dismissed EB-2 NIW Case: Hvac

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 14, 2023 In Re: 28181945 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as an individual of exceptional ability. 
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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the underlying EB-2 immigrant classification. 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 l&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 establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 immigrant 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner must then establish eligibility for a 
discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of 
the Act. While neither statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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 proposes to work as an entrepreneur establishing and operating his own heating, 
ventilation, and air conditioning (HVAC) company. The Director found that the Petitioner did not 
establish that he is either an advanced degree professional or that he is an individual of exceptional 
ability and, as such, did not establish qualification for the EB-2 classification. The Director denied 
the petition, concluding that, without being eligible for the underlying immigrant classification, the 
Petitioner was therefore not eligible for a national interest waiver. As such, the Director did not reach 
the question of whether the Petitioner established eligibility under any of the three prongs in the 
Dhanasar analytical framework. 
On appeal, the Petitioner first discusses the preponderance of the evidence standard in general, and 
states that the Director should not "alter the regulations or impose [a] stricter standard of proof." 
However, if the Petitioner believes that the Director improperly imposed a stricter standard of proof 
than a preponderance of the evidence, the Petitioner does not support this assertion with specificity as 
to any evidence in the record or how it was incorrectly considered by the Director. Similarly, the 
Petitioner does not identify any specific regulation that he claims the Director misapplied or "altered." 
The Petitioner next makes a procedural argument, asserting that it was erroneous of the Director to 
deny the petition based only upon the finding that the Petitioner does not qualify for the EB-2 
classification and without providing an analysis of the record as to the Dhanasar prongs. The 
Petitioner claims that this is "a violation of USCIS policy, the United States Constitution, and 
international treaties." However, the Petitioner does identify a specific policy, treaty, or constitutional 
provision that the Petitioner claims was violated. The Petitioner also makes the general assertion that 
the decision on this single basis "deprived [the Petitioner] of due process rights and fair treatment." 
But the Petitioner does not provide legal support for his assertion that the Director's decision violated 
his due process rights, such as identifying the due process right at issue and the legal standard by which 
it is assessed. 2 
If the Petitioner's due process argument is grounded in a concern over the constitutionality of the Act 
or the regulations, we cannot address arguments on the constitutionality of laws enacted by Congress 
or on regulations. See, e.g., Matter of C-, 20 I&N Dec. 529, 532 (BIA 1992) (holding that the 
Immigration Judge and Board of Immigration Appeals lacked jurisdiction to rule upon the 
constitutionality of the Act and its implementing regulations); Matter of Hernandez-Puente, 
20 I&N Dec. 335, 339 (BIA 1991) ("It is well settled that it is not within the province of this Board to 
pass on the validity of the statutes and regulations we administer.") ( citations omitted). But if the 
2 See Lang v. Payne, 476 U.S. 926,942 (1986) (stating that "[w]e have never held that applicants for benefits ... have a 
legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment."); see also 
Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (explaining that the Fifth Amendment protects against deprivation 
without due process of property rights granted to noncitizens; however, petitioners do not have an inherent property right 
in an immigrant visa). 
2 
Petitioner's due process claim is based upon a concern that the Director did not comply with an 
applicable statute, regulation, or precedent decision, the Petitioner does not cite the specific statute, 
regulation, or decision at issue. 
Moreover, we conclude that the Director's decision sufficiently explained the reasons for denying the 
petition and provided the Petitioner a fair opportunity for meaningful appellate review related to the 
basis of denial. See 8 C.F.R. § 103.3(a)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). We note that prior to issuing the 
denial, the Director first issued a detailed request for evidence (RFE), advising the Petitioner that the 
record was insufficient to establish qualification for the EB-2 classification, either as an individual of 
exceptional ability or an advanced degree professional, or eligibility for a national interest waiver 
under any of the three Dhanasar prongs. In the RFE, the Director advised the Petitioner of the specific 
deficiencies in the record and provided the Petitioner the opportunity to supplement the record and 
establish eligibility. Further, the decision provided a detailed and thorough analysis as to the evidence 
in the record and why the Director found it insufficient to establish the Petitioner's qualification for 
the EB-2 classification. A petitioner must be qualified for the underlying immigrant classification to 
be eligible for a national interest waiver. See section 203(b)(2)(B)(i) of the Act. Since the Petitioner 
did not establish qualification for the EB-2 classification, the Petitioner would not be able to establish 
eligibility for a national interest waiver. 3 
We tum now to the Petitioner's specific statements on appeal as to his eligibility for the EB-2 
classification. As stated above, to qualify for the classification, an individual must establish eligibility 
either as a member of the professions holding an advanced degree or an individual of exceptional 
ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. Although the Director 
determined that the evidence in the record did not establish the Petitioner's qualification under either 
basis, we note that the Petitioner in his initial filing and in response to the RFE asserts qualification 
only as an individual of exceptional ability. Additionally, on appeal, the Petitioner asserts only that 
he qualifies for the EB-2 classification as an individual of exceptional ability. Accordingly, we 
consider any claim that the Petitioner qualifies as an advanced degree professional to be waived. See, 
e.g., Matter of O-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 
657, 658 n.2 (BIA 2012)). 
