dismissed EB-2 NIW Case: Construction

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 07, 2023 In Re: 27007862 
Appeal of Nebraska Service Center Decision 
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 both as an advanced degree professional and as an 
individual of exceptional ability. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § 1 l 53(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. 
§ l 153(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 did not 
establish that the Petitioner qualified for the underlying EB-2 classification. The Director did not 
analyze the evidence related to the Petitioner's request for a national interest waiver because such 
analysis was not necessary to the finding of ineligibility. 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 I&N Dec. 53 7, 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 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master 's 
degree. 8 C.F.R. § 204.5(k)(2). 
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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 discretion, 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. 3 
II. ANALYSIS 
The Petitioner intends to develop and manage a trucking company, initially claiming qualification 
under the EB-2 classification both as an advanced degree professional and 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 that he qualified under the following categories of evidence: 
• (B) Evidence in the form of letter(s) from current or fonner employer(s) showing that 
the noncitizen has at least ten years of full-time experience in the occupation for which 
he or she is being sought. 
• (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 . 
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 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability . 6 USCIS Policy Manual F.5(B)(2), https://www.uscis .gov/policy-manual/volume-6-part-f-chapter-5 . 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
In response to a request for evidence, the Petitioner claimed to qualify for the EB-2 classification as 
an individual holding the equivalent of an advanced degree. The Director reviewed the Petitioner's 
certificate in computer studies from a vocational institution in Russia and an academic evaluation that 
equated his three-year program and work experience to "a bachelor of science with dual majors in 
computer information systems and business administration." The Director determined that the 
Petitioner did not show he had obtained the foreign equivalent of a U.S. baccalaureate degree followed 
by five years of progressive, post-baccalaureate experience . The Director also reviewed the degree in 
terms of its relevance as evidence of the Petitioner's exceptional ability under 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and determined that the evidence did not show how the Petitioner's degree related 
to his claimed area of exceptional ability. Although 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 Owner-Operator 
Independent Drivers Association (OOIDA), the Director further determined that the Petitioner did not 
meet any of the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii). Because the Petitioner did not meet 
at least three of the six criteria to establish his eligibility for the EB-2 classification, the Director denied 
the petition, concluding that the Petitioner did not establish eligibility for the benefit sought. 
On appeal, the Petitioner asserts that the Director's decision "contains numerous erroneous 
conclusions of both law and fact." The Petitioner, however, does not specify how the Director erred 
or what factors in the decision were erroneous . 4 The Petitioner provides a brief in which he claims 
his qualifications as an individual of exceptional ability based on the evidence of record and additional 
documentation submitted with the appeal. We note that, on appeal, the Petitioner does not assign 
specific error to the Director's determination that he does not qualify as an advanced degree 
professional. We therefore consider the issue of whether the Petitioner qualifies as an advanced degree 
professional to be abandoned. 5 
The Petitioner asserts that he qualifies as an individual of exceptional ability under the criteria listed 
at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(E). Upon review of the record and for the reasons discussed below, 
we agree with the Director's determination that the Petitioner does not qualify as an individual of 
exceptional ability. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university , school, or other institution oflearning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) . 
The Petitioner did not submit new evidence relating to this criterion on appeal. The record includes a 
certificate and transcript from the I I Public Educational Institution of Vocational 
Education College of Technology showing that the Petitioner attended from September 2006 to June 
2009. The translation of the certificate shows that the Petitioner "was conferred the qualification of a 
2nd category electronic computer and computer." The Petitioner claims exceptional ability in 
business- he plans to develop and manage a trucking company. The Petitioner's transcript does not 
show that he completed any courses related to this area of exceptional ability; the transcript shows 
routine coursework generally required for completion of academic programs and courses for computer 
4 An appeal must specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision. 
See 8 C.F.R. § 103.3(a)(l)(v) . 
5 See Matter ofR-A-M- , 25 l&N Dec. 657, 658 n. 2 (BIA 2012) (finding that when a filing party fails to appeal an issue 
addressed in an adverse decision , that issue is waived). 
3 
studies. 6 The Petitioner has not clarified on appeal how his certificate for completion of a computer 
studies program relates to his claimed area of exceptional ability. Thus, the Petitioner has not 
established by a preponderance of the evidence that he has received a degree, diploma, certificate, or 
other similar award from an institution of learning relating to his area of exceptional ability. 
Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien 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). 
On appeal, the Petitioner submits a recommendation letter from the general director at the company at 
which he was formerly employed. The letter, dated January 1, 2023, is identical to a letter dated 
August 4, 2022, which was already present in the record. The letter states the Petitioner was employed 
from July 2, 2011 , to August 31, 2021 , in the positions of procurement manager and project manager. 
The Director noted that the letter does not specify whether this employment was full-time or part-time. 
