dismissed EB-2 NIW Case: Martial Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 25, 2024 In Re: 26925907 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a martial artist entrepreneur, seeks employment-based second preference (EB-2) 
immigrant classification as 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 petition, concluding that the Petitioner did not 
establish eligibility for the 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. 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). 1 Meeting at least three criteria, however, does not, in and of itself, establish 
eligibility for this classification.2 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. 
1 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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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,3 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. 
TI. ANALYSIS 
At the time of filing, the Petitioner claimed that he meets the initial evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) through (F) and that he otherwise qualifies for classification as an individual of 
exceptional ability in the sciences, arts, or business. The Petitioner intends to operate a martial arts 
sports entertainment business in the United States and submitted a business plan for a Florida company 
he established in 2020, noting that his organization held mixed martial arts tournaments and he is 
developing a program to teach mixed martial arts to children and adults with low incomes in various 
areas of the world. 
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), 
summarized below: 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of the regulatory criteria, 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 
3 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). 
2 
determination). See also, generally, 6 USCIS Policy ManualF.5(B)(2), https://www.uscis.gov/policy­
manual. 
The Director determined that the record established the Petitioner met two of the six criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E) and (F) and issued a request for evidence (RFE) for additional documentation to 
demonstrate he met the additional criteria. In the RFE response, the Petitioner claimed to satisfy all 
four of the remaining exceptional ability criteria, relating to academic degrees, experience, license or 
certification, and salary. 
In the denial notice, the Director addressed all six criteria and concluded that the Petitioner submitted 
evidence to satisfy three of the criteria, relating to experience, memberships, and recognition. The 
Director indicated that based on a review of the record, the Petitioner has a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. We note the Director 
also stated that the Petitioner was not found to be an individual of exceptional ability. The Director 
further concluded that the Petitioner did not establish eligibility under the first and third prong of the 
Dhanasar analytical framework. Specifically, the denial indicated that the evidence did not 
demonstrate the national importance of the proposed endeavor or that on balance, waiving the job offer 
requirement would benefit the United States. 
On appeal, the Petitioner asserts the Director made erroneous conclusions oflaw and fact and provides 
further arguments related to the potential national importance of the proposed endeavor and to the 
third Dhanasar prong. We note the Petitioner states that the Director found he qualifies for EB-2 
classification as an individual holding an advanced degree. The record does not support this statement; 
the Petitioner indicated in his RFE response that he does not have an advanced degree and he seeks 
qualification as a professional of exceptional ability. 
After de novo review of the evidence, we conclude that the Petitioner did not establish that he meets 
the requirements of at least three of the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii). Accordingly, 
for the reasons provided below, we will withdraw the Director's determination that the Petitioner 
established his eligibility as an individual of exceptional ability. 
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 asserted in his RFE response that his martial arts certificates satisfy this criteria because 
the documents demonstrate that he reached the highest levels of mastery through practice and continuous 
examinations. We agree with the Director's determination that the Petitioner did not establish that these 
certificates were earned from a college, university, school, or other institution of learning relating to the 
area of exceptional ability. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
individual has at least ten years offull-time experience in the occupation for which he or 
she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
3 
The Petitioner filed his national interest waiver petition in September 2020. The Petitioner's resume 
submitted with the initial filing lists his professional history beginning in June 2014. Accordingly, the 
Director requested additional documentation in the RFE to show that the Petitioner possesses ten years 
of full-time experience in the occupation he seeks. The RFE response included employment verification 
letters that discussed the Petitioner's work experience as the chief executive officer (CEO) of a martial 
arts store from June 2014 to June 2016, the CEO of a mixed martial arts company in Brazil beginning in 
March 2016, and the owner and manager of a sports academy franchising business since July 2016. 
The submitted evidence reflects the Petitioner's work experience began in June 2014, only six years 
prior to the petition's filing date in September 2020. Accordingly, the Petitioner has not provided 
evidence from current or former employers that documents his ten years of full-time experience in the 
occupation in which he intends to work in the United States, as required by the plain language of this 
criterion. We will withdraw the Director's determination regarding this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Petitioner asserted in his RFE response that an occupational license is not required in order to practice 
his proposed endeavor, there is no governmental licensing agency in charge ofprofessional mixed martial 
arts fighters or entrepreneurs, and holding certifications is not a requirement for being an entrepreneur. 
We agree with the Director's determination that the Petitioner did not meet this criterion because the 
record does not demonstrate a license or certification is required for his profession or occupation. 
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's RFE response included his accountant's statement that between 2016 and 2022 he earned 
between R$ (Brazilian Real) 50,000 and R$112,000 annually. To satisfy this criterion, the Petitioner 
referred to the previously submitted undated document that reflects entrepreneur salaries in Brazil range 
from R$2,410 for a trainee at a small company to R$15,487 for a master at a large company. It is 
unclear whether the entrepreneur salaries document refers to monthly or annual salaries. The record 
lacks sufficient information to show that the Petitioner commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability, and we agree with the Director's determination that the 
Petitioner did not meet this criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
Copies of certificates indicate that the Petitioner is a member of the Mixed Martial Arts Gaucha 
Association. The Director concluded, without further discussion, that the Petitioner meets the regulatory 
requirements for this criterion. We disagree with the Director's conclusion. 
The Petitioner submitted no information or evidence about this association other than the certificates, and 
therefore the Petitioner has not established that it is a professional association. The Petitioner did not 
show that the association's members are professionals as defined at 8 C.F .R. § 204.5(k)(2). For the above 
reasons, we conclude that the Petitioner has not met his burden of proof to show that he meets the 
requirements of this regulatory criterion. 
4 
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 evidence that the Petitioner identified as addressing this criterion consists of letters and articles 
discussing the Petitioner's achievements and his company's success in the mixed martial arts field. 
We agree with the Director's conclusion that the Petitioner meets the regulatory requirements for this 
criterion. 
The Petitioner has not established eligibility as an individual of exceptional ability because he has 
submitted documentation that only meets one of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). Because the Petitioner has not met his burden of proof to satisfy at least three of the 
initial criteria at 8 C.F.R. § 204.5(k)(3)(ii), we need not provide the type of final merits determination 
referenced in Kazarian, 596 F.3d at 1119-20. The petition cannot be approved without an underlying 
determination that the Petitioner qualifies for EB-2 classification. Therefore, we will reserve 
discussion of the Petitioner's national interest waiver claim under the Dhanasar framework. 4 
ORDER: The appeal is dismissed. 
4 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 unnecessmy 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). 
5