dismissed EB-2 NIW Case: Transportation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 20, 2023 In Re: 28580435 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a chief executive in the field of transportation, seeks 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 as an individual of exceptional ability or that he merited a national interest 
waiver as a matter of discretion. 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. 
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 in the sciences, arts, or business means a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). In addition, the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for 
demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). However, meeting the minimum requirements by providing at least three types of 
initial evidence does not, in itself, establish that the individual meets the requirements for exceptional 
ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. In the 
second part of the analysis, officers should evaluate the evidence together when considering the 
petition in its entirety for the final merits determination. Id. The officer must determine whether the 
petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. Id. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884,889 (AAO 2016) provides 
that USCIS may, as matter of discretion, 1 grant a national interest waiver if the petitioner shows: 
• 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. 
The Director determined that although the Petitioner met at least three out of six criteria under 
8 C.F.R. § 204.5(h)(3)(ii), the record lacked evidence that the Petitioner's professional achievements 
demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. The Director went on to discuss the Petitioner's eligibility for a national interest waiver, 
applying the three-prong framework set forth in Dhanasar, and concluded that although the Petitioner 
established that his endeavor has substantial merit and that he is well positioned to advance his 
endeavor, he had not established that his endeavor has national importance, or that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. We adopt and 
affirm the Director's decision, with additional comments below. See Matter ofBurbano, 20 I&N Dec. 
872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the 
practice of adopting and affirming the decision below has been "universally accepted by every other 
circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) Gaining eight 
circuit courts in holding that appellate adjudicators may adopt and affirm the decision below as long 
as they give "individualized consideration" to the case). 
On appeal, the Petitioner first asserts that USCIS "did not apply the proper standard of proof in this 
case" and "erroneously applied the law to the detriment of the Appellant." The Petitioner, however, 
does not identify any unusual requirements imposed, nor does the Petitioner specify how the Director 
erred or what factors in the decision were erroneous. 2 The Petitioner also contends, without further 
explanation, that the Director applied a stricter standard of proof than that of preponderance of the 
evidence and "did not give due regard" to the evidence submitted. Accordingly, we need not further 
address either of these assertions. Cf Giday, 113 F.3d at 234 (declining to address a "passing 
reference" to an argument in a brief that did not provide legal support). 
The Petitioner further asserts that by satisfying five of the six criteria that are required to demonstrate 
exceptional ability, he met the preponderance of the evidence standard and thus qualifies for the 
underlying EB-2 classification. It appears, however, that the Petitioner focuses entirely on his ability 
to meet at least three of six criteria listed at 8 C.F.R. § 204.5(k)(3)(ii) as the basis for claiming that he 
is an individual of exceptional ability. We disagree. As noted above, and as previously stated both in 
the Director's request for evidence and in the denial, meeting the minimum requirements by providing 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 An appeal must specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision. 
See 8 C.F.R. § 103.3(a)(l)(v). 
2 
at least three types of initial evidence is not sufficient to establish that the Petitioner is an individual 
of exceptional ability, but instead is only the first step. See generally 6 USCIS Policy Manual, supra, 
at F.5(B)(2). Here, the second step of the process is based on a comprehensive qualitative analysis of 
the evidence. In a final merits determination, the Director acknowledged the Petitioner's experience, 
including his acquisition of certifications in financial mathematics and factoring that prepared him to 
work in an executive capacity in the transportation industry, but concluded that the Petitioner did not 
establish by a preponderance of the evidence that he has achieved a degree of expertise that is 
significantly above that ordinarily encountered in the sciences, arts, or business. See id. Although the 
Petitioner reemphasizes his career successes, skills, and professional relationships on appeal, he does 
not address the Director's final merits determination analysis and instead continues to focus 
exclusively on the fact that the minimum evidentiary requirements were satisfied. 
Finally, while the Director determined that the Petitioner's proposed endeavor has substantial merit 
and that he is well positioned to advance his endeavor, the Director explained how specific evidence 
within the record, such as the Petitioner's business plan, industry reports, and letters of support, did 
not establish that the Petitioner's proposed endeavor to continue his work as a chief executive in the 
transportation industry has national importance or that it would be beneficial to the United States to 
waive the requirements of a job offer and, thus, of a labor certification. As the Petitioner has not 
established the threshold requirement of eligibility for the EB-2 classification, further analysis of his 
eligibility for a national interest waiver under the Dhanasar framework is unnecessary. 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding his eligibility for a for a discretionary 
waiver under the Dhanasar analytical framework. 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 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). 
ORDER: The appeal is dismissed. 
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