dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 18, 2024 In Re: 26451548 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an inventor and entrepreneur, seeks employment-based second preference (EB-2) 
immigrant classification as an advanced degree professional or 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. § 1 l 53(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 in November 2022, concluding that 
the Petitioner did not submit a properly completed Application for Alien Employment Certification 
(Form ETA-750B) or Application for Permanent Employment Certification (ETA Form 9089), Parts 
J, K, and L. The Petitioner later filed a Form I-290B, Notice of Appeal or Motion in January 2023. 
The Director then issued a service motion to reopen and a request for evidence (RFE) in May 2023 to 
which the Petitioner responded in August 2023. The Director issued another denial decision in 
September 2023 further determining the Petitioner did not establish that he qualified for the EB-2 
classification as an individual of exceptional ability. The Director also determined that the Petitioner 
did not merit a national interest waiver as a matter of discretion. 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 
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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 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 ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework 
for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as matter of 
discretion, 1 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
A. Permanent Employment Certification 
Prior to the issuance of a service motion to reopen and the subsequent RFE issued by the Director, the 
petition was denied because the Petitioner submitted an incomplete Application for Permanent 
Employment Certification (ETA Form 9089). Specifically, the ETA Form 9089 initially submitted 
was not properly completed, signed, or dated by the Petitioner. On appeal, the Petitioner submitted a 
properly completed ETA Form 9089. As such, we have incorporated it into the record. 
However, as we will discuss below, the properly completed ETA Form 9089 does not establish the 
Petitioner's eligibility for a national interest waiver based on his qualification as either an advanced 
degree professional or as an individual of exceptional ability. 
B. EB-2 Classification 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Goining the Ninth, Eleventh, and D.C. Circuit Comts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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l. Advanced Degree 
In the most recent denial decision, the Director determined the Petitioner did not establish that he 
qualified as an advanced degree professional. The Petitioner claims his qualifications as an individual 
of exceptional ability based on the evidence of record and additional documentation submitted with 
the appeal and RFE response. We note that neither the Petitioner's appeal nor his RFE response 
address his qualification as an advanced degree professional or the Director's determination with 
respect to this issue. We therefore consider the issue of whether the Petitioner qualifies as an advanced 
degree professional to be waived. See, e.g., Matter of O-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) 
( citing Matter ofR-A-M-, I&N Dec. 657, 658 n.2 (BIA 2012)). 
2. Exceptional ability 
As noted above, to demonstrate eligibility as an individual of exceptional ability, a petitioner must 
initially submit documentation that satisfies at least three of the six categories of evidence at 8 C.F .R. 
§ 204.5(k)(3)(ii)(A)-(F). The record initially included a business plan outlining the Petitioner's 
intention to improve public transit access for certain individuals in the United States. The record also 
included documentation demonstrating his registered businesses in Egypt and the United States, patent 
applications in Egypt and the United States, and material related to awards and acknowledgment of 
his participation in competitions and trade shows. The Director concluded that the evidence of record 
did not satisfy any of the exceptional ability criteria. 
On appeal, the Petitioner submits documentation previously included in the record, as well as evidence 
showing the active status of his company registered in the United States. We observe that the 
Petitioner's appeal brief and initial statement concerning his endeavor generally advocate for his 
qualification as an individual of exceptional ability based on patent applications and competition wins, 
including those for "startup" proposals and "hackathons." The Petitioner also asserts the merit and 
purported national importance of his proposed endeavor based on its potential to improve public transit 
systems in the United States. However, the Petitioner does not specifically identify his qualifications 
under any evidentiary category at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), nor does he contend that any of 
the Director's determinations were erroneous. An appeal must specifically identify any erroneous 
conclusion oflaw or statement of fact in the unfavorable decision. See 8 C.F.R. § 103.3(a)(l)(v). On 
this basis alone, the appeal must be dismissed. Nevertheless, we will review the Petitioner's 
qualifications under each category based on the evidence of record. 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The appeal brief discusses the Petitioner's introduction to the field of engineering through a graduate 
program from which he states he later withdrew. The Petitioner did not submit supporting 
documentation to show that he has a degree, diploma, certificate, or similar award from any institution 
of learning related to his claimed area of expertise as an entrepreneur in the public transit industry, an 
inventor in the field of engineering, or any other asserted area of expertise. Therefore, the record does 
not satisfy this criterion. 
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Evidence in the form ofletter(s) from current or former employer(s) showing that 
the individual 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). 
