dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 25843984 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 15, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an entrepreneur , seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree and as an individual of 
exceptional ability , as well as a national interest waiver 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 Director of the Texas Service Center denied the petition , concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability , and that he had not 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. 
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 Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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) . In addition , "profession " is defined as of the occupations listed in 
section 101(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 into the occupation. 1 8 C.F.R. 
§ 204.5(k)(3). 
Furthermore, "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 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
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. 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. 
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 discretion 3, 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 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petitioner stated that he started computer science courses at ____________ 
I lin Brazil, but he did not present an official academic record showing that he received a degree 
from the university. In addition, the Petitioner submitted a certificate from Data Kbyte® stating that 
he completed instruction in "Windows 98, Word, Excel, and Access." He also provided a certificate 
from Google AdWords indicating that he successfully completed "the Google AdW ords certification 
exams." These certificates, however, do not constitute a U.S. advanced degree, a U.S. baccalaureate 
degree, or their foreign equivalent. Accordingly, the record supports the Director's determination that 
the Petitioner has not established that he qualifies as a member of the professions holding an advanced 
degree. 
2 USCTS 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 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). 
2 
B. Exceptional Ability 
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
In the appeal brief, the Petitioner maintains that he also meets the ten years of full-time experience 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the 
membership criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), and the recognition for achievements and 
significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we 
agree with the Director that the record does not support a finding that the Petitioner satisfies the 
requirements of at least three criteria. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner presented his certificate from Data Kbyte® stating that he completed instruction in 
"Windows 98, Word, Excel, and Access." He also provided his certificate from Google AdWords 
indicating that he successfully completed "the Google AdWords certification exams." These 
certificates, however, are not official academic records. Nor has the Petitioner provided evidence 
demonstrating that Data Kbyte® or Google AdW ords constitute "a college, university, school, or other 
institution ofleaming." For the aforementioned reasons, we withdraw the Director's determination 
that the Petitioner meets this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
As evidence of his ten years of business experience, the Petitioner submitted a May 2021 letter from 
_________ indicating he worked for the organization in "a full-time position, from 
February 2009 to July 2016 as a Manager" and "remotely on a full position, from August 2016 to 
November 2018 as a Consultant and Advisor." The Petitioner also presented a May 2021 letter from 
I I stating that he served as a full-time chief operating officer and manager from February 
2006 until January 2009. These two letters listing the Petitioner's business operations experience are 
sufficient to demonstrate that he has at least ten years of full-time experience in his occupation. 
Accordingly, the Petitioner has established that he meets the requirements of this regulatory criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The letter from _________ stated that the Petitioner received R$ 252,000 in 2015, 
R$ 176,400 in 2016, R$ 131,000 in 2017, and R$ 120,100 in 2018. In addition, the letter from _ 
I I indicated that he received monthly compensation in the amount of R$ 20,000 from February 
2006 until January 2009. The Petitioner also submitted information from Salario BR listing the 
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corresponding salaries for entrepreneurs at small, medium, and large organizations at various levels 
of experience. 4 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. 5 The Petitioner states on appeal that the information from Salario BR provides 
"the average salaries in small and medium sized businesses at different managerial positions." The 
Director's decision noted that the Salario BR survey was limited to a sampling of 100 salaries and that 
this criterion requires the Petitioner to demonstrate a salary indicative of exceptional ability and not 
just "above average" earnings in his occupation. Additionally, the Salario BR information listed a 
"data validity" period from "12/26/18 to 12/26/19." Because the Salario BR information is 
contemporaneous with only one of the years for which the Petitioner has documented his salary (2018), 
he has not shown that the former provides a proper analysis of his pre-2018 earnings. Here, the 
Petitioner has not offered documentation showing that his earnings are indicative of exceptional ability 
relative to others in the field. Based on the foregoing, we agree with the Director that the Petitioner 
has not demonstrated he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner contends that his membership in the 
meets this criterion. As evidence for this criterion, the Petitioner provided his _ membership 
card and a declaration from the organization's chairman stating thatl I is "a scientific, non-profit 
society that has the following purposes: the study, development, promotion, and dissemination of 
open, flexible and distance learning." The chairman's declaration further asserted that registration in 
the organization requires "a level of deep knowledge, by training and/or working time in the minimum 
area of 10 years' exP,erience." The Director indicated that the aforementioned information was not 
corroborated by the I I membership bylaws or other official association documents. The 
evidence presented is not sufficient to demonstrate thatl lhas a membership body comprised of 
individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the 
organization otherwise constitutes a professional association. 6 Accordingly, we agree with the 
Director's determination that the Petitioner has not satisfied this criterion. 
