although the Director determined that the Petitioner satisfied three of the initial categories of 
evidence, the record does not demonstrate that the Petitioner has obtained a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 
204.5(k)(2). 2 As such, we need not reach a decision on whether, as a matter of discretion, she is 
eligible for or otherwise merits a national interest waiver. Accordingly, we reserve this issue. 3 The 
2 See also 6 USC1S Policy Manual, supra, F.5(B)(2). 
3 See INS v. Bagamasbad, supra; see also Matter ofL-A-C-, supra. 
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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. 
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