dismissed EB-2 NIW Case: Transport And Logistics

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26953605 Date: MAY 16, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a truck driver and business owner in the road transport and logistics field, seeks 
classification as a member of the professions holding an advanced degree or, in the alternative, as an 
individual of exceptional ability in the sciences, arts or business. Immigration and Nationality Act 
(the Act) section 203(b )(2), 8 U.S.C. § l 153(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. § l 153(b)(2)(B)(i). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for EB-2 classification as a member of the professions holding 
an advanced degree or as an individual of exceptional ability. The Director further determined that 
the Petitioner did not establish that a waiver of the job offer requirement 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 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). Profession is defined as the occupations listed in section 10l(a)(32) 
of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 1 8 C.F.R. § 204.5(k)(3). 
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 2, 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. ANALYSIS 
The primary issue to be addressed is whether the Petitioner established that he is eligible for EB-2 
classification as a member of the professions possessing an advanced degree. 
The Petitioner initially claimed eligibility for classification under section 203(b)(2) of the Act as both 
an advanced degree professional and as individual of exceptional ability in the sciences, arts, or 
business. The Director evaluated the evidence submitted in support of both claims and concluded that 
the Petitioner did not establish his eligibility for either classification. On appeal, the Petitioner does 
not raise his previous claim that he qualifies for EB-2 classification as an individual of exceptional 
ability or otherwise acknowledge or contest the Director's adverse determination regarding his 
exceptional ability claim. Issues or claims that are not raised on appeal are deemed to be waived. See, 
e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
A. Member of the Professions Holding an Advanced Degree 
In support of his claim that he qualifies as a member of the professions holding an advanced degree, 
the Petitioner provided copies of his diplomas, academic transcripts and certified English translations 
demonstrating that he holds: (1) a bachelor's degree and a master's degree in "chemical technology of 
inorganic substances" from Technical University; and (2) a master's degree in 
materials science and materials technology, with a specialization in nanotechnology, froml I 
State University in Russia. 
The Director determined, and we agree, that the Petitioner possesses an advanced degree as defined at 
8 C.F.R. § 204.5(k)(2) based on his receipt of at least one foreign equivalent degree above that of a 
bachelor's degree. In denying the petition, the Director emphasized that the Petitioner proposes to 
work in the United States as an "entrepreneur and truck driver" and cited to U.S. Department of Labor 
1 "Profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
2 See also Poursina v. USCIS, 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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publications indicating that the occupation of truck driver typically requires a high school diploma, 
attendance at a driving school, and a commercial driver's license. Therefore, the Director concluded 
that the Petitioner did not establish that his proposed occupation is a "profession" or that it requires a 
professional holding an advanced degree or its foreign equivalent. See 8 C.F .R. § 204.5(k)( 4 )(i). 3 
On appeal, the Petitioner asserts that the Director erred in concluding that his advanced degree is not 
related to his proposed endeavor. Specifically, the Petitioner asserts that the Director mischaracterized 
the proposed endeavor "as driving a truck" and erred by "ignoring that [his] proposed endeavor is 
running a shipping company." The Petitioner maintains that his advanced degree is necessary to 
ensure he can "properly handle the complexities of shipping various specialized materials." Finally, 
the Petitioner states that "in focusing on the academic requirements of truck driving," the Director 
"fails to address the connection between [his] responsibilities as a business owner making logistical 
and technical decisions about shipping, leading to his erroneous conclusion." 
Upon review of the statements and evidence submitted regarding the Petitioner's proposed endeavor, 
we conclude that the record supports the Director's determination. 
As noted, the Petitioner possesses advanced degrees related to chemistry and materials science and 
technology. He completed his education in 2015. According to the Petitioner's submitted 
autobiographical statement, resume, and letters from his former employers, he has since worked as a 
driver for his family's business (a preschool and kindergarten), as a cargo driver and logistician for a 
farming company, and, most recently ( from June 2020 until May 2021) as the owner and director of a 
registered "individual entrepreneur" cargo transportation and logistics company, where he also 
performed the duties of a driver. 
The Petitioner stated on the Form 1-140, Immigrant Petition for Alien Worker, that he proposes to 
work as a "truck driver" performing duties that include long-distance driving, coordinating with 
dispatchers, and obeying and following applicable traffic laws. In the personal statement the Petitioner 
provided at the time of filing in October 2021, he repeatedly states that he proposes to work as a truck 
driver, noting that his "extensive experience as a truck driver ... has uniquely prepared me for a 
continuation of my very successful career as a truck driver in the United States, and I would be 
tremendously honored to contribute my talent and ability as a Truck Driver to the benefit of [ the United 
States]." 
