dismissed EB-2 NIW Case: Procurement And Import

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 7, 2024 In Re: 32371709 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a procurement and import specialist, seeks employment-based second preference 
(EB-2) immigrant classification as a member of the professions holding an advanced degree, 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 
qualify 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 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 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. 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: 
(A) An official academic record showing that the [noncitizen] 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; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the [noncitizen] has at least ten years of foll-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the [noncitizen] has commanded a salary, or other renumeration 
[sic] for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition 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). 
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." 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. 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 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
A. The Petitioner Is Not An Individual of Exceptional Ability 
The Director determined that the Petitioner met the following two of the six categories of evidence 
required to demonstrate exceptional ability: an official academic record showing the Petitioner has a 
degree and ten years of experience. 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (B). The Director also 
concluded the Petitioner did not satisfy any of the remaining four criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii)(C)-(F). Contrary to the Director's decision, we disagree that the Petitioner established 
he had ten years of experience at the time of the petition's filing, and we will withdraw the Director's 
conclusion on this issue. 
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On appeal, the Petitioner asserts that the Director's decision was erroneous, and maintains that he also 
meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(F) pertaining to recognition for achievements and 
significant contributions. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
noncitizen 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). 
To satisfy this criterion, the evidence must show "in the form of letter(s) from current or former 
employer(s) ... that the alien has at least ten years of full-time experience" in the proposed occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
At the outset we note that the brief accompanying his application states that his proposed endeavor is 
to work as a procurement and import specialist in the food industry. The letters purporting to support 
the Petitioner's work experience in the specialty do not adequately reflect at least ten years of full­
time experience. Two letters indicate that the Petitioner held positions as a sales trader which is a a 
position that differs from the proposed endeavor. It is not clear how the Petitioner's work experience 
as a sales trader buying and selling financial instruments like stocks is similar to the duties described 
in his proposed endeavor whereby the Petitioner will expand the geographical area of operation of a 
company and diversify imported food products. The Director requested additional information to 
clarify this distinction in the job duties reflected in the Petitioner's employment letters versus the duties 
to be performed in the proposed endeavor, but in response, the Petitioner submitted the same 
employment letters and did not sufficiently explain that the letters show ten years of full-time 
experience in the proposed position. 
Further, the letter from I I confirmed the Petitioner's employment at the company from 
2002 to 2009 as a senior sales trader but did not provide any job duties performed by the Petitioner 
while he held that position. The regulations require that the evidence used to establish this criterion 
be "in the form ofletter(s) from current or former employer(s)." Additionally, while the regulation 
does not require that the employment letter contain a job description, the evidence must demonstrate 
that the experience is "in the occupation." Because the Petitioner's employment letter states only the 
job title of "sales trader senior" and does not describe the Petitioner's job duties, we conclude that the 
letter does not provide a sufficient description of this job to establish that it relates to the occupation 
as outlines in the proposed endeavor. Additionally, the letter does not state that the employment was 
full-time. 
In addition, the employment verification letter from I lwas written in another language and 
only part of the letter was translated as the Petitioner's duties were not translated into the English 
language. Therefore, the letter was not accompanied with a complete certified English translation as 
required. 8 C.F.R. § 103.2(b)(3). Because the Petitioner did not submit a properly certified English 
language translation of this document, we cannot meaningfully determine whether the translated 
material is accurate and thus supports the Petitioner's claims. 
The Petitioner's evidence is not sufficient to establish that the Petitioner has the requisite ten years of 
full-time experience in his occupation, and we withdraw the Director's conclusion on this issue. 
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Accordingly, we conclude the evidence is insufficient to establish eligibility under the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
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 Petitioner submitted several letters of recommendation to demonstrate that he has been recognized 
for achievements and significant contributions to their field by peers, governmental entities or 
professional or business organizations. But the evidence the Petitioner submitted did not meet the 
standard of proof because it did not satisfy the basic standards of the regulations. See Matter of 
Chawathe, 25 I&N Dec. at 3 7 4 n. 7. The regulation requires evidence of recognition of achievements 
and significant contributions. When read together with the regulatory definition of exceptional ability, 
the evidence of recognition of achievement of significant contributions should show expertise 
significantly above that ordinarily encountered in the field. 
On appeal, the Petitioner contends that the submitted letters provide "clear evidence of recognition 
and endorsement for peers, professionals, and business entities." The letters of recommendation are 
written by previous employers and colleagues, and the Petitioner asks us to conclude the writers' 
conclusions alone constitute recognition of achievements and significant contributions. But these 
statements are not supported by any evidence in the record which reflects that these letters represent 
noteworthy achievements and significant contributions. 
For example, the letter from the owner ofl Istated that the Petitioner was hired as a 
customer sales representative and promoted to a chief sales officer when he surpassed his sales mark 
in 2022. The author outlined some major professional achievements made by the Petitioner when 
working at the company and the author noted the Petitioner "accomplished great things in my 
company." In addition, a letter from a former colleague atl indicated that the Petitioner proved 
to be "hard-working, smart, and talented" and was "well-prepared and had a high knowledge of the 
financial market." Further, the Petitioner submitted two letters from peers that worked with the 
Petitioner on certain projects or assignments that noted the Petitioner was knowledgeable in the 
financial market, worked diligently, and attracted new customers and enhanced profitability. 
The letters described the Petitioner's character, work ethic, and other positive qualities like he is an 
"asset," "knowledgeable," "professional," and "brought a great work ethic within the company." In 
general, the letter writers indicated the Petitioner was a person of genial character and a knowledgeable 
worker. But the Petitioner's genial character, good work ethic, and knowledge are not achievements 
or significant contributions to their field of endeavor. While the letters discuss the Petitioner's 
professional skills and job experience, this evidence does not show that his work has been recognized 
beyond his employers and clients and their specific projects at a level indicative of "achievements and 
significant contributions to the industry or field." We therefore agree with the Director that the 
Petitioner has not established that he fulfills the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
For the reasons set forth above, the evidence does not establish that the Petitioner 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 
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exceptional ability classification. The Petitioner, therefore, is not eligible for classification as an 
individual of exceptional ability in the sciences, art, or business. 
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. The Director determined that although the 
Petitioner's proposed endeavor has substantial merit, the record did not establish that the Petitioner's 
proposed endeavor 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. As the Petitioner has not established 
the threshold requirement of eligibility for the EB-2 classification, further analysis of his eligibility 
for a national interest waiver under the Dhanasar framework is unnecessary. 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we 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 are unnecessary to the 
ultimate decision); see also Matter of L-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 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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