dismissed EB-2 NIW Case: Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 03, 2023 In Re: 28819257 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the technology industry, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability in the sciences, arts, or business . 
See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). He also seeks 
a national interest waiver of the job offer requirement attached to this classification under section 
203(b)(2)(1)(B) of the Act. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for EB-2 classification as an individual of exceptional ability. The 
Director further determined that the Petitioner did not establish that it would be in the national interest 
to grant a discretionary waiver of the job offer requirement. 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 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 a member of the professions holding an advanced 
degree 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 
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). 
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 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. 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 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. 
II. EXCEPTIONAL ABILITY CLASSIFICATION 
The first issue to be addressed is whether the Petitioner established his eligibility for EB-2 
classification as an individual of exceptional ability in the arts, sciences, or business. The Petitioner 
indicates that his proposed endeavor in the United States is to work as the owner and CEO of a Florida­
based company that has developed a social media application. The mobile application,! Iis 
designed to link tourists with knowledgeable "locals" in major cities with the goal of improving their 
travel experience. 
The Director determined that the Petitioner did not submit evidence that satisfied the plain language 
of any of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). The Director acknowledged the Petitioner's 
assertion that he could establish his eligibility through comparable evidence, but noted that, in several 
instances, he did not meet his burden to demonstrate why the standards at 8 C.F.R. § 204.5(k)(3)(ii) 
do not readily apply to his occupation. On appeal, the Petitioner asserts that the reasons provided for 
the denial of his petition were "merely perfunctory" and reflect a lack of understanding of his case or 
an "inability to comprehend" the purpose of his endeavor. 
For the reasons provided below, we agree with the Director's conclusion that the Petitioner did not 
satisfy the initial evidentiary requirements for classification as an individual of exceptional ability by 
meeting at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has not demonstrated his eligibility 
through submission of comparable evidence. 
A. Evidentiary Criteria 
Although the Petitioner previously claimed he could satisfy all six evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii), on appeal, he specifically addresses the five criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
2 U.S. Citizenship and Immigration Services (USCTS) has previously confirmed the applicability of this two-part 
adjudicative approach in the context of individuals of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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through (F). He does not contest the Director's determination that he did not satisfy the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(A), which requires an official academic record showing that the individual 
has a degree, diploma, certificate or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability. 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)). We discuss the remaining criteria below. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
individual 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) 
This criterion focuses on evidence of experience in the occupation which the individual intends to 
pursue in the United States. As noted, the Petitioner intends to pursue work as an entrepreneur and 
CEO in the technology industry. 
The Petitioner submitted a Form ETA 750 Part B, Statement of Qualifications of Alien, listin&,...hi§., 
em lo ment in three ·obs since Se tember 2015. He stated he served as: (1) managing partner ofl_J 
'from September 2015 until August 2017, (2) managing partner of 
r---------,._f,-ro_m _A_p-ri..Jl 2018 until October 2021; and (3) founder and CEO ofl I 
(Brazil) since April 2021. His resume and professional plan listed his additional 
~e_m_p_l_o_y_m_e_n_t_a_s-th-e~ founder and managing partner of the restaurant I I in Portugal from 
November 2015 until November 2016. Finally, the Petitioner states that, from 2007 until April 2014, 
he was a "music artist/DJ and music producer" performing as '1 I" during which time he 
played at music festivals in Europe and Africa and distributed his music on platforms including Spotify 
and Y ouTube. 
As initial evidence in support of this criterion, the Petitioner submitted the following: 
• A letter from the accountant for~------------~ (Brazil), who confirmed 
the Petitioner's role as CEO of the company since April 30, 2021 and described his duties. 
• A letter from the accountant forl I(United States), who 
confirmed the Petitioner's position as founder and CEO since the company's formation in June 
2021 and described his duties. ~----------------~ • A letter from a partner of~----------------~ (Portugal), who 
confirmed the Petitioner's position as managing partner of this company from April 2018 until 
October 2021 and described his duties. 
