dismissed EB-2 NIW Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 21, 2024 In Re: 29769653 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a restaurant manager, seeks classification as a member of the professions holding an 
advanced degree and as an individual of exceptional ability in the sciences, arts or business. See 
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. U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for either of the two EB-2 classifications. The Director also 
concluded that the Petitioner had not established eligibility for the national interest waiver. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent degree 
above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree 
followed by five years of progressive experience in the specialty is the equivalent of a master's degree. 
"Profession" is defined as of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. 
§ 1101 ( a )(32), 1 as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2) . 
1 The listed occupations are architects, engineers, lawyers, physicians, surgeons, and teachers at certain institutions . 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 e.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 e.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 
users will then conduct a final merits determination to decide whether the evidence as a whole shows 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish 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 pe1iinent 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 users 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. 
II. ADVANeED DEGREE PROFESSIONAL 
In his native Turkey, the Petitioner earned a bachelor's degree in physical education in 1990, and he 
states that he then worked in sales, marketing, and management for various companies until 2002. 
From 2004 to 2011, the Petitioner owned a convenience store in Turkey. Since 2012, the Petitioner 
has spent most of his time in Florida as the spouse of an E-1 nonimmigrant treaty trader, working in 
food service management. The Petitioner was a shift manager at a Mediterranean restaurant from 
2012 to 2013, a supervisor for a company with several retail restaurants from 2013 to 2019, and general 
manager of a pizza franchise from 2019 to 2020. At the time he filed the petition in April 2021, the 
Petitioner was the general manager of a hamburger franchise. 
When he filed the petition, the Petitioner claimed eligibility as a member of the professions holding 
an advanced degree. The Petitioner did not claim to have earned an advanced degree academically, 
but he asserted that his post-baccalaureate work experience is equivalent to a master's degree under 
8 e.F.R. § 204.5(k)(2). To establish this equivalency, the Petitioner must submit an official academic 
record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, 
and letters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty. 8 e.F.R. § 204.5(k)(3)(i)(B). 
The Director did not address the question of whether the Petitioner's intended occupation meets the 
regulatory definition of a profession. The Petitioner earned a bachelor's degree in a "Physical 
2 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). 
3 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining 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 
Education and Sports Teaching Program" in Turkey in 1990. Because the Petitioner's intended 
employment in the United States does not relate to physical education and sports teaching, the Director 
determined that the Petitioner had not established that he holds the equivalent of an advanced degree 
in his intended field. On appeal, the Petitioner does not dispute this determination. Instead, the 
Petitioner erroneously states that the Director "agreed that the Appellant qualifies as a member of a 
profession holding an Advanced Degree." 4 The record does not support this statement; the Director 
stated the reasons for a determination that the Petitioner had not established eligibility as a member of 
the professions holding an advanced degree. 
Because the Petitioner does not address the grounds cited by the Director related to the advance degree 
issue, we consider the Petitioner to have waived appeal on this issue.5 The Petitioner has not 
addressed, and has not overcome, the stated grounds for the Director's determination. 
III. EXCEPTIONAL ABILITY 
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 ofa final merits 
determination). See also, generally, 6 USCIS Policy ManualF.5(B)(2), https://www.uscis.gov/policy­
manua1. 
4 This and other erroneous references in the appellate brief prepared for the Petitioner suggest that the brief is derived, at 
least in part, from an earlier brief prepared on behalf of a different petitioner. 
5 See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived); see also Sepulveda v. US. Att JI Gen., 40 l F .3d 1226, 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *l, 9 (E.D.N.Y. Sept. 30, 2011) (finding 
the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO); Desravines v. US. Att Ji Gen., 343 
F. App'x 433, 435 (11th Cir. 2009) (indicating that a passing reference in the arguments section of a brief without 
substantive arguments is insufficient to raise that ground on appeal). When an appellant fails to properly challenge one or 
more of the grounds upon which the Director based their conclusion, the filing party has abandoned any challenge of that 
ground or grounds, and it follows that the adverse determination will be affirmed. See Sapuppo v. Allstate Floridian Ins. 
