dismissed EB-2 NIW Case: Security Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 10, 2023 In Re: 27459550 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a correctional officer and former member of the Brazilian Army, 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. § 1 l 53(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. § 1 l 53(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 individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally, 6 USCIS Policy Manual F.5(B)(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 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. 
TI. ANALYSIS 
Because he has not indicated or established that he qualifies as a member of the professions holding 
an advanced degree, 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. § 204.5(k). 
The record reflects that the Petitioner served as a noncommissioned officer in the Brazilian Army from 
2006 until 2019. In the Form ETA 750B, Statement of Qualifications of Alien, the Petitioner provided 
that his military duties included updating and auditing personnel databases and protecting electronic 
communications systems information. He also indicated that since August 2021 he has worked for 
theI Iin New Hampshire as a correctional officer, and 
worked previously (between June 2020 to September 2021) forl I 
providing security services. 
He indicated on the Form I-140, Immigrant Petition for Alien Worker, that he proposes to work as a 
"military officer special and tactical operations" in the United States and he later stated that his 
occupation will be that of a "security expert." He submitted a business plan which indicates he intends 
to work in the security services field as a consultant and trainer, combining his experience in the 
military, law enforcement, and security services fields. 
3 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
B. Evidentiary Criteria 
In evaluating the Petitioner's eligibility as an individual of exceptional ability, the Director determined 
that the Petitioner submitted evidence related to the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), 
(E), and (F), and concluded that he satisfied only one criterion. Specifically, the Director concluded 
that the Petitioner met the criterion related to ten years of full-time experience under 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
On appeal, the Petitioner contends he satisfies three additional criteria.4 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 Army identification card. The Director determined that the Petitioner did not meet this 
criterion because he did not establish that the document he submitted is a license or certification for 
the practice of a particular professional or occupation. 
On appeal, the Petitioner refers to the previously submitted evidence and asserts that "we submitted a 
Brazilian Army membership card." He does not acknowledge or contest the Director's basis for 
determining that he did not meet this criterion. In addition, the Petitioner has not shown that he has 
or requires a license or certification to practice his intended profession or occupation in the United 
States as a military officer or security services consultant and trainer. We agree with the Director's 
determination that the Petitioner has not submitted evidence that meets this criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
On appeal, the Petitioner maintains that he submitted evidence sufficient to establish that his 
membership in the Brazilian Army satisfies the requirements of this criterion. 5 The Petitioner's 
original submission included the above-referenced copy of his Brazilian Army identification card and 
an online printout from Eb.mil.hr which provides a mission and vision statement for the Brazilian 
Army. Specifically, it indicates the army's mission is to help guarantee national sovereignty, 
constitutional powers, and law and order, and its vision is to have adequate resources and highly 
prepared personnel. The Petitioner did not provide any additional information or evidence regarding 
4 On appeal, the Petitioner does not dispute the Director's finding that he had not established eligibility under the official 
academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). Additionally, the Petitioner did not claim eligibility under 
8 C.F.R. § 204.5(k)(3)(ii)(D) before the Director or on appeal. As the Petitioner provides no evidence or arguments 
addressing these criteria, we consider these issues to be abandoned. See Matter ofR-A-M- 25 l&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. U.S. Atty. Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005) (citing United States v. Cunningham, 
161 F.3d 1343, 1344 (11th Cir. 1998). 
5 On a eal, the Petitioner does not ursue his revious claim that his membership in the .__________ __. 
'--------,-------,--------------'anon-profit private organization founded by 
military reservists in.__ ___ ~ Brazil, is a qualifying membership under 8 C.F.R. § 204.5(k)(3)(ii)(E). 
3 
this association, its purpose, or its membership requirements in support of his claim that he is a member 
of a professional association. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." 6 Here, the Petitioner did not establish that his membership with the Brazilian Army is 
tantamount to his membership in a "professional" association. 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." 7 In this case, the Petitioner did not show the Brazilian Army qualifies as a professional 
association. The documentation does not reflect that the Brazilian Army 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 consistent with this regulatory 
criterion. Accordingly, the Petitioner did not demonstrate that he fulfills the regulatory requirements 
for this criterion. 
III. CONCLUSION 
The Petitioner did not establish that he meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (E). 
Although the Petitioner claims eligibility for an additional criterion on appeal relating to recognition for 
achievements at 8 C.F.R. § 204.5(k)(3)(ii)(F), we need not reach this further claim, as well as the 
favorable finding of the Director for 8 C.F.R. § 204.5(k)(3)(ii)(B), as he cannot fulfill the initial 
evidentiary requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii). Moreover, we need not 
provide a final merits determination to evaluate whether the Petitioner has achieved the level of expertise 
required for exceptional ability classification. In addition, we need not reach a decision on whether, 
as a matter of discretion, he is eligible for or otherwise merits a national interest waiver under the 
Dhanasar analytical framework. Accordingly, we reserve these issues. 8 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. 
6 See also 6 USCIS Policy Manual, supra, at F.5(B)(2). 
7 Section 101(a)(32) of the Act defines "the 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." 
8 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 ofL-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
4