dismissed EB-2 NIW Case: Business / Foreign Trade

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WLY 12, 2023 In Re: 27310821 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the areas of foreign trade, business development, transportation 
management, and logistics management, 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. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is an individual of exceptional ability and 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. 8 C.F.R. § 103.3. On appeal, the Petitioner contends that the Director did not apply the 
proper standard of proof in this case, instead imposing a stricter standard, and erroneously applied the 
law to his detriment. 
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 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)(B)(i) of the Act. 
"Exceptional ability" in the sciences, arts, or business 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. See 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. We will then conduct a final merits determination to decide 
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). 
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. 2 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 3, 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. 
II. ANALYSIS 
As indicated above, the Petitioner must first meet at least three of the regulatory criteria for 
classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying 
the petition, the Director determined that the Petitioner did not meet at least three of the six criteria. 
On appeal, the Petitioner maintains that he meets at least three of the six criteria. After reviewing the 
evidence in its totality, we conclude that the record does not support that he meets at least three 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 determined that the Petitioner did not establish eligibility for this criterion. The Petitioner 
contends that he meets this criterion based on the documents submitted at the time of filing his petition 
and in response to a request for evidence (RFE). A review of the record of proceeding reflects that 
the Petitioner submitted sufficient documentary evidence establishing that he meets the plain language 
of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
In response to the RFE, the Petitioner submitted copies of certificates of various courses taken in 
learning institutions, which show that he has completed Microsoft Access, Excel, Introduction to 
Computer Science and Typing, Introduction to Maritime Transportation, Quality System, Introduction 
to Lotus, Lotus Notes, and Integrated Foreign Trade System in various learning institutions. The 
Petitioner proposed to work in the United States as an entrepreneur in the areas of foreign trade, 
business development, transportation management, and logistics management. The courses taken by 
the Petitioner are related to the areas of his claimed exceptional ability. Accordingly, he meets this 
criterion. 
2 USCTS 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/volume-6-
part-f-chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
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). 
The Director determined that the Petitioner established eligibility for this criterion. A review of the 
record of proceeding reflects that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner submitted a letter from._____________ __., the vice president ofl I 
I 1 4 which states that the Petitioner was the chief executive officer of the company from Ma, 
2005 and May 2016. The Petitioner also submitted a letter froml J 
the vice president of1 15 which states that the Pet ....it_i_o_n-er-h-as-b-ee-n-th-e-ch_1_·e_f_e_x_e_c-ut_i__.ve 
officer of the company since August 2018. Although these letters do not indicate whether the 
Petitioner worked for the company full-time or part-time, we determine that these letters establish by 
a preponderance of the evidence that the Petitioner has at least 10 years of full-time experience in the 
occupation for which he is being sought based on the length of the Petitioner's employment and the 
job responsibilities described in the letters. Accordingly, he meets 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). 
The Director determined that the Petitioner did not establish eligibility for this criterion. The Petitioner 
maintains that he meets this criterion based on the documents submitted at the time of filing his petition 
and in response to the RFE. However, a review of the record of proceeding does not reflect that the 
Petitioner submitted sufficient documentary evidence establishing that he meets the plain language of 
the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) for the reasons stated below. 
In response to the RFE, the Petitioner submitted a copy of his customs agent identification card, which 
shows that he was registered as a customs agent with thel lin theO 
in Brazil from September 18, 2016 to July 12, 2020. The Petitioner also submitted a copy '------.-------------,of the dated October 16 2006, which indicates the Petitioner was registered with the 
.________________ __. in Brazil on October 11, 2006 to be a customs broker helper 
and a customs broker. While these documents show the Petitioner's professional registration as a 
customs agent, a customs broker helper, and a customs broker in Brazil, they do not establish that he 
had a license to practice the profession or certification for a profession to meet this criterion. 
Accordingly, the Petitioner does not meet 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). 
4 The Articles of Association of.__ _______________ ___, dated May 6, 2004, states that the 
company will provide foreign trade consulting services, freight services, charter services, and logistics services. 
