dismissed EB-2 NIW Case: Freight Transportation

U.S. Citizenship 
and Immigration 
Services 
In Re: 22642780 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 3, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a freight transportation entrepreneur, 1 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 record did not 
establish that the Petitioner qualifies as an individual of exceptional ability. The Director further 
concluded that the Petitioner had not established that a waiver of the required job offer , and thus of 
the labor certification, would be in the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
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 . -
1 In response to the Director's request for evidence (RFE), the Petitioner submitted, in relevant part , a statement , indicating 
that the proposed endeavor would be working "as the founder and owner of a business in the ... field of freight 
transportation ." 
(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. ... the 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. 
For the purpose of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations fmiherprovide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability: 
(A) 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; 
(B) 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; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) 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). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or ce1iification for a particular profession or 
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occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCJS, 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 of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32(D.D.C. 2013);Rijalv. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." MatterofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
As noted above, the Director concluded that the record did not establish that the Petitioner qualified 
for classification as an individual of exceptional ability. Specifically, although the Director concluded 
that the Petitioner satisfied the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), and (E), the Director 
concluded that the record does not establish that the Petitioner is an individual of exceptional ability 
under a Kazarian final merits determination. See Kazarian, 596 F.3d at 119-20. For the reasons 
discussed below, we withdraw the Director's conclusion that the record established that the Petitioner 
has satisfied at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record showing that 
the [noncitizen] 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." The record contains 
documents written in a language other than English, and their accompanying English translations, 
indicating that thel I University in Uzbekistan awarded the Petitioner a bachelor's 
degree in mathematics. The record also contains a one-page evaluation from an academic credentials 
evaluation service, opining that the Petitioner "has the academic equivalent of a bachelor's degree in 
mathematics from a regionally accredited institution in the United States." The Director concluded 
that the record established that the Petitioner "has completed equivalent education to a U.S. 
[b ]accalaureate degree. As such, the submitted evidence meets [the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)]." However, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires evidence of a 
qualifying degree relating to the area of exceptional ability. 
In response to the RFE, the Petitioner asserted, "[oo ]verall, my proposed business endeavor is to 
enhance the standard of trucking and logistics services in the U.S. by providing value-added services 
that ensure freight is safely stored and transported in a way that preserves quality." The record does 
not establish how a bachelor's degree in mathematics relates to this business endeavor. 2 Because the 
2 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 
I&NDec. at 369. 
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record does not establish that the Petitioner has a qualifying degree relating to the area of exceptional 
ability, it does not satisfy the criterion at 8 C.F.R. § 204.5 (k )(3)(ii)(A), and we withdraw the Director's 
statement to the contrary. 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." The record contains a copy of a commercial 
driver license (CDL) issued by the commonwealth of Pennsylvania to the Petitioner on "09/l 7 /2021." 
The Director concluded that "[ the Petitioner] submitted copies of commercial [sic] driver's license 
(CDL). As such, the submitted evidence meets [the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C)]." 
However, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) contemplates a license to practice the 
profession or certification for a particular profession or occupation. 
As noted above, the commonwealth of Pennsylvania issued the CDL to the Petitioner in 2021, after 
the 2019 petition filing date. A petitioner must establish eligibility for the benefit it is seeking at the 
time the petition is filed. See 8 C.F.R. § 103 .2(b )(1 ). A visa petition may not be approved based on 
speculation of future eligibility or after a petitioner becomes eligible under a new set of facts. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition confonn to U.S. 
Citizenship and Immigration Services requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). Because the Petitioner's CDL is dated after the petition filing date, it presents 
a new set of facts that do not establish eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter of 
Michelin Tire Corp., 17 I&N Dec. at 249; Matter oflzwnmi, 22 I&N Dec. at 176. 
Moreover, even if the record established that the Petitioner had been issued a CDL as of the petition 
filing date, which it does not, it does not establish that a CDL is required to practice the Petitioner's 
profession or occupation. Specifically, the Petitioner also submitted a business plan, dated 2021, 
indicating that his position would be "chief executive officer," and generally describing his managerial 
duties. The business plan does not indicate that the Petitioner's duties would include operating a 
vehicle that would require a CDL. Because the record does not establish that the Petitioner had a 
license to practice, or a certification for, the profession or occupation of chief executive officer of a 
freight transportation company as of the petition filing date, it does not satisfy the criterion at 8 C.F.R 
§ 204.5(k)(3)(ii)(C), and we withdraw the Director's statement to the contrary. 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in 
professional organizations." The record contains a document, indicating that the Petitioner was a 
member of the Owner-Operator Independent Drivers Association (OOIDA) "since 10/21" with an 
expiration date of" 110/06/2022." The Director concluded that "[the Petitioner] submitted a copy of 
his membership in OOIDA. As such, the submitted evidence meets [the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E)]." However, similar to the CDL discussed above, because the Petitioner's 
membership in the OOIDA is dated" 10/21," after the petition filing date, it presents a new set of facts 
that may not establish eligibility. See 8 C.F.R. § 103 .2(b )(1 ); see also Matter of Michelin Tire C01p., 
17 I&N Dec. at 249; Matter oflzummi, 22 I&N Dec. at 176. Because the OOIDA membership does 
not establish eligibility, we reserve our opinion regarding whether the OOIDA is the type of 
professional organization contemplated by 8 C.F.R. § 204.5(k)(3)(ii)(E). SeeINSv. Bagamasbad, 429 
U.S. 24, 25 (197 6) ("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 
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(BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
Because the record does not contain evidence of membership in a professional organization as of the 
petition filing date, it does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), and we withdraw 
the Director's statement to the contrary. 
The Director further concluded that "[the Petitioner] has not provided sufficient evidence to 
demonstrate that he has commanded a salary, or other remuneration for services, which demonstrates 
exceptional ability," referencing the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D). We agree that the 
record does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
In response to the RFE, the Petitioner asserted that he satisfied the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (C), and (E); however, he did not assert, and the record does not support the 
conclusion, that he satisfied the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) or (F). Furthermore, the 
Petitioner does not assert, and the record does not support the conclusion, that the standards at 8 C.F .R 
§ 204.5(k)(3)(ii) do not readily apply to the occupation, such that comparable evidence may establish 
eligibility. The Petitioner also does not assert, and the record does not support the conclusion, that the 
Petitioner may qualify as a member of the professions holding an advanced degree. 
In summation, the record does not satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
Therefore, the record does not establish that the Petitioner qualifies for second-preference 
classification as an individual of exceptional ability. See section 203(b)(2)(A) of the Act. We reserve 
our opinion regarding whether the Petitioner satisfies any of the criteria set forth in the precedent 
decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 at 25, 
supra; see also Matter of L-A-C-, 26 I&N Dec. at 526 n. 7, supra. 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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