dismissed EB-2 NIW Case: Restaurant Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 18, 2024 In Re: 33966106 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the restaurant industry , 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 the record did not establish 
that the Petitioner was an individual of exceptional ability and 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 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. 
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 
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 U.S. Citizenship and Immigration Services (USCIS) has previously confirmed the applicability of this two-part 
adjudicative approach in the context of individuals of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual /volume-6-part-f-chapter-5 . 
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. 
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. 
II. ANALYSIS 
A. Exceptional Ability 
The Director concluded the Petitioner met four of the six evidentiary criteria, official academic 
records, more than ten years of full-time experience, license to practice the profession, and recognition 
for achievements and significant contributions to the industry, at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), 
(C), and (F), but that, upon review of the evidence its totality, had not established she is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. While we 
agree with the Director's ultimate conclusion, for the reasons discussed below, we disagree the 
Petitioner meets the license to practice the profession and recognition for achievements and significant 
contributions to the industry at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (F). 
A license to practice the profession or certification for a particular profession or occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
Upon review, we disagree with the Director's conclusion that the Petitioner met this criterion, and 
hereby withdraw it. Notably, the Petitioner did not claim to have met this criterion, and the Director 
did not provide any explanation for their conclusion. The record includes copies of her business 
licenses which only establish that her businesses are allowed to operate at specific addresses in China. 
The Petitioner has not, however, demonstrated that she holds a license to practice the profession 4 or a 
certification for a particular profession or occupation as required by the plain language of the 
regulation. Therefore, the Petitioner has not established eligibility for this criterion. 
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 USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
4 The regulation at 8 C.F .R. § 204.5(k)(2) defines "profession" as any occupation having a minimum requirement of a U.S. 
bachelor's degree or foreign equivalent degree for entry into the occupation. 
2 
Evidence ofrecognition for achievements and sign[ficant 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). 
We also disagree with the Director's determination that the Petitioner met this criterion, and hereby 
withdraw it. The Petitioner's evidence consisted of letters of recommendations from associates, 
awards, certificates, and media articles for her restaurants. While the letters of recommendation 
commend the Petitioner's services, the personal recognitions described and documented in the letters 
do not demonstrate that she has been recognized for "achievements and significant contributions" to 
the broader restaurant or entrepreneurial industry. Similarly, although the awards, certificates, and 
media articles show the Petitioner's success with her ventures, they also do not establish the 
Petitioner's recognition for significant contributions to the industry. 5 
The plain language of the regulation calls for "evidence of recognition for achievements and 
significant contributions to the industry or field." As such, materials that identify an individual's 
achievements but not significant contributions to the industry or field cannot suffice to satisfy the 
regulatory requirements. See Matter of Echeverria, 25 I&N Dec. 512, 518 (BIA 2011) (holding that 
the use of the conjunction "and" in a series of regulatory requirements "is a clear indication" that one 
"must satisfy each of the [listed] requirements"). While we acknowledge the Petitioner's assertions 
on appeal that she has "affected the broader industry" because she has "secured numerous trademarks 
for her original business management and brand identities, earned respect, attention, and support of 
several prominent figures in the industry, been featured in important media with national reach, and 
won several awards," the evidence does not show that she has made a significant contribution to the 
industry. Therefore, the Petitioner has not established eligibility for this criterion. 
On appeal, the Petitioner asserts she also submitted sufficient evidence to meet the salary criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(D) and maintains she qualifies for EB-2 classification as an individual of 
exceptional ability. 
Evidence that the individual has commanded a salary, or other renumeration for services, which 
demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. 6 The Petitioner provided an August 24, 2023, employment verification letter, 
which shows her payments from 2020 to July 2023 are as follows as a top executive: 
Year of 2020: RMB 638,000 yuan 
Yearof2021: RMB 313,000yuan 
Year of 2022: RMB 332,000 yuan 
Year of 2023 (as of July): RMB 676, 715 
5 We also note that the record lacks any independent information as to the requirements associated with these awards and 
ce1tificates, only descriptions from the Petitioner explaining the respective awards and certificates. 
6 See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
3 
A new letter was provided on February 27, 2024, which confirms the payments for 2020-22, but 
updates Year 2023 to RMB 2,524,715 yuan. The new figure references her total remuneration for 
2023, which includes 1,848,000 yuan in shareholder dividends. 
