dismissed EB-2 NIW Case: Cargo Transportation & Logistics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 16, 2024 In Re: 29243227 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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. § 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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record does not 
establish the Petitioner qualifies for classification as an individual of exceptional ability. The Director 
further concluded that the Petitioner had not established 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. 
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 a member of the professions holding an advanced 
degree or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2) of 
the Act. For the purpose of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional 
ability" is defined as "a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at 
least three of which must be satisfied, for an individual to establish exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii) for an elaboration of these criteria. Meeting at least three criteria, however, does not, 
in and of itself, establish eligibility for this classification. 1 We then conduct a final merits 
1 USCIS bas previously con finned tbe applicability of this two-part adjudicative approach in the context of individuals of 
determination to decide whether the evidence in its totality shows that the individual is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. See 8 C.F.R. 
§ 204.5(k)(2). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "If the above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." 
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 USCIS may, as 
matter of discretion, 2 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 
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, although the Petitioner asserted that he 
satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C)-(F), the Director found that the record 
satisfies only the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). On appeal, the Petitioner reasserts that he 
satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C)-(F), in addition to the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). The Petitioner does not assert on appeal that the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii) do not readily apply to the occupation, as contemplated by 8 C.F.R. § 204.5(k)(3)(iii). 
A. A License to Practice the Profession or Certification for a Particular Profession or Occupation 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." The Director acknowledged that the Petitioner 
submitted a copy of a temporary commercial driver's license (CDL) issued to the Petitioner by the 
State of Florida; however, the Director noted that the CDL is dated November 2022, after the date the 
Petitioner filed the Form I-140, Immigrant Petition for Alien Workers. The Director concluded that 
exceptional ability. See general~v 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
2 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). 
2 
the CDL dated after the Form 1-140 filing date cannot establish eligibility, citing Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971); 8 C.F.R. § 103.2(b)(l), (12). On appeal, the Petitioner 
reasserts that he holds a CDL, that the CDL "is an integral part of his occupation," and that the CDL 
satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter ofKatigbak, 14 I&N Dec. at 
49. A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). 
The Petitioner filed the Form 1-140 in August 2021. The Petitioner described the proposed endeavor, 
at the time of filing, as a plan to "seek employment as an independent business owner in the field of 
cargo transportation & logistics." The record contains a copy of a temporary CDL, issued to the 
Petitioner by the State of Florida, in November 2022, after the petition filing date. Although we take 
administrative notice that a CDL is required to operate certain vehicles, the record does not establish 
how a CDL, temporary or otherwise, is required to work "as an independent business owner in the 
field of cargo transportation & logistics," which is distinguishable from working as the operator of a 
vehicle that requires a CDL. Therefore, the record does not establish how a CDL-even if it were 
valid at the time of filing-could satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). However, even 
to the extent that a CDL could satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), in this case the 
CDL dated November 2022 could not establish eligibility because it is dated after the Form 1-140 
filing date. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 
22 I&N Dec. at 176. In summation, the record does not satisfy the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). 
B. Salary or Other Remuneration for Services, Which Demonstrates Exceptional Ability 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]vidence that the [noncitizen] has 
commanded a salary, or other renumeration [sic] for services, which demonstrates exceptional ability." 
The Director acknowledged that the record contains copies of IRS Form 1120, U.S. Corporation 
Income Tax Return, for the Petitioner's company, dated March 2023, New York State Department of 
Taxation and Finance Form CT-3, General Business Corporation Franchise Tax Return, for the 
Petitioner's company, also dated March 14, 2023, and related documents. The documents relate to 
income and other business activities during the 2022 calendar year. However, the Director again noted 
that the documents are dated after the Form 1-140 filing date and, thus, cannot establish eligibility, 
again citing Matter of Katigbak, 14 I&N Dec. at 49; 8 C.F.R. § 103.2(b)(l), (12). On appeal, the 
Petitioner generally reasserts, "Based on the documentation in the record, the Beneficiary clearly 
established that this criterion has been met, and USCIS erred in finding otherwise." 
The Petitioner does not identify on appeal any particular documentation in the record of a fact that 
existed at the time of the Form 1-140 filing date that may establish the Petitioner's salary or other 
remuneration for services, demonstrating any particular level of ability. As the Director explained, 
the financial documents dated 2023, for income and other business activities during the 2022 calendar 
year, cannot establish eligibility at the time of the Form 1-140 filing date. See id; see also Matter of 
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Izummi, 22 I&N Dec. at 176. We have reviewed the record in its entirety; however, it does not 
establish how the Petitioner may have had a salary or other remuneration for services that demonstrates 
exceptional ability at the time he filed the Form 1-140; therefore, it does not satisfy the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(D). 
C. Membership in Professional Associations 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." The Director acknowledged that the record contains a copy of a receipt for a "free trial 
membership to thel I [ dated] February 11, 2023," which is after the 
Form 1-140 filing date. The Director again concluded that the Petitioner's free trial membership to 
the I I, dated February 2023, cannot establish eligibility because it is 
not evidence of a fact that existed at the time the Petitioner filed the Form 1-140 in 2021, again citing 
Matter of Katigbak, 14 I&N Dec. at 49; 8 C.F.R. § 103.2(b)(l), (12). On appeal, the Petitioner 
reiterates that he "is a member of the.______________ _.' and that, "[b ]ased on the 
documentation in the record, the [Petitioner] clearly established that this criterion has been met, and 
USCIS erred in finding otherwise." 
The Petitioner does not identify on appeal any particular documentation in the record of a fact that 
existed at the time of the Form 1-140 filing date that may establish he was a member of a professional 
association at the time he filed the Form 1-140. As the Director explained, evidence of the Petitioner's 
free trial membership in the.______________ ___. dated February 2023, cannot 
establish eligibility at the time of the Form 1-140 filing date. See id; see also Matter ofIzwnmi, 22 I&N 
Dec. at 176. We have reviewed the record in its entirety; however, it does not establish that the 
Petitioner was a member of a professional association at the time he filed the Form 1-140; therefore, it 
does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
D. Achievements and Significant Contributions to the Industry or Field by Peers, Governmental 
Entities, or Professional or Business Organizations 
Because the record would not establish that the Petitioner satisfied at least three of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii) even if it satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), we need not 
address it in detail. Therefore, we reserve our opinion regarding the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 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 ultimate decision); 
see also Matter ofL-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). Furthermore, we reserve our opinion regarding 
the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). See id. 
In summation, the Petitioner has not established that the record satisfies at least three of the exceptional 
ability criteria. The record also does not establish, in the alternative, that the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii) do not readily apply to the occupation and that comparable evidence establishes 
exceptional ability. Therefore, we need not determine whether the record establishes the Petitioner is 
recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 
See 8 C.F.R. § 204.5(k)(2). We note, however, that ifwe were to conduct a final merits determination 
of the record, it would not support the conclusion that the Petitioner has a degree of expertise 
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significantly above that ordinarily encountered in the field. See id. Furthermore, because the record 
does not establish that the Petitioner satisfies at least three of the exceptional ability criteria, it does 
not establish that he qualifies for second-preference classification as an individual of exceptional 
ability. See section 203(b )(2)(A) of the Act. Because that issue is dispositive, we reserve our opinion 
regarding whether the record satisfies the Dhanasar criteria for national interest waiver eligibility. See 
INS v. Bagamasbad, 429 U.S. at 25; see also Matter of L-A-C-, 26 I&N Dec. at 526 n.7; Matter of 
Dhanasar, 26 I&N Dec. at 889-90. 
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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