In a request for evidence (RFE), the Director noted the Petitioner's possession of an advanced degree 
but emphasized that he did not submit evidence to demonstrate his intent to work in an occupation or 
proposed endeavor that requires such degree. The Director advised the Petitioner that he could submit 
evidence to demonstrate that the occupation of truck driver requires an advanced degree. 
The Petitioner's response to the RFE included evidence that he had established a Pennsylvania limited 
liability company in 12022, approximately one year after filing the petition. The company's 
business plan indicates it will engage in the transport of general freight and dry goods and serve the 
3 See also 6 USC1S Policy Manual F.5(A)(3) (stating that ·'[m]ere possession of an advanced degree or its equivalent is not 
sufficient for establishing a noncitizen's eligibility for this classification" and that a petitioner "must demonstrate that the 
position, and the industry as a whole, normally require that the position be filled by a person holding an advanced degree.") 
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construction, manufacturing, wholesale, and retail industries. The business plan states the Petitioner 
will occupy the senior position in the company as its "operations manager" and indicates he will 
oversee "all aspects of the company's operations including client relations, maintenance, finances, 
team building and staffing development"; it does not indicate that he would be performing the duties 
of a truck driver. 
In response to the Director's specific request that the Petitioner provide evidence to demonstrate that 
his proposed occupation in the United States requires an advanced degree, he provided a letter from a 
professor of chemical sciences at I !Technical University. The professor indicates that 
the Petitioner wrote his master's thesis on the topic of "Safe Transportation of Chemicals," in which 
he "identified nine classes of hazardous chemicals," as well as "non-hazardous chemical goods," and 
considered "all possible methods of transportation." In an accompanying cover letter submitted with 
the RFE response, counsel referred to the professor's statement, noting that "the skills that [the 
Petitioner] learned in transportation of chemicals will certainly transfer over to his professional career 
as a truck driver," and that there is a "direct connection between the Beneficiary's education and Truck 
Driving" which requires "knowing all the nuances of the transportation of this group ofraw materials." 
In the same letter, counsel stated that the Petitioner's educational background is "the minimum 
requirement for entry into the occupation as a truck driver." The Petitioner's response to the RFE did 
not address how his new proposed endeavor (serving as the owner and operations manager for a 
company in the transportation and logistics sector) requires an advanced degree. 
As noted, on appeal, the Petitioner indicates that the Director "mischaracterized" his proposed 
endeavor as "driving a truck," and failed to consider that he will be a business owner making technical 
decisions that require the ability to "handle the complexities of shipping various specialized 
materials." However, a petitioner must establish their eligibility for a requested benefit "at the time 
of filing the benefit request." 8 C.F.R. § 103.2(b)(1); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971) (requiring a noncitizen to qualify for a proposed job by the time of a petition's 
filing). A petitioner also may not materially change a petition after its filing. Matter oflzummi, 22 I&N 
Dec. 169, 175 (AAO 1998). For the reasons stated in Katigbak and lzummi, we conclude that the 
Director did not err by basing the decision on the Petitioner's initial proposed endeavor, which was to 
work as a truck driver. 
Further, we agree with the Director's determination that neither the initial evidence nor the Petitioner's 
response to the RFE demonstrate that the intended occupation of "truck driver" or "truck driver 
entrepreneur" requires an advanced degree. On appeal, the Petitioner does not contest this 
determination. 
Even if we considered the material change to the Petitioner's intended proposed endeavor, the RFE 
response did not include evidence to establish that an advanced degree is required to own and operate 
a business in the transportation and logistics field. Rather, in response to the RFE, counsel maintained 
that the Petitioner's educational background is "the minimum requirement for entry into the 
occupation as a truck driver." Counsel now makes similar claims on appeal regarding the Petitioner's 
proposed endeavor as a business owner and operations manager in the transportation field. However, 
the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence. 
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Mere possession of an advanced degree, or its equivalent, is not sufficient to establish a petitioner's 
eligibility as a member of the professions possessing an advanced degree. The Petitioner must also 
demonstrate that his intended occupation or proposed endeavor normally requires the services of an 
individual with an advanced degree. Here, the Petitioner has not met that burden. Accordingly, he 
has not established his eligibility for the requested EB-2 classification. 
B. National Interest Waiver 
The Petitioner has not established his qualification for an EB-2 classification as a member of the 
professions holding an advanced degree and he has waived his prior claim that he qualifies as an 
individual of exceptional ability in the sciences, arts, or business. He is therefore not eligible for a 
national interest waiver. While 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 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 of L-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). 
III. CONCLUSION 
The Petitioner has not established that he is eligible to be classified as a member of the professions 
holding an advanced degree or that he is otherwise eligible for EB-2 classification. 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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