dismissed EB-2 NIW Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 22678677 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 17, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an entrepreneur, seeks second preference immigrant classification as an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established that he was individual of exceptional ability. 
On appeal, the Petitioner asserts that he meets the requirements of the requested classification. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section l O l (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 in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionmy in nature). 
2 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
Although the Director determined that the Petitioner met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
and (E), for the reasons discussed below, we disagree. On appeal, the Petitioner asserts that he also 
meets two additional criteria. 3 
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. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Director determined that the Petitioner met this criterion. However, for the reasons below, we 
must withdraw the Director's conclusion. 
The Petitioner submitted a statement from an accountant4, an "Amendment to the Articles of 
Incorporation" for a limited liability company (LLC) dated December 17, 2018, and evidence of the 
registration of the LLC on May 13, 2005. The plain language of the regulation, however, requires 
letter(s) which are from current or former employers. The Petitioner has not demonstrated that any of 
the provided documentation satisfies this requirement. 
Evidence that the alien has commanded a sala1y, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The submitted evidence includes copies of recent Brazilian individual tax returns and paystubs for his 
position as an "administrator," along with salary information from the Salario BR website for the 
occupations of "entrepreneur" and "chef'' for "little" companies. Regarding the Salario BR 
information, the Petitioner did not provide a full English translation for the occupation of 
"entrepreneur" as required by 8 C.F.R. § 103.2(b)(3), and, thus, cannot be considered. 
To satisfy this criterion, the evidence must show that an individual has commanded a salary, or 
remuneration for services, that is indicative of his claimed exceptional ability relative to others in his 
occupation. Here, the Petitioner has not established how the submission of salary information for the 
occupation of "chef'' and his earnings as an "administrator" are sufficient to demonstrate that he has 
commanded a salary that is indicative of his exceptional ability relative to other "entrepreneurs. 5 
3 As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter ofR-A-M-. 25 I&N 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision. 
that issue is waived). See also Sepulveda v. U.S. Att 'y Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1. 
*9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
4 Beyond listing the Petitioner's job titles, the statement does not include such pertinent information as the job duties and 
whether the positions were full-time. In addition, the Petitioner has not established that the accountant qualifies as an 
employer, as required by the regulation. 
5 In Parts 5 and 6 of the Form 1-140, the Petitioner identified both his "Occupation" and "Job Title" as "Entrepreneur." 
3 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner met this criterion. For the reasons below, however, we 
must withdraw the Director's conclusion. 
The Petitioner submitted documentation regarding his membership in the Institute of Gastronomy, 
Tourism and Culture, the Panela de Barro Institute, and the International Association of Culinary 
Professionals. He did not, however, provide supporting evidence, such as the membership 
requirements or by-laws, which establishes that any of the organizations are a professional association. 
As noted above, profession is defined as "one of the occupations listed in section 10l(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 in the occupation." 8 C.F.R. § 204.5(k)(2). 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The record includes a variety of certificates, awards, articles, and recommendation letters. While the 
evidence establishes that the Petitioner is well-respected and a contributing member of his community, 
the plain language of the criterion requires recognition for achievements and significant contributions to 
the indust,y or field. Without additional evidence, such as objective information regarding the 
significance of the requirements to receive these certificates and awards, and the Petitioner's specific and 
significant contributions to the restaurant industry or culinary field, he has not established that he meets 
this criterion. 6 We further note that, even if we were to determine that he met this criterion, he would still 
not establish that he is an individual of exceptional ability. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. As the Petitioner has not met the threshold requirement for this 
classification, further analysis of his eligibility for a national interest waiver would serve no 
meaningful purpose. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6 Regarding the Petitioner's signature "dish," we note that chefs routinely create new recipes. While the record 
demonstrates its popularity, it does not establish how it has significantly contributed to the field or industry. 
4