dismissed EB-2 NIW Case: Business Management

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26925895 Date: MAY 22, 2023 
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. § l l 53(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 Director 
further concluded that the Petitioner had not established 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. 
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 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 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
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 
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). 
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II. ANALYSIS 
Although the Petitioner asserted that he satisfies five of the six exceptional ability criteria, specifically 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(C), (E)-(F), the Director found that the Petitioner satisfied only the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). Accordingly, the Director concluded that the record does 
not establish the Petitioner qualifies for classification as an individual of exceptional ability. The 
Director further concluded that the record does not establish that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. On appeal, the Petitioner reasserts 
that, in addition to satisfying the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), he satisfies the criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(B)-(C), (E)-(F). The Petitioner does not assert on appeal that the standards 
at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply in this case and that comparable evidence, as 
contemplated at 8 C.F.R. § 204.5(k)(3)(iii), should be considered. For the reasons discussed below, 
the record does not satisfy at least three of the six exceptional ability criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence 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." On the Form 1-140, Immigrant Petition for Alien 
Workers, the Petitioner described the occupation that he, as a self-petitioner, seeks for himself as "chief 
executive officer." Therefore, the dispositive issue for determining whether the record satisfies the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) is whether, at the time of filing the petition, the Petitioner had 
at least 10 years of foll-time experience in the occupation of a chief executive officer, or comparable 
positions. 
The Director acknowledged that the record contains various letters from prior employers; however, 
the Director observed that the letters do not indicate whether the Petitioner worked in a foll-time 
capacity in the respective positions, and most letters do not describe the duties the Petitioner performed 
for the various positions he held. The Director further concluded that, although the Petitioner "may 
have experience in the field of music in different positions, the evidence provided does not meet the 
plain language of the standards to establish [his] required experience of ten (10) years as a 
CEO/Entrepreneur. Thus, the evidence provided does not establish the [P]etitioner meets this 
criterion." 
On appeal, the Petitioner reiterates his prior work experience and he acknowledges that his "previous 
job titles were not 'CEO' or 'Entrepreneur."' However, the Petitioner asserts that "the positions he 
held throughout his career are directly related to his current occupation." The Petitioner further asserts 
that "his 3 years as a 'business manager' and 4 years as a 'commercial advisor' should be factored in 
as experience in the specialty, along with the 7 years as CEO and Entrepreneur, when he started his 
business in 2015." 
The record does not contain letters from the Petitioner's current or former employers that establish he 
has at least 10 years of foll-time experience in the occupation for which he is being sought, as required 
by 8 C.F.R. § 204.5(k)(3)(ii)(B). First, the record contains a one-page letter, dated November 2019, 
from an individual who identifies himself as "the CPA for [ the Petitioner] since 28/04/2015." The 
letter summarizes the Petitioner's employment history beginning in 2003; however, the letter does not 
purport to be from the Petitioner's current or former employer; therefore, it does not satisfy the plain 
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language of8 C.F.R. § 204.5(k)(3)(ii)(B). Moreover, even if the CPA letter otherwise established that 
it is from the Petitioner's current or former employer, the extent of the information it conveys that the 
signatory would have personal knowledge of, as of April 2015 when he became the Petitioner's CPA, 
would be the Petitioner's work as "CEO at the I 
Brazil, from May 2015 through the letter's submission in November 2019. However, other than 
referring to the Petitioner's job title as "CEO," it does not elaborate on whether the Petitioner worked 
in a full-time capacity and what his duties were, beyond the similarity in its occupation title to that 
sought by the Petitioner. Therefore, even if the CPA letter were from the Petitioner's current or former 
employer-which it is not-it would not establish that his work between 2015 and 2019 as "CEO" 
would qualify as "full-time experience in the occupation for which he ... is being sought," as required 
by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Next, the letter contains letters in a language other than English, and accompanying English 
translations, that assert that the Petitioner "was an employee of the company ... from 11/05/2008 to 
10/16/2012" and "belonged to the staff of this company ... admitted on 11/01/2005 and dismissed on 
06/10/2008," respectively. However, neither letter indicates whether the Petitioner's experience was 
in a full-time capacity, as required by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). Moreover, as the 
Director discussed, the letter from the Petitioner's employer from 2008 to 2012 does not describe the 
duties he performed while "occupying the position of business advisor." Therefore, even if the letter 
from the Petitioner's employer from 2008 to 2012 otherwise satisfied the plain language of the 
applicable criterion, it does not establish whether his position of "business advisor" was "in the 
occupation for which he ... is being sought," as required by 8 C.F.R. § 204.5(k)(3)(ii)(B), beyond 
merely providing his job title. 