• Copy of the "permanent certificate" for~-------------~ which shows 
the company was registered in Portugal in September 2015, and identifies the Petitioner as its 
majority partner and manager. 
• Copy of the National Trademark (wordmark) issued by the Portuguese National Institute of 
Industrial Property (INPI) for the name 1 I' This document identifies the Petitioner 
as the holder of the wordmark and indicates that he submitted the application in August 2015. 
• Copy of a Logotype ( device mark) issued by INPI for the name I I' This 
document identifies the Petitioner as the holder of the device mark and states he submitted the 
application in February 2013. 
3 
In a request for evidence, the Director observed that the initial evidence did not include letters from 
former employers showing that the Petitioner has at least ten years of full-time experience in the 
occupation he intends to pursue in the United States, as required by 8 C.F.R. § 204.5(k)(3)(ii)(B). The 
Director requested official verification letters on employer letterhead stating the employer's name and 
address, the signer's name and title, the exact dates of employment, the number of hours the Petitioner 
worked per week, and a description of the duties he performed in each position. 
In response to the RFE, the Petitioner emphasized he has been an entrepreneur for "his entire adult 
life" and noted that entrepreneurs "are not likely to have former employers who can attest to their 
experience in the occupation." The Petitioner referred the Director to review the professional plan 
submitted with the petition, which contains a narrative description of his employment history. 
The Director acknowledged the Petitioner's claim regarding his inability to obtain the types of 
employment verification letters required by the plain language of the regulation. However, in 
determining whether the Petitioner provided comparable evidence, the Director concluded that he did 
not submit objective, documentary evidence to demonstrate his ten years of full-time experience in the 
occupation in which he intends to work in the United States. The Director emphasized that the 
previously submitted professional plan "is not considered objective documentary evidence." We agree 
with the Director's determination that the Petitioner did not demonstrate that he meets this criterion. 
As noted, the Petitioner indicates he was a "Music Artist/DJ and Music Producer" from 2007 until 
April 2014, but the record lacks corroborating evidence of those dates. He describes his music career 
as "an entrepreneurial project ... primarily focused on me and my talent." However, he provided 
insufficient documentation regarding the nature of this "entrepreneurial project," such as, for example, 
evidence that he established and ran a company or enterprise to oversee or manage his artistic 
endeavors. As such, the record does not contain sufficient evidence to demonstrate the Petitioner's 
pursuit of his music career qualifies as full-time experience as an entrepreneur, nor did he explain how 
his experience as a music artist, DJ and music producer is in the same occupation as his intended 
position as the CEO and founder of a technology company. 
According to the Petitioner's resume and professional plan, he transitioned to an entrepreneurial career 
in business in 2015. The Petitioner filed the petition in January 2022, less than seven years after his 
career transition from artist to entrepreneur. Therefore, while the record contains some evidence that 
generally corroborates his claimed employment as an entrepreneur since 2015, he did not meet his 
burden to demonstrate that he had been employed or engaged in this occupation on a full-time basis 
for at least ten years at the time he filed this petition. Accordingly, he did not establish that he meets 
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) 
At the time of filing, the Petitioner submitted evidence that he possesses a yachtsman's license and a 
radiotelephone operator Class A license, both issued by the Portuguese government. In the RFE, the 
Director acknowledged this evidence but noted that the submitted licenses are unrelated to the 
Petitioner's intended field of endeavor. The Director also noted that he had not established that a 
4 
I 
license or certification is required for the Petitioner to work as an entrepreneur in the technology 
industry. 
In response to the RFE, the Petitioner stated that he is "the originator and developer" of the 'I~--~ 
app and that his company and the mobile application are licensed exclusively through an Apple 
Developer Program License Agreement. He explained that since applications must be "evaluated, 
vetted, beta tested and fully considered" before being selected by Apple," he meets this criterion based 
on the onboarding of 'I tinto the Apple Developer Environment. He submitted a screenshot 
from the Apple App Store as evidence that 1 lis attributed to his company! 
c=Jand available as a free download on the platform. 
