dismissed EB-2 NIW Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 26, 2024 In Re: 31092693 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is an entrepreneur business consultant who seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest 
waiver (NIW) 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 Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding that the Petitioner did not establish that he qualified for the underlying visa 
classification, nor did he merit a discretionary waiver of the job offer requirement in the national 
interest. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (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 an NIW, 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). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 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. 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. 
Once a petitioner demonstrates eligibility for the EB-2 classification, 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 
term "national interest," Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating NIW petitions. Dhanasar states that USCIS may, as matter of discretion, 
grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
TI. ANALYSIS 
The 
Director determined that the Petitioner was not eligible for the EB-2 classification as an individual 
of exceptional ability. The Petitioner's initial filing reflected his company will provide consulting 
services for bars, restaurants, and events, which he proposed would generate jobs in the United States, 
improve working conditions, and spur investment in the local and regional communities. It appears 
his work would have a particular focus on restaurants and bars and be similar to the occupational title 
"Management Analysts" in the U.S. Department of Labor's Occupational Outlook Handbook. Bureau 
of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Management Analysts 
(Apr. 17, 2024), https://www.bls.gov/ooh/business-and-financial/management-analysts.htm#tab-2. 
The Director concluded that the Petitioner offered adequate evidence of at least 10 years of full-time 
experience in the sought after occupation under 8 C.F.R. § 204.5(k)(3)(ii)(B) but made an adverse 
determination on the Petitioner's claims relating to an official academic record, a license or 
certification, membership in professional associations, and recognition for his achievements and 
significant contributions. On appeal, the Petitioner at least asserts that he meets each of the criteria 
the Director denied. After reviewing all the evidence in the record, we conclude he has not satisfied 
at least three of the regulatory criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, or 
similar awardfrom a college, university, school, or other institution oflearning relating to the 
area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director explained why the Petitioner's claims and evidence did not satisfy this criterion, but his 
appeal brief only refers back to the portion of his response to the request for evidence "where we have 
submitted [ the Petitioner's] certificates from institutions ofleaming related to his area." The Petitioner 
makes no effort to refute the Director's findings and therefore has waived his ability to address this 
criterion within these proceedings. Matter ofGarcia, 28 T&N Dec. 693,693 (BIA 2023) ( citing Matter 
of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) and finding issues that are not meaningfully 
challenged in the appeal are waived). 
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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 Petitioner presented a Food Handler Training Program certificate issued by the Florida Restaurant 
and Lodging Association. He presented additional evidence regarding the certification that indicated 
the Florida Department of Business and Professional Regulation requires all managers in a licensed 
food service operation to become certified food managers, and that a certified food manager must 
always be present in the operation when four or more employees are on duty. The Director found that 
the certificate was not sufficiently related to his intended work in the United States. On appeal, the 
Petitioner disagrees with that assessment, claiming, without evidence, that certification from a food 
handler training program is not a mere formality, but a vital requirement for food service managers 
and entrepreneurs. -
Even though the Florida Restaurant and Lodging Association certified that the Petitioner completed 
the program, he did not submit analysis or evidence to establish that this document is a license to 
practice a profession or certification for a particular profession or occupation. Consequently, he has 
not persuaded us that the Director was incorrect to make an adverse determination under this criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
To meet the requirements of this criterion, the Petitioner must show membership in a "professional 
association." 8 C.F.R. § 204.5(k)(3)(ii)(E). The regulation defines "profession" to include "architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries" or "as any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2) 
(incorporating by reference Section 10l(a)(32) of the Act, 8 U.S.C. § 110l(a)(32)). 
The Petitioner offered his memberships in the United States Bartender's Guild as well as the Florida 
Restaurant & Lodging Association. The Director noted a lack of supporting evidence to establish 
these are professional organizations or the basis the organizations use to admit members. On appeal, 
the Petitioner discusses both organizations' history and purpose, but he offers no arguments or 
evidence addressing the requirement that the associations require those on their rolls to be members 
of a profession as defined in the regulation. The Petitioner has not met this criterion's requirements. 
We conclude that although the Petitioner satisfies the official academic record criterion, he does not 
meet the criteria regarding licensure or certification, or membership. While he argues and submits 
evidence for one additional criterion on appeal relating to recognition for his achievements and 
significant contributions to the industry at 8 C.F.R. § 204.5(k)(3)(ii)(F), it is unnecessary that we make 
a decision on this additional ground because he cannot numerically meet the required number of 
criteria. As the Petitioner cannot fulfill the initial evidentiary requirement of three criteria under 
8 C.F.R. § 204.5(k)(3)(ii), we reserve this remaining issue of his achievements and significant 
contributions. Patel v. Garland, 596 U.S. 328, 332 (2022) ( citing INS v. Bagamasbad, 429 U.S. 24, 
25-26 (1976) (finding agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision)); see also Matter ofChen, 28 I&N Dec. 676,677 n.1, 678 (BIA 
2023) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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It is also unnecessary that we provide the type of final merits determination referenced in Kazarian, 
596 F.3d at 1119-20. Nevertheless, we advise that we have reviewed the record in the aggregate, 
concluding that it does not support a finding that the Petitioner has established the high level of 
expertise required for this immigrant classification. 
And finally, because the Petitioner has not established he is qualified for the EB-2 classification as an 
individual of exceptional ability, he has failed to satisfy the antecedent requirement for consideration 
of an NIW. We therefore reserve our opinion on whether the Petitioner meets additional eligibility 
requirements under the Dhanasar analytical framework as well. Patel, 596 U.S. at 332. 
ORDER: The appeal is dismissed. 
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