dismissed EB-2 NIW Case: Cargo Transportation And Logistics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 13, 2024 In Re: 33565365 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of cargo transportation and logistics, 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 Nebraska Service Center denied the petition, concluding the record did not 
establish the Petitioner was an individual of exceptional ability and 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. 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) 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 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
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 U.S. Citizenship and Immigration Services (USCIS) has previously confirmed the applicability of this two-part 
adjudicative approach in the context of individuals of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manu al/volume-6-part-f-chapter-5 . 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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, 3 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. 
Id. 
In denying the petition, the Director determined the Petitioner met two of the six categories of evidence 
at 8 C.F.R. § 204.5(k)(3)(ii): official academic record in the specialty at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
and membership in professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E). For the reasons below, 
however, we must withdraw the Director's determination regarding the membership criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner provided evidence to establish his membership in the American Management 
Association (AMA), along with a printout of AMA's website describing the organization, but he has 
not provided information regarding the qualifications for membership in this organization. 
"Profession" is defined as 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 into the occupation. 4 8 C.F.R. § 204.5(k)(3). Absent evidence which establishes 
that the AMA qualifies as a professional association, we cannot conclude the Petitioner meets this 
criterion and withdraw the Director's determination to the contrary. 
On appeal, the Petitioner asserts that he also meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 5 
3 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 is discretionary 
in nature). 
4 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
5 The Petitioner does not contest the Director's findings regarding the three remaining criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), (D), & (F). We consider the Petitioner's prior eligibility claims not raised or contested on appeal to 
be abandoned. An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 T&N Dec. 330, 336 n.5 (BIA 2021) 
( citing Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)). As such, we will not address these criteria here. 
Similarly, the Petitioner does not contest the Director's dete1mination that he had not established that he is a member of 
the professions holding an advanced degree. As the Petitioner has not claimed to be an advanced degree professional and 
did not address this issue on appeal, we also deem the issue waived and will not address it further. Id. 
2 
A license to practice the profession or certification for a particular profession or occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner submitted a copy of his New York State Commercial Leamer Permit ( CLP), valid from 
April 2023 to April 2024, in support of this criterion. However, and as explained by the Director in 
their decision, the Petitioner must establish eligibility at the time of filing. Therefore, we will not 
consider the CLP here. 6 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 
1971). Further, we note that the Petitioner has not demonstrated that his CLP is a license to practice 
a profession, as defined by 8 C.F.R. § 204.5(k)(3). For these reasons, the record does not establish that 
the Petitioner satisfies this criterion. 
Because the Petitioner has only met one of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), he 
cannot fulfill the initial evidentiary requirement of three criteria. Thus, 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 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 of L-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. 
6 The Petitioner filed the petition on November 29, 2022. 
3