dismissed EB-2 NIW Case: Security Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 23041578 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 12, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks 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). 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 Texas Service Center denied the petition, concluding that the Petitioner had not 
established that he was an individual of exceptional ability or that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner asserts that the Director erred in his decision. In these proceedings, it is the 
Petitioner's burden to establish eligibility for the requested benefit by a preponderance of evidence. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Upon de nova 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. 
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. 
(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. 
Exceptional ability in the sciences, arts, or business is defined in 8 C.F.R. § 204.5(k)(2) as a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. To qualify 
as an individual of exceptional ability, 8 C.F.R. § 204.5(k)(3)(ii) sets forth six criteria, of which an 
individual must meet at least three. 
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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, USCIS may, as matter of discretion, grant a national 
interest waiver if the petitioner demonstrates that: (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. 2 
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. On appeal, the Petitioner does not assert nor does the record 
establish that he is eligible for the EB-2 classification as a member of the professions holding an 
advanced degree. Therefore, he must establish that he qualifies as an individual of exceptional ability. 
The Petitioner alleges on appeal that the Director "did not apply the proper standard of proof in this 
case, instead imposing a stricter standard, and erroneously applied the law, to [his] detriment." Except 
where a different standard is specified by law, the "preponderance of the evidence" is the standard of 
proof governing immigration benefit requests. 3 Accordingly, the "preponderance of the evidence" is 
the standard of proof governing national interest waiver petitions. 4 While the Petitioner asserts on 
appeal that he has provided evidence sufficient to demonstrate his eligibility for the immigration 
1 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). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 See Matter ofChawathe, 25 l&N Dec. at 375 (AAO 2010); see also Matter of Martinez, 21 l&N Dec. 1035, 1036 (BIA 
1997); Matter of Soo Hoo, 11 l&N Dec. 151, 152 (BIA 1965). 
4 See generally 1 USC1S Policy Manual, E.4(B), https://www.uscis.gov/policy-manual. 
2 
benefits sought in this petition, he does not further explain or identify any specific instance in which 
the Director applied a standard of proof other than the preponderance of evidence in denying the 
petition. 
A. Substantive Nature of Occupation and Proposed Endeavor 
We first conclude that the Petitioner has presented insufficient and inconsistent evidence regarding the 
nature of the occupation in which he is seeks employment in the petition, and the proposed endeavor that 
he intends to pursue. This is important because 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. § 204.5(k). 
Further, in order to demonstrate that the Petitioner is eligible for a national interest waiver he must, 
among other things, provide evidence sufficient to show that his specific proposed endeavor (1) has 
both substantial merit and national importance and (2) he is well positioned to advance it under the 
Dhanasar analysis. 5 
The Petitioner indicated his prospective job title is "security management specialist," in part 6 of the 
petition, noting that in that position he would "conduct security assessments for organizations, and design 
security systems and processes." He also submitted a letter describing his prospective employment, as 
follows: 
My career plan[] is to work as a [s]ecurity [m]anagement [s]pecialist. ... in the areas of 
security operations, counterintelligence, communications, air transport control, logistics, 
personnel management, weapons, marksmanship and firefighting. [I] will be an asset to 
organizations in the U.S., as I will be able to maximize the strategic and tactical actions 
of military, private and public law enforcement officials by providing integral security 
management solutions to companies and agencies alike. 
The Director determined that the record did not sufficiently detail the substantive nature of his prospective 
employment as a security management specialist. He issued a request for evidence (RFE) asking for a 
detailed description of the Petitioner's proposed employment, supporting with documentary evidence. 
However, the Petitioner did not sufficiently address this aspect. In the RFE response, he contends he will 
be "supporting small, medium, and large sized U.S. schools, individuals and companies with security 
services in the mentioned markets." But he did not provide a detailed description explaining how he will 
be engaged in providing security services, supported by documentary evidence as requested by the 
Director in the RFE. "Failure to submit requested evidence which precludes a material line of inquiry 
shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(l4). 
Further, while the Petitioner presented a high-level listing of diverse areas of concern that an individual 
might focus on when employed in a security-related occupation ( e.g., counterintelligence, 
communications, air transport control, logistics, weapons, marksmanship and firefighting), he does not 
5 See generally 5 USC1S Policy Manual F.5, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 
sufficiently describe his own occupation or proposed endeavor to demonstrate the security-related 
concem(s) that he will actually attend to during his day-to-day work activities. The Petitioner must 
resolve these inconsistencies and ambiguities in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, the Petitioner asserts that "[he] will work in his field, specifically through his role as a security 
professional and manager through his company in the U.S., which is focused on providing services to any 
company that needs better management and development," but he does not identify the specific services 
that his company will provide. Id. Notably, the Petitioner's initial description of his proposed 
employment in the United States did not include plans to create and manage his own company. Here, 
the Petitioner's plans to establish a new company and perform services as its manager presented after 
the filing date cannot retroactively establish eligibility. On appeal, the Petitioner cannot materially 
change aspects of the proposed position including the occupation in which he will be employed, and the 
nature of the proposed endeavor that he intends to pursue. The Petitioner must meet eligibility 
requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). 