"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). To qualify, an individual 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). Meeting at least three criteria, however, does not, in and of itself, establish 
eligibility for this classification. 4 If a petitioner does meet at least three criteria, we will then conduct 
a final merits determination to decide whether the evidence in its totality shows that the individual is 
recognized as having a degree of expertise significantly above that ordinarily encountered in their 
field. 
3 We do note that because the Director has not made detailed findings as to Petitioner's request for a national interest 
waiver under the Dhanasar framework, if the Petitioner, through any future motion filings, were to overcome the basis for 
the denial, we would remand the matter to the Director to make findings as to the Dlzanasar framework in the first instance. 
4 USCIS has previously confirmed the applicability of this two-pait adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
3 
As an initial matter, we note that while the Director analyzed the regulatory criteria as to whether the 
Petitioner established exceptional ability related to the field of HV AC, the Petitioner's initial filing 
and RFE response do not clearly state the field in which he claims exceptional ability. In his 
professional plan and statement, the Petitioner lists numerous, disparate areas of expertise, including 
business management, industrial mechanics, mechanical processes, quality control, CNC 
( computerized numerical control), strategic planning, occupational safety and prevention, project 
management, and people management, without stating a specific field in which he claims to possess 
exceptional ability. Counsel's initial filing brief and RFE response letter refer to the Petitioner as 
having "a degree of expertise significantly above that ordinarily encountered in HV AC"; and as having 
many years of experience in, and making significant contributions to the field of, "distance education 
focused on the field of HV AC"; but also as possessing exceptional ability in "administration and 
business management." On appeal, counsel makes a passing reference that the Petitioner has 
exceptional ability in "business management," but otherwise only refers to the Petitioner generally as 
having experience in the occupation he seeks, expertise in his field, or education relating to his area 
of exceptional ability. 
This lack of clarity in the record as to the Petitioner's claimed area of exceptional ability impedes our 
analysis in determining whether the Petitioner has established the regulatory criteria. However, the 
Petitioner does not assert on appeal that the Director-in considering HV AC to be the Petitioner's 
claimed area of exceptional ability-misconstrued the Petitioner's claim. As such, we also review the 
regulatory criteria as to whether it establishes the Petitioner's exceptional ability in the field ofHVAC, 
and we consider the claim that the Petitioner seeks to be classified as an individual of exceptional 
ability in a different field to be waived. See, e.g., Matter of O-R-E-, 28 I&N Dec. at 336 n.5 ( citing 
Matter ofR-A-M-, 25 I&N Dec. at 658 n.2). 
For the reasons discussed below, we conclude that the Petitioner has not overcome the Director's basis 
for denial and does not meet the initial evidentiary requirements for classification as an individual of 
exceptional ability. We evaluate each of the regulatory criteria in tum. 
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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner submitted a diploma and transcript with the course title: "Industry Area with Technical 
Qualification in Mechanics" from the Centro Educacao Profissionall lin Brazil. 
Although the Petitioner's resume states that this is equivalent to an associate's degree in mechanics, 
the Petitioner did not provide an academic credential evaluation to establish the U.S. equivalency of 
this diploma as to the level of education it represents or the subject area. The Petitioner also submitted 
several certificates relating to such subjects as CNC machinery, forklift operation, millwork, and 
mechanics. The Director concluded that the Petitioner did not show that he has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution ofleaming relating 
to HVAC. The Director further noted that although counsel's RFE response letter claims that the 
Petitioner possesses a bachelor's degree in administration and business management from I 
College in 2005 and a master's of business administration post-graduate course in logistics from the 
4 
I 
.___________ __, in 2009, the record does not contain a diploma and transcript for these 
programs and even the Petitioner's resume does not claim that he possesses this education. 
On appeal, counsel merely repeats the claim from the RFE response that the Petitioner possesses a 
bachelor's degree and a master's of business administration degree. Again, as the Director noted, the 
record does not contain evidence of these degrees. Additionally, the Petitioner does not attempt to 
overcome or even address the Director's finding that the Petitioner did not establish that the diploma 
and the certificates in the record relate to the field of HV AC. 
As such, the Petitioner has not established eligibility under this criterion. 
