dismissed EB-2 NIW Case: Security Consulting

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26408486 Date : MAY 11, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a security consultant, seeks 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 that the record did not 
establish the Petitioner's eligibility for the requested EB-2 classification or that he merits a 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 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 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)(B)(i) 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 
We will then conduct a final merits determination to decide whether the evidence in its totality shows 
1 If these types of evidence do not readily apply to the individua l'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 confinned the applicability of this two-part 
adjudicative approach in the context of aliens of exceptional ability. See generally, 6 USCIS Policy Manual F.5(8)(2), 
https://www.uscis.gov/policy-manual /volume-6 -part-f-chapter-5 . 
that they are recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 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 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. 
II. EXCEPTIONAL ABILITY 
The primary issue to be addressed is whether the Petitioner established his eligibility for EB-2 
classification as an individual of exceptional ability in the sciences, arts, or business. 
A. Nature of Occupation and Proposed Endeavor 
To qualify for the EB-2 classification as an individual of exceptional ability, the Petitioner must submit 
evidence within the context of his profession or occupation to show that he satisfies at least three of 
six regulatory criteria to meet the initial evidence requirement, and ultimately to demonstrate that he 
has a degree of expertise significantly above that ordinarily encountered in his field. Section 203(b )(2) 
of the Act and 8 C.F.R. § 204.S(k). 
The record reflects that the Petitioner served in the Military Police of Iin Brazil 
from 1988 until his retirement from active service in 2018. He indicated on the Form I-140, Immigrant 
Petition for Alien Worker, that he proposes to work as a "security consultant" in the United States and 
he later stated that his occupation will be that of a "security management specialist." The record 
indicates that he intends to work as an entrepreneur. He submitted a business plan for "Specialized 
Memorable Security," and stated that he will establish a limited liability company under this name 
using his personal funds if the petition is approved. The business plan indicates that the company will 
operate a shooting range in Florida with indoor and outdoor ranges to be managed by the company's 
co-owners and would offer firearm rentals, ammunition sales, and classroom-based training courses 
on firearm safety and use, non-lethal weapons, and self-defense. 4 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 The business plan states that the new company would also provide security services for the protection of individuals and 
property, but these plans are not further detailed, and the financial projections included in the business plan's appendix 
indicate that all income in the first three years would be derived from products and services offered by the shooting range. 
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B. Evidentiary Criteria 
In evaluating the Petitioner's eligibility as an individual of exceptional ability, the Director concluded 
that he satisfied three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii), by providing evidence of official 
academic records confirming his receipt of certificates, evidence of his ten years of full-time 
experience in the occupation sought; and by documenting his membership in a professional 
association. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), and (E). After determining that the Petitioner met 
three criteria, the Director conducted a final merits determination, and concluded that the Petitioner 
did not establish a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business. On appeal, the Petitioner maintains that he submitted evidence satisfying all six 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The record supports the Director's determination that the Petitioner submitted evidence to meet the 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B). However, for the reasons discussed below, we 
conclude that the Petitioner has not satisfied at least three of the initial evidentiary criteria for EB-2 
classification as an individual of exceptional ability. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
As evidence of his license to practice his profession or occupation, the Petitioner presented a copy of 
his Brazilian military police identification card and a firearm registration card for his military-issued 
firearm. The Director determined that the Petitioner did not meet this criterion because he did not 
establish that his profession or occupation as a security consultant and CEO/founder of his own 
company requires such licenses or certifications. 
On appeal, the Petitioner refers to the previously submitted evidence and asserts that "there is no 
particular license or even a specific certification for the exercise of the military function in Brazil," 
noting that "[oo ]nee a police officer joins the police, he is already licensed." He does not acknowledge 
or contest the Director's basis for determining that he did not meet this criterion. Further, he appears 
to concede that the two documents he submitted in support of this criterion are not in fact licenses or 
certifications for the practice of a particular professional or occupation. We agree with the Director's 
determination that the Petitioner has not submitted evidence that meets this criterion. 
Evidence that the individual has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 8 C.F.R. § 204.5(k)(3)(ii)(D) 
In support of this criterion, the Petitioner initially submitted copies of his Brazilian individual income 
tax returns for the calendar years 2017, 2018 and 2019, which show that he earned taxable income of 
R$199,494, R$157,604, and R$144,937, respectively. The Director advised the Petitioner in a request 
for evidence (RFE) that proof of his prior income alone is not sufficient to demonstrate that he satisfies 
this criterion. 
In response to the RFE, the Petitioner provided his updated income information for 2021 and 2022, 
stated that the average annual salary of military police officer in Brazil is R$48,696, and emphasized 
that his salary is 334% higher than that average. In his response, he also explained that a military 
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police officer's remuneration increases according to military rank and length of service and stated that 
he has achieved "exceptional remuneration compared to a Military Policy Officer at the beginning of 
his career, who gross remuneration is R$5,606.82." The Petitioner repeats these assertions on appeal 
but does not directly address the Director's determination that he provided insufficient evidence to 
establish how his past earnings as a military police officer demonstrate exceptional ability. 