The Director considered whether this evidence could serve as "comparable evidence" to satisfy this 
criterion, but noted that the Petitioner did not show that he was licensed as the originator and developer 
of the 'l Iapp. 
In addressing this criterion on appeal, the Petitioner's brief contains quotes attributed to ~I----~ 
and Forbes, with no further explanation or references to the Director's decision. The offered quotes 
highlight the importance of entrepreneurs as a source of innovation and as key drivers of the economy, 
but these considerations do not serve as comparable evidence of the Petitioner's eligibility under this 
criterion. We agree with the Director's conclusion that the Petitioner's documented Portuguese 
yachtsman licenses are unrelated to his field of endeavor and that evidence of the presence of his 
company's mobile application in the Apple Store is not sufficient to establish that he meets this 
criterion through comparable evidence. 
Evidence that the individual has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
To satisfy this criterion, the evidence must show that the individual has commanded a salary or 
remuneration that is indicative of their claimed exceptional ability relative to others working the field. 
As initial evidence in support of this criterion, the Petitioner submitted, in relevant part, copies of his 
monthly pay statements froml Iindicating that he received a gross 
monthly salary of R$20,000 as managing partner of this entity for the months of June 2021 through 
September 2021. In the RFE, the Director acknowledged this evidence, but advised that the record 
lacked objective comparative earnings data to demonstrate that the Petitioner had commanded a salary, 
or other remuneration for services, which demonstrates exceptional ability in relation to those 
performing similar work in the technology industry during the same period. 
In response to the RFE, the Petitioner submitted copies of bank statements for his U.S.-based company 
for the months of February 2022 through October 2022, and asserted that the evidence shows that "the 
company, in less than one year, is showing monthly income of approximately $30,000." Along with 
the bank statements, the Petitioner's evidence in support of this criterion included copies ( or partial 
copies) of published articles about the Petitioner and/or his ventures.4 Several articles mention the 
4 Some of the articles are in the Portuguese language and were not accompanied by an English translation as required by 
8 C.F.R. § 103.2(b)(3). 
5 
Petitioner's inclusion in the cast of the reality showI I and note that the show 
would "follow the lives of six wealthy millennials on a luxury trip to I I The Petitioner did not 
explain how these published materials establish his eligibility under this criterion. 
The Director determined that the bank statements and articles submitted in response to the RFE did 
not provide objective evidence of wages the Petitioner received for his work in the claimed area of 
exceptional ability and noted that he did not provide comparative earning data for similarly employed 
workers in the technology industry as requested in the RFE. In addition, the Director observed that 
the bank statements included in the RFE response all postdated the filing of the petition in January 
2022 and therefore could not establish eligibility at the time of filing. Accordingly, the Director 
concluded that the Petitioner did not demonstrate that he meets this criterion. 
In his brief on appeal, the Petitioner states: 
According to I I CEO and Founder of~-------- the average 
startup founder's salary in 2023 was down to approximately $145,000 from $150,000 
in 2022. This is slightly higher than the average startup CEO salary of $142,000 in 
2023, driven by technical founders who earn more than their CEO counterparts. 
The Petitioner quotes two additional paragraphs presumably from the same unidentified article, and 
states that based on this article, he "earned in 2022 twice as much as a Founder of a startup earns in 
his feed [sic] round year in just six months since he received authorization to work." He states that 
"all documents" were sent in response to the RFE and "were ignored." 
We agree with the Director's determination that the Petitioner did not provide sufficient objective 
documentary evidence demonstrating that he meets the plain language of this regulatory criterion, nor 
did he demonstrate that this criterion is not readily applicable to his occupation. First, the only 
objective evidence the Petitioner provided of his prior earnings consisted of the monthly pay 
statements issued to him by~-------------~ in 2021. He was provided an 
opportunity to submit comparative wage data to show that this salary is commensurate with 
exceptional ability, but he did not provide such evidence in response to the RFE. Because he did not 
provide a basis for comparison of this salary relative to others working in the field, the Petitioner did 
not establish that he met this criterion based on the salary he received in Brazil in 2021. 
