dismissed EB-2 NIW Case: Business Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 14, 2024 In Re: 34702563 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, the chief executive ofl land an entrepreneur 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 classification. 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 record did not 
establish that the Petitioner qualifies for the underlying EB-2 classification or that 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 pursuant to 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 
USCIS will then conduct a final merits determination to decide whether the evidence as a whole shows 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
1 If these types of evidence do not readily apply to the individual 's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
If a petitioner demonstrates EB-2 eligibility, 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 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion, 2 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. EXCEPTIONAL ABILITY 
To establish eligibility as an individual of exceptional ability, a petitioner must submit documentation 
that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii), 
summarized below: 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of foll-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of the regulatory criteria, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows a degree of 
expertise significantly above that ordinarily encountered in the individual's field. 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, generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy­
manual. 
In the denial, the Director determined that the Petitioner did not satisfy any of the six criteria to 
demonstrate eligibility as an individual of exceptional ability. On appeal, the Petitioner maintains that 
the evidence submitted satisfies all the criteria except the requirement for the ten years of foll-time 
experience in the occupation. The Petitioner relies upon the documents previously submitted in his 
initial filing and in the response to the request for additional evidence (RFE) and asserts that the 
Director applied an incorrect standard of proof. 
The Petitioner contends that the Director misapplied the preponderance of the evidence standard and 
did not review the entirety of the evidence submitted for the national interest waiver. As the Petitioner 
2 See also 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 USCIS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
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asserts, the standard of proof in this proceeding is preponderance of the evidence, meaning that a 
petitioner must show that what is claimed is "more likely than not" or "probably" true. Matter of 
Chawathe, 25 I&N Dec. at 375-76. To determine whether a petitioner has met the burden under the 
preponderance standard, we consider not only the quantity, but also the quality (including relevance, 
probative value, and credibility) of the evidence. Id.; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989). Upon de novo review of the record, we agree with the Director's evaluation of the evidence, 
and conclude it does not establish, by a preponderance of the evidence, that the Petitioner has 
established eligibility for the underlying classification. 
The Petitioner intends to be the chief executive ofl Ian online platform that will 
provide a variety of business education courses to individuals. As explained below, we conclude that 
the Petitioner has not satisfied the regulatory requirements for any of the claimed criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director's analysis in determining that the Petitioner did not establish he obtained a degree, 
diploma or similar award in Business Management and Entrepreneurship from a university, college or 
school is correct. On appeal, the Petitioner reiterates that he completed a Bachelor's Degree in 
Business and Enterprise Management from in 2012 I land that 
all relevant degrees, transcripts and diplomas were included in the RFE. The RFE also includes an 
affidavit explaining that the visa consultant made an incorrect entry in the Petitioner's B-2 
nonimmigrant visa application completed in 2016 when it was indicated the Petitioner had not 
completed studies at educational institutions at a secondary level or above. Further, in the B-2 
nonimmigrant visa application, the Petitioner failed to note that he had studied at ______ 
I I The Petitioner's assertion that the consultancy firm made an incorrect entry in the 
application is not persuasive. The Petitioner's signature "establishes a strong presumption" they knew 
and assented to the contents. See Matter of Valdez, 27 I&N Dec. 496, 499 (BIA 2018). Further, in 
the RFE the Petitioner details the inability to obtain a credential evaluation from World Education 
Services (WES) because of a strike at the university and instead submitted information regarding the 
strike, and affidavits certifying the awarding of the degree and transcripts, among other documents. 
The record on appeal lacks probative documentation or a detailed explanation to overcome the 
Director's evaluation of this issue, instead restating the claims made in response to the RFE. The 
Petitioner has not met the burden of proof to satisfy the requirements of this criterion. 
A license to practice the profession or certification for a particular profession or occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
In support of this criterion, the Petitioner submitted a license registered with the Regional Council of 
Administration, Brazil and a certificate of good standing from the same administration. As detailed 
by the Director and also explained by counsel on appeal, the Petitioner has not described how this license 
authorizes him to work as a chief executive or entrepreneur. Therefore, this information does not establish 
the Petitioner is licensed to practice a profession or is certified for a particular profession or occupation 
as required by 8 C.F.R. § 204.5(k)(3)(ii)(C). The Petitioner has not established he meets this criterion. 
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Evidence that ofa salary or other remuneration for services which demonstrates exceptional 
ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
In response to the RFE, the Petitioner submitted copies of tax returns, a profit and loss statement and 
bank statements. Although he asserts on appeal that these documents prove he has a significantly high 
remuneration in the field of chief executives or entrepreneurs, the record lacks evidence such as 
industry reports, comparisons to similar executives, or other probative evidence to support the 
assertions that he commands a salary demonstrating exceptional ability. Therefore, the Petitioner has 
not established eligibility for this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
On appeal the Petitioner reasserts that his memberships in the Strategic Management Society, the 
Academy for International Business, the American Society of Administrative Professionals and the 
American Management Association establish membership in professional associations. However, as the 
Director determined, and we agree, the Petitioner has not demonstrated that membership in these 
associations relates to his job as chief executive. Further, he has not explained that these associations are 
comprised of individuals for which a U.S. baccalaureate degree or the foreign equivalent is the minimum 
entry in the occupation. See 8 C.F.R § 204.5(k)(2). We conclude that the Petitioner has not met his 
burden of proof to show that he meets the requirements of this regulatory 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 plain language of the regulation calls for "evidence of recognition for achievements and 
significant contributions to the industry or field." As such, materials that identify an individual's 
achievements but not significant contributions to the industry or field cannot suffice to satisfy the 
regulatory requirements. See Matter ofEcheverria, 25 I&N Dec. 512, 518 (BIA 2011) (holding that 
the use of the conjunction "and" in a series of regulatory requirements "is a clear indication" that one 
"must satisfy each of the [listed] requirements"). After reviewing the testimonials, commendations, 
and letters from individuals discussing the Petitioner's background and achievements, the Director 
concluded that the Petitioner has not established that he received recognition for contributions to the 
industry or field. On appeal, the Petitioner reiterates the arguments made in the RFE and the record 
on appeal lacks evidence to support a determination that he has made a significant contribution to the 
industry. The letters of intent to invest in the Petitioner's business were created after the time of filing, 
the photographs lack a detailed description of the events, and the online information does not provide 
sufficient information regarding the Petitioner's significant contributions to the field. Therefore, the 
Petitioner has not met his burden of proof to meet the regulatory requirements of this criterion. 
Because the Petitioner has not met his burden of proof to satisfy at least three of the initial criteria at 
8 C.F.R. § 204.5(k)(3)(ii), we need not provide the type of final merits determination referenced in 
Kazarian, 596 F.3d at 1119-20. Further, because the petition cannot be approved without an 
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underlying determination that the Petitioner qualifies for EB-2 visa classification, we will reserve 
discussion of the Petitioner's national interest waiver claim under the Dhanasar framework. 3 
III. CONCLUSION 
The Petitioner has not established that he qualifies as an individual of exceptional ability. Therefore, 
the Petitioner has not shown eligibility for EB-2 classification. Without such a showing, the Petitioner 
cannot qualify for the national interest waiver. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-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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