dismissed EB-2 NIW Case: Business Management And Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 9, 2024 In Re: 30814992 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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 EB-2 classification. 1 See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability. 2 The matter is now before us on appeal. 
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 
"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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 3 If a petitioner does so, we will then conduct a final merits detennination to decide 
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. 
1 The Petitioner does not claim eligibility as a member of the professions holding an advanced degree. 
2 The Director did not render a determination as to whether the Petitioner had established that a waiver of the required job 
offer, and thus of the labor certification , would be in the national interest. 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in determining eligibility for 
exceptional ability classification . 6 USCIS Policy Manual F.5(B)(2), https://www.uscis .gov/policy-manual /volume-6-
part-f-chapter-5. 
If a petitioner demonstrates eligibility for the underlying EB-2 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. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,4 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 
A Exceptional Ability 
To qualify for the exceptional ability 
classification, an individual must substantially benefit prospectively 
the national economy, cultural or educational interests, or welfare of the United States because of their 
exceptional ability. See Section 203(b)(2)(A) of the Act. The plain language of the regulatory criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) requires evidence, among other things, of academic records ... relating 
to the area of exceptional ability (A), work experience in the occupation for which he or she is being 
sought (B), and a license to practice for a particular profession or occupation (C). The initial notice 
seeking to implement these regulations, Employment-Based Immigrants, 56 Fed. Reg. 30714, (Jul. 5, 
1991 ), advised "[ t ]he showing of prospective benefit to the United States is inherent in meeting these 
criteria," but if individuals are to perform services unrelated to their claimed area of expertise in the NIW 
petition, the statutorily mandated substantial benefit would not prospectively accrue to the nation by virtue 
of their exceptional ability. Accordingly, it is the Petitioner's burden to show that their occupation or 
endeavor being pursued in the United States is related to the field of expertise that is the basis of their 
claimed area of exceptional ability. 5 
In Part 6 of the Form 1-140, under "Basic Information About the Proposed Employment," the Petitioner 
listed his "Job Title" as "Chief Executive."6 His cover letter accompanying the petition asserted that he 
is a "manager and entrepreneur with 20 years of progressive experience in the field of business 
administrative and financial management." The Petitioner further stated that his proposed endeavor is 
"to act as an entrepreneur in the business sector, establishing his own company 
1 Ithat will provide service of housekeeping assistance to individuals and businesses with 
specific characteristics and needs, such as older adults, commercial rental properties that require quick 
and efficient housekeeping and individual service for adults with disabilities. The record includes a 
4 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 USCTS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
5 An individual whose endeavor is not directly related to their claimed areas of expe1iise ability would generally not qualify 
for the exceptional ability category. USCTS determines the relationship of the exceptional ability to the endeavor on a 
case-by-case basis and it is the petitioner's burden to demonstrate the relationship. 
6 Likewise, in box 9 of the Petitioner's accompanying Form ETA-750B, Statement of Qualifications of Alien, he listed the 
"Occupation in which Alien is Seeking Work" as ·'Chief Executive." 
2 
detailed business plan discussing the Petitioner's proposed endeavor to operate his cleaning services 
company in California. 
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the membership criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). In the appeal brief, the 
Petitioner maintains that he also meets the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
the ten years of full-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the salary criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(D), and the recognition for achievements and significant contributions 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we conclude that the record 
does not support a finding that the Petitioner satisfies the requirements of 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 Petitioner submitted his "Technology in Data Processing" diploma and academic transcript from 
__________ Based on a review of the coursework, we agree with the Director that this 
diploma does not relate to the Petitioner's area of exceptional ability in entrepreneurship and 
management. While the Petitioner provided an "Expert Opinion Letter" from Dr. H-D-P- asserting that 
the Petitioner's academic subjects included "courses that provided a foundation ofknowledge which lends 
itself towards business and entrepreneurship, including: Systems Analysis and Design, Entrepreneurship, 
Statistics and Financial Mathematics," the aforementioned courses represented only a small fraction of 
the Petitioner's "Technology in Data Processing" curriculum. Because the Petitioner's coursework 
consisted mainly of academic subjects relating to data processing, programming languages, and other 
data technologies, we are not persuaded by the advisory evaluation's claim that the Petitioner's diploma 
is indicative of exceptional ability in management and entrepreneurship. 
In addition, the Petitioner presented certificate(s) of completion for individual courses in "Software 
Development" and "Python" from I I as well as "Programming in 
Neurolinguistics" from the ____________ but he has not demonstrated that these 
certificates relate to his area of exceptional ability in management and entrepreneurship. Nor has the 
Petitioner shown that his certificate from is an official academic record and that is a college, 
university, school, or other institution of learning as required by this criterion. While the Petitioner 
also provided certificate(s) of completion for individual courses in "Commodities" and "Professional 
Fixed Income" from I he has not demonstrated that his certificates are official 
academic records and that ______ is a college, university, school, or other institution of 
learning. Accordingly, the Petitioner has not established that he meets this criterion. 
Evidence in the form ofletter(s)from current or former 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). 
Based on the specific information the Petitioner provided in his Form I-140, Form ETA-750B, November 
2022 cover letter, and detailed business plan, the "occupation" sought in this matter is chief 
executive/manager/entrepreneur. As evidence for this criterion, the Petitioner provided a declaration 
3 
from his accountant stating that the Petitioner "has been a self-em loyed service provider, which 
basically consists of providing courses in the company in the eriod from June 2019 to 
date." 7 In addition, the Petitioner submitted a declaration from _____ _.indicating that the 
Petitioner was employed as a manager "from March 2013 to June 2020" and that he was responsible 
"for managing the entire team of operators, as well as sales proceeds." He also submitted a company 
formation document relating to his establishment ofl Iin March 2012. 
