dismissed EB-2 NIW Case: Motorcycle Customization

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 31, 2023 In Re: 26358243 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a motorcycle customizer, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability in the sciences, arts, or business . 
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). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish eligibility for the EB-2 classification or for a national interest waiver under the Dhanasar 
framework. 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 novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
On appeal, the Petitioner submits a brief referencing the same arguments and evidence previously 
submitted and considered . The Petitioner does not dispute the Director's determination that he did not 
establish eligibility for the EB-2 classification as an advanced degree professional. 
The Director determined the Petitioner did not qualify as an individual of exceptional ability. 
Specifically, the Director concluded the evidence did not establish the Petitioner met at least three of 
the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). We adopt and affirm the Director's 
decision regarding the specific issue of eligibility for the EB-2 classification. See Matter ofBurbano, 
20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (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). 
The Director concluded the Petitioner did not demonstrate an official academic record showing he has a 
degree, diploma, certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability pursuant to 8 C.F.R. § 204.5(k)(3)(ii)(A). On appeal, 
the Petitioner reiterates his earlier assertions that he provided certificates demonstrating completion of art 
courses, and a transcript for an incomplete marketing course from the Universidadd Ia "well­
known institution" officially recognized by the Ministry of Education of Brazil. However, the Director 
correctly determined that the Petitioner did not demonstrate the relationship between the field of 
marketing and the Petitioner's claimed exceptional ability ofmotorcycle customization. In addition, since 
the Petitioner did not complete this course, he did not receive a degree, diploma, certificate of similar 
award from that institution. On appeal, the Petitioner did not provide any documentation or evidence to 
overcome the Director's concerns. Accordingly, we conclude the evidence is insufficient to establish 
eligibility under the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director considered the Petitioner's evidence regarding whether he commanded a salary, or other 
remuneration for services, which could demonstrate exceptional ability pursuant to 
8 C.F.R. § 204.5(k)(3)(ii)(D) and explained it did not establish that his earnings as a custom 
motorcycle specialist were indicative of exceptional ability relative to others in his field. On appeal, 
the Petitioner reiterates his monthly earnings from 2020 to 2022 where he was earning from $5,000 to 
$8,000 a month. However, those earnings took place after the date the current petition was filed. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform 
to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). The 
Petitioner therefore did not provide evidence overcoming the Director's concerns. 
On appeal, the Petitioner reemphasizes his career successes, skills, and professional relationships, and 
relies upon previously provided evidence, such as support letters and certificates, to establish his 
eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F). The evidence suggests his colleagues respect and 
appreciate him; however, it does not indicate the Petitioner has been recognized for achievements and 
significant contributions to the motorcycle customization industry as a whole. 
The evidence does not establish the Petitioner met at least three of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii) at the time of filing. Therefore, the Petitioner has not 
established eligibility as an individual of exceptional ability under section 203(b )(2)(A) of the Act. A 
final merits determination is not required. As the Petitioner has not established the threshold 
requirement of eligibility for the EB-2 classification, analyzing his eligibility for a national interest 
waiver under the Dhanasar framework is unnecessary. Because the identified reasons for dismissal 
are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the arguments 
concerning eligibility under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that "courts and agencies are not required to make findings on issues the decision of 
which is 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). 
Nevertheless, we reviewed the evidence in its totality and agree with the Director's conclusion that 
the record does not establish the Petitioner's eligibility for a national interest waiver. 
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The Petitioner has not demonstrated that he qualifies as a member of the professions holding an advanced 
degree or as an individual of exceptional ability under section 203(b )(2)(A) of the Act. Accordingly, the 
Petitioner has not established eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
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