dismissed EB-2 NIW Case: Hvac

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 30, 2024 In Re: 28051751 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a heating, ventilation, and air conditioning (HVAC) entrepreneur, seeks employment­
based second preference (EB-2) immigrant classification as either a member of the professions holding 
an advanced degree or 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 Petitioner's Form 1-140, Immigrant Petition for 
Alien Workers, concluding that the record did not establish that the Petitioner was a member of the 
professions holding an advanced degree or their equivalent, or was an individual of exceptional ability. 
The Director further concluded that the Petitioner did not merit a national interest waiver. The matter 
is now before us on appeal pursuant to 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). 
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any 
occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement 
for entry into the occupation. 1 8 C.F.R. § 204.5(k)(3). 
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). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 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 the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 discretion, 4 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. 
Id. 
II. ANALYSIS 
As noted above, the Director concluded, in part, that the Petitioner was not eligible for underlying 
EB-2 immigrant classification as he is not a member of the professions holding an advanced degree or 
their equivalent. The Petitioner does not contest this conclusion on appeal and therefore we consider 
the issue waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter of 
R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). 
The Director also concluded that the Petitioner was not eligible for EB-2 immigrant classification as 
an individual of exceptional ability because he did not satisfy at least three of the six categories of 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
2 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). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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 USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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evidence identified at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Specifically, the Director determined that the 
Petitioner only satisfied the regulatory criterion under 8 C.F.R. § 204.5(k)(3)(ii)(A) to provide an 
official academic record, but did not satisfy any of the remaining criteria as he did not provide evidence 
in the form of: letter(s) from current or former employer(s) showing that he has at least ten years of 
full-time experience in his occupation; a license to practice his profession or certification for a 
particular profession or occupation; that he has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; membership in professional associations; or 
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). On 
appeal, the Petitioner contends, in part, that he satisfied all six criteria identified in 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). After review, we conclude that the Petitioner has not established he satisfies 
at least three of six categories of evidence identified in 8 C.F.R. § 204.5(k)(3)(ii) for eligibility as an 
individual of exceptional ability. 
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 meet this criterion, the Petitioner submitted a membership card for "Clube de Engenharia" showing 
his status as a "contributor"; proof that he had been certified as a "Universal" technician by the I I 
I I and corporate documents for the company he owns showing the company was registered 
with a state in Brazil and with the company I I Additionally, while not necessarily submitted 
to satisfy this criterion, the Petitioner also submitted certificates of completion for various technical 
courses. In response to a request for evidence, the Petitioner stated that he "still [ did] not have the 
'[l]icense' to act as an HVAC Technician ... ," but asserted the certification 
demonstrated sufficient aptitude to handle and practice the profession. None of the certificates 
provided, however, reflect they are a license to practice in the HV AC field in which he claims 
exceptional ability, and as stated, he conceded that he did not have a license to practice as an HVAC 
technician. The Petitioner does not sufficiently describe or submit any evidence establishing the 
significance of membership as a contributor in Club de Engenharia or of a certification by the I I 
I I as a "Universal" technician to show that the memberships and certificates are or were a 
certification for his occupation in the HV AC field. We therefore conclude that the Petitioner does not 
satisfy the criterion at 8 C.F.R § 204.5(k)(3)(ii)(C) requiring evidence of a license to practice his 
profession or certification for his particular profession or occupation. 
Evidence that the individual has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 8 C.F.R. § 204.5(k)(3)(ii)(D) 
In support of this criterion, the Petitioner submitted a letter from a person purporting to be an 
accountant for the Petitioner's company from 2007 to 2017 that lists revenue generated by the 
Petitioner's company and the Petitioner's salary for the same years. On appeal, the Petitioner submits 
the same letter and also provides a printout showing salaries associated with being a refrigeration 
technician in Brazil. He claims his income was twenty times the national average and notes he also 
received part of the company's profits due to being its owner. To satisfy this criterion, the evidence 
must show that an individual has commanded a salary or remuneration for services that is indicative 
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of their claimed exceptional ability relative to others working in the field. 5 We find that the evidence 
submitted, however, is insufficient to establish his salary or remuneration for services for the period 
described in the letter as the letter is unsupported by independent evidence such as payroll, 
employment, bank, or tax records to corroborate the amounts purported to have been earned by the 
company or Petitioner. Therefore, the Petitioner has not established he has commanded a salary or 
other remuneration for services that demonstrates exceptional ability. 
Evidence ofmembership in professional associations 8 C.F.R. § 204.5(k)(3)(ii)(E) 
For this criterion, the Petitioner submitted his membership card for Clube de Engenharia showing his 
status as a "contributor." As noted above, "profession" is defined as one of the occupations listed in 
section 10l(a)(32) of the Act, which includes, but is not limited to, architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or 
seminaries, as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation. The Petitioner has not provided evidence 
establishing the nature and purpose of Clube de Engenharia or its membership requirements to 
establish that it is a "professional" association. As such, despite his membership in this association, 
the Petitioner has not established his membership in a professional association. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, government entities, or professional or business organizations 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
Finally, for this criterion, the Petitioner described his work experience installing, repamng, and 
maintaining certain HVAC projects and provided reference letters from colleagues and companies 
describing projects he completed and attesting to his overall competence and character. The 
Petitioner's statement and reference letters, while recognizing his contributions to individual projects, 
do not sufficiently detail how completion of any of the projects significantly contributed to the industry 
or field ofHVAC beyond the scope of the individual project. Furthermore, the record is not supported 
by contemporaneous evidence that illustrates the significance of the projects to the HVAC industry or 
field. Accordingly, the Petitioner has not established he has received recognition for achievements 
and significant contributions to the industry or field by peers, government entities, or professional or 
business organizations. 
Based on the above analysis, the Petitioner does not meet four out of the six initial evidentiary criteria 
listed in 8 C.F.R. § 204.5(k)(3)(ii) and therefore cannot satisfy at least three of the evidentiary criteria 
in that section as is required to be eligible for EB-2 immigrant classification. 6 Accordingly, he has 
5 See 6 USCJS Policy Manual, supra, at F.5(B)(2). 
6 The Director also found that the Petitioner did not satisfy the criterion under 8 C.F.R. § 204.5(k)(3)(ii)(B) that he provide 
letter(s) from current or former employer(s) showing that he has at least ten years of full-time experience in his occupation, 
and the Petitioner contests this conclusion on appeal. However, because we have determined the Petitioner does not 
otherwise meet four of the other evidentiary criteria, we need not address whether he satisfies this criterion. See INS v. 
Bagamasbad, 429 U.S. at 25-26; see also Matter ofL-A-C-, 26 I&N at 526 n. 7. Similarly, we need not conduct a final 
merits determination to decide whether the evidence in its totality shows that the Petitioner is recognized as having the 
requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or 
welfare of the United States. See id. 
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not established he is an individual of exceptional ability in the sciences, arts, or business as is required 
for EB-2 immigrant classification. 
III. CONCLUSION 
As noted above, the Petitioner has not established that he is a member of the professions holding an 
advanced degree or their equivalent. Additionally, the Petitioner has not established that he meets the 
initial evidence requirements for classification as an individual of exceptional ability, as he has not 
met at least three of the evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii). He therefore has not 
demonstrated eligibility for the underlying EB-2 classification. Because this determination is 
dispositive of the Petitioner's appeal, we need not address his arguments on appeal regarding whether 
a discretionary waiver of the job offer requirement would be "in the national interest" and instead 
reserve this issue. 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 MatterofL-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). 
ORDER: The appeal is dismissed. 
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