dismissed EB-2 NIW Case: Capoeira

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 30, 2024 In Re: 31110377 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a chief executive officer and coach, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(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. See 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(joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in 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 USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner qualified for classification as an individual of exceptional ability and a discretionary 
waiver of the job offer requirement, and thus a labor certification, was not merited upon application 
of the analytical framework we first explicated in Matter ofDhanasar, 26 I&N Dec. 884 (AA)O 2016). 
The matter is now before us on appeal pursuant to 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 l&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 petition 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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-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 alien has commanded a salary, or other remuneration 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. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. We 
will then conduct a final merits determination 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. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. 
Whilst 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, see supra. Dhanasar states that USCIS may as a matter of discretion grant a national interest 
waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-2 category 
if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national 
importance, (2) the noncitizen 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. 
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II. ANALYSIS 
The Petitioner is a chief executive officer and coach seeking to demonstrate eligibility in the EB-2 
classification based on their exceptional ability. A petitioner must demonstrate expertise significantly 
above that ordinarily encountered to show that they are of exceptional ability. In support the Petitioner 
submitted several certificates attesting to their participation and training in events, seminars, courses and 
training programs in capoeira, a Brazilian marital art that combines elements of dance, fighting, 
acrobatics, and music. They also submitted letters purporting to demonstrate more than 10 years of full­
time work experience teaching capoeira, evidence of membership in a regional capoeira association, and 
documents seeking to demonstrate the Petitioner's recognition for achievements and significant 
contributions to their field. 
We agree with the Director's ultimate decision that the Petitioner is not of exceptional ability and therefore 
categorically ineligible for the EB-2 classification. The Director concluded that the Petitioner met two of 
the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii). Specifically, the Director concluded that the 
Petitioner demonstrated they met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F) but did 
not meet the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C) or (D). 1 Upon de novo review, 
we conclude that the Petitioner has not demonstrated that they met any of the six criteria contained at 8 
C.F.R. § 204.5(k)(3)(ii) for the reasons set forth below. 
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). 
We conclude the Petitioner has not met this criterion. The Petitioner initially provided 22 certificates 
issued by 
The 22 certificates evidenced 
completion of courses, participation in festivals and workshops, or internships. The 
evidence did not adequately establish how the certificates the Petitioner submitted were on level terms 
with degrees, diplomas, certificates or similar awards from a college, university, school, or other 
institution of learning. Nor did the evidence the Petitioner initially submitted consist of sufficient 
material, relevant, or probative evidence to demonstrate that the certificate issuing entities were 
colleges, universities, schools, or other institutions of learning relating to their area of exceptional 
ability. 
In response to the Director's request for evidence (RFE), the Petitioner submitted four certificates 
issued by purporting to represent the Petitioner's progression in the art of capoeira 
and permission to teach capoeira classes. But the four certificates the Petitioner submitted did not 
materially, relevantly, or probatively demonstrate that ______ was a college, university, 
school, or other institution of learning relating to the area of exceptional ability. 
1 The Petitioner conceded in response to the Director's RFE that "[t]here is no formal or legally regulated license or 
certification in Brazil that is required to practice [ c ]apoeira." So, the Petitioner did not demonstrate exceptional ability 
under 8 C.F.R. § 204.5(k)(3)(ii)(C). And the Petitioner did not submit evidence to establish they have commanded a salary, 
or other remuneration for services, to demonstrate exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii)(D). 
3 
On appeal, the Petitioner asserts that I I is a school. In support, the Petitioner re-
submitted three letters from that 
also accompanied the Petitioner's response to the RFE. But the letters only attest to the Petitioner's 
employment and business activities as an instructor and teacher. They do not adequately establish in a 
material, relevant, or probative manner that is a college, university, school, or other 
institution of learning relating to the area of exceptional ability. 
So, as we are unable to evaluate whether the certificates issued by lor any of the other 
entities that issued certificates to the Petitioner are issued by a college, university, school, or other 
institution of learning relating to the area of exceptional ability, we conclude the Petitioner has not met 
the requirements of this criterion. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
noncitizen has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
We conclude the Petitioner has not met this criterion. The Petitioner initially submitted four 
declaration format letters from a a representative of 
and a representative of 
The letter from __________ __,states the Petitioner worked for "more than 10 (ten) 
years" as a capoeira teacher. The letter does not specify the month, day, and year of the start and end 
dates of employment. Nor does it specify if the Petitioner worked full-time. Moreover, the letter does 
not sufficiently describe the duties the Petitioner carried out in their capoeira teacher position. So, we 
are unable to determine whether the Petitioner's employment for "more than 10 (ten) years" is in the 
chief executive officer and coach position they intend to undertake in their proposed endeavor. 
The letter from the representative of states the Petitioner has been 
teaching "Capoeira classes and Afro Brazilian culture" since March 2015. This is a period less than 
10 years from the present time as well as from the date the petition was filed. The letter also does not 
specify if the employment was full-time or part-time. Moreover, the letter does not contain a 
description of the duties the Petitioner performed teaching "Capoeira classes and Afro Brazilian 
culture" for us to determine if this is a similar occupation to the chief executive officer and coach 
position they intend to undertake in their proposed endeavor. 
The letter from verified that the Petitioner taught in their establishment, Red Tiger 
Taekwondo. The letter did not contain a description of their duties as a teacher in the establishment 
such that we could evaluate whether the duties the Petitioner carried out were in the chief executive 
officer and coach position they intend to undertake in their proposed endeavor. This is an especially 
notable omission considering the fact the business where the Petitioner was ostensibly employed is a 
taekwondo studio or focuses on a discipline other than the capoeira discipline the Petitioner is 
dedicated to. And the letter did not specify the start and end date of employment so that we could 
evaluate the length of employment, nor did it specify if the Petitioner's employment was part-time or 
full-time. 