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. 5 The Petitioner indicates that salaries in the Brazilian military police are based 
on military rank and years of service; the record does not support a determination that a given officer's 
salary is based on or indicative of his or her exceptional ability in the profession. Similarly, he has 
neither claimed nor provided evidence that his rank and length of service alone (which determine his 
salary) are indicative of his exceptional ability in his field. Rather, based on the Petitioner's statements 
regarding the salary scale governing pay for Brazilian military police, it is reasonable to conclude that 
his salary is comparable to other persons with the same rank of first sergeant who have a similar length 
of service. The Petitioner's comparison of his salary to that of early career military police officers or 
to an average salary for all officers of any rank or length of service is not persuasive. Accordingly, 
we agree with the Director and find that this evidence does not establish that he commanded a salary 
which demonstrates exceptional ability. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In support of this criterion, the Petitioner submitted a copy of a card bearing his name and photograph 
which indicates his registration in the !Association of Military Police and Firefighters. 
He did not submit any additional information or evidence regarding this association, its purpose, or its 
membership requirements in support of his claim that he is a member of a professional association. 
The Director nevertheless determined that the Petitioner satisfied this criterion. We will withdraw 
the Director's determination because the evidence presented is not sufficient to demonstrate that this 
association has a membership body comprised of individuals who have earned a U.S. baccalaureate 
degree or its foreign equivalent, or that the organization otherwise constitutes a professional 
association. 6 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, government entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner indicates that he meets this criterion based on his receipt of 39 "awards, commendations 
and praises" from thel !during his 30-year career with that organization, as well as reference 
letters from his superiors attesting to his work with the Brazilian military police. He provided a 
statement from a state military official indicating that he "has achieved maximum grading in his 
personal file" and confirming he received "thirty-nine rewards for relevant services rendered to the 
institution." The Petitioner did not provide evidence of all his employment-related awards, but 
5 See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
6 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 101(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." 
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provided a lengthy narrative description of the commendations, many of which were given as a result 
of his successful resolution of specific criminal cases. For example, he indicates that he received 
commendations and "meritory notes" for actions such as making arrests, seizing illegal drugs and 
unregistered firearms, recovering stolen property, shutting down an un-licensed poultry 
slaughterhouse, providing intelligence that resulted in arrests, and other policing activities. The 
Petitioner also provided evidence that he received a "Bronze Military Merit Medal" in 2011, as 
"recognition, award, praise and distinction for 10 years of good services," and a letter of thanks for 
participating in operations that led to the arrest of an organized group targeting rental and trade 
companies in the state ofl I 
This evidence supports a finding that he has been recognized by his employer for specific services 
rendered as a military police officer and for his commitment to that profession. However, the personal 
recognitions described and documented in the record do not demonstrate that he has been recognized 
for "achievements and significant contributions" to the broader security, military or law enforcement 
field or a field that encompasses his proposed endeavor to serve as the director and owner of a shooting 
range and security services business. 
In addition, the Petitioner provided letters from his former colleagues and superior officers within the 
I I As noted by the Director, these letters attested to his skills, competence, dedication, and 
professionalism as a military police officer and described some of his job-related accomplishments 
and how they impacted his employer. However, the letters did not discuss his achievements and 
significant contributions to the industry or field in which he intends to work in the United States. On 
appeal, the Petitioner emphasizes that the previously submitted reference letters demonstrate 
"recognition for the achievements and contribution to the work of thel IMilitary Police" 
but he does not address the Director's determination that such letters did not demonstrate 
"achievements and significant contributions to the industry or field," which requires evidence of 
recognition for contributions that extend beyond his specific employer. 
To the extent that the submitted letters recognize the Petitioner for broader contributions beyond 
carrying out his duties as a police officer, they are lacking detail. For example, a letter from al I 
lieutenant colonel who served as the Petitioner's commander between 2013 and 2016 praises a unit 
led by the Petitioner for having "the most carried out seizures of firearms in an irregular situation and 
of arrests of lawbreakers." The author indicates that the Petitioner "performed relevant works for the 
military institution as well as society as a whole," but does not elaborate as to how his work had such 
wide-ranging impacts that it constituted a "significant contribution to the industry or field." Another 
letter from a superior officer who worked with the Petitioner in the I I Intelligence Section, 
praises his production of"various important pieces of public intelligence as well as in the field of State 
intelligence" and praises his work as "precise, wide-reaching and timely." However, the author does 
not elaborate on this "wide-reaching" work or identify specific achievements and significant 
contributions that had an impact in the field or industry that reached beyond the activities of the 
I 
Per the analysis above, we agree with the Director and conclude that the Petitioner has not established 
that he meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
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C. Final Merits Determination 
The Petitioner has not submitted the required initial evidence demonstrating that he meets at least three 
of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), and we therefore need not conduct a final merits analysis 
to determine whether the evidence in its totality shows that he is recognized as having a degree of 
expertise significantly above that ordinarily encountered in the field. 8 C.F.R. § 204.5(k)(2). 
Nevertheless, because the Director's decision included a final merits determination, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the recognition for the level of expertise required for classification as an 
individual of exceptional ability. Further, we note that although the Petitioner claims on appeal that 
he meets all six initial evidentiary criteria for this classification, he does not specifically address the 
Director's final merits determination. 
III. NATIONAL INTEREST W AIYER 
The Petitioner has not established his qualification for the EB-2 classification as an individual of 
exceptional ability in the sciences, arts or business, and is therefore ineligible for a national interest 
waiver. Therefore, while the Petitioner asserts on appeal that he meets all three of the prongs under 
the Dhanasar analytical framework and that the Director erred in concluding otherwise, we will 
reserve these issues. 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 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). 
IV. CONCLUSION 
The Petitioner has not established that he is eligible to be classification as an individual of exceptional 
ability or that he is otherwise eligible for EB-2 classification. Accordingly, the petition will remain 
denied and the appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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