Evidence in the form ofletter(s)from current 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 Petitioner submitted several employment letters to establish this requirement. In reviewing the 
letters, the Director found that they were insufficient to establish ten years of full-time experience 
relating to the occupation. The Director noted that they demonstrate the Petitioner's employment 
history from May 2, 2006 to February 18, 2016 in such jobs as "CNC Machine Operator," "CNC 
Milling Machine Operator," and "Retail Sales of Hardware and Tools Manager." This is a period of 
just under ten years, and the Petitioner did not explain how this experience relates to the HV AC 
occupation. The Director also acknowledged the Petitioner's claim that he has been an investor and 
partner in his company since July 2017, but stated that the evidence in the record, which includes 
evidence of a limited liability company established in 201 7 and a letter from his spouse stating only 
that he is a "partner" and "investor" in the company, did not establish the job duties the Petitioner has 
performed with the company nor that the company was actively engaged in business with clients. 
On appeal, the Petitioner merely asserts that he "has provided documentary evidence to corroborate 
his professional experience, full-time, for more than 10 years at various top-tier companies in Brazil 
and the United States of America." The Petitioner does not address the deficiencies identified by the 
Director in the decision and does not provide any further details as to how, specifically, the evidence 
in the record establishes at least ten years of full-time experience nor how it relates to the occupation. 
As such, the Petitioner has not established eligibility under this criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner did not submit evidence relating to this criterion or assert eligibility for this criterion. 
As such, the Petitioner has not established eligibility under this criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner did not submit evidence relating to this criterion or assert eligibility under this criterion. 
As such, the Petitioner has not established eligibility under this criterion. 
5 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner did not submit evidence initially to establish this criterion. In response to the RFE, the 
Petitioner submitted a letter from the "Florida United Businesses Association," dated January 9, 2023, 
welcoming the Petitioner's company to membership in the association. The Petitioner also submitted 
information from the association's website, stating that it is a trade association representing small 
businesses in the state of Florida. The Director concluded that the Petitioner did not establish that he 
was a member of this association prior to the filing of the petition in March of 2021, and therefore did 
not establish eligibility for this criterion. 
On appeal, the Petitioner states that he "included his certificate of membership from the Florida 
United Business Association confirming the [Petitioner's] membership of the professional association 
and that he was a member at the time of filing the petition. Therefore, he has provided clear and 
convincing evidence that he is a member of renowned and prominent professional associations." 
( emphasis in original). 
However, the record does not contain a "certificate of membership" as the Petitioner claims and does 
not include evidence of a membership date prior to the filing of the petition. The Petitioner does not 
specify in his appeal what date he claims he became a member of this association. We agree with the 
Director's conclusion that the Petitioner did not provide evidence that he was a member of this 
association prior to filing the petition. As noted by the Director, a petitioner must establish eligibility 
at the time the petition is filed. See 8 C.F .R. § 103 .2(b)(1 ). A visa petition may not be approved when 
a beneficiary, initially ineligible at the time of filing, becomes eligible under a new set of facts. See 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
As such, the Petitioner has not established eligibility under this criterion. 
Evidence ofrecognition 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)(F). 
The Petitioner submitted letters of recommendation in support of this criterion. The Director 
concluded that while the letters discuss various positions the Petitioner has held and projects on which 
the Petitioner has worked, the letters do not describe recognition for achievements and significant 
contributions to the industry or field. For example, the Director notes that one of the letters describes 
a project that the Petitioner and the letter writer worked on to use more effective sharpening tools to 
reduce maintenance needed on molds, but that the letter did not demonstrate that the project was 
implemented beyond the company or its clients or was otherwise a significant contribution to the 
field. 5 
5 We also note that the record does not demonstrate that this project, nor the other positions and projects described in the 
other letters of recommendation, relates to the HV AC field. 
6 
On appeal, the Petitioner again simply asserts that he has established this criterion, without addressing 
or overcoming the Director's findings. The Petitioner states only, "we have included evidence in the 
form of documentary evidence that farther proves recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations." The Petitioner's conclusory statement, which does not reference specific evidence in 
the record and simply restates the regulatory language, is not sufficient to overcome the Director's 
findings or to establish this criterion. 
As such, the Petitioner has not established eligibility under this final criterion. 
Therefore, the Petitioner has not established that he satisfies any of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). Because the Petitioner does not satisfy at least three of the criteria, we need not conduct 
a final merits determination to evaluate whether he has achieved the degree of expertise required for 
exceptional ability classification. As such, the Petitioner does not qualify as an individual of exceptional 
ability. Having determined that the Petitioner does not qualify as an individual of exceptional ability, 
we conclude that the Petitioner has not demonstrated eligibility for the underlying EB-2 classification. 
The next issue is whether the Petitioner has established that a waiver of the classifications' job offer 
requirement is in the national interest. Because the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address 
whether he is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required 
to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also 
Matter ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternate issues on appeal 
where the applicant did not otherwise meet their burden of proof). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability. 8 C.F.R. § 204.5(k)(3). Because the Petitioner has not established 
eligibility for the underlying EB-2 immigrant classification, we conclude that the Petitioner is not 
eligible for a national interest waiver. We reserve our opinion regarding whether the Petitioner has 
satisfied any of the three prongs of the Dhanasar analytical framework. 
ORDER: The appeal is dismissed. 
7