Co., 739 F.3d 678,680 (11th Cir. 2014); United States v. Cooper, No. 17- 11548, 2019 WL2414405, at *3 (11th Cir. June 
10,2019). 
3 
When he initially filed the petition, the Petitioner did not claim exceptional ability in business. The 
Petitioner first raised the issue after the Director issued a request for evidence (RFE). In the RFE 
response, the Petitioner claimed to satisfy four exceptional ability criteria, relating to: (1) academic 
degrees; (2) experience; (3) membership in professional associations; and (4) recognition. 
In the denial notice, the Director addressed all six criteria, although the Petitioner had claimed to meet 
only four. The Director concluded that the Petitioner submitted evidence to satisfy two of the criteria, 
relating to experience and memberships. On appeal, the Petitioner asserts that his evidence satisfies 
the criteria relating to degrees and recognition. 
As explained below, we conclude that the Petitioner has not satisfied the regulatory requirements for 
any of the claimed criteria. 
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 cited his bachelor's degree in physical education and sports teaching. We agree with the 
Director's detennination that the Petitioner did not establish that, or explain how, this degree relates to 
his area of claimed exceptional ability in business. 
On appeal, the Petitioner asserts that his degree "helped him to develop the necessary skills of business 
organization and efficiency." This general and unsupported assertion does not overcome the Director's 
dete1mination. Statements in a brief, motion, or Notice of Appeal are not evidence and thus are not 
entitled to any evidentiary weight. See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998). The 
academic transcript in the record does not reflect business-related coursework. 
The Petitioner's response to the RFE also included letters showing that he took courses with such titles 
as "Sales and Sales Technique," "Time Management," and "Effective Leadership and Management 
Skills." These courses, however, were offered by the Petitioner's employers, rather than institutions of 
learning as the regulations require. The Petitioner did not submit official academic records for the courses, 
as required, nor did he establish that these courses were comparable to education in an academic setting. 
On appeal, the Petitioner does not repeat his earlier argument that this employer-led training is comparable 
to an academic degree. 
The Petitioner has not met his burden of proof to satisfy the requirements of this criterion. 
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Director concluded that letters from several employers satisfy the requirements of this criterion. 
But employers' letters documenting required employment experience must include a specific 
description of the duties performed by the individual. 8 C.F.R. § 204.S(g)(l). The Petitioner submitted 
several letters attributed to current and former employers, but only three of those letters include the 
4 
required specific description of duties performed. Those three letters account for less than three and 
a half years of employment experience. 
The other letters provide few details apart from the dates of employment and the Petitioner's job title 
at each position. Also, only three of the letters, accounting for six years and eight months of 
employment, specify that the experience was full-time. One letter, from the Petitioner's accountant, 
attests to the Petitioner's ownership of a convenience store from April 2004 to June 2011, but does 
not describe his duties there or even specifically indicate that the Petitioner actually worked at the 
shop. Elsewhere in the record, such as on his resume, the Petitioner offered his own description of his 
duties at the convenience store, but he submitted no evidence to conoborate his assertions, and, 
therefore, has not met his burden of proof. 
Furthermore, the Petitioner claims only about seven years of experience as an entrepreneur, running 
his own business as opposed to holding a managerial or supervisory position at a business owned by 
others. 
The Petitioner has not met his burden of proof to satisfy the requirements of 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 ._____________ __. 
I I. The Director concluded, without further discussion, that the Petitioner meets the regulatory 
requirements for this criterion. We disagree with the Director's conclusion.6 
The Petitioner submitted no information or evidence about the D other than the certificates, and 
therefore the Petitioner has not established that thel lis 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). 
Furthermore, the Petitioner claims exceptional ability as a general and operations manager and 
entrepreneur, rather than in the related but distinct field of marketing. 
