dismissed EB-2 NIW Case: Toy Sales And Rental Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 19, 2024 In Re: 30354412 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur for a toy sales and rental business, 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). 
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. § 1153(b)(2)(B)(i). 
U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the 
required job offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he qualifies for the underlying visa classification or merits a discretionary waiver of the 
job offer requirement " 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
For the purpose of determining eligibility under section 203(b)(2)(A) of the Act, "exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability : 
(A) An official academic record showing that the alien 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; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation 
for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition 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). 1 
Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 2 We then consider the totality of the material provided in a final merits determination 
and assess whether the record shows that the petitioner is recognized as having a degree of expertise 
significantly above that ordinarily encountered in the field. 3 See Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 2010) (discussing a two-part review where the documentation is first counted and then, if 
fulfilling the required number of criteria, considered in the context of a final merits determination). 
This two-step analysis is consistent with our holding that the "truth is to be determined not by the 
quantity of evidence alone but by its quality," as well as the principle that we examine "each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 l&N Dec. at 376. 
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 eligibility for 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 tenn "national interest," Matter of 
1 If these types of evidence do not readily apply to the individual's occupation , a petitioner may submit comparable 
evidence to establish eligibility . 8 C.F.R. § 204.5(k)(3)(iii). 
2 See generally 6 USCIS Policy Manual F.5(B)(2), https: //www.uscis.gov/policy-manual. 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
2 
Dhanasar, 26 l&N Dec. 884 (AAO 2016), provides the framework for adjudicating national interest 
waiver petitions. Dhanasar states that USCIS may, as matter of discretion,4 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. at 889. 
II. ANALYSIS 
The Petitioner proposes to establish a toy sales and rental business for which he would be its general 
and operations manager. With respect to the underlying EB-2 classification, the Petitioner submitted 
evidence to meet four of the six criteria of evidence for exceptional ability under 8 C.F.R. 
§ 204.5(k)(3)(ii). The Director concluded that the Petitioner met two criteria, ten years of full-time 
experience in the occupation at 8 C.F.R. § 204.5(k)(3)(ii)(B) and commanded a salary demonstrating 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(D). However, as discussed below, the record does not 
support the conclusion that the Petitioner meets either criterion. 
In denying the petition, the Director found the Petitioner did not meet the criteria for membership in a 
professional association at 8 C.F.R. § 204.5(k)(3)(ii)(E) and recognition for achievements and 
significant contributions to the field at 8 C.F.R. § 204.5(k)(3)(ii)(F). The Director further found that 
the Petitioner did not merit a discretionary waiver of the job offer requirement "in the national 
interest." 
On appeal, the Petitioner reasserts being an individual of exceptional ability by satisfying the criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F), and that he established by a preponderance of the evidence 
that he qualifies for the national interest waiver. After reviewing the evidence in the record, the 
Petitioner has not demonstrated satisfying at least three of the six initial evidentiary criteria and is not 
otherwise eligible for the requested benefit. 5 
Evidence in the form of letter(s) from current or former employer(s) showing that 
the individual has at least ten years of full-time experience in the occupation for 
which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
To meet this criterion, the Petitioner claims he has more than ten years of experience as an owner, 
director, and general manager of multiple businesses in Brazil. The Petitioner submitted multiple 
affidavits from an accountant; an amendment and consolidation of articles of organization for one 
business; and the articles of organization for another business. The Director sent arequest for evidence 
(RFE) advising the Petitioner the initial evidence submitted was insufficient to meet the criterion, 
pointing out that the evidence did not detail the Petitioner's job duties or whether the Petitioner worked 
4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
Circuit Court in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
5 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
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full-time. In the Petitioner's RFE response, he indicated that he was submitting additional affidavits 
from the accountant listing his job responsibilities and that he worked full-time for each business. The 
Director's decision found the Petitioner met the criterion having considered multiple affidavits from 
the accountant and the corporate organizational documents. However, as discussed below, we 
withdraw that determination, because the Petitioner has not established that he meets the criterion. 