5 The Articles of Association ofl Idated August 7, 2018, states that the company was fcnmed to 
engage in maritime agency activities and to be a shipping or clearance agent. 
3 
I 
The Director determined that the Petitioner did not establish eligibility for this criterion. The Petitioner 
claims that he meets this criterion based on the documents submitted at the time of filing his petition 
and in response to the RFE. However, a review of the record of proceeding does not reflect that the 
Petitioner submitted sufficient documentary evidence establishing that he meets the plain language of 
the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) for the reasons outlined below. 
In response to the RFE, the Petitioner submitted a letter from his accountant,
Istates that the Petitioner earned 265,000 Brazilian real (BRL), ~w_h_1_·c_h_1_·s-eq_u_i_v-al_e_n_t_t~o 
$85,000, froml Iin 2015, BRL 280,000 and BRL 270,000, 
froml Iin 2016 and 2017, and BRL 320,000 froml lin 2018. The 
Petitioner also submitted federal tax returns ofi Ifrom 2020 
and 2021 and his and his spouse's federal tax returns from 2020 to 2021. The Petitioner and his 
spouse's tax returns reflect that their taxable income was $55,420 in 2020 and $70,385 in 2021. 
Regarding the letter from his accountant, as the Director noted, the Petitioner did not provide evidence 
of his salary, such as his paystubs, bank statements, or other sufficient evidence. Statements made 
without supporting documentation are of limited probative value and are not sufficient to meet the 
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) ( citing 
Matter of Treasure Craft of Cal[fornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In addition, tax 
returns of a business entity of which the Petitioner is the president do not provide evidence of the 
Petitioner's income because a corporation and an individual are two separate legal entities. See Matter 
ofSoffici, 22 I&N Dec. 158, 162 (Assoc. Comm'r 1998). This is true even if the individual is the sole 
shareholder of the business. See id. at 161-63. Moreover, tax returns of the Petitioner for 2020 and 
2021 - one year after filing his petition - does not establish his eligibility at the time of filing his visa 
petition. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date 
after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
175 (Assoc. Comm'r 1998). That decision, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), 
further provides that USCIS cannot "consider facts that come into being only subsequent to the filing 
of a petition." Id. at 176. 
Furthermore, the record does not contain sufficient evidence of an average salary of an entrepreneur 
in the areas of foreign trade, business development, transportation management, and logistics 
management in Brazil during the period of the Petitioner's employment or other sufficient evidence 
to establish that the Petitioner's salaries were indicative of his claimed exceptional ability relative to 
others working in the field. Without sufficient corroborating evidence, the Petitioner did not 
demonstrate that he commanded a salary or other remuneration for services, which demonstrates 
exceptional ability. Accordingly, he does not meet this criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner did not establish eligibility for this criterion. The Petitioner 
contends that he meets this criterion based on the documents submitted in response to the RFE. 
However, a review of the record of proceeding does not reflect that the Petitioner submitted sufficient 
4 
documentary evidence establishing that he meets the plain language of the regulation at 8 C.F.R. § 
204.5(k)(3)(ii)(E) for the reasons stated below. 
The Petitioner claimed eligibility for this criterion based on his memberships with American 
Management Association (AMA), DOT Compliance Group, International Association of Movers 
(IAM), and Association of Supply Chain Management (ASCM) and provided evidence of the claimed 
memberships and printouts from the websites of these organizations. 
The AMA website indicates that the AMA is a leadership training company that provides resources 
and guidance to individuals and organizations. The DOT Compliance Group website indicates that 
DOT Compliance Group serves the trucking industry with an automated and affordable program to 
meet Federal drug and alcohol testing requirements. The IAM website states that the IAM is a global 
trade association of the moving and forwarding industry, and it comprises companies that provide 
moving, forwarding, shipping, logistics, and related services in more than 1 70 countries. The ASCM 
website states that the ASCM is a nonprofit association of supply chain. The record does not reflect 
that these organizations are professional associations. "Profession" means one of the occupations 
listed in section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 6 as well as any occupation for which a 
U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation. 8 C.F.R. § 204.5(k)(2). 
