dismissed EB-2 NIW Case: Business / Medical Device Sales

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 21, 2023 In Re: 28446324 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a general and operations manager and entrepreneur, 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. § 1 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 Petitioner did not 
establish that he qualifies as an individual of exceptional ability or that he merited a national interest 
waiver as a matter of discretion. 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. 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). 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). However, meeting the minimum requirements by providing at least three types of 
initial evidence does not, in itself, establish that the individual meets the requirements for exceptional 
ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. In the 
second part of the analysis, officers should evaluate the evidence together when considering the 
petition in its entirety for the final merits determination. Id. The officer must determine whether the 
petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. Id. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884,889 (AAO 2016) provides 
that USCIS may, as matter of discretion, 1 grant a national interest waiver if the petitioner shows: 
• 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 a preliminary matter, the Petitioner alleges through counsel on appeal 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." Except where a different standard is specified by law, the 
"preponderance of the evidence" is the standard of proof governing immigration benefit requests. See 
Matter ofChawathe, 25 I&N Dec. at 375; see also Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 
1997); Matter ofSao Hoo, 11 I&N Dec. 151, 152 (BIA 1965). Accordingly, the "preponderance of 
the evidence" is the standard of proof governing national interest waiver petitions. See generally l 
USCIS Policy Manual, supra, at E.4(B). While counsel contends on appeal that the Petitioner has 
provided evidence sufficient to demonstrate his eligibility for the EB-2 classification and a national 
interest waiver, counsel does not further explain or identify any specific instance in which the Director 
applied a standard of proof other than the preponderance of evidence in denying the petition. 
A. Exceptional Ability 
The Director concluded that the record does not satisfy at least three of the six exceptional ability 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). More specifically, the Director found that the Petitioner fulfilled 
only the experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), and we agree with that determination. 
On appeal, the Petitioner asserts that the Director's decision was erroneous, and maintains that he also 
meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F) pertaining to membership in professional 
associations and recognition for achievements and significant contributions. The Petitioner does not 
reference on appeal any of the other criteria at 8 C.F.R. § 204.5(k)(3)(ii), nor does he assert that the 
standards at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply in this matter. See 8 C.F.R. 
§ 204.5(k)(3)(iii). 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." In support of this criterion, the Petitioner provided a certificate evidencing his 
membership in the North American Spine Society (NASS) through December 31, 2021. In 
1 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). 
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determining that the Petitioner's evidence did not satisfy this criterion, the Director noted that 
Petitioner had not provided documentation to demonstrate that he maintained his membership from 
the time of filing and continuing through the petition's adjudication. 
On appeal, the Petitioner asserts that the Director "failed to consider and weigh the totality of the 
evidence presented, including strong evidence certifying the [P]etitioner's current membership as can 
be seen in TAB 6.1 of the [request for evidence (RFE)] Binder." Upon review, however, the 
documentation referred to in the RFE response is the same membership certificate referenced above, 
which expired on December 31, 2021. On appeal, the Petitioner provides no new evidence 
demonstrating that he maintained his membership from the time of filing through adjudication of the 
petition in March 2023. An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
Moreover, while not raised by the Director, the limited evidence presented is not sufficient to 
demonstrate that NASS 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. 2 The evidence includes a Wikipedia entry regarding NASS, which states that 
it is a medical society for healthcare professionals but provides no information about the association's 
membership requirements. Moreover, we note that Wikipedia is an online open-source collaborative 
encyclopedia that explicitly states it cannot guarantee the validity of its content.3 The evidence 
submitted does not establish the criteria or requirements for membership in NASS. Finally, although 
he states his intent to engage in the sale and marketing of medical devices, the Petitioner does not 
indicate that he intends to work as a healthcare professional in the United States, so it is unclear how 
this claimed membership is relevant to the proposed endeavor. 
For the reasons discussed, the Petitioner has not established that he meets this criterion. 
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." Although the Petitioner describes himself as "an [e]ntrepreneur in the field 
of sales and marketing with exceptional ability," the record does not elaborate on what the Petitioner 
may be exceptionally able to do or, as specifically contemplated by 8 C.F.R. § 204.5(k)(3)(ii)(F), the 
industry or field in which the Petitioner is exceptionally able to do so. 
The Director acknowledged that the record contains numerous letters of recommendation; however, 
the Director found that while the letters "[praise] the [P]etitioner for doing the job for which he was 
hired" and that his work probably increased the authors' sales and revenues, they were not sufficient 
to show recognition of significant contributions within a profession or business organization as 
opposed to individual employers. The Director further noted that many of the initial letters submitted 
were from friends and business partners, and thereby were insufficient to demonstrate that the 
2 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." 
3 See General Disclaimer, Wikipedia, https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (last visited Sep. 21, 
2023); see also Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008). 
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Petitioner had been recognized by peers, governmental ent1t1es, or professional or business 
organizations for achievements and significant contributions to the industry or field. On appeal, the 
Petitioner asserts that the Director failed to properly evaluate the evidence presented and contends that 
the Director applied a heightened standard by declining to afford weight to the letters of support 
because they were not from independent sources. Upon review, we concur with the Director's 
determination. 
The letters of recommendation do not satisfy the requirements at 8 C.F.R. § 204.5(k)(3)(ii)(F). We 
first note that none of the letters are from governmental entities, or professional or business 
organizations; rather, they are from individuals writing in their individual capacity. Although the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) contemplates individuals writing in their individual capacity, 
it does so in the context of "peers" as noted by the Director. Here, most of the writers are former 
clients or business associates of the Petitioner, not his peers. We further note that many of the letters 
ofrecommendation discuss projects that benefitted the Petitioner's clients and their individual project 
requirements, and are not "[ e ]vidence of recognition for achievements and significant contributions to 
the industry or field," as required by the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) (emphasis added).4 
Moreover, while some of the letters discuss the Petitioner's academic credentials, professional skills, 
and job experience, this evidence does not show that his work has been recognized beyond his clients 
and their specific projects at a level indicative of "achievements and significant contributions to the 
industry or field." We therefore agree with the Director that the Petitioner has not established that he 
fulfills the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
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. The Petitioner, therefore, is not eligible for classification as an 
individual of exceptional ability in the sciences, art, or business . 
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. The Director determined that although the 
Petitioner's proposed endeavor has substantial merit, the record did not establish that the Petitioner's 
proposed endeavor has national importance, that he is well positioned to advance his endeavor, or that 
it would be beneficial to the United States to waive the requirements of a job offer and, thus, of a labor 
certification. As the Petitioner has not established the threshold requirement of eligibility for the EB-2 
classification, further analysis of his eligibility for a national interest waiver under the Dhanasar 
framework is unnecessary. 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding his eligibility for a discretionary waiver 
under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the 
4 Although we do not individually address every letter of recommendation in the record, we have reviewed the record in 
its entirety. 
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ultimate decision); 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 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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