dismissed EB-2 NIW Case: Law Enforcement

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 28, 2023 In Re: 28792224 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a police officer, 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. 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 did not 
establish that the Petitioner qualifies for the classification sought. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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)(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). To establish exceptional ability, 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). 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). 
Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. USCIS will then conduct a final merits determination to decide whether the evidence 
as a whole shows that the individual is recognized as having a degree of expertise significantly above 
that ordinarily encountered in the field. 
Once a petitioner demonstrates EB-2 eligibility, 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. 
II. ANALYSIS 
A. Initial Criteria for Exceptional Ability 
The Petitioner initially claimed eligibility for classification not as an individual of exceptional ability, 
but as a member of the professions holding an advanced degree. In later submissions, the Petitioner 
has not further pursued this original claim. 1 
After serving in the BrazilianD from 2009 to 2010, the Petitioner has worked in various law 
enforcement ca acities in Brazil includin security work at the 20141 Iand the 2016 
Most recentl since 2017 the Petitioner has been 
~ons instructor for the State o 
L____J, which means~-------------~ The Petitioner entered the United States 
in June 2021 as a B-2 nonimmigrant visitor, and was still in the United States when he filed the petition 
in October 2021. On appeal, he states that he intends to enlist in the U.S. Army. 
To establish eligibility as an individual of exceptional ability, a petitioner must submit documentation 
that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii), 
discussed further below. If an individual meets at least three of these criteria, or submits evidence 
comparable to criteria that do not readily apply to the individual's occupation, we then consider the 
totality of the material provided in a final merits determination and assess whether the record shows a 
degree of expertise significantly above that ordinarily encountered in the individual's field. See 
Kazarian v. USCIS, 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, generally, 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual. 
After the Director issued a request for evidence, the Petitioner claimed to satisfy five of the six 
regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner asserted that the 
remaining criterion does not readily apply to his occupation. 2 We will discuss these claims below. 
The Director concluded that the Petitioner had satisfied three of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), pertaining to academic degrees, experience, and memberships in professional 
1 The Petitioner has not established that he possesses an advanced degree or its defined equivalent of a bachelor's degree 
followed by five years of progressive experience in the specialty, as required by 8 C.F .R. § 204.5(k)(3 )(i). The Petitioner 
claimed to hold a bachelor's degree in human resources management, but the record describes a two-year training course, 
with no evidence that the Petitioner received a degree equivalent to a U.S. baccalaureate upon its completion. 
2 The relevant statute and regulations limit eligibility to "exceptional ability in the sciences, arts, or business" who seek to 
render "services in the sciences, arts ... or business." See section 203(b )(2)(A) of the Act; see also 8 C.F .R. § 204.S(k)( 1 ), 
(2). The Petitioner has not established that his intended work in law enforcement qualifies as employment in the sciences, 
in the arts, or in business. We will not explore this issue further here, because it was not part of the denial decision and 
the Petitioner did not have an opportunity to address it on appeal. But the absence of that discussion should not be construed 
as a stipulation that the Petitioner's intended occupation falls within the sciences, the arts, or business. 
2 
associations. The Director also concluded, however, that a final merits determination did not establish 
exceptional ability. On appeal, the Petitioner contends that the Director should have considered all 
the claimed criteria instead of stopping after granting three. 
We will discuss all six criteria below, before turning to the final merits determination. 
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 documented his completion of a human resources management course at a public 
university in Brazil in 2013, and explained how it relates to his work in "Public Security." We agree with 
the Director that this academic certificate meets the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A).3 
Evidence in the form ofletter(s)from current orformer 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 Director concluded that the Petitioner satisfied this re uirement by submitting a translated 
ce1iification from the attestin that the Petitioner "has 11 
years, 9 months, of services provided to the ~-------------~Brazil." This 
document lists the length of time since the Petitioner joined the police force, but the regulation requires 
more information than the length of service. The regulation requires "full-time experience," and the 
ce1iification does not specify that the Petitioner's employment was full-time. Also, employers' letters 
attesting to qualifying experience must include a specific description of the duties perfonned by the 
individual. 8 C.F .R. § 204.5(g)(l ). The certification does not provide that information. 
We therefore withdraw the Director's determination that the Petitioner has met the requirements of 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
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 asserted that he "receive[s] a higher salary than thousands of other police officers" 
because,__ ______ ___, comprises only 150 ofl I17,000 lpolicel officers. The 
Petitioner submitted survey data indicating that the average police salary in the capital of
I l is R$3,930 per month. The Petitioner's pay receipt from August 2020 shows a total 
payment of R$6,921.40 before taxes and other deductions. This amount, however, includes only 
R$4, 150 in base salary. The remaining amount consists of a meal allowance ofR$246.40 and R$2,525 
for "GOEPM," a term that the record does not explain or define. Because the Petitioner submitted 
only one monthly pay receipt, the record does not show whether the Petitioner received more than one 
GOEPM payment. The survey data also indicates that the monthly base salary range for officers in 
the area is between R$3,000 and R$5,000. The Petitioner's base salary of R$4,150 is slightly above 
the middle of this range. 
3 The regulation does not require the academic award to be equivalent to, or higher than, a U.S. baccalaureate degree. 
3 
The Petitioner did not establish that his salary exceeded the average salary due to exceptional rility,I 
rather than other factors that might affect remuneration. Likewise, the Petitioner implied that 
officers receive higher compensation than other police officers inl lbut he did not establish 
that any such differential results from exceptional ability rather than other factors, such as, for 
example, hazard pay or unusual work hours. 
The Petitioner has not met his burden of proof to establish that his remuneration demonstrates 
exceptional ability. 