Upon de novo review of the record, the Petitioner's RFE response only included the initially submitted 
affidavits from the accountant and does not include additional affidavits. Although the Petitioner's 
response provided quotes from the accountant's subsequent affidavits detailing his job responsibilities 
and that he worked full-time for multiple businesses, the record shows that the Petitioner's response 
only included the accountant's initially submitted affidavits, not new affidavits. The affidavits in the 
record do not indicate the Petitioner's job responsibilities for the businesses and whether the Petitioner 
worked full-time. The Petitioner's statements referencing the affidavits are not sufficient to 
demonstrate the criterion. The Petitioner must support his statements with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 l&N Dec. at 376. 
We further note that had the record included the subsequent affidavits from the accountant, it is not 
clear that they would be sufficient to demonstrate he has ten years of full-time experience in his 
occupation. The Petitioner intends to work in the United States as the general and operations manager 
of his toy sales and rental business. To show his experience in his occupation, the Petitioner claims 
to have previously worked as the owner, director, partner, or general and operation manager of 
multiple businesses. However, the record shows that only one of the businesses related to toy sales 
and rental. The Petitioner claims that he was the owner and general and operations manager of a toy 
manufacturing, sales, and rental business in Brazil from September 2016 to April 2022. While, the 
Petitioner also claims to have gained experience with his other businesses, those businesses were a car 
wash and oil exchange business; abusiness for automobile repair and wholesale retail of motor vehicle 
parts and accessories; and a motor vehicle fuel station and convenience store. The Petitioner's work 
with these businesses is not related to his occupation of being the general and operations manager for 
a toy sales and rental business. Therefore, his experience with these businesses would not meet the 
requirements for the criterion. 
Because the record does not demonstrate that he has at least ten years of full-time experience in his 
occupation, the Petitioner has not established that he meets the plain language of the criterion. 
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). 
To meet this criterion, the Petitioner claims he has earned income from his toy manufacturing, sales, 
and rental business in Brazil which is above the average salary for a general manager in Brazil. The 
Petitioner submitted an income statement from an accounting firm relating to income he received as 
managing partner of the business. The statement indicates that as managing partner of the business, 
the Petitioner "received income from Profit Distribution and Pro Labore" as follows: R$400,000 in 
2018; R$440,000 in 2019; R$400,000 in 2020; and R$450,000 in 2021. For comparison, the 
Petitioner's initial letter included a statement that "[a]ccording to the image below, taken from the 
Catha website ... , the average gross monthly salary of a general manager in Brazil in 2022 was 
R$5,072.01, which is equivalent to R$60,854.12 per year." The Petitioner's letter included an image 
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from "Catho" indicating a general manager average wage is R$5.072,01. The Petitioner claimed this 
evidence shows his income exceeds the average salary for ageneral manager. Based on this evidence, 
the Director found that the Petitioner met the criterion. 
However, the evidence submitted is not sufficient to show he meets the criterion. The comparison 
evidence is limited to the Petitioner's statements, which includes an extract of the "Catho" webpage. 
The webpage image does not indicate whether the general manager average salary is for Brazil, a 
region of Brazil, or some other area. The Petitioner's statements referencing the webpage are not 
sufficient to demonstrate the criterion. The Petitioner must support his statements with independent, 
relevant evidence. See Matter of Chawathe, 25 l&N Dec. at 376. Also, the accountant's statement 
indicates that the Petitioner received income for profits and for work. The evidence does not indicate 
what portion of his income is for his work and what portion is for profits. Without more, the Petitioner 
has not established the average salary for a general manager is a proper basis for comparison with the 
Petitioner's profit and work income as a managing partner of his business. 