The record includes registration documentation reflecting that the Petitioner started a business in Egypt 
in the area of "Hotel Supplies and Public Import and Export" beginning in 2000. The Petitioner also 
provided a Certificate of Good Standing showing that his business in the United States was active as 
of 2023. These documents alone, however, do not demonstrate that the Petitioner had at least ten years 
of full-time experience as of the date the petition was filed in the field of his intended occupation as 
either an inventor, an owner of a company, or in the field of engineering. The Petitioner did not submit 
sufficient evidence demonstrating the activities of these companies or of his full-time employment 
with them. The Petitioner also did not provide documentation depicting his specific duties at these 
companies or how his employment roles related to his area of claimed exceptional ability. The 
Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner does not claim to meet this criterion, and the record does not include any licenses or 
certifications related to his proposed occupation. Therefore, we deem this issue to be waived, and we 
will not address this criterion further. See, e.g., Matter of O-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 
2021) (citing Matter ofR-A-M-, I&N Dec. 657, 658 n.2 (BIA 2012)). 
Evidence that the individual has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner also does not assert he meets this criterion, and he did not submit documentation related 
to his salary or renumeration for his services. Therefore, we deem this issue to be waived, and we will 
not address this criterion further. See, e.g., Matter ofO-R-E-, 28 I&N Dec. at 330, 336 n.5. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner does not claim to meet this criterion, and he did not provide evidence of his membership 
in an association. Therefore, we deem this issue to be waived, and we will not address this criterion 
further. See, e.g., Matter of O-R-E-, 28 I&N Dec. at 330,336 n.5. 
Evidence ofrecognition for achievements and significant contributions to the indust,y 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
On appeal-as well as in his original statement of endeavor and business plan-the Petitioner asserts 
the importance of his awards and placement in several competitions related to his inventions, business 
startup proposals, and computing. The record includes documentation from a competition in Canada 
referencing his bronze medal award and a letter from a competition in Kuwait suggesting he was 
awarded another bronze medal. This documentation, however, is not supplemented with information 
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about the competitions or their sponsors to demonstrate their orientation or importance within the 
industry and the significance, if any, of the awards they confer. Further, the documentation is not 
supported by explanations of how the awards demonstrate that the Petitioner is recognized for 
achievements and significant contributions to the industry by peers, governmental entities, or 
professional or business organizations. 
The Petitioner also submitted a list of several competitions in which he purportedly participated or 
won; this list, however, is of unclear origin and is not accompanied with corroborative documentation 
to demonstrate his placement within these competitions. In addition, while the Petitioner provided 
patent applications and references to his inventions in the award letters and documents he authored, 
the record does not include independent documentation detailing or even summarizing the 
functionality of his inventions. For example, the Petitioner provides the following broad description 
of his pending patent for !(quoted as written): 
[U]sing a wearable technology to help the people with disability get the help needed 
before ,at & after riding the mass transit units ,help the public transportation operators 
to communicate with people with disability & offer the best service possible and 
comply with guidance and regulations of the American Disability Act -(ADA). 
While the Petitioner emphasizes that his "passion for problem-solving and creativity" led him "to 
make significant contributions to the field of innovations & Entrepreneurship," the record does not 
support these claims. The Petitioner did not submit sufficient evidence to demonstrate his recognition 
for achievements and significant contributions within the field of engineering or to the public transit 
industry. Again, the Petitioner must support his assertions with relevant, probative, and credible 
evidence and he has not done so here. See Chawathe at 376. Therefore, the Petitioner did not 
demonstrate eligibility under this criterion. 
Because the Petitioner has not established that he meets three of the six evidentiary criteria under 
8 C.F.R. 204.5(k)(3)(ii), he has not met the initial requirement to demonstrate his eligibility as an 
individual of exceptional ability. Therefore, we need not conduct a final merits determination of 
whether he is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. Nevertheless, we have reviewed the totality of the 
evidence and conclude that he does not meet the elevated standard for this classification. While the 
Petitioner may have experience in the field of engineering, the record does not show that his level of 
expertise is unusual or stands out in the field. 
In sum, the Petitioner has not established eligibility for the EB-2 classification as an individual of 
exceptional ability. On appeal, the Petitioner does not assert nor does the record establish that he is 
eligible for the EB-2 classification as a professional holding an advanced degree. Therefore, he is 
ineligible for a national interest waiver. Because the identified reasons for dismissal are dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning 
eligibility under the 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 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). 
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III. CONCLUSION 
The Petitioner has not established that he meets the requirements of EB-2 classification. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
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