Evidence o_fmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner asserted that his membership in the
I I satisfies this criterion. The Director agre~e_d_w-it-h-th_e_P_e-ti-ti_o_n_e-r,-b-u_t_w_e_d-is_a_g_r-ee-_-T-h~e 
Petitioner called I I "a professional association representing the state military," but the 
Petitioner did not establish that I I members are professionals as defined at 8 C.F.R. 
§ 204.5(k)(2). 4 Therefore, the Petitioner has not met his burden of proof to establish that 
I lis a professional association. 
Evidence ofrecognition for achievements and signijicant contributions to the industry 
or field by peers, govemmental entities, or pro_fessional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner stated: "as a Security Agent for the State of in addition to other 
achievements, we won an international award, because of the Pro ram, which ... 
[resulted in] a 33.4% reduction in Intentional Lethal Violent Crimes" in Th • ioner 
has not established that he personally received recognition for the success,----....___~___, The 
media coverage documented in the record indicates that the governor of._______, received an 
award from the~------------~in recognition of the program's success. The 
record indicates that the program began in 2007, before the Petitioner worked for the police in 
I I, and therefore the program itself is not the Petitioner's achievement or contribution. 
The Petitioner also submitted letters from colleagues and superiors, attesting to the Petitioner's 
experience, skills, and qualifications, but he did not show that these letters constitute recognition for 
achievements and significant contributions to the industry or field. 
The remaining criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) relates to a license to practice the profession 
or certification for a particular profession or occupation. The Petitioner asserted that this criterion 
does not readily apply to his occupation, but that he "fulfilled the requested evidence" because he 
meets the legal requirements for eligibility to serve as a police officer inl I The Petitioner 
did not establish that those requirements are comparable to licensure or certification, as required by 
8 C.F.R. § 204.5(k)(3)(iii). 
4 That regulation defines a "profession" as means one of the occupations listed in section 10l(a)(32) of the Act, 8 U.S.C. 
§ l 10l(a)(32) ("architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies, or seminaries"), as well as any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation. 
4 
I 
The Director did not address the licensure criterion, or the claim of comparable evidence, in the denial 
notice, because the Director had granted three others. On appeal, the Petitioner does not further pursue 
this claim or specifically assert that the Director erred by not granting this regulatory criterion. 
For the above reasons, we disagree with the Director's conclusion that the Petitioner has satisfied at 
least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). Nevertheless, because the Director 
proceeded to a final merits determination, we will address that issue below. 
B. Final Merits Determination 
Meeting the minimum requirement by providing at least three types of initial evidence does not, in 
itself, establish that the beneficiary in fact meets the requirements for exceptional ability classification. 
A petitioner must establish, by a preponderance of the evidence, that the beneficiary has a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. The 
petitioner must demonstrate that the beneficiary is above others in the field; qualifications possessed 
by most members of a given field cannot demonstrate a degree of expertise significantly above that 
ordinarily encountered. See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
The Director denied the petition, stating that, while the Beneficiary had documented his training, 
experience, and salary, he had not shown that these factors demonstrated a degree of expertise 
significantly above that ordinarily encountered in his field. 
On appeal, the Petitioner argues that the Director en-ed by proceeding to a final merits determination 
after discussing only three of the regulatory criteria, because "it is simply implausible to establish a 
final merits analysis without first detennining how many of the six criteria the Petitioner actually 
successfully met." 
The final merits determination, however, does not hinge on the number of criteria that a petitioner has 
satisfied. Rather, a final merits determination involves "considering the petition in its entirety." See 
generally 6 USCJS Policy Manual, supra, at F.5(B)(2). The Director's discussion in the final merits 
determination included factors other than the three basic criteria that the Director had granted. 
Also on appeal, the Petitioner repeats prior assertions, some of which we have addressed above. 
Beyond the assertions already discussed, the Petitioner states that the Director should have given more 
weight to the Petitioner's membership inl I. The Petitioner, however, does not show that 
I requires exceptional ability as a condition of membership. Rather, he cites bylaws 
indicating that membership is open to current and retired members of Brazil's military, including 
police officers. Therefore, I I membership does not distinguish between exceptional 
police officers and those with lesser degrees of achievement. 
The Petitioner again cites statistics indicating thad Isignificantly reduced violent crime 
in] I. The Petitioner does not explain how these statewide statistics, relating to an initiative 
that was already underway before he became a police officer, attest to his personal exceptional ability. 
Regarding his membership in ....l _ ____.,l the Petitioner states: 
5 
[T]he State ofl Ihas around 17,000 active police officers. [ Among] this 
total, onl[ 150 ... police officers serve in thel !Police Unit -I II,which means that only 0.88% of all police personnel in the state are qualified 
... and able to work in the main I rState Police Elite Unit. 
The Petitioner, however, cites no evidence in the record to support his claim that I Iofficers, by 
definition, have a greatler degre of expertise than other police officers inl._______, The Petitioner 
did not document how selects its officers. 
The record establishes that the Petitioner is a qualified law enforcement officer who has served with 
well-regarded units and earned the respect of his colleagues and superiors, but the Petitioner has not 
overcome the Director's detennination that the Petitioner has not established a degree of expertise 
significantly above that ordinarily encountered in his occupation. 
For the above reasons, we agree with the Director that the Petitioner has not met his burden of proof 
to establish that he is an individual of exceptional ability. In light of this conclusion, discussion of the 
Petitioner's national interest waiver claim change the outcome of this appeal. Therefore, we reserve 
argument on the issue of the national interest waiver. 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 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). 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established eligibility for classification as 
an individual of exceptional ability in the sciences, the arts, or business. 
ORDER: The appeal is dismissed. 
6