dismissed EB-2 NIW Case: Swim Instruction

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 1, 2024 In Re: 31306001 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and swim instructor, 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 record did not 
establish that the Petitioner qualifies for the EB-2 classification or for a national interest waiver as a 
matter of discretion. The matter is now before us on appeal pursuant to 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 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 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. 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 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise and will substantially 
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. 6 USCJS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
benefit the national economy, cultural or educational interests, or welfare of the United States. Section 
203(b)(2)(A) of the Act. 
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. 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. 
Id. 
II. ANALYSIS 
The 
Petitioner originally filed the petition as a member of the professions holding an advanced degree. 
The Director concluded that the Petitioner did not qualify as a member of the professions holding an 
advanced degree as her advanced degree, which was determined to be the U.S. equivalent of a master 
of science in surveying engineering technology, was not related to the field of the proposed endeavor. 
On appeal, the Petitioner does not address the matter. An issue not raised on appeal is waived. See, 
e.g., Matter of O-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 
657, 658 n.2 (BIA 2012)). Therefore, we will not address the Petitioner's eligibility for the EB-2 
Classification as a member of the professions holding an advanced degree. 
In analyzing the Petitioner's eligibility as an individual of exceptional ability, the Director determined 
that the Petitioner only met one required criterion, and since at least three of the six criteria are 
required, she was not eligible for EB-2 classification. On appeal, the Petitioner contends that the 
Director erred in finding she does not qualify as an individual of exceptional ability. After de novo 
review of the evidence, we agree that the Petitioner does not meet at least three of the six required 
criteria, nor has she shown that she possesses a degree of expertise significantly above that ordinarily 
encountered in her field. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
I 
An official academic record showing that the individual has a degree, diploma, 
certificate, or other 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 submitted evidence that she corn leted a certificate ro 
sports from'--------------------------------------' lin 2016. This is related to the area of exceptional ability, which is swimming and swim 
instruction. The Director determined that this criterion had been met and we agree. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
alien has at least ten years offit/I-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 concluded that the record shows the Petitioner has seven years of experience, at the time 
of filing, in the field of the proposed endeavor. Therefore, as the record does not show at least ten 
years of foll-time experience, she does not meet this criterion. On appeal, the Petitioner does not 
address this issue and therefore, as discussed above, the issue is waived. 
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) 
The Director stated that the Petitioner did not provide any evidence of a license or certification to 
practice the profession or claim to meet this criterion and that, "there is no evidence the area of claimed 
exceptional ability requires a license to practice the profession or occupation." On appeal, the 
Petitioner does not address this issue and therefore, as discussed above, the issue is waived. 
Evidence that the alien has commanded a salary, or other renumeration for services, 
which demonstrates exceptional ability 8 C.F.R. § 204.5(k)(3)(ii)(D) 
Similarly, the Director stated that the Petitioner also did not provide any evidence or claim that she 
has commanded a salary or other remuneration for services which demonstrates exceptional ability. 
On appeal, the Petitioner does not address this issue and therefore, as discussed above, the issue is 
waived. 
Evidence ofmembership in professional associations 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The record shows the Petitioner is a member of the International Association for Support and 
Development oflnfant and Baby Swimming. The Director determined that this criterion had not been 
met because, "the evidence does not show that the associations in which the petitioner has membership 
with are professional." On appeal, the Petitioner contends that the association is, "a corporate non­
profit organization ... based on voluntary membership and created to represent and protect common, 
including professional interests ... [T]he fact that the Association is open to non-professional members 
who share common interest does not invalidate its status as a professional association." 
3 
We note that the term "profession" is defined at 8 C.F.R. § 204.5(k)(2) as "any occupation for which 
a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation." Along with her membership card, the Petitioner submitted the association's 
governing statute; however, the record does not establish the occupation, or the membership in an 
association for that occupation, requires a U.S. bachelor's degree or foreign equivalent. Therefore, 
we conclude that she has not established that International Support and Development of Baby and 
Infant Swimming qualifies as a professional association and that she meets this criterion. 
Evidence ofrecognition 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 Petitioner contends the Director erred in concluding the recommendation letters in the record, "do 
not mention specific achievements and significant contributions to the industry or field made by the 
Petitioner." On appeal, the Petitioner highlights one recommendation letter in particular that states 
her work for the fitness center helped the swimming department achieve 120% of the financial plan. 
In addition, the record contains other recommendation letters in support of the Petitioner highlighting 
her experience; one stating that she "took the initiative and independently developed special programs 
and activities for children with special needs in our swimming pool." These letters show her 
experience in the field and the impact she had on these specific employers; however, they do not show 
significant contributions made to the industry. The Petitioner also submitted a letter of gratitude from 
the I Swimming Federation for implementing the 
methodology. However, it is unclear how this methodology has had a significant contribution 
on the industry. Although the Petitioner is shown gratitude for implementing the methodology, neither 
the certificate, nor the record shows the significance of this contribution to the industry. The record 
also contains other recommendation letters along with many certificates for swimming competitions 
the Petitioner took part in. While these evidence the Petitioner's personal achievements, such as her 
placing in a competition or the impact she has had on specific employers and clients, they do not 
demonstrate that these personal achievements constitute significant contributions to the sport of 
swimming or the industry of swim instruction, as a whole. 
The Petitioner also submitted evidence of a "Certificate for Master of Sports in Swimming" and on 
appeal states that obtaining this status is more complex than simply completing a course, as the 
Director stated in her decision. The appeal states this title is awarded for, "achieving the standard in 
sports competitions not below the status of official sports competitions .... " However, we agree with 
the Director, that it remains unclear how this title demonstrates the Petitioner has been recognized for 
achievements and significant contributions to the industry. 
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may 
submit comparable evidence to establish the beneficiary's eligibility 8 C.F.R. § 204.5(k)(3)(iii). 
Finally, the Petitioner submitted two instructional manuals she wrote entitled, 
and, 
However, if a petitioner wishes to submit comparable evidence, they must first establish that the other 
standards for establishing exceptional ability do not apply to their occupation. The Petitioner has not 
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asserted that the other criteria do not readily apply to her occupation, in fact, she argues that she has 
met the other criteria, therefore we will not consider the submitted comparable evidence. 
For the reasons given above, the evidence does not establish that the Petitioner meets the eligibility 
requirements as an individual of exceptional ability and therefore does not meet the requirements for 
EB-2 classification. Because the Petitioner has not established that she meets the minimum required 
criteria under 8 C.F.R. § 204.5(k)(3)(ii), we need not conduct a final merits determination. 
Nevertheless, we advise that we have reviewed the record in the aggregate, concluding that it does not 
support a finding that the Petitioner has established that she possesses a degree of expertise 
significantly above that ordinarily encountered in her field. 
While we do not discuss each piece of evidence individually, we have reviewed and considered the 
record in its entirety. The Petitioner has not established her 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. While the Petitioner asserts on appeal that she meets all three of the prongs 
under the Dhanasar analytical framework, we reserve our opinion regarding these issues. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the applicant did 
not otherwise meet their burden of proof). 
III. CONCLUSION 
We conclude by a preponderance of the evidence that the Petitioner has not established that she 
qualifies as an individual of exceptional ability, or that she is otherwise eligible for the underlying EB-
2 immigrant visa classification and therefore is not eligible for a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is dismissed. 
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