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). 
As evidence for this criterion, the Petitioner provided a Certificate of Achievement (February 2018) in 
recognition of his "exceptional achievement and contribution to the I 7 The 
Petitioner also submitted a letter from Chairman of the Cit Council of 
I I discussing the Petitioner's involvement with the _______________ 
4 This salary survey was based on a population of 220 salaries with a sampling of 100 salaries. 
5 See 6 USCIS Policy Manual, supra. at F.5(B)(2). 
6 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 101(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." 
7 This certificate was signed byl I Chairman of the City Council of ___ 
4 
stated: "I am responsible to the City Council for the implementation of the I 
supervised all the steps of execution until the end. Numerous adjustments were necessary to adapt to our 
reality and meet the demands and [the Petitioner] was always quick to perform tasks and with extreme 
professionalism." Likewise, the Petitioner provided a letter froml I mayor of the city of 
I I indicating that his municipality planned to implement thel I in "2020, 
officially to more than 200 students." I I further asserted that the Petitioner is "a visionary in 
how to use the technology tools to make our lives better." The aforementioned certificate and letters 
reflect local recognition from two Brazilian municipalities and therefore they are not sufficient to 
demonstrate the Petitioner's achievements and significant contributions to the industry or field. For 
instance, the Petitioner's evidence was unaccompanied by documentation indicating that his work 
involving the _________ has significantly affected the online learning industry or 
entrepreneurial field. 
The Petitioner also submitted recommendation letters from business associates describin his work for 
8 
For example, owner of _____ stated: "I can say with certainty that not only 
is [the Petitioner] fully up-to-date with the American business system, but he also has the ability to 
help businesses grow superbly. He quickly understands what needs to be done, has the flexibility to 
implement, and is very passionate about challenges." I I praised the Petitioner's business 
skills and his impact on business operations, but he did not explain how the 
Petitioner's work was recognized for achievements and significant contributions to the industry or 
field. 9 While the recommendation letters discuss the Petitioner's business projects on behalf of the 
above organizations, the evidence does not show that his work has had an impact beyond his 
employers, clientele, and their specific projects at a level indicative of achievements and significant 
contributions to the industry or field. The Petitioner therefore has not established that he fulfills this 
criterion. 
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. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner has not shown that he is an advanced degree professional or that 
8 Formal recognition in the form of certificates and other documentation that are contemporaneous with the individual's 
claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the 
individual's achievements. See 6 USCIS Policy Manual, supra, at F.5(B)(2). 
9 The Petitioner's appeal brief also points to the February 2022 recommendation letter from I I chief executive 
officer at I This letter noted thatl I met the Petitioner in October 2021 and that the Petitioner 
then helped his company with its marketing solutions. This Petitioner's consulting work for I however, post­
dates the filing of the petition. Eligibility must be demonstrated at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
5 
he has satisfied the regulatory criteria and achieved the level of expertise required for exceptional 
ability classification. Accordingly, the Petitioner has not established eligibility for the underlying EB-2 
immigrant classification. Since this issue is dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve the appellate arguments regarding his eligibility for a national interest waiver under 
the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 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. 
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