dismissed EB-2 NIW Case: Road And Transport Tourism

U.S. Citizenship 
and Immigration 
Services 
In Re: 25731070 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 6, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a general and operations manager, 1 seeks second preference immigrant classification 
as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 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 had not 
established that he was individual of exceptional ability. 2 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa'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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
1 Although the Petitioner identified his job title as "general and operation manager on the Form 1-140, Immigrant Petition 
for Alien Worker, he also claimed to be "an entrepreneur in the field of road and transport tourism." 
2 The Director also concluded that the Petitioner did not establish eligibility as an advanced degree professional under 
8 C.F.R. § 204.5(k)(3)(i). The Petitioner did not claim eligibility as an advanced degree professional , nor does he dispute 
this conclusion on appeal. We therefore consider this issue to be waived. See Matter of R-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). 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. A United States baccalaureate 
degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree. If 
a doctoral degree is customarily required by the specialty, the alien must have a United 
States doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32)ofthe Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating 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). 
2 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 3 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 4 grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. Here, the Petitioner asserted that he qualifies as an individual of 
exceptional ability, and submitted supporting evidence. In denying the petition, the Director 
determined that the Petitioner had not shown that he meets at least three of the six regulatory criteria 
at 8 C.F.R. § 204.5(k)(3)(ii). 
After reviewing the evidence, we conclude that the record does not support a finding that the Petitioner 
satisfies the requirements of at least three 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 of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The Petitioner did not claim to meet this criterion. 
Evidence in the form ofletter(s)from current or former 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 determined that the Petitioner met this criterion. However, for the reasons below, we 
must withdraw the Director's conclusion. 
The Petitioner submitted three declarations from an accountant and three certificates from the Trade 
Board of !reflecting the corporate status of each of his claimed employers. The plain 
language of the regulation, however, requires letter(s) which are from current or former employers. 
The Petitioner has not established that the accountant qualifies as an employer, as required by the 
regulation. Moreover, beyond listing the Petitioner's job titles, the declarations do not specify whether 
3 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
4 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 
the positions were full-time, nor do they articulate the specific duties performed by the Petitioner. 5 
The Petitioner has not demonstrated that any of the provided documentation satisfies this requirement 
and therefore has not satisfied 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 did not claim to meet this criterion. 
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 initially submitted a letter from his accountant, which outlined his average income for 
the years 2018, 2019, and 2020. In response to the Director's request for evidence, the Petitioner 
provided a website printout of salary data for the position of "General Manager" in Brazil. Although 
the printout lists the average wage for a general manager position, it is unclear if the salary listed 
corresponds to an hourly, monthly, annual, or some other salary timeframe. Further, the printout does 
not state the date of the provided salary data. 
On appeal, the Petitioner asserts that the salary data provided demonstrates that his average monthly 
salary for the years 2018, 2019 and 2020 "is approximately 57% above the average income of the 
Brazilian market." However, as noted above, the printout provided does not reflect the time period of 
the salary data such that we can determine whether it corresponds to the relevant years for which the 
Petitioner provided evidence of his income. Even if it were established that the Petitioner received a 
salary that exceeded the figure on the printout, it would still only provide a very limited picture of the 
Petitioner's salary in comparison to others in the profession. 6 In other words, even if the Petitioner 
provided sufficient evidence to establish that his salary was in fact higher than other general and 
operations managers, it would simply establish that he earned a higher-than-average salary. The 
evidence does not suggest that the salary he earned was due to his ability. 
On appeal, the Petitioner relies on an opinion letter from Assistant Professor of 
Professional Practice at I I University, as further evidence of his eligibility under this criterion. 
The letter states, in part, that the "testimonials and documentary evidence provided demonstrate that 
[the Petitioner] has a record of notable success, as he has had a leading role in defining projects, 
especially those related to general and operational management." However, Professor 
letter is a national interest waiver eligibility evaluation that discusses the Petitioner's eligibility under 
the Dhanasar framework. The letter does not provide information pertaining to salary data or other 
evidence demonstrating that the Petitioner has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. Therefore, it has little probative value under this criterion. 
The record does not support a finding that the Petitioner has commanded a salary that demonstrates 
exceptional ability. For the foregoing reasons, the Petitioner has not satisfied this criterion. 
5 Two of the declarations include one sentence stating generally that the Petitioner's duties were related to the direction 
and coordination of business activities. 
6 We again note that although the Petitioner identified his job title as ·'general and operation manager" on the Form 1-40, 
he also claimed that he was "an entrepreneur in the field of transport and road tourism" in the record of proceedings. 
4 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted documentation regarding his membership in the 
I I He did not, however, provide supporting evidence, such as the membership requirements 
or by-laws, which establishes that the organization is a professional association. As noted above, 
profession is defined as "one of the occupations listed in section 10l(a)(32) of the Act, as well as any 
occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry in the occupation." 8 C.F.R. § 204.5(k)(2). The Petitioner likewise provided no 
information regarding the basis used by the organization to admit the Petitioner as a member. 
Accordingly, we conclude that the Petitioner has not established that he satisfies this criterion. 
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)(F). 
The Director determined that the Petitioner met this criterion. For the reasons below, however, we 
must withdraw the Director's conclusion. 
The record includes a number of recommendation letters from peers of the Petitioner, as well as a 
national interest waiver eligibility evaluation. While the evidence establishes that the Petitioner is 
well-respected and a contributing member of his community, the plain language of the criterion requires 
recognition for achievements and signfficant contributions to the industry or field. Without additional 
evidence, such as objective information regarding the Petitioner's specific and significant contributions 
to the transport and road tourism industry, he has not established that he meets this criterion. 
The Petitioner's professional acquaintances and colleagues authored the letters of recommendation. 
The authors describe the Petitioner and the quality of services he provides, along with details 
concerning the projects and results the Petitioner achieved for companies and clients. Although they 
praise the Petitioner's professional skills and experience, as well as the success of the projects upon 
which the Petitioner worked, the authors do not suggest that the Petitioner received recognition for 
achievements and significant contributions to the industry or field. Rather, as explained, the authors 
described the results the Petitioner achieved on individual projects for individual companies. 
Additionally, we return to the evaluation from Professor! I Although Professor 
offered his opinion on the Petitioner's experience and eligibility under the Dhanasar framework, the 
evaluation does not contain a cogent discussion of how the Petitioner qualifies as an individual of 
exceptional ability nor does it contain support for a conclusion that the Petitioner has received 
recognition for achievements and significant contributions to the industry or field. Much of the 
evaluation repeats the contents of the Petitioner's resume or contains statements repeated by other 
authors. As previously explained, the record contains insufficient evidence to establish that the 
Petitioner has received recognition for achievements and significant contributions to the industry or 
field. Rather, as noted, the Petitioner's professional accomplishments appear to impact the parties 
relevant to individual transactions but do not appear to reach the industry or field as a whole. As a 
matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or 
5 
give it less weight if it is not in accord with other information in the record or if it is in any way 
questionable. Id. We are ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Here, Professor 
I I evaluation does not sufficiently address the Petitioner's eligibility for the underlying 
employment classification. Therefore, it has little probative value under this criterion. 
Accordingly, we conclude that the evidence does not establish the Petitioner's eligibility under this 
criterion. 
In summary, the record supports the Director's finding that the Petitioner did not meet at least three 
of the six regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we need 
not provide a final merits determination to evaluate whether the Petitioner has achieved the required 
level of expertise required for the exceptional ability aspect of the EB-2 classification. As the 
Petitioner has not met the threshold requirement for this underlying classification, further analysis of 
his eligibility for a national interest waiver would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not demonstrated that he 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. 
6