dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 5, 2024 In Re: 28963349 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and general business manager, 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 is an individual of exceptional ability 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. 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 establish eligibility for a national interest waiver, a petitioner must first demonstrate 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. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov /policymanual. 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying 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 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. 
II. ANALYSIS 
The Director determined that the Petitioner met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B), 
but not (E) and (F). 3 The Director also conducted a final merits determination and concluded that the 
Petitioner's education and work experience was insufficient to establish she is an individual of 
exceptional ability in her field or industry. The Director noted that because the Petitioner obtained her 
master's degree in business administration after the filing of the petition, it would not be considered 
in a final merits determination because she must establish her eligibility at the time of filing. 
See 8 C.F.R. § 103.2(b)(l). 
On appeal, the Petitioner asserts that the Director overlooked evidence of her "significant acclaim 
during her eighteen (18) years of experience, specifically based on her solid professional 
background." (emphasis in the original). She further contends that she meets the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E) and (F), and that for the final merits determination, she has provided "clear and 
concrete evidence demonstrating" that she is a general manager of exceptional ability. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined the evidence was insufficient to demonstrate that the Petitioner is a member 
of a "professional" association within the meaning of 8 C.F.R. § 204.5(k)(2), which defines profession 
as "one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which 
a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation." The list of occupations in section 101(a)(32) of the Act includes architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academics, or seminaries. On appeal, the Petitioner asserts that using "strict definitions and 
requirements overlooks the diverse backgrounds and educational qualifications of association 
members, as well as the significance of active participation and commitment to professional growth." 
The Petitioner submitted proof of payment for her "New Member Order" for the.__ ______ __. 
ldated December 2022. However, because the evidence postdates the filing of the petition, 
we will not include it in our evaluation of this criterion. USCIS regulations affirmatively require a 
petitioner to establish eligibility for the benefit sought at the time the petition is filed. See 8 C.F.R. 
§ 103.2(b)(l). 
3 As the Petitioner does not claim that she meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (D), we will not address 
them here. 
2 
I 
The Petitioner also provided documents titled "Membership Admission Conditions" and "Admission 
criteria," to establish that her membership in the.__ _______________ ___.satisfies 
this criterion. The Petitioner's evidence describes the admission criteria and responsibilities fore=] 
members as, for example: "1. [an] enterprise [with] good economic yield, with an annual turnover 
above 50 million yuan; 2. industries with an innovative characteristic and government support enjoy 
a priority, such as: technological innovation, culture and tourism, intelligent manufacturing, new 
energy and new material, biotechnology, etc.; 3. The enterprise must be founded above 3 years; and 
4. The founder holds a track record of entrepreneurship above 5 years." The Petitioner also provided 
here=] "Membershi=" document, which shows that she is Vice President of the I I I l Based onl Imembership criteria, it appears that members must 
run a business, but are not required to hold a baccalaureate degree or otherwise meet the definition of 
profession as described in 8 C.F.R. § 204.5 (k)(2). As such, we agree with the Director that the 
Petitioner's evidence is insufficient to meet the plain language of 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 Petitioner asserts that the submitted recommendation letters are relevant, probative, and from 
knowledgeable individuals in the field attesting to her significant contributions. Although the letters 
describe her in positive terms as a professional whose "contributions have been essential to the 
industry," they do not explain her "significant contributions" with sufficient detail. See Matter of 
Chawathe, 25 I&N Dec. at 376. For example, one writer describes the Petitioner as a great leader who 
earns her team members' trust and asserts that she is a "top professional" in their field. Another 
explains that he has known the Petitioner since 2012, when he worked with her during a product 
launch, and that they continued to cooperate on many projects after that. He describes her as having 
the "most enthusiasm" and "the strongest execution ability" and that the Petitioner helped him solve a 
business problem with a product launch because she understood his needs, and took the time to help. 
He also states that he found her to be a "serious" and "responsible professional," and that in 2014, he 
founded a company and continues to collaborate with her. Another writer states that he has known 
the Petitioner since 2008 when they worked for the same company in different departments and 
enjoyed a "natural and successful business understanding." He describes her as "well organized, 
responsible, decision and detail oriented" and states that after leaving that company, they worked 
together another time. He opines that she is a "natural leader," "with great ability to influence people 
and manage a team." While having a good reputation is a positive attribute, it is not sufficient to 
establish she has received recognition for her achievements and significant contributions to the 
industry or field. Matter ofChawathe, 25 I&N Dec. 369, 375-76. 
In addition to the letters, the Petitioner submitted documents to show that while working at the 
company, I l she won the following awards: the team award for best industry innovative 
marketin~ (2015); the team I I Award (2016); the individual Silver Award (2016); and the 
lteam award for Best Effect Marketing Innovation (201 7). We have carefully considered this 
evidence; however, it lacks probative value for several reasons. Importantly, the Petitioner has not 
sufficiently established that she was the actual recipient of any of the awards. For instance, rather than 
submitting clear copies of the actual award, she provided distant photographs of herself ( and others) 
holding an award with what appears to be self-provided descriptions. In addition, although she 
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provided an accompanying printout that purports to be from I I website regarding the 2016 
Silver Award, the information states thatl l"won the 'Silver Award in the Network Category,"' 
for "the case of j ISuperb Precision Digital Marketing,"' with no mention of the Petitioner in the 
body of the article. While we acknowledge the grainy photograph of the group of five people, with 
four of them holding an award, the accompanying caption, which states that the Petitioner "won the 
'Silver A ward at the Network Category,"' appears to contradict the information from I I 
website. 4 Similarly, the information regarding thel Iawards indicates that '1 Iwon the 
Bronze Award for Best -Effective Marketing Innovation Award with the promotion case ofl I I lnew car launch," while the caption for the photograph states that "the team led by [the 
Petitioner] helped! lwin the best effect marketing [i]innovation award of meihua.com." In other 
words, the awards appear to have been given tol land do not single her out for recognition of 
achievement and significant contributions to her field or industry. The Petitioner must resolve such 
ambiguities and contradictions in the record with independent, objective evidence pointing to where 
the truth lies. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, the Petitioner did not provide evidence from the issuing entity or independent news coverage 
to demonstrate the basis for the granting of the awards. Matter of Chawathe, 25 I&N Dec. 369, 375-
76. Without more, we cannot conclude that the Petitioner has established her (as opposed to her 
employer's) receipt of the claimed awards or, more importantly, that they are evidence ofrecognition 
of her achievements and significant contributions to the field or industry as required by the plain 
language of this criterion. Id. 
Because the Petitioner has not established that she meets three of the evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii), we need not conduct a final merits determination. Nevertheless, we advise 
that we have reviewed the record in the aggregate, and it does not support a finding that the Petitioner 
has established that she possesses a degree of expertise significantly above that ordinarily encountered 
in her field. 
III. CONCLUSION 
As the record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability, we decline to reach and hereby reserve the Petitioner's arguments 
regarding her eligibility under the Dhanasar analysis. 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 ofL-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). 
ORDER: The appeal is dismissed. 
4 Further, given the information from website that the "Silver Award" was given in recognition of the 
case, we are also unable to determine if the claimed 2016 "team~Award" is a different award. 
I I c=J 
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