dismissed EB-2 NIW Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re: 26375453 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 24, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and manager in the field of construction, seeks employment-based 
second preference (EB-2) immigrant classification as an individual 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. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for the underlying EB-2 classification and, therefore, the issue of 
qualifying for a national interest waiver was moot to the petition's decisional outcome. 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 
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 a degree of expertise significantly above that 
ordinarily encountered in the field. 
1 If these types of evidence do not readily apply to the individua l's occupation , a petitioner may submit comparable 
evidence to establish their eligibility . 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confinned the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability . 6 USCJS Policy Manual F.5(B)(2), https://www.uscis .gov/policy-manual/volume-6-part-f-chapter-5 . 
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 U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion3, 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. 4 
II. ANALYSIS 
The Petitioner intends to work as a security management specialist it the field of construction, claiming 
qualification as an individual of exceptional ability. 
As stated above, establishing that a petitioner is an individual of exceptional ability requires 
satisfaction of at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). The 
Petitioner initially claimed- and does so again on appeal- that he qualifies under the following five5 
categories of evidence: 
• (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 of 
learning relating to the area of exceptional ability. 
• (B) Evidence in the form of letter(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. 
• (D) Evidence that the alien has commanded a salary, or other renumeration for services, 
which demonstrates exceptional ability. 
• (E) Evidence of membership in professional associations. 
• (F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 See Dhanasar , 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
5 The Petitioner does not claim or otherwise reference the criterion at 8 C.F.R. § 204 .5(k)(3)(ii)(C). We therefore consider 
this category to be waived. 
2 
The Director determined that the Petitioner met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) by 
demonstrating his membership in the American Management Association (AMA). The Director also 
determined, however, that the evidence of record did not establish that the Petitioner met any of the 
other criteria under which he claimed eligibility as an individual of exceptional ability. Because the 
Petitioner did not meet at least three of the six criteria to establish his eligibility for the EB-2 
classification, the Director deemed the issue of whether he qualifies for a national interest waiver moot 
and denied the petition, concluding that the Petitioner did not establish eligibility for the benefit 
sought. 
We adopt and affirm the Director's decision. See Matter of Burbano, 20 I&N Dec. 872, 874 
(BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting that the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). 
The Director thoroughly reviewed, discussed, and analyzed the evidence of record, which largely 
included, in response to a request for evidence, the resubmission of documents originally contained 
within the record. The Director considered how the evidence submitted related to the criteria for 
establishing exceptional ability and explained how the evidence did not meet the requirements of four 
of the five the criteria claimed. 
On appeal, the Petitioner has again submitted much of the same documentation previously included in 
the record, requesting that USCIS reopen and reconsider his case. 6 In addition to his brief, the 
Petitioner has submitted additional evidence to support his eligibility under 8 C.F.R. 
§ 204.5(k)(3)(ii)(F); this evidence is in the form of declarations from two architects, two real estate 
brokers, a civil engineer, and a public defender who attest to the Petitioner's competence and the 
quality of his work as it relates to his management of various construction projects. While these letters 
collectively speak to the Petitioner's character and the caliber of his work, they do not speak to any 
achievements or significant contributions that the Petitioner has made to the construction industry. 
After review of the entirety of the record, we conclude that the Petitioner has not established that he 
qualifies as an individual of exceptional ability. 
The record does not establish that the Petitioner meets the requirements for EB-2 classification. 
Because the identified basis for dismissal is dis positive of the Petitioner's appeal, we decline to reach 
and reserve arguments concerning the Petitioner's eligibility for a national interest waiver under the 
Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "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 
alternative issues on appeal where an applicant is otherwise ineligible). 
6 Rather than treat this filing as a motion to reopen and reconsider, because the Petitioner checked box l .a. under Part 2 of 
his Form I-290B, Notice of Appeal or Motion, we have treated this filing as an appeal and have reviewed the evidence of 
record de novo. 
3 
III. CONCLUSION 
In conjunction with the foregoing analysis, we adopt and affirm the Director's decision. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
4