dismissed EB-2 NIW Case: Food Retail Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 31, 2024 In Re: 31268543 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an operation manager in the food retail industry, seeks employment-based second 
preference (EB-2) immigrant classification 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 the record did not establish 
that the Petitioner was an individual of exceptional ability and 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. 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. 
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. 
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 
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 U.S. Citizenship and Immigration Services (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 . 
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: 
• 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. 
As indicated above, the 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. 
The Director determined that the Petitioner did not demonstrate that she was an individual of 
exceptional ability. The Director noted that although the Petitioner submitted evidence of her business 
operations and an IRS Form 1099-NEC Nonemployee Compensation for 2022, the record did not 
establish that she met at least three of the evidentiary criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) through 
(F). 
On appeal, the Petitioner states that she "is being sponsored as an individual with exceptional ability 
in business" and that the evidence submitted demonstrates she "possesses a degree of expertise through 
her 18 years of knowledge in the retail business." The Petitioner provides several letters written by 
her colleagues. 
As a preliminary matter, the Petitioner has not specifically identified on appeal any erroneous 
conclusion of law or statement of fact in the Director's decision. This alone is a basis for dismissing 
the appeal. 8 C.F.R. § 103.3(a)(l)(v). Further, upon review of the letters, we note that the authors 
praise the Petitioner's abilities in the food retail industry and her personal attributes. However, the 
Petitioner does not articulate how the submitted letters establish that she meets any of the specific 
evidentiary criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) through (F), nor does she discuss any of the 
evidentiary criteria in detail. Therefore, the Petitioner has not demonstrated eligibility for the EB-2 
classification as an individual of exceptional ability. 
Because the Petitioner has not met any of the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), she cannot 
fulfill the initial evidentiary requirement of three criteria. Thus, we need not provide a final merits 
determination to evaluate whether the Petitioner has achieved the required level of expertise required 
for exceptional ability classification. In addition, we need not reach a decision on whether, as a matter 
of discretion, the Petitioner is eligible for or otherwise merits a national interest waiver under the 
Dhanasar analytical framework. Accordingly, we reserve these issues. 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 ofL-A-C-, 26 I&N Dec. 516, 526 n.7 
(BIA 2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
3 See also Flores v. Garland. 72 F.4th 85, 88 (5th Cir. 2023) (joining 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 to be 
discretionary in nature). 
2 
ORDER: The appeal is dismissed. 
3