dismissed EB-2 NIW Case: Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 2, 2024 In Re: 25609753 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of technology, 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is 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. On appeal, the Petitioner contends that the Director ignored or 
improperly evaluated the evidence submitted to be classified as an individual of exceptional ability 
and that the decision was contrary to law and weight of evidence. 
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 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 
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 bas previously con finned the applicability of this two-part adjudicative approach in the context of individuals of 
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 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. 
Id. 
II. ANALYSIS 
The Petitioner claimed qualification for the underlying EB-2 visa classification as an individual of 
exceptional ability. 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 that the Petitioner did not meet at least three of the six criteria. On appeal, the 
Petitioner maintains that he meets three of the six criteria under 8 C.F.R. § 204.5(k)(3)(ii)(B) (10 years 
of full-time experience in the occupation), 8 C.F.R. § 204.5(k)(3)(ii)(D) (a salary for services, which 
demonstrates exceptional ability), and 8 C.F.R. § 204.5(k)(3)(ii)(F) (recognition for achievements and 
significant contributions to the field). After reviewing the evidence in its totality, we conclude the 
record does not support that the Petitioner meets at least three criteria. 
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien 
has at least ten years offitll-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 did not establish eligibility for this criterion, and we agree. 
A review of the record of proceeding does not reflect that the Petitioner submitted sufficient 
documentary evidence establishing that he meets the plain language of the regulation at 8 C.F.R. § 
204.5(k)(3)(ii)(B). 
The Petitioner submitted a letter from the head of human resources and administration at 
The letter states that the Petitioner worked full-time as a graphic artist at the 
company from November 2007 to September 2008. The Petitioner proposed to work in the United 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and District of Columbia 
Circuit Courts in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
2 
States as a chief executive officer, an entrepreneur, and a software designer. Because the Petitioner 
worked for the company as a graphic artist, this letter does not establish that he has experience in the 
occupation for which he is being sought. The Petitioner claims that he has created and operated 
multiple successful companies, and this began with his experience as a graphic artist. However, he 
does not adequately explain how his experience as a graphic artist is relevant to his proposed 
employment as a chief executive officer, an entrepreneur, or a software designer. 
The record includes a letter from the director of I I an enterprise services provider 
company, which states that the Petitioner founded the company in 2008, incorporated the company in 
2013, and left his role as the chief executive officer in December 2019. The record also includes a 
letter from the chief executive officer of which states that the Petitioner 
was the chief executive officer of the company from 2015 to 2018. While these letters show that the 
Petitioner has experience in the occupation for which he is being sought, they do not indicate that he 
has worked for the companies full-time. In addition, these letters do not describe the duties performed 
by the Petitioner. The regulation at 8 C.F.R. § 204.S(g)(l) provides that evidence relating to qualifying 
experience or training shall be in the form of letters from current or former employers or trainers and 
must include the name, address, and title of the writer and a specific description of the duties performed 
by the individual or of the training received. If such evidence is unavailable, other documentation 
relating to their experience will be considered. See id. 
The Petitioner contends that he submitted corroborating evidence that he served as the incorporator 
and chief executive officer ofI Iand contract documents, which referred 
to the Petitioner as the chief executive officer, but the Director failed to acknowledge this evidence 
and provided no insight as to why these documents are not credible evidence. The business formation 
documents or sample contracts of companies in which the Petitioner was the chief executive officer 
may support the lawful business activities of his former employers. However, they do not establish 
the length of his employment, whether it was full-time or part-time employment, or what his duties 
and responsibilities were to demonstrate qualifying employment under the pertinent regulation. 
Accordingly, the Petitioner does not meet this criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Director determined that the Petitioner did not establish eligibility for this criterion, and we agree. 
A review of the record of proceeding does not reflect that the Petitioner submitted sufficient 
documentary evidence establishing that he meets the plain language of the regulation at 8 C.F.R. § 
204.5(k)(3)(ii)(D). 
