dismissed EB-2 NIW Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
In Re: 9946087 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an entrepreneur, seeks second preference immigrant classification as an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 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 petition, concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
exceptional ability classification and a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
sets forth the specific evidentiary requirements for demonstrating 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). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 3 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner contends that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) and 
the recognition for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In the appeal brief: the Petitioner maintains that he also meets the regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), which requires "[e]vidence in the form of letter(s) from current or former 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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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 evidence of his ten years of foll-time experience as an entrepreneur in the logistics industry, the 
Petitioner initially presented a November 2018 letter froml O O 1 I stating 
that he served as company president from "October 2007 to July 2009" and listing his entrepreneurial 
duties. In addition, he submitted an October 2018 "Employment Certificate" from I I I r indicating that he has been working as chairman of the board for the company 
"since 2010" and listing his responsibilities, projects, and accomplishments. The Petitioner also 
provided a November 2018 "Employment Certificate" from.~---.----------.:,:,----,--~ 
stating that he has been serving as chairman of the board "since 2013" and that he is "responsible for 
control of strategic direction and decision-making of major operating projects of the company." 
The Director issued a request for evidence (RFE) informing the Petitioner of the requirements set forth 
in regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and advising him that the letters he presented from 
current and/or former employers did not meet the requirements of this criterion. The Director's RFE 
stated: 
To meet this criterion, experience letters must demonstrate ten years of foll-time 
experience in the occupation being sought by the petitioner. After reviewing the letters 
in the record, USCIS finds that they do not contain the required information; i.e., the 
letters contain a month and year OR a year, rather than foll dates (mm/dd/yy) of the 
Petitioner's employment with the companies and whether the employment is/was foll 
or part time. In addition, USCIS notes that the Petitioner's employment withc::==::J 
I landl I. L_j) 
overlap. Please explain this overlap, ensuring that documentary evidence is provided 
which substantiates any claims made. 
In response, the Petitioner submitted an August 2019 letter from~__,,...---...,..,....------.-----,-----' 
stating that he "was a foll-time employee" and served as company president from "October 15, 2007 
to July 1, 2009." Additionally, he offered a July 2019 "Employment Certificate" froml I I I indicating that he "has been serving as the chairman of the board of the 
company since June 4, 2010." The Petitioner also presented a July 2019 "Employment Certificate" 
from I I stating that he has been serving as chairman of the 
board since "November 1, 2013." 
In the decision denying the petition, the Director determined that the Petitioner had not met the 
requirements of the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). With regard to the Petitioner's 
work experience, the Director noted that the letters from I an~ I ~--------~--~I did "not state that his position is foll-time." The Director's decision 
farther stated: 
Although counsel for the Petitioner states in his supporting letter that "[b ]y the nature of 
such position (Chairman of the Board) and considering that [the Petitioner] is the owner 
of the two companies, his job in these two companies are [sic] in foll-time manner" and 
that "as an entrepreneur, it is normal for him to simultaneously run two companies," as 
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stipulated in the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B), only employers can attest to 
an alien's ten years of full time employment. 
On appeal, the Petitioner provides letters from~-------------~ and~I --~ 
(both dated November 2019) stating that he has been working for ~------------~ them "full-time." As noted, where a petitioner has been put on notice of a deficiency in the evidence 
and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence 
offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988).4 
In the present matter, the record supports the Director's determination that the Petitioner did not meet 
the requirements of the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). Accordingly, the Petitioner has not 
shown that he satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level 
of expertise required for exceptional ability classification. 
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. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner does not claim that he is an advanced degree professional and, as 
discussed above, has not shown that he meets the regulatory criteria for classification as an individual 
of exceptional ability. As the Petitioner has not established eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
as an individual of exceptional ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
4 Here, the Petitioner was put on notice of the full-time experience requirement set forth in regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) and was given a reasonable opportunity to provide the evidence in response to the Director's RFE. 
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