dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 16, 2024 In Re: 28786191 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as an individual of exceptional ability in the 
sciences, arts or business. 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. 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 qualifies for: (1) classification as an individual exceptional ability; and 
(2) the national interest waiver. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 
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 
USCIS will then conduct a final merits determination to decide whether the evidence as a whole shows 
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 individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F .5(B)(2), https://www.uscis.gov/policy-manual. 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once a petitioner demonstrates EB-2 eligibility, 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 USCIS may, as matter of discretion, 3 grant a national 
interest waiver if the petitioner demonstrates that: (1) the proposed endeavor has both substantial 
merit and national importance; (2) the individual is well positioned to advance their proposed 
endeavor; and (3) on balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
In his native Brazil, 
the Petitioner worked as a sector manager for a manufacturer of automobile parts 
from 2008 to 2013, and then as a customer service supervisor for a farm machinery dealer from 2013 
to 2015. The Petitioner has been in the United States since he entered in June 2016 as a B-2 
nonimmigrant visitor. The Petitioner initially stated that, since 2016, he has been an "investor" in a 
cleaning service in Florida. He later asserted that he had also served as the cleaning company's general 
manager. 
The Petitioner claimed eligibility for EB-2 classification as an individual of exceptional ability. The 
Petitioner did not claim to qualify as a member of the professions holding an advanced degree, and 
therefore we need not address the separate requirements for that classification. 
To establish 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), 
summarized below: 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of the regulatory criteria, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows a degree of 
expertise significantly above that ordinarily encountered in the individual's field. See Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the documentation is first 
counted and then, if fulfilling the required number ofcriteria, considered in the context of a final merits 
3 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts, and 
Third in an unpublished decision, in concluding that USCIS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
2 
determination). See also, generally, 6 USCIS Policy Manua!F.5(B)(2), https://www.uscis.gov/policy­
manual. 
The Petitioner claims to have submitted evidence to satisfy four of the six regulatory criteria, as 
discussed below. 
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 o_fexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
We agree with the Director that academic records and certificates showing the Petitioner's completion of 
college-level education in management satisfy this criterion. 
Evidence in the form ofletter(s)from cwTent 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). 
The Director concluded that the Petitioner had satisfied this criterion. We disagree. 
The wording of the regulation does not merely require ten years of full-time employment experience. 
That experience must be "in the occupation for which [the individual] is being sought." The Petitioner 
claims "13 years of experience ... in the areas of entrepreneurship, business management, business 
development, industrial production, [ and] project management." These varied activities are not all the 
same occupation described in the petition. For example, the Petitioner does not establish the relevance 
of "industrial production" to the work he intends to pursue in the United States. 
Throughout this proceeding, the Petitioner has called himself an entrepreneur. An "entrepreneur" is 
defined as "one who organizes, manages, and assumes the risks of a business or enterprise." 4 The 
record does not show that the Petitioner has at least ten years of full-time experience that meets this 
definition. 
The Petitioner has been an entrepreneur in the United States as an investor and partner in the cleaning 
service in Florida. This experience, however, began in June 2016, about five years before he filed the 
petition in October 2021. Therefore, the Petitioner's work in the United States is not sufficient, by 
itself, to establish ten years of experience in the occupation of an entrepreneur. 
Letters from the Petitioner's fo1mer employers in Brazil attest to his employment from February 2008 
to November 2015. But the letters do not indicate that he owned the companies or otherwise 
organized, managed, and assumed the risks of the businesses. Rather, the letters describe lower-level 
management over aspects of the automobile parts manufacturer and the farm equipment dealer. The 
Petitioner does not seek to work in the United States as either a service supervisor or as a sector 
manager, and therefore the letters do not establish experience in the occupation that the Petitioner 
seeks in the United States. 
4 Entrepreneur, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/entrepreneur. 
3 
The Petitioner has not met his burden of proof to establish at least ten years of full-time experience in 
the occupation of an entrepreneur. We withdraw the Director's contrary determination. 
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 initially submitted copies of a "Professional Ident~ity....___;;.C_a_rd_'_'_a_n_d_a_'_'C..;;._er_t_ifi_1c_a_t_e_o~f 
Professional Regularity," indicating that he was registered with the~!___________ ~I 
Brazil, as a "Technologist" in the area of "Industrial Production." The Petitioner submitted 
background information about the regional body that issued the documents, but did not establish that 
registration constitutes licensure or certification. 