For these reasons, we withdraw the Director's determination for this criterion, as the Petitioner has not 
established that he commanded a salary indicative of his claimed exceptional ability relative to others 
working in the field. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
To meet the criterion, the Petitioner submitted evidence of membership from two organizations, 
American Management Association (AMA) and Brazilian Association of Administration (BAA). For 
AMA, the Petitioner submitted adocument entitled "Account Details" with details of an email address, 
a "My AMA ID: 3979048", the membership account number, the indicated job title of "Manager", 
and being a member since October 6, 2022. No other details are included on the document. Although 
the Petitioner indicates the document shows his membership with AMA, the document does not 
include the Petitioner's name. The record does not sufficiently show the "Account Details" document 
relates to the Petitioner or his membership with AMA. To show AMA is a professional association, 
the Petitioner's letter includes a short excerpt of the AMA bylaws, "Art. 5 - All individuals and 
companies that carry out management activities under the terms of Lawn. 4,769, of September 9th , 
1965, as well as individuals and companies or organization that carry out similar activities and that 
are in accordance with these bylaws." (emphasis omitted). However, we are unable to discern the 
meaning of the excerpt on its own without having the entire bylaws. 
On appeal, the Petitioner argues that AMA is a professional association, "[AMA] is an international, 
non-profit, membership-based association that provides a wide range of educational and management 
development services to individuals and organizations. To this end, it offers on line and on-site training 
courses for its associates." His appeal brief includes AMA's vision and mission statement indicating 
AMA is a respected association that has credibility with training companies and courses. He provides 
some information about an exam he intends to take stating that the exam "will further qualify me to 
be an entrepreneur with even more qualifications than I already have." 
For the BAA, the record includes receipts of the Petitioner's request for membership and for his 
payment of his membership contribution annual fees for 2021, 2022, and 2023. While the documents 
show the Petitioner's membership to BAA, the record does not include evidence showing that BAA 
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is a professional association. On appeal, the Petitioner argues that BAA is a professional association 
based on its bylaws. In the Petitioner's appeal brief, he provides an excerpt from the BAA bylaws; 
however, it is the same excerpt previously provided by the Petitioner as the excerpt from AMA' s 
bylaws. The record does not contain an excerpt from the BAA bylaws. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as any occupation having a minimum 
requirement of a U.S. bachelor's degree or foreign equivalent for entry into the occupation. The record 
does not show that either of AMA or BAA is aprofessional association as required under the criterion. 
The record does not show either of the entities requires that its membership body be comprised of 
individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the 
organization otherwise constitutes a professional association. Without more, the Petitioner has not 
established that AMA and BAA are professional associations such that his membership in them would 
be sufficient to meet this criterion. 
As such, the Petitioner has not demonstrated his membership in a professional association under this 
criterion. 
Evidence of recognition 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). 
To meet this criterion, the Petitioner submitted a news publication; an advertisement; letters of 
recommendation from his clients, his lawyer, and aservice provider; letters of appreciation; and letters 
of interest in the Petitioner's proposed endeavor. The news pubIication and the advertisement both 
indicate that in 2005, the Petitioner's prior automobile repair businesses opened a new location. The 
Petitioner opening a new business location does not show recognition for achievements or significant 
contributions to his industry. The letters of recommendation and of appreciation from his clients and 
his lawyer attest to the Petitioner being a competent, reliable business professional who provided 
quality service and products. While the record shows the Petitioner's business clients and service 
providers confirm his management experience and knowledge in the products and services for his 
businesses, it does not demonstrate that the Petitioner has been recognized for achievements and 
significant contributions to the industry or field, as required under the criterion. 
On appeal, the Petitioner summarizes the evidence submitted with the initial petition and requests that 
we review two letters of intent from prospective clients of his proposed endeavor. The Petitioner 
indicates that the letters of intent show that should he be granted a visa, he intends to expand his 
business in the United States which would generate U.S. employment and income. While the letters 
of intent express interest to invest in the Petitioner's business, they do not show that the Petitioner has 
been recognized for achievements and significant contributions to the industry or field, as required 
under the criterion. The Petitioner has not met the requirements for the criterion. 
Because he Petitioner has not established that he meets at least three of the evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(A) through (F), 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). Nevertheless, we advise that we have reviewed the record in the aggregate and conclude 
6 
that it does not support a finding that the Petitioner has established the recognition required for 
classification as an individual of exceptional ability. 
Ill. CONCLUSION 
The Petitioner has not established his 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 he 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) (noting that "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 alternative issues on appeal where an applicant is 
otherwise ineligible). 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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