dismissed EB-2 NIW Case: Hairstyling

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY. 14, 2024 In Re: 31032040 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a hairstylist, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability in the sciences, arts, or business 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. § l 153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for EB-2 classification as an alien of exceptional ability or that 
the Petitioner was eligible for the requested 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 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. 
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 
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 aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 3 
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 discretion4, 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 
The Petitioner has not claimed-nor does record establish-that she is a member of the professions 
holding an advanced degree. Therefore, to qualify for EB-2 immigrant classification, the Petitioner 
must establish she is an individual with exceptional ability in the sciences, arts, or business. 
A. Individual of Exceptional Ability 
The Director concluded that the Petitioner is not an individual of exceptional ability as she only 
satisfied two of the six regulatory criteria, 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E), regarding ten years 
of full-time experience in the occupation sought and membership in a professional association. On 
appeal, the Petitioner contends that, in addition to these two criteria, 5 she meets the evidentiary criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (D), relating to having a license to practice the profession and 
commanding a salary or remuneration demonstrating exceptional ability. The Petitioner does not 
assert error in the Director's conclusions regarding the remaining criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (F), nor does she claim to meet these criteria on appeal, and therefore we 
consider the issue of eligibility under those two criteria to be waived. See Matter ofR-A-M-, 25 I&N 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an 
adverse decision, that issue is waived). 
On appeal, the Petitioner asserts that the Director cannot require that the evidence submitted both 
satisfy the regulatory criteria and establish that the Petitioner possesses a degree of expertise 
significantly above that ordinarily encountered in the field. We recognize that the Director's decision 
3 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) ( discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see 
generally 6 USCTS Policy Manual, supra, at F.5(B)(2). 
4 See 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 USCTS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
5 The Petitioner's briefreferences 8 C.F.R. § 204.5(k)(3)(ii)(A), but this appears to be a typographical error as she describes 
this criterion as "[d]ocumentation showing the alien has at least 10 years of full-time experience in the occupation," which 
is the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
2 
incorrectly states the evidence submitted to establish each criterion "should address both parts of the 
analysis," yet upon a de novo review of the record, we conclude that, despite this erroneous statement, 
the Director's actual analysis of each criterion does not impose this standard. As such, the Director's 
error is, at most, harmless. See generally Matter of O-R-E-, 28 I&N Dec. at, 350 n.5 ( citing 
Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (stating that error is harmless where there 
is no "reason to believe that ... remand might lead to a different result" ( citation omitted))). 
Upon de novo review of the record, we agree with the Director's ultimate conclusion that the record 
does not establish the Petitioner is an individual of exceptional ability, but we withdraw their 
conclusions that the Petitioner meets the criteria 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E). 6 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offull-time experience in the occupation for which she or she is 
being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Director concluded that the Petitioner met this criterion. We disagree. 
For ease of reference, we have detailed the Petitioner's claimed employment in the chart below, and 
identified whether the claimed employment is consistent throughout the documentation on record. 
Employment 
Claimed in Record 
Employment 
verification 
letter 
provided? 
Listed on 
ETA Form 
750B? 
Listed in 
employment 
records book? 
Listed in 
resume? 
Listed in 
expert 
opinion letter 
Listed in 
business 
plan? 
I I 
1 0/2006 - 12/2009 YES NO YES SEE FN7 YES YES 
I I 
01/2010 - 11/2017 
YES YES YES NO YES YES 
I I 
01/2011-01/2015 NO NO NO YES YES NO 
I I 
08/2015 -12/2019 NO YES NO YES YES NO 
I I 
12/2017 -01/2019 YES NO YES NO NO YES 
Self-employed 
11/2020 to Present NO YES NO NO NO NO 
6 The record does not otherwise establish the Petitioner meets three of the regulatory criteria, and therefore issuing a request 
for evidence or notice of intent to deny allowing the Petitioner to supplement the record would serve no legal purpose. 
However, the Petitioner should be prepared to address the issues discussed herein in any future filings. 
7 While the Petitioner's resume includes her employment with it lists the employment as February 
2006 to November 2010. 