In support of this criterion, the Petitioner submitted his bank statement, bank statements of 
I I Certificate of Incorporation of I I Allotment of Share Capital and Return of 
Allotment forl Ishowing that the Petitioner subscribed 998,000 shares ofl I 
in May 2012 before its incorporation in 2012, a tax clearance certificate ofl Ifrom 
2016 to 2018, purchase orders and a sample contract for I and Return of Allotment for 
Ishowing that the Petitioner subscribed 385,000 shares ofl I 
in 2017 The Pe t itioner's bank statement shows transfers of various amounts froml I 
_ to the Petitioner's bank account but do not indicate that these funds were deposited into the 
3 
Petitioner's bank account as his salary or other compensation for his services. 4 The Returns of 
Allotment forl lshow the Petitioner's past ownership interests in 
these two companies but do not indicate how much he earned from these two companies. The 
Petitioner contends that a person of his caliber as an entrepreneur is known to receive alternative 
compensation through share participation. The fact that the Petitioner has subscribed certain number 
of shares of the companies at the time of their formation do not establish that he has received 
alternative compensation through share participation or that he has commanded remuneration for 
services, which demonstrates exceptional ability. 
The tax clearance certificate of I Ishows a total profit earned by the company and taxes 
paid by the company each year from 2016 to 2018. The Petitioner claims that he is responsible for 
producing revenue totaling over 70,000,000 Nigerian Naira (NGN) from 2016 to 2018 with profits of 
NGN 1,485,140 to him as a principal shareholder of the company. However, profits earned by a 
business entity of which the Petitioner is a shareholder do not provide evidence of the Petitioner's 
income because a corporation and an individual are two separate legal entities. See Matter ofSojfici, 
22 I&N Dec. 158, 162 (Assoc. Comm'r 1998). This is true even if the individual is the sole shareholder 
of the business. See id. at 161-63. 
Furthermore, the record does not contain comparative data showing that the Petitioner's salary or other 
remuneration for services demonstrates his claimed exceptional ability relative to others working in 
the field. The Petitioner submitted documentation regarding the top 20 highest paying jobs in Nigeria, 
minimum and average salaries in Nigeria, and an average monthly salary of software engineers in 
Nigeria. The Petitioner proposed to work in the United States as a chief executive officer, an 
entrepreneur, and a software designer. The Petitioner claims that he earned in one year $330,000 from 
I !operations, that an average monthly salary of chief executive officers in Nigeria is $750, and 
that his income was well above the average. First, the Petitioner has not submitted sufficient 
documentary evidence to support the claim that he earned $330,000 froml in one year. 
Second, even if the Petitioner's income was well above the average monthly salary of all chief 
executive officers in Nigeria, this does not establish that he has commanded a salary or other 
remuneration for services, which demonstrates exceptional ability. Without sufficient corroborating 
evidence, the record does not establish that the Petitioner has commanded a salary or other 
remuneration for services, which demonstrates exceptional ability. Accordingly, he does not meet this 
criterion. 
4 The Petitioner's bank statement with identify some of these deposits from ___as "expenses," "server 
bills," "pocket expenses," or "loan repayment from 
4 
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 Director determined that the Petitioner did not establish eligibility for this criterion, and we agree. 
In light of our discussion on the two criteria above, we decline to discuss this remaining criterion and 
will reserve this for future consideration should the need arise. 5 
The Petitioner has not established by a preponderance of the evidence that he meets at least three of the 
six regulatory criteria. Because the Petitioner has not established eligibility for at least three of the six 
criteria, we need not provide a final merits determination as to whether he has achieved the level of 
expertise required for exceptional ability classification. Moreover, because the issue identified in this 
decision determines the outcome of the Petitioner's appeal, we need not reach a decision on whether 
he is eligible for or otherwise merits a national interest waiver as a matter of discretion under the 
Dhanasar analytical framework. Therefore, we will reserve these issues for future consideration 
should the need arise. 6 
III. CONCLUSION 
As the Petitioner has not established by a preponderance of the evidence that he is a member of the 
professions holding an advanced degree or an individual of exceptional ability, he has not 
demonstrated eligibility for the EB-2 visa classification. Because the issue identified in this decision 
determines the outcome of the Petitioner's appeal, we need not reach a decision on whether he is 
eligible for or otherwise merits a national interest waiver as a matter of discretion under the Dhanasar 
framework and will reserve these issues for future consideration should the need arise. 
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. 
5 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 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
6 See id. 
5