We determine the Petitioner's appeal brief presents a new set of facts regarding his proposed 
employment, which is material to eligibility for the EB-2 classification and for a national interest 
waiver. A petitioner may not make material changes to a petition that has already been filed in an effort 
to make an apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 175 (Comm'r 1998); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), 
(which requires that petitioners seeking employment-based immigrant classification must possess the 
necessary qualifications as of the filing date of the visa petition.) 
We therefore conclude that the Petitioner has not provided sufficient and consistent evidence to 
establish what his prospective occupational field will be, in order to demonstrate that he is an 
individual of exceptional ability who possesses "a degree of expertise significantly above that 
ordinarily encountered" within that occupation. Section 203(b )(2) of the Act, and 8 C.F.R. § 204.5(k). 6 
Nor has he sufficiently demonstrated the specific nature of his proposed endeavor to show that (1) it 
has both substantial merit and national importance and (2) he is well positioned to advance it under 
the Dhanasar analysis. Dhanasar at 889. For these reasons, the petition may not be approved. 
B. Exceptional Ability 
In denying the petition, the Director determined that the Petitioner did not fulfill any of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner asserts that he meets five of the criteria. We 
reviewed the evidence in the record and conclude that it does not support a finding that the Petitioner 
meets the requirements of at least three criteria. 7 In evaluating the evidence, eligibility is to be 
determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N Dec. 
at 376. 
6 We incorporate our concerns about the lack of evidence in the record to substantiate the substantive nature of the 
Petitioner's proposed occupation in our evaluation of the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
7 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
[individual] has at least ten years of full-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 the Petitioner did not meet this criterion because though the record shows that 
the Petitioner has at least ten years of experience as a soldier in the Brazilian military, the evidence does 
not establish the duties he performed in the military were in a security-related occupation. The Director 
noted that for roughly ten years of his military career the Petitioner was tasked with performing and 
overseeing the installation and maintenance of communication equipment, concluding that these duties 
were not akin to those performed by security management specialists. 
On appeal, the Petitioner contends that the Director "did not give due regard" to [ e ]vidence of [his] work 
in the field, which demonstrates that he has at least 10 years of full-time experience .... " However, the 
Petitioner does not identify the specific evidence that he believes the Director disregarded. He also does 
not discuss the specific evidence, if any, in the record that should be considered as part of this criteria 
determination in his appeal brief When dismissing an appeal, we generally do not address issues that 
are not raised with specificity on appeal. Issues or claims that are not raised on appeal are deemed to 
be "waived." 8 Since the Petitioner did not address this issue with specificity on appeal, we deem the 
issue waived and conclude the Petitioner has not met this criterion. 
A license to practice the profession or cert[fication 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 identification card. The Director found this evidence insufficient to meet this criterion. 
While we agree with the Director's determination in this regard, we also conclude that the Petitioner has 
not established that his occupation or profession requires a license to practice. 
On appeal, the Petitioner indicates that the Director "did not give due regard" to the Petitioner's "proof 
that he is licensed to practice [his occupation]," but he does not identify or discuss the specific evidence, 
if any, in the record that should be considered as part of this criteria determination in his appeal brief 
Therefore, for these reasons we deem the issue waived and conclude the Petitioner has not met this 
criterion. 9 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." 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 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 See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies from circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 
F .3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief). 
9 See, e.g., Matter of M-A-S-, 24 l&N Dec. 762, 767 n.2 (BIA 2009). 
5 
The Director determined the Petitioner did not meet this criterion, acknowledging that the Petitioner 
had submitted a membership card and a copy of a membership application, but that he provided no 
explanation regarding how this evidence shows membership in a professional association. 
Specifically, in response to the Director's RFE, the Petitioner provided evidence suggesting that as of 
August 2020 he became a member of an association of "retired and pension holders" of the Brazilian 
armed forces. 10 The Petitioner did not provide documentation to establish the membership 
requirements for this organization to show the association is professional in nature, and the basis used 
by the organization to admit the Petitioner as a member. Thus, the Petitioner did not establish that he 
belongs to an organization that qualifies as a professional association. 
On appeal, the Petitioner indicates that the Director "did not give due regard" to the Petitioner's "proof 
of membership in a professional organization," but he does not identify or discuss the specific evidence, 
if any, in the record that should be considered as part of this criteria determination in his appeal brief 
Therefore, for these reasons we deem the issue waived, and conclude the Petitioner has not met this 
criterion. 11 
Although the Petitioner asserts eligibility for two other criteria on appeal, the record does not currently 
establish that he has fulfilled the initial evidentiary requirement of three criteria under 8 C.F.R. § 
204.5(k)(3)(ii). Therefore, we will not address the additional criteria. 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 and will 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. 
C. National Interest Waiver 
The Petitioner has not established that he 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 appellate arguments 
regarding the remaining issues, including whether he is eligible for a national interest waiver. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter of M-F-O-, 28 
I&N Dec. 408, 41 7 n.14 (BIA 2021) ( declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
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. 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. 
10 The Petitioner appears to have obtained membership in this association 9 months after the date of filing. The Petitioner 
must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b )(1 ). 
11 See, e.g.. Matter of M-A-S-, 24 l&N Dec. 762, 767 n.2 (BIA 2009). See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th 
Cir. 2011); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived). 
6