dismissed EB-2 NIW Case: Industrial Electronics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 20, 2024 In Re: 30188182 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of industrial electronics, seeks classification as an 
individual of exceptional ability in the sciences, arts or business. See 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, 8 U.S.C. § 1153(b)(2)(B)(i). 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 Texas Service Center denied the petition, concluding that the record does not 
establish that the Petitioner qualifies for classification 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. 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 Christa '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 visa classification, as either 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) of 
the Act. 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 further provide six criteria, at 
least three of which must be satisfied, for an individual to establish exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii) for an elaboration of these criteria. Meeting at least three criteria, however, does not, 
in and of itself, establish eligibility for this classification. 1 We 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 the field. See 8 C.F.R. 
§ 204.5(k)(2). 
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 certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "If the above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." 
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 USCIS may, as 
matter of discretion, 2 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 Director determined that the Petitioner did not establish that he is an individual of exceptional 
ability, and as such did not establish that he qualifies for the underlying EB-2 classification. 3 The 
Director further determined that the Petitioner did not establish eligibility under the first and third 
prongs of the Dhanasar framework and therefore concluded that he is not eligible for a national interest 
waiver. 
The Petitioner's proposed endeavor is to establish and operate an IT security consulting services 
company that will target small and medium-sized companies located in the United States. On appeal, 
the Petitioner submits a brief in which he asserts that he has established his eligibility for the 
underlying EB-2 classification as well as a national interest waiver. 
1 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
2 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). 
3 The Petitioner does not claim to qualify for the EB-2 classification as an advanced degree professional. 
2 
A. Eligibility for EB-2 Classification 
To determine whether 
the Petitioner established that he has a degree of expertise significantly above 
that ordinarily encountered in the field of information technology, the Director assessed the entirety 
of the record. The Director determined that although the Petitioner met at least three out of six criteria 
under 8 C.F.R. § 204.5(h)(3)(ii), the record lacked evidence that the Petitioner's professional 
achievements demonstrated a degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business. 
In a final merits determination, the Director acknowledged the Petitioner's education and experience, 
including his acquisition of licensure and training certifications in the field that prepared him to work 
in an executive capacity in the IT industry, but concluded that the Petitioner did not establish by a 
preponderance of the evidence that he has achieved a degree of expertise that is significantly above 
that ordinarily encountered in the sciences, arts, or business. See 8 C.F.R. § 204.5(k)(2). Specifically, 
the Director determined that his qualifications were typical for the average individual providing IT 
services and, therefore, the Petitioner had not demonstrated that his skill level qualified him as an 
individual of exceptional ability. 
On appeal, the Petitioner first asserts that the Director "uses a standard of proof that is evidently higher 
than the one that should be applied by USCIS when adjudicating these petitions." The Petitioner, 
however, does not identify any unusual requirements imposed, nor does the Petitioner specify how the 
Director erred or what factors in the decision were erroneous. 4 The Petitioner also contends, without 
further explanation, that the Director applied a stricter standard of proof than that of preponderance of 
the evidence. Accordingly, we need not further address either of these assertions. Cf Giday v. INS, 
113 F.3d 230,234 (D.C. Cir. 1997) (declining to address a "passing reference" to an argument in a 
brief that did not provide legal support). 
The Petitioner also asserts that by satisfying five of the six criteria that are required to demonstrate 
exceptional ability, he met the preponderance of the evidence standard and thus qualifies for the 
underlying EB-2 classification. He further argues that the Director's decision was insufficient due to 
its "lack of proper analysis of the totality of the evidence submitted." Moreover, he asserts that the 
Director's determination that he does not possess a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business, despite satisfying "80% of the initial criteria," 
constitutes an abuse of discretion. It appears, however, that the Petitioner relies on his ability to meet 
at least three of six criteria listed at 8 C.F.R. § 204.5(k)(3)(ii) as the basis for claiming that he is an 
individual of exceptional ability. We disagree. As noted above, and as previously stated both in the 
Director's request for evidence and in the denial, meeting the minimum requirements by providing at 
least three types of initial evidence is not sufficient to establish that the Petitioner is an individual of 
exceptional ability, but instead is only the first step. 5 Here, the second step of the process is based on 
a comprehensive qualitative analysis of the evidence. 
4 An appeal must specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision. 
See 8 C.F.R. § 103.3(a)(l)(v). 
5 See generally 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
3 
We agree with the Director's determination that the Petitioner's academic credentials, experience, 
training certificates, and licensure in the field do not automatically render him an individual of 
exceptional ability because these types of qualifications are part of the normal course of employment 
and professional development in the IT industry. We acknowledge the Petitioner's submission of 
letters from colleagues and former employers who commended his expertise, training, and leadership 
skills in the field, and discuss how the Petitioner has competently performed his job and attest to his 
skillsets. However, these letters were not accompanied by corroborative evidence showing the impact 
of the Petitioner's work in the field, such as examples of the implementation of his methodologies or 
innovations or how the Petitioner's work has otherwise been recognized outside of organizations 
where he has been employed or associated. As noted by the Director, eligibility is to be determined 
not by the quantity of evidence alone but by its quality. Matter ofChawathe, 25 I&N Dec. at 376. 
Here, the Petitioner has not adequately explained the nature of his specific contributions to the field 
of information technology, supported by documentary evidence. Rather, he reiterates on appeal that 
he is an accomplished CEO of three companies in Brazil with many years of experience and references 
previously submitted evidence that demonstrates that he meets at least three of the six criteria set forth 
at 8 C.F.R. § 204.5(k)(3)(ii). But he does not sufficiently address the final merits determination set 
forth under Kazarian or adequately explain how the Director erred in his analysis, and instead 
continues to focus primarily on the fact that the minimum evidentiary requirements were satisfied. 
We adopt and affirm the Director's decision regarding its discussion of exceptional ability and the 
final merits. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday, 113 F.3d at 
234 (noting that the practice of adopting and affirming the decision below has been "universally 
accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight circuit courts in holding that appellate adjudicators may adopt and affirm the 
decision below as long as they give "individualized consideration" to the case). 
B. Eligibility for National Interest Waiver 
The Director also addressed the Petitioner's eligibility for a national interest waiver, applying the 
three-prong framework set forth in Dhanasar, and concluded that although the Petitioner established 
that his endeavor has substantial merit and that he is well positioned to advance his endeavor, he had 
not established that his endeavor has national importance, or that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. The Director explained how 
specific evidence within the record, such as the Petitioner's business plan, industry articles and reports, 
expert opinion letter, and letters of support did not establish that the Petitioner's proposed endeavor to 
continue his work as a chief executive in the IT industry has national importance or that it would be 
beneficial to the United States to waive the requirements of a job offer and, thus, of a labor 
certification. 
Here, because the Petitioner has not demonstrated eligibility for the underlying EB-2 classification, 
we need not consider whether he merits a discretionary waiver of the job offer. We therefore decline 
to reach and hereby reserve the Petitioner's appellate arguments regarding his eligibility for a 
discretionary waiver under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that 
4 
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 alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
5