In response to the RFE and on appeal, the Petitioner claims eligibility based on his earnings with his 
U.S.-based company in 2022. However, as noted by the Director, eligibility must be established at 
the time of filing. 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). That 
decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), farther provides that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Therefore, the Petitioner cannot establish his eligibility under this criterion based on evidence of his 
salary or other remuneration that postdates the filing of this petition in January 2022. 
Nevertheless, we note the company's 2022 bank statements submitted in response to the RFE do not 
establish the amount of the salary or other remuneration the Petitioner received in his role as founder 
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and CEO. Further, the bank statements were not accompanied by any comparative wage data showing 
that his earnings are indicative of his exceptional ability. On appeal, he provides an average salary for 
a start-up founder from an unidentified source and claims that his earnings over a period of six months 
in 2022 were more than double that average amount. However, the record still lacks objective 
evidence of his salary or other remuneration for services as the founder and CEO of the U.S. company 
as of the date of filing. 
Finally, the Petitioner's claim that the Director ignored evidence submitted in response to the RFE is 
not supported by the record. As noted, in addressing this criterion in his RFE response, the Petitioner 
submitted 2022 bank statements for his U.S. company and copies of articles about him and his various 
endeavors. This evidence was directly addressed in the Director's decision, and we agree that neither 
the bank statements nor the published materials demonstrated that the Petitioner has commanded a 
high salary or other remuneration for services that demonstrate exceptional ability. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner did not claim eligibility under this criterion at the time of filing or in his response to the 
RFE. On appeal, he asserts that he applied for membership in the Consumer Technology Association 
in January 2022, shlrtly afrr filing this petition. He states that, after a lengthy period of evaluation, 
"both my company, and I, as its founder, were approved thereby fulfilling another one of the 
required criteria." He also mentions that he has four additional memberships under review which will 
enhance his recognition and stature in the technology field. 
The Petitioner does not claim or provide evidence that he was a member of any professional 
association when he filed this petition. Again, we emphasize that eligibility must be established at the 
time of filing. 8 C.F.R. § 103.2(b)(l); see also Katigbak, 14 I&N Dec. at 49. A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Izummi, 22 
I&N Dec. at 175. Therefore, we will not evaluate the Petitioner's claim that membership in CT A 
establishes his eligibility under this criterion. 
B. Summary and Reserved Issue 
Per the analysis above, the Petitioner has not established that he meets any of the evidentiary criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(A) through (E). The Petitioner also claims that he can satisfy the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(F), which requires evidence of recognition of his achievements and 
significant contributions to the industry or field. As the Petitioner cannot fulfill the initial evidentiary 
requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii), we reserve and will not address this 
remaining criterion. 
Further, because the Petitioner did not satisfy the initial evidence requirements, we need not conduct 
a final merits analysis to determine whether the evidence in its totality shows that he is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. 8 C.F.R. § 204.5(k)(2). 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. 516,526 n.7 (BIA 2015) (declining to 
reach alternative issues on appeal where an applicant is otherwise ineligible). 
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III. NATIONAL INTEREST W AIYER 
The Petitioner has not established his qualification for the requested EB-2 classification and is 
therefore ineligible to be granted a national interest waiver as a matter of discretion. Although the 
Petitioner asserts on appeal that he meets all three of the prongs under the Dhanasar analytical 
framework and that the Director erred in concluding otherwise, we will reserve these issues. See 
Bagamasbad, 429 U.S. at 25-26; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
IV. CONCLUSION 
Because he did submit evidence to satisfy three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), the 
Petitioner has not established that he is eligible to be classified as an individual of exceptional ability 
in the sciences, arts, or business. Accordingly, the petition will remain denied and 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. 
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