In a request for evidence (RFE), the Director requested "[ d]ocumentary evidence to establish that the 
occupation requires the license or certification" and"[ a ]ny other relevant evidence." In response, the 
Petitioner submitted copies of the same documents, which added no new infomrntion to the record. 
The Director concluded that the Petitioner had not satisfied the criterion. On appeal, the Petitioner 
asserts: "This license explicitly states the appellant's qualifications as a technologist in industrial 
production" ( emphasis in original). 
The Petitioner has not submitted information about the requirements to obtain documentation of the 
type he has submitted. For example, the record does not establish whether the issuing authority verifies 
an individual's qualifications, or simply issues documents based on self-reported information. We 
note that the Petitioner had been outside of Brazil for several years when the Brazilian regional 
authority issued the documents in 2020 and 2021. 
Furthermore, the Petitioner does not seek employment in the United States as a "technologist in 
industrial production." He filed the petition as the general manager of a cleaning company, and has 
since asserted that he intends to run a grocery store. The Petitioner has not explained how his 
registration as a "technologist" is relevant to his claim of exceptional ability as an entrepreneur. 
The Petitioner has not established that he holds a license or certification in the occupation in which he 
claims exceptional ability. 
As explained above, the Petitioner has met one claimed criterion, but has not met his burden of proof 
to satisfy two additional claimed exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). In light of 
the above conclusions, detailed discussion of the remaining claimed criterion cannot change the 
outcome of this appeal. Therefore, we reserve argument on the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), relating to evidence ofrecognition for achievements and significant contributions 
to the industry or field. 5 
5 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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). 
4 
The Petitioner has not satisfied at least three of the initial criteria at 8 C.F.R. § 204.5(k)(3)(ii). As a 
result, we need not provide the type of final merits determination referenced in Kazarian, 596 F.3d at 
1119-20. Nevertheless, the record in the aggregate does not support a conclusion that the Petitioner 
has established exceptional ability in business as an entrepreneur as claimed. The submitted evidence 
indicates that the Petitioner has worked as a supervisor and manager for different businesses, but his 
experience as an entrepreneur appears to be limited to his investment in the cleaning company in 
Florida. The record does not establish that the Petitioner possesses a degree of expertise significantly 
above that ordinarily encountered as an entrepreneur. 
Because the petition cannot be approved without an underlying determination that the Petitioner 
qualifies for EB-2 classification, we also reserve discussion of the Petitioner's national interest waiver 
claim under the Dhanasar framework. Nevertheless, outside the specific Dhanasar prongs, a 
particular issue warrants comment. 
When he filed the petition in October 2021, the Petitioner stated: "My proposed endeavor in the 
United States will be to manage and expand my current business in the American market." The 
Petitioner identified that company by name. Elsewhere in the record, the Petitioner described his 
company as a "commercial and residential cleaning service" with four employees. Thus, at the time 
of filing, the Petitioner specifically tied his proposed endeavor to that cleaning company, with no 
indication that the endeavor would encompass other businesses. 
In the RFE, the Director asked for more information and evidence about the Petitioner's proposed 
endeavor. In response, the Petitioner submitted a business plan for a different proposed endeavor, "to 
develop a retail supe1market company ... [that] will specialize in ... American, Brazilian, and Spanish 
products." The business plan projected that the grocery store would hire 44 employees in its first five 
years of operation. 
The proposed endeavor that the Petitioner described in response to the RFE is entirely different from 
what he described when he first filed the petition. The new proposed endeavor, therefore, represents 
a very substantial material change to a factor that is fundamental to the petition. A petitioner may not 
make material changes to a petition that has already been filed in an effort to make an apparently 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). In a statement submitted with the RFE response, the Petitioner did not explain the 
change to the proposed endeavor, or even acknowledge that he had changed it. 
III. CONCLUSION 
The Petitioner has not established eligibility as an individual of exceptional ability in business. 
Therefore, the Petitioner not shown that he is eligible to apply for the national interest waiver. We 
will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
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