Also, the certificates indicate that the Petitioner joined the D in March 2019, at a time when the 
Petitioner acknowledges that he was unemployed; employers' letters and his own resume show a gap 
between Januaiy and October of that year. Therefore, his admission to thec=]does not appear to have 
been contingent on employment at all, let alone employment in a profession relating to marketing. 
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. 
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). 
6 We note that, on appeal, the Petitioner erroneously states that the Director concluded that "this criterion has not been 
met," but the Petitioner does not allege that the Director erred by reaching that conclusion. 
5 
The 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 ofEcheverria, 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"). 
The evidence that the Petitioner identified as addressing this criterion consists of three letters. The 
first letter is from the president of the homeowners association (HOA) in the Petitioner's 
neighborhood. This individual asse1is that prior to an HOA election, the Petitioner "showed a 
presentation [in] addition to his resume [stating] how he would be useful to the community. As a 
result, he received the highest number of votes . . . and became the director of [the] HOA." Although 
the Petitioner described his business experience when he campaigned for the position of HOA 
manager, the Petitioner has not established that his election constitutes recognition for achievements 
and significant contributions to the industry or field. Also, the Petitioner did not show that the voting 
members of the HOA are peers, governmental entities, or professional or business organizations as the 
regulation requires. Materials in the record indicate that the author of the letter is, or was, a member 
of the local City Council, but she did not claim to be writing on behalf of the City Council or in her 
capacity as a member. The letter is therefore not recognition from a governmental entity. 
The second letter is from a manager at the hamburger franchise where the Petitioner began working 
in January 2021. The manager indicated that the Petitioner "developed a brand new inventory system" 
that enabled the business "to stabilize the inventory control." The manager did not claim that, or 
explain how, this inventory system is a significant contribution to the industry or field. The record 
does not show that the system has been implemented anywhere outside of this one franchise location. 
The third letter is from the owner of the same hamburger franchise. The owner stated that sales and 
profitability increased after the Petitioner began working at the restaurant as a manager, but the owner 
did not identify any significant contributions to the industry or field. 
The Director concluded that "the letters fail to describe the petitioner's specific achievements and 
significant contributions to the industry or field of restaurant service or similar entrepreneurial 
endeavors." 
On appeal, the Petitioner states that he meets the criterion because "he has cultivated excellent 
relationships, enhanced his communication skills, and maintained professional management standards 
throughout different geographic environments and multinational teams within the information 
technology field." The Petitioner does not work in "the information technology field," and he does 
not explain how his personal success and career performance amount to significant contributions to 
either information technology or the field of restaurant management. 
The Petitioner has not met his burden of proof to meet the regulatory requirements of this criterion. 
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. Nevertheless, the record in the aggregate does not support a 
6 
conclusion that the Petitioner has established exceptional ability in business as a general and 
operations manager and entrepreneur as claimed. The submitted evidence indicates that the Petitioner 
has experience both as a restaurant manager and, separately, as an entrepreneur, but the record contains 
few specific details about that experience. The Petitioner has also not established a sufficient baseline 
against which to compare his expertise in the field. Without sufficient evidence regarding the 
Petitioner's own work and that of others, the record does not establish that the Petitioner possesses a 
degree of expertise significantly above that ordinarily encountered among either entrepreneurs or 
general and operations managers in the food service industry. 
Because the petition cannot be approved without an underlying determination that the Petitioner 
qualifies for EB-2 classification, we will reserve discussion of the Petitioner's national interest waiver 
claim under the Dhanasar framework. 7 
IV. CONCLUSION 
The Petitioner has not established that he qualifies as a member of the professions holding an advanced 
degree or as an individual of exceptional ability in business. Therefore, the Petitioner has not shown 
eligibility for EB-2 classification. Without such a showing, the Petitioner cannot qualify for the 
national interest waiver. We will dismiss the appeal for these reasons. 
ORDER: The appeal is dismissed. 
7 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 unnecessary to the results they reach); see also Matter olL-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). 
7