In addition, a certificate of membership of the IMA, which was provided as evidence of the Petitioner's 
claimed membership with the IMA, listedl Ias a member of 
the IMA. The Petitioner is not listed as a member of the IMA, and the IMA website indicates that the 
IMA comprises companies that provide moving, forwarding, shipping, logistics, and related services. 
Since the Petitioner is not a company, he cannot be a member of this organization. The Petitioner has 
not established that he is a member of the IMA or a professional association. Accordingly, the 
Petitioner does not meet 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 determined that the Petitioner did not establish eligibility for this criterion. The Petitioner 
contends that he meets this criterion based on the documents submitted at the time of filing his petition 
and in response to the RFE. The Petitioner farther contends that he was deprived of due process rights 
and a fair treatment under USCIS policy, the U.S. Constitution, and international treaties. The 
Petitioner claims that the Director erroneously denied farther analysis of this criterion. A review of 
the record of proceeding does not reflect that the Petitioner submitted sufficient documentary evidence 
establishing that he meets the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) for the 
reasons outlined below. 
6 The term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
5 
USCIS administers the EB-2 program pursuant to statutory and regulatory authorities, and the 
Petitioner does not argue that a specific provision of the EB-2 statute or regulations is unconstitutional. 
To the extent that the Petitioner's due process argument had been grounded in the constitutionality of 
the EB-5 statute and regulations, we lack jurisdiction to rule on the constitutionality of laws enacted 
by Congress or ofregulations promulgated by the Department of Homeland Security. See, e.g., Matter 
of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997); Matter of C-, 20 I&N Dec. 529, 532 (BIA 
1992). Therefore, we will consider the Petitioner's due process concerns as they relate to whether the 
Director complied with the applicable statute and regulations. 
In support of his application for permanent residence in the United States, the Petitioner submitted various 
letters from his former colleagues, business partners, and employers. These writers provided their 
professional or business backgrounds, explained their relationships with the Petitioner or his companies 
in Brazil, and described the projects they worked together with the Petitioner's companies and the work 
provided by the Petitioner for their companies. These writers praise the Petitioner's excellent 
management ability, extensive network, professional experience, knowledge in customs, and logistic 
expertise, and acknowledge positive outcome their companies achieved or positive feedback they 
received from their customers through the transportation or logistics services provided by the Petitioner 
and his companies. However, these letters do not discuss the Petitioner's achievements or significant 
contributions to the areas of foreign trade, business development, transportation management, and 
logistics management. While helpful, the support letters do not sufficiently demonstrate recognition for 
the Petitioner's achievements and significant contributions to the Petitioner's field by his peers or 
business organizations. Accordingly, the Petitioner does not meet this criterion. 
For the reasons we have discussed above, the Petitioner has not established by a preponderance of the 
evidence that he meets at least three of the six regulatory criteria. Since the Petitioner has not established 
eligibility for at least three of the six criteria, we need not provide a final merits determination to evaluate 
whether the Petitioner has achieved the level of expertise required for exceptional ability classification. 
Furthermore, because the issue identified in this decision determines the outcome of the Petitioner's 
appeal, we need not reach a decision on whether he is eligible for or otherwise merits a national interest 
waiver as a matter of discretion under the Dhanasar analytical framework. We will reserve these 
issues for future consideration should the need arise. 7 
III. CONCLUSION 
As the Petitioner has not established by a preponderance of the evidence that he is a member of the 
professions holding an advanced degree or an individual of exceptional ability, the Petitioner has not 
demonstrated eligibility for the EB-2 visa classification. 
The appeal will be dismissed for the above-stated reasons, with each considered as an independent 
and alternate basis for the decision. 
7 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 alternate issues on appeal where an applicant is otherwise ineligible). 
6 
ORDER: The appeal is dismissed. 
7