3 
As detailed in the chart, the evidence on record contains several inconsistent accounts of the 
Petitioner's past employment. For example, the Petitioner submitted a letter froml I 
confirming her employment with the salon as a hairstylist from October 2006 to December 2009 and from 
December 2017 to January 2019, yet she did not identify this employment on the U.S. Department of 
Labor ETA Form 750B, Statement of Qualifications of Alien, nor is this consistent with her resume. 
The Petitioner also omitted her employment with from the ETA Form 750B. 
Notably, the ETA Form 750B directs the Petitioner to list any employment "related to the occupation" 
she is seeking. Conversely, while her employment with Amonia Beauty Studio from August 2015 to 
December 2019 is listed on the ETA Form 750B, this employment is not corroborated by the 
Petitioner's official employment records, nor did she provide an employment letter verifying this 
employment. The Petitioner must resolve these inconsistencies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Turning to the criterion in question, the regulation at 8 C.F .R. § 204.5(k)(3 )(ii)(B) requires"[ e ]vidence 
in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years 
of foll-time experience in the occupation for which he or she is being sought." As indicated above, 
the record contains employment verification letters from
I I verifying the Petitioner's employment with these salons; however, neither of the letters specify 
whether the employment was foll-time, nor is this information provided in the employment records 
book. The Petitioner also did not indicate the number of hours she worked in these positions on her 
ETA Form 750B. This information is particularly critical given that the Petitioner's claimed 
employment with I overlaps with her employment with 
and I Iand her employment with ______ also overlaps with her 
employment withl I 
For all the above reasons, we cannot conclude the Petitioner meets this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
To satisfy this criterion, the Petitioner submitted a copy of her cosmetologist license from Washington 
State. The license was issued in July 2023, approximately 18 months after filing this petition. However, 
as explained by the Director, the Petitioner must establish eligibility for the benefit they are seeking at 
the time the petition is filed. 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 
1971). Rather than address this on appeal, the Petitioner simply asserts that she has "clearly 
established" eligibility for this criterion. Because the Petitioner cannot rely on a license obtained after 
filing, we agree with the Director's conclusion that the Petitioner has not met this criterion. 
Evidence that the Petitioner has commanded a salary, or other remuneration for services, 
which demonstrate exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The Director concluded that copies of the Petitioner's 2020 U.S. tax returns indicating gross business 
sales of $11,984, and a total income of $1,179 were insufficient to meet this criterion. To satisfy this 
criterion, the Petitioner must provide evidence showing that they commanded a salary or remuneration 
for services that is indicative of their claimed exceptional ability relative to others working in the field. 
4 
See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). On appeal, the Petitioner simply asserts 
that the evidence "clearly established this criterion has been met." 
The Petitioner bears the burden of establishing that they meet each criterion with relevant, probative, 
and credible evidence. Matter ofChawathe, 25 I&N Dec. at 375-376. The Petitioner has not provided 
comparable evidence to evaluate the Petitioner's earnings versus other individuals in the field. As 
such, the Petitioner has not demonstrated that they meet the requirements for this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director stated that the record established the Petitioner met this criterion due to her membership 
in the Professional Beauty Association (PBA). We disagree. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as an occupation listed at section 
10l(a)(32) of the Act, 8 U.S.C. § 110l(a)(32), 8 or an occupation whose minimum requirement for entry 
is a U.S. baccalaureate degree or its foreign equivalent. According to the background documentation 
provided, PBA is "the largest trade organization" whose members "include independent practitioners, 
salons, spas, schools, students, manufacturers, distributors, and industry suppliers." Without evidence 
demonstrating that PBA requires at least a U.S. baccalaureate degree or its foreign equivalent as a 
minimum requirement for membership, we cannot conclude that the Petitioner meets this criterion, 
and we withdraw the Director's determination to the contrary. 
B. 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. Here, 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 the 
Petitioner's 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 
As the Petitioner has not established that she qualifies for EB-2 classification, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
8 The occupations listed in this section are architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries. 
5