The Petitioner also submitted a printout from Payscale for the average chief executive officer salary 
in China, records of shareholder dividends paid to the Petitioner, and a printout of the U.S. Bureau of 
Labor Statistics (BLS) Occupational Employment and Wage Statistics related to chief executives in 
food services and drinking services in the United States. 
The printout from Payscale shows that the average base salary for a chief executive officer in China 
is RMB 1,504,325 a year in 2023, based on "18 salary profiles." Notably, the printout also shows that 
the highest pay for a chief executive officer in China is RMB 4 million a year, which is significantly 
more than the Petitioner's highest total remuneration (which included dividend payments) of RMD 
2,524,715 in 2023. 7 Regardless, the information from Payscale relies on salary alone, and does not 
indicate that it includes shareholder dividends and, therefore, is not a proper comparison. Further, the 
printout does not offer sufficient information or details to verify the applicability and accuracy of the 
stated salary information. For instance, the printout lacks such critical information as the date range 
to which the data refers, how the data was compiled, the statistical significance of the data, and other 
indications of the reliability and comparability of this data to the Petitioner's occupation. 
Moreover, the BLS wage data reflects that the mean salary nationwide in the United States for chief 
executives in "Food Services and Drinking Places" was $136,650 in May 2022. However, the 
Petitioner has not established the relevance of the U.S. mean salary at a time when she was not working 
in the United States. 
For the foregoing reasons, the Petitioner has not demonstrated that she has commanded a salary 
indicative of exceptional ability in satisfaction of this criterion. 
B. Final Merits Determination 
Even though the Petitioner has not established that she meets three of the six evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii), we nonetheless have reviewed the record in the aggregate and agree with 
the Director that the record does not establish the Petitioner possesses a degree of expertise 
significantly above that ordinarily encountered in her field. 
In reviewing the totality of the evidence in a final merits determination, we consider the quality of the 
evidence. 8 While we acknowledge the evidence demonstrates the Petitioner has education, training, 
experience, and a successful career in the restaurant industry, this evidence does not establish she 
possesses expertise significantly above that ordinarily encountered in the field. 
7 We note that profits earned by a business entity of which the Petitioner is a shareholder do not provide evidence of the 
Petitioner's income because a corporation and an individual are two separate legal entities. See Matter ofSoffici, 22 T&N 
Dec. 158, 162 (Assoc. Comm'r 1998). This is true even if the individual is the sole shareholder of the business. See id. at 
161-63. 
8 See also 6 USCIS Policy Manual, supra, F.5(B)(2). 
4 
On appeal, the Petitioner states that she "has set herself apart from a business management standpoint, 
culturally with award winning dishes, and among other international culinary enterprises" and that 
"[h ]er achievements are above and beyond her peers in the field, as especially exemplified by these 
three awards," Reco nition b I I Gold Award in China 
Festival, and Top 10 Most Popular Global Food Restaurants in 
However, the record lacks any independent information as to the requirements 
associated with these awards and certificates, only descriptions from the Petitioner explaining the 
respective awards and certificates. Thus, the awards do not establish she has a degree of expertise 
significantly above that ordinarily encountered in the field. 
Moreover, as noted above, the Petitioner asserts that she has "affected the broader industry" because 
she has "secured numerous trademarks for her original business management and brand identities, 
earned respect, attention, and support of several prominent figures in the industry, been featured in 
important media with national reach, and won several awards." However, she does not show how 
such evidence demonstrates her expertise is significantly above others in her field. 
The record, including the evidence discussed above, does not establish the Petitioner's eligibility as 
an individual of exceptional ability as it does not demonstrate that she meets three of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) or that she has obtained a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F .R. § 204.5(k)(2). 9 
C. National Interest Waiver 
The Petitioner has not established that she is eligible for the EB-2 classification. Since this issue is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining issues, 
including whether she is eligible for a national interest waiver. See INS v Bagamasbad, 429 U.S. 24, 
25 ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reached"); 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 
The Petitioner has not demonstrated that she qualifies 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. 
ORDER: The appeal is dismissed. 
9 See also 6 USCIS Policy Manual, supra, F.5(B)(2). 
5