dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 22278500 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 1, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an individual of exceptional ability, 
as well as a national interest waiver of the job offer requirement attached to this EB-2 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 Petitioner did not 
qualify for classification as an individual of exceptional ability, nor had he established that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner asserts that he meets the requirements of the requested classification. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available .. . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating 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). If a petitioner satisfies these initial requirements, we then consider the entire record 
to determine whether the individual has a degree of expertise significantly above that ordinarily 
encountered. See Matter ofChawathe, 25 I&N Dec. at 376 (holding that the "truth is to be determined 
not by the quantity of evidence alone but by its quality"). See also Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 2010) ( discussing a two-part review where the evidence is first counted and then, if it satisfies 
the required number of criteria, considered in the context of a final merits determination). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 ( AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionmy in nature). 
2 
TI. ANALYSIS 
A. Individual of Exceptional Ability 
In denying the petition, the Director determined that the Petitioner had not met any of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) and, therefore, had not established that he was an individual of 
exceptional ability. On appeal, the Petitioner asserts that he meets the three criteria addressed below. 3 
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 of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
Upon review, the Petitioner's diploma and transcript meet the plain language of this criterion, and, 
therefore, we withdraw the Director's conclusion. However, we note that section 203(b )(2)(C) of the 
Act provides that the possession of a degree, diploma, certificate or similar award from a college, 
university, school or other institution of learning shall not by itself be considered sufficient evidence 
of exceptional ability. 
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) 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others in his 
field, which, according to the information in the record, is as a general and operations professional. 
See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f­
chapter-5. 
The record contains salary information for the occupation of "administration manager" in Brazil from 
Salario BR at http://www.salariobr.com for the period from March 17, 2019 until March 18, 2020, and 
the Petitioner's calendar year 2017 "Income Tax-Individual Annual Adjustment Return." 4 According 
to the Petitioner's resume, he was employed as a sales director from January 201 7 until December 
2017 and the tax document confirms that employment as the source of his taxable income. 
Here, the Petitioner has not established how his earnings as a sales manager are indicative of 
exceptional ability relative to others in the field of general and operations professionals. 5 Without 
additional evidence, the Petitioner has not established that he meets this criterion. 
3 As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter ofR-A-M-. 25 I&N 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, 
that issue is waived). See also Sepulveda v. US. Att 'v Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344(11thCir.1998);Hristovv. Roark, No.09-CV-27312011,2011 WL4711885at*L 
*9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
4 The Petitioner did not explain why he relied on his 2017 salary and submitted general salary information for a different 
time period. 
5 It is also unclear whether general and operations managers and administration managers are sufficiently similar 
occupations for comparison purposes. 
3 
We note that the record indicates that the Petitioner was also the CEO and a founding member of 
another company during the time he was employed as a sales manager. The Petitioner should address 
this in any future filings, as we question how he was able to perform both roles as described. A 
petitioner must resolve this inconsistency with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
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)(F). 
The Petitioner provided multiple letters of support as evidence. While the letters are complimentary 
of the Petitioner and establish that he was a valuable, successful, and experienced employee, the 
documentation does not sufficiently establish that the Petitioner's work has had an impact beyond his 
employers, clientele, and their projects at a level indicative of achievements and significant 
contributions to the industry or field. 
Further, since we have concluded that he does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), he 
cannot meet the requisite three evidentiary criteria to establish that he satisfies the initial evidentiary 
requirement for this classification 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. As the Petitioner has not met the threshold requirement for this 
classification, further analysis of his eligibility for a national interest waiver would serve no 
meaningful purpose. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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