The Director issued a request for evidence (RFE) informing the Petitioner that the aforementioned 
documents "do not list whether the employment was full-time or part-time, nor do they describe any 
skills gained by the [Petitioner]. The submitted evidence does not support that the [Petitioner] has at 
least ten (10) years of full-time experience in the occupation." 8 Despite the opportunity to provide 
additional documentation relating to the Petitioner's full-time experience, no new evidence for this 
criterion was submitted in response to the RFE. Instead, the Petitioner resubmitted the aforementioned 
declarations and company formation document, stating: 
It is important to note that the declarations provided emphasize [the Petitioner's] role 
as a self-employed entrepreneur at the different business endeavors for which each 
declaration has been provided. Being an entrepreneur inherently involves full-time 
dedication and often extends well beyond the constraints of traditional employment 
timelines. While the declarations may not outline exact dates or employment hours, it 
is important to consider that entrepreneurship is a holistic endeavor that demands 
unwavering commitment. 
The Director determined that the Petitioner had not demonstrated at least ten years of full-time 
experience in the occupation sought. The Petitioner contends on appeal that the Director overlooked 
the above statement he offered in response to the RFE, but these arguments do not overcome the 
deficiencies in the documentation submitted for this criterion. The Petitioner has not offered further 
evidence to corroborate the assertions that he has at least ten years of full-time experience in the 
occupation sought. Unsupported assertions have no evidentiary value and are insufficient to establish 
a filing party has satisfied their burden of proof. See Matter of Mariscal-Hernandez, 28 I&N Dec. 
666, 673 (BIA 2022). Without adequate corroborating evidence showing that the Petitioner has at 
least ten years of full-time experience in the occupation sought, he has not established that he satisfies 
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). 
The Petitioner submitted declarations from his accountant listing his "average monthly income" for 
2019 - 2022 as well as his "average monthly income" from August 2021 until July 2022. The 
declarations stated that his monthly earnings derived from employment as "Professor of Courses for 
Operating in the Financial Market and Stock Exchange Broker." In response to the Director's RFE, 
7 The declaration is dated September 9, 2022. 
8 The regulation at 8 C.F.R. § 204.S(g) provides, in pertinent part: "Evidence relating to qualifying experience or training 
shall be in the form of letter(s) from current or former employer( s) or trainer(s) and shall include the name. address. and 
title of the writer, and a specific description of the duties performed by the alien or of the training received. If such evidence 
is unavailable. other documentation relating to the alien's experience or training will be considered." 
4 
the Petitioner provided salary information for "Assistant Professors" m Brazil and the general 
population of "people working in Brazil." 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their exceptional ability relative to others in their 
occupation. Here, the Petitioner has not presented documentation showing that his earnings are 
indicative of exceptional ability relative to other Brazilian business managers or Chief Executives. 9 
Instead, he submitted information relating to the salaries of "Assistant Professors" and the general 
population of "people working in Brazil." The Petitioner has not demonstrated that the compensation 
data he presented offer an appropriate basis for comparison. 10 The Director concluded that the 
Petitioner's evidence was insufficient to demonstrate that he has commanded a salary, or other 
remuneration for services, which demonstrates exceptional ability. Based on the foregoing, we agree 
with the Director that the Petitioner has not demonstrated he meets this regulatory criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner provided a declaration from the Association of Independent Professionals in Brazil 
stating that he "has been regularly associated ... as an Effective Member." The record, however, does 
not include information about this organization. The evidence is not sufficient to demonstrate that it 
has a membership body comprised of individuals who have earned a U.S. baccalaureate degree or its 
foreign equivalent, or that the organization otherwise constitutes a professional association. 11 
Accordingly, we withdraw the Director's determination that the Petitioner meets 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's decision adequately addressed the letters of support and other evidence submitted for 
this criterion. Based on a de novo review, we will adopt and affirm the Director's determination that 
the Petitioner has not established he meets this criterion. See Matter ofBurbano, 20 I&N Dec. 872, 
874 (BIA 1994); see also Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996) (joining "every 
court of appeals that has considered this issue" holding that an appellate body may affirm the lower 
court's decision for the reasons set forth therein); Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) 
(noting the practice of adopting and affirming the decision below has been "universally accepted by 
every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F3d. 5, 8 (1st Cir. 1996) 
(joining eight U.S. Courts of Appeals in holding that appellate adjudicators may adopt and affirm the 
decision below as long as they give "individualized consideration" to the case). Here, the Director's 
decision gave individualized consideration of the evidence the Petitioner submitted and correctly 
concluded that it did not satisfy the requirements set forth at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
9 As discussed, in Part 6 of the Form T-140, under "Basic Information About the Proposed Employment," the Petitioner 
identified his "Job Title" as "Chief Executive." 
10 Even if we agreed that the Petitioner's earnings as a "Professor" were relevant to his exceptional ability, he provided 
compensation data for an "Assistant Professor" instead of a "Professor." The declarations from his accountant specifically 
state that he was a "Professor." 
11 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 101(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 in the occupation." 
5 
For the reasons set forth above, the Petitioner has not shown that he meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. 12 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner has not shown that he is an advanced degree professional or that 
he has satisfied the regulatory criteria and achieved the level of expertise required for exceptional 
ability classification. Accordingly, the Petitioner has not established eligibility for the underlying EB-2 
immigrant classification. Since this issue is dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve the appellate arguments regarding his eligibility for a national interest waiver under 
the Dhanasar analytical framework. 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). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 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. 
12 Because the Petitioner did not meet at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii), it was unnecessary for the Director 
to conduct a final merits determination to decide whether the evidence in its totality shows that he is recognized as having 
"a degree of expe1iise significantly above that ordinarily encountered" in the field. See 8 C.F.R. § 204.5(k)(2). 
6