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I 
The letter from the representative of I I also verified the Petitioner's employment 
without specifying the start and end date or describing the duties the Petitioner performed. Moreover, 
since the letter stated the Petitioner taught classes "during the evening and nocturnal periods" it is 
unclear if the work was part-time or foll-time. 
And the letters the Petitioner submitted in response to the Director's RFE from I 
__________________ do not consist of material, relevant, or probative 
evidence for the same reasons as the letters the Petitioner initially submitted. They do not have a detailed 
job description, do not precisely set forth the period of employment, and do not specify whether the work 
performed was part-time or foll-time. 
On appeal, the Petitioner asserts that the activities they performed teaching capoeira are in the same 
occupation as the chief executive officer and coach role they intend to occupy in their proposed endeavor. 
But, as described previously, the evidence they have submitted into the record does not contain detailed 
descriptions which can serve as a point of reference to evaluate the Petitioner's assertion that their 
previous work experience is in the same occupation they intend to conduct in their proposed endeavor. 
We held in Chawathe that the standard of proof in immigration proceedings is the preponderance of 
the evidence, the burden of proof is always on the petitioner. A petitioner's burden of proof comprises 
both the initial burden of production, as well as the ultimate burden of persuasion. Matter of Y-B-, 21 
I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of production and 
the burden of persuasion). A petitioner must satisfy the burden of production. As the term suggests, 
this burden requires a filing party to produce evidence in the form of documents, testimony, etc. that 
adheres the governing statutory, regulatory, and policy provisions sufficient to have the issue decided 
on the merits. When, as here, a petitioner has not met the burden of persuasion by a preponderance of 
the evidence because their evidence is not material, relevant, or probative it follows that they have 
failed to demonstrate eligibility for the benefit that they seek. For all the foregoing reasons, we 
conclude that the Petitioner has not demonstrated that they have at least 10 years of foll-time 
experience in the occupation of financial analyst. So, the Petitioner did not and cannot satisfy the 
regulatory requirements to meet this criterion to demonstrate their exceptional ability. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
We do not agree with the Director's conclusion that the Petitioner met this criterion and hereby 
withdraw it. The Petitioner's membership in the Espirito Santo State Capoeira Federation is not 
sufficient evidence of membership in a professional association. The Espirito Santo State Capoeira 
Federation is not a professional association. It is a "cultural, sport organization and administration 
state entity. A "cultural, sport organization, and administrative state entity" is not typically an 
organization composed of professionals or those individuals who require at least a bachelor's degree 
in a field related to the specialty required for their occupation. It is generally a loose collection of 
individuals with a common cultural or sport interest. The record does not sufficiently describe the 
composition of the federation and whether it is composed of professionals. Consequently, the record 
does not convincingly describe the federation as a professional association as that term is contemplated 
in the regulations, and we conclude the Petitioner has not met this criterion. 
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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 submitted several support letters/letters of recommendation, certificates, and pictures 
to document the recognition of their achievements and significant contributions to their field. 2 
The evidence the Petitioner submits does not meet the standard of proof because it does not satisfy the 
basic standards of the regulations. See Matter of Chawathe, 25 I&N Dec. at 374 n.7. The regulation 
requires evidence of recognition of achievements and significant contributions. When read together 
with the regulatory definition of exceptional ability, the evidence of recognition of achievement or 
significant contributions should show expertise significantly above that ordinarily encountered in the 
field. 
The Petitioner's letters of recommendation contain complimentary statements about the Petitioner's 
performance of their duties that the Petitioner would like us to conclude are recognition of 
achievements and significant contributions. But these statements are not supported by any evidence 
in the record which reflects that these are noteworthy as achievements and significant contributions. 
For example, a writer emphasizes that the students the Petitioner has taught capoeira to have gone on 
to accomplishments and success themselves. But it is not evident how the accomplishments and 
success of the Petitioner's students are recognition of an achievement or significant contribution to 
their industry or field. Another writer listed social impact campaigns in which the Petitioner 
participated. But there is inadequate material, relevant, or probative evidence to describe that 
participation in social impact campaigns is a noteworthy achievement or significant contribution to 
the industry or field. Another writer speaks to the Petitioner's "adep[t] tailor[ing] [of] his instruction 
to cater to individual capabilities and needs." But it is not evident that the Petitioner's competent 
accomplishment of assigned job duties is an achievement or significant contribution above that 
ordinarily encountered demonstrating their exceptional ability. 
Whilst it can be concluded from an overall evaluation of the letters that the Petitioner submitted that 
they are a seasoned professional whose competence and reliability as an employee is valued and 
appreciated, or as a teacher is gratefully acknowledged and respected, the letters did not evidence the 
Petitioner's achievement or significant contributions and expertise significantly above that ordinarily 
encountered in the field required to demonstrate the Petitioner's exceptional ability. So, we agree with 
the Director that the Petitioner does not meet this ground of eligibility. 
III. CONCLUSION 
The Petitioner has not established eligibility in any of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). So, they cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). And we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. In addition, we 
need not reach a decision on whether, as a matter of discretion, the Petitioner is eligible for or otherwise 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
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merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reserve 
these issues. 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 alternate issues on appeal where an 
applicant is otherwise ineligible). The appeal is 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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