Although the Petitioner asserts on appeal that his other qualifying employment was when "[h]]e became 
a Commercial Manager at I Ifrom 2005 to 2008," the letter from an 
unnamed signatory for the successor-in-interest of _______ directly contradicts the 
Petitioner's statement. The letter indicates that the Petitioner held the position of "bank clerk" between 
November 2005 and February 2005, when the Petitioner's title became "bank cashier clerk," which 
he held until "06/02/2007." The letter indicates that, beginning in 2007, until the Petitioner's 
employment at ended in 2008, he held "assistant manager" positions, not that 
he held management positions from 2005 to 2008, as he asserted. The direct conflict between the 
Petitioner's stated employment history and the information provided in the letter from his former 
employer casts doubt on the veracity of his stated employment history specifically, and of the record 
in general. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (providing that doubt cast on any 
aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition). Moreover, even to the extent that the letter bears probative 
value regarding the Petitioner's assertions, it describes his duties as an "assistant manager" in 2007 
and 2008 specifically as "less complex activities involving customer service and product sales," which 
do not appear to be akin to the duties of a chief executive officer, the occupation for which he is being 
sought. Moreover, similar to the other letters, even if the I Iletter otherwise 
satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), it does not establish that the Petitioner had full­
time experience in the respective positions. In summation, the record does not establish that the 
Petitioner has at least 10 years of full-time experience in the occupation for which he is being sought; 
therefore, it does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
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Next, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." The Director acknowledged that the record 
contains a copy of the Petitioner's "Individual Registry and Good Standing Certificate," issued by a 
regional council in Brazil. However, the Director concluded that the certificate "does not establish 
that the occupation requires the license or certification possessed by the [P]etitioner" and, thus, the 
record does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
On appeal, the Petitioner asserts, "[aa ]n occupational license is not required in order to practice this 
proposed endeavor, as there is no governmental licensing agency in charge of entrepreneurs, as these 
professionals don't need legal authority to work in their occupation." Nevertheless, the Petitioner 
asserts that the aforementioned certificate "gives him and his current and futures companies [sic] 
access and permissions that other professionals wouldn't have" and that it satisfies the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) contemplates: first, that a license or certification is 
required to practice a particular profession or occupation; and second, that the individual in question 
possesses such a valid license or certification. The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) does not 
contemplate licenses or certifications that an individual may possess that are not required to practice 
a particular profession or occupation. Because the Petitioner states on appeal that a license is not 
required in order to practice the proposed endeavor, and because the record supports such a statement, 
the record does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
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." The Director acknowledged that the record contains various letters of 
support; however, the Director found that "[t]he letters do not provide specific examples of the 
[P]etitioner's contributions to the industry or field." On a eal, the Petitioner asserts that his "work 
was officially recogniized by his then employer, and by the field, as he 
received the President's Council Award 2010,' a Global award that singled him as an 
extraordinary employee in an event held in The Petitioner further asserts that he received 
the same award in 2011. The Petitioner also states that the entity that awarded the Petitioner was 
acquired by another entity in 2020 and "[a]s such, information on the award is no longer available, 
thus we are unable to detail this ceremony or the award itself." 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. at 375-76. Because the Petitioner provides no further details 
regarding the awards he received in 2010 and 2011, the record does not establish that such awards­
which appear to be an internal award given by an employer to its own employees-are "[ee ]vidence of 
recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations," as contemplated by the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner also asserts on appeal that his "vinyl records inventory is of significant contribution to 
cultural and artistic fields." The Petitioner asserts that he has been "noticed by the media," and he 
references published interviews of him regarding his vinyl record collection. However, the plain 
language of the criterion of 8 C.F.R. § 204.5(k)(3)(ii)(F) contemplates recognition "by peers, 
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governmental entities, or professional or business organizations." The record does not clarify how the 
referenced media interviews are recognition by peers (i.e. other chief executive officers), 
governmental entities, or professional or business organizations, as required by the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner further asserts on appeal: 
a civil servant at the Cultural Secretary in the State ofl I 
_ writes on the Petitioner's unique abilities in running such an extraordinary 
business and ______ Culture Secretary in the State of sa s 
that he "plays an essential role." I I a councilwoman from 
I I praises [the Petitioner's] cultural contributions;.__ _______ 
employee at a cultural foundation, defines the Petitioner as a "specialist in the cultural 
field" and label director, praises [the 
Petitioner's] work and dedication to the phonographic industry and the cultural fields. 
As the Director addressed, the letters referenced on appeal indicate that the Petitioner provided 
services and located vinyl records for his customers; however, they do not establish that he received 
recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations, as required by the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). We further note that, although some of the letters are from individuals 
who are employed by governmental entities, the letters themselves do not purport to be recognition 
for achievements and significant contributions to the industry by the signatories' employing 
governmental entities. In summation, the record does not establish that the Petitioner has received 
"recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations"; therefore, it does not satisfy the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Because the record does not otherwise satisfy at least two of the criteria at 8 C.F.R. § 204.5(k)(3)(ii), 
we need not determine whether it satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), in order to 
satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we reserve our opinion 
regarding whether the record satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 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). 
In summation, the Petitioner has not established 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 
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in Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 U.S. at 25; see 
also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
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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