Even if it were to state that the Petitioner was employed full-time for the period listed, which it does 
not, the credibility of the letter is in question, as the employment period contradicts the dates listed in 
a document in the record titled "Employment Book." The information in this document shows that 
the Petitioner was first employed at the company from July 2, 2011, to November 18, 2014. It shows 
that the Petitioner was next hired at the company on October 2, 2017, and held various positions until 
he was hired part-time as a project manager on August 1, 2018. The discrepancies between the 
recommendation letter and the "Employment Book" are not clarified by other information in the 
record. A petitioner must resolve inconsistencies of record with independent , objective evidence 
pointing to where the truth lies. Doubt cast on any aspect of a petitioner's evidence may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence. See Matter of Ho, 19 l&N 
Dec. 582, 591 (BIA 1988). The Petitioner must support his assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe , 25 l&N Dec. at 376. The record also includes a business 
plan and registration documents for the Petitioner's company in the United States. However, these 
documents are not supported by evidence that the Petitioner has gained any full-time experience 
managing the company. The evidence of record does not establish that the Petitioner has at least ten 
years of full-time employment experience in the occupation for which he is being sought. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) . 
On appeal, the Petitioner states that because the "occupation does not require a license, USCIS should 
consider comparable evidence, such as the [Petitioner's] past record in his field." 7 As stated above, 
the credibility of the Petitioner's recommendation letter is in question, and beyond the Petitioner 's 
personal statement, there is no independent, objective evidence in the record detailing the Petitioner's 
employment experience . See Matter ofHo, 19 I&N Dec. at 591-92. The record does not include an 
6 An evaluation from a professor atl !university refers to the Petitioner 's certificate as a "Diploma in Electronics 
and Computers" and equates his three-year educational program and work experience to a "Bachelor of Science with Dual 
Majors in Computer Information Systems and Business Administration." However, his transcript does not show that he 
completed any courses in business administration. USCIS may reject or give lesser evidentiary weight to credential 
evaluations inconsistent with the record or "in any way questionable." Matter ofCaron Int '!, Inc., 19 I&N Dec. 791 , 795 
(Comm'r 1988). 
7 See 8 C.F.R. § 204.5(k)(3)(iii) (stating that if the criteria do not readily apply to the occupation, the petitioner may submit 
comparable evidence to establish eligibility). 
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explanation or probative evidence to show why the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) 
does not readily apply to his occupation. The fact that the Petitioner has not obtained licensure or 
certification is not evidence that the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) does not apply to his 
occupation . Finally , it does not appear that the documentation submitted to demonstrate the 
Petitioner's past record reflects the same caliber of expertise as- or is truly comparable to- receiving 
a license or a certification necessary for the practice of a specific profes sion or occupation . Thus, the 
Petitioner's suggested comparable evidence is insufficient to demonstrate that he has a license to 
practice the profe ssion or certification for a particular profession or occupation . He has not established 
his eligibility under this criterion. 
Evidence that the alien has commanded a salary, or other renumeration for services , 
which demonstrates exceptional ability . 8 C.F.R. § 204.5(k)(3)(ii)(D). 
On appeal , the Petitioner asserts that he qualifies under this criterion , stating , " Based on the 
documentation in the record, the [Petitioner] clearly established that this criterion has been met, and 
USCIS erred in finding otherwise ." The Petitioner provides tax documents showing his monthly 
income in 2020 and "salary reviews" for positions in I I Russia , from Zarplan.com . These 
webpages provide a "[s]alary overview as of 11/19/2022 ," showing median and average salaries for 
project managers in various fields , as well as job listings. It is not clear what sources were used for 
the data provided. It is also unclear whether these salaries are yearly or monthly; the salaries listed all 
appear comparable to the monthly earnings depicted on the Petitioner's tax documents . As previously 
stated, based on the evidence ofrecord, we are unable to evaluate the Petitioner's employment history 
because the documentation submitted is not credible; as such we are unable to determine whether the 
position he held and for which he has submitted tax documentation is comparable to the positions 
described in the salary overview from Zarplan .com, the objective credibility of which is also 
indeterminate in nature . We are unable to determine whether the Petitioner's earnings are comparably 
higher than the earnings of others in his field. Information concerning salaries for positions similar to 
that of the Petitioner , as well as valid documentation of the Petitioner's salary and specific occupation , 
are necessary in making a detennination of whether a salary demonstrates exceptional ability . The 
evidence does not establish that the Petitioner has commanded a salary or other renumeration for 
services that demonstrates exceptional ability . 
Evidence ofmembership in professional associations . 8 C.F.R . § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner met this criterion. 
In sum , the Petitioner has not established eligibility for the EB-2 classification as an advanced degree 
professional. Further, he has not established eligibility for the EB-2 classification as an individual of 
exceptional ability because he has not satisfied at least three of the six criteria listed at 8 C.F.R. 
§ 204.5(k)(3)(ii) . Because the Petitioner has not met at least three of the six criteria, we will not 
conduct a final merits determination to determine whether the Petitioner is recognized 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 dispositive of the Petitioner's appeal , we decline to reach 
and reserve arguments concerning the Petitioner 's eligibility for a national interest waiver under the 
5 
Dhanasar framework. 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). 
III. CONCLUSION 
The Petitioner has not established is eligibility for the EB-2 classification as either an advanced degree 
professional or as an individual of exceptional ability. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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