dismissed EB-2 NIW Case: Skincare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 12, 2024 InRe : 30215031 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and skincare specialist, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest 
waiver of the job offer requirement attached to this 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 eligibility as an individual of exceptional ability and that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. 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. 
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. 1 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). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
1 As the Petitioner has not claimed to qualify as a member of the professions holding an advanced degree, we need not 
address the separate requirements for that classification. 
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 U.S. Citizenship and Immigration Services (USCIS) has previously confirmed the applicability of this two-part 
adjudicative approach in the context of aliens of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manu al/volume-6-part-f-chapter-5 . 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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. 
As indicated above, the Petitioner must first meet at least three of the regulatory criteria for 
classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). The 
Director determined the Petitioner satisfied only one criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). On 
appeal, the Petitioner maintains she meets 8 C.F.R. § 204.5(k)(3)(ii)(B)-(D). 4 
An official academic record showing that the individual has a degree, diploma, cert[ficate, or 
similar award from a college, university, school, or other institution oflearning relating to the area 
ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
We disagree with the Director's conclusion that the Petitioner met this criterion and hereby withdraw 
it. The Petitioner provided a copy of her transcripts and Brazilian degree of "Technologist in Human 
Resources Management." However, the plain language of the regulation requires the degree to relate 
to her area of exceptional ability and the Petitioner has not claimed to have exceptional ability in 
human resources. The Petitioner also submitted certificates of completion for training courses 
including microneedling, microblading, micropigmentation, facial dermal puncture, and hair removal 
techniques. Although the trainings may relate to the Petitioner's claimed area of exceptional ability, 
the record does not show that they were received from an "institution of learning" or that they are 
"official academic record[ s ]." Without more, we cannot conclude that the Petitioner meets this 
criterion. 
Evidence in the form ofletter(s)from current or/armer employer(s) showing that the alien has at 
least ten years offull-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's employment verification letters did not establish ten 
years of full-time experience in the occupation. On appeal, the Petitioner asserts that her employment 
equates to more than ten years of full-time experience in her occupation. 
Upon review, we agree and withdraw the Director's determination to the contrary. The Petitioner 
previously provided a Brazilian National Register of Legal Entities as proof that she provided aesthetic 
services under her company established in I I 2015, along with two employment letters. The 
letter from states the Petitioner was a freelancer in the position of 
micropigmentation artist from 2008 to 2018, working 20 hours a week. The 
letter states that from 2004 to 2018, working 30 hours a week, the Petitioner's responsibilities included 
eyebrow design, micropigmentation, and management. Here, the letters establish that the Petitioner 
4 The Petitioner does not contest the Director's determination that she does not meet 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F), 
as such these issues are waived. 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, e.g., Matter ofM-A-S-. 24 
l&N Dec. 762. 767 n.2 (BIA 2009). 
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has at least ten years of foll-time experience in the occupation of esthetician and, therefore, she has 
established that she meets 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 Director concluded that the Petitioner did not demonstrate that the occupation requires a license 
or certification. On appeal, the Petitioner provides information from the Florida Department of Health 
that states that "[p ]ersons who practice cosmetic tattooing, permanent make-up, microblading, or 
micropigmentation" are required to have a 'Tattoo Artist License." We agree with the Petitioner that 
a license is required for the occupation and that the provided copy of her license is sufficient to meet 
this criterion. 
Evidence that the alien commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
On appeal, the Petitioner asserts that she has "always earned more than the average of professionals" 
in her field and, therefore, she has an "exceptional ability wage." The Petitioner previously provided 
an income statement from her accountant showing that, from 2014 to 2017, she earned R$60,000 and 
in 2018, she earned R$81,000 as a managing member of her company. She further states that the 
average wage of a professional working in the same area is R$21,3 72 and provides a snippet from 
vagas.com, an employment search website in Brazil, for the position of micropigmentator. However, 
this evidence alone does not demonstrate how the Petitioner's earnings are indicative of her claimed 
exceptional ability relative to others in her field. 
Regarding the income statement from her accountant, we note that it is not substantiated with 
independent and objective evidence, such as invoices, bank statements, and/or tax returns. Further, 
the vagas.com website screenshot does not offer sufficient information or details to verify the 
applicability and accuracy of the stated salary information. For instance, the screenshot lacks such 
critical information as the year or date range to which the data refers, how the data was compiled, the 
statistical significance of the data, the geographic location to which the data pertains, and other 
indications of the reliability and comparability of this data to the Petitioner's occupation. 
Even if the Petitioner had provided such evidence, it would not be sufficient to establish eligibility 
under this criterion. The Petitioner requests us to compare the vagas.com figures for micropigmentator 
earnings with her income as a managing member of her business. As a micropigmentator and a 
managing member of a company are two distinct occupations, the Petitioner has not provided us with 
a proper basis for comparison. 
For the foregoing reasons, the Petitioner has not established eligibility under this criterion. 
Because the Petitioner has only met two of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), she 
cannot fulfill the initial evidentiary requirement of three criteria. Thus, we need not provide a final 
merits determination to evaluate whether the Petitioner has achieved the required level of expertise 
required for exceptional ability classification. In addition, we need not reach a decision on whether, 
as a matter of discretion, the Petitioner is eligible for or otherwise merits a national interest waiver 
3 
under the Dhanasar analytical framework. Accordingly, we reserve these issues. 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 L-A-C-, 26 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternate issues on appeal where an applicant is 
otherwise ineligible). The appeal is 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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