dismissed EB-2 NIW Case: Computer Aided Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 11, 2024 In Re: 31300642 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is an entrepreneur working whose work includes computer aided design interests and 
he seeks employment-based second preference (EB-2) immigrant classification as an individual of 
exceptional ability, as well as a national interest waiver (NIW) 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 Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding that the record did not establish that the Petitioner qualified for the underlying 
visa classification, nor did he merit a discretionary waiver of the job offer requirement in the national 
interest. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (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 establish eligibility for an NIW, 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 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. 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. USCIS has previously confirmed the applicability of this two-part adjudicative approach in 
the context of individuals of exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual. 
Once a petitioner demonstrates eligibility for the 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 NIW petitions. Dhanasar states that USCIS may, as matter of discretion, 
grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
After reviewing the entire record, we adopt and affirm the Director's ultimate determination with the 
added comments below. See Matter a/Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also 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"); Edwards 
v. US. Att'y Gen., 97 F.4th 725, 734 (11th Cir. 2024) (joining every other U.S. Circuit Court of Appeals 
in holding that appellate adjudicators may adopt and affirm the decision below as long as they give 
"individualized consideration" to the case). 
Additionally, regarding the Petitioner's EB-2 eligibility, the Director determined he satisfied three of 
the criteria, then they performed a final merits determination evaluating the totality of the evidence to 
decide whether he has "a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business." 8 C.F.R. § 204.5(k)(2). But on appeal, the Petitioner only contests the 
Director's findings under one of the subordinate criteria; the recognition for achievements and 
significant contributions to the industry or field at 8 C.F.R. § 204.5(k)(3)(ii)(F). Because the Petitioner 
made no effort to contest the Director's actual reasoning for determining he did not demonstrate 
eligibility as an individual of exceptional ability (i.e., the final merits determination), he has abandoned 
that claim on appeal. Matter ofF-C-S-, 28 I&N Dec. 788, 789 n.3, 791 n.6 (BIA 2024) (finding issues 
not challenged on appeal are abandoned or waived). 
That failing proves fatal to the Petitioner's eligibility for the NIW petition because he must first 
demonstrate eligibility for the EB-2 classification before moving to the NIW portions of his claims. 
A lack of a showing under the EB-2 requirements is dispositive of the appeal and we are not required 
to evaluate other claims as their resolution would have no effect on the overall case outcome. Matter 
of Chen, 28 I&N Dec. 676, 677 n.1, 678 (BIA 2023) (finding where an appeal is resolved on other 
dispositive issues, the appellate body is not required to decide other eligibility claims). 
ORDER: The appeal is dismissed. 
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