dismissed EB-2 NIW Case: Transportation And Logistics

Date: AUGUST 9, 2024 In Re: 33349402 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in transportation and logistics, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for EB-2 classification as an advanced degree professional or an 
individual of exceptional ability, and did not establish 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 
pursuant to 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. 
II. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) 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 If these 
criteria do not readily apply to a petitioner's occupation, the petitioner may submit comparable 
evidence. 8 C.F.R. § 204.5(k)(3)(iii). Meeting at least three criteria, however, does not, in and 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 
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 has previously confinned 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. 
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having the requisite degree of expertise and will substantially benefit the national economy, cultural 
or educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. 
II. ANALYSIS 
A. Advanced Degree Professional 
Advanced degree is defined as any United States academic or professional degree or a foreign 
equivalent degree above that of a baccalaureate. 8 C.F.R. § 204.5(k)(2). A United States or foreign 
equivalent bachelor's degree followed by at least five years of progressive experience in the specialty 
shall be considered the equivalent of a master's degree. Id. 
The Petitioner submitted evidence he completed several courses in driving and cargo transportation. 
The Director determined the courses were not equivalent to a United States bachelor's or higher degree 
and the Petitioner was not eligible for EB-2 classification as a member of the professions holding an 
advanced degree. We agree. The Petitioner does not address this issue on appeal. 
B. Exceptional Ability 
The Director determined the Petitioner did not meet at least three of the regulatory criteria to establish 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). On appeal, the Petitioner asserts the Director 
erred and he meets all the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). As discussed below, the record 
does not support the Petitioner's claims. 
1. Academic Record of Degree, Diploma, Certificate or Similar A ward 
This criterion requires an "official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability." 8 C.F.R. § 204.5(k)(3)(ii)(A). The Petitioner submitted certificates 
of course completions from the National Leaming Service of Transportation, Transport Social Service 
in Brazil and Jose Carlos Brandao Monteiro Center for Supplementary Studies. The Petitioner claims 
the Director overlooked the significance of his certifications which "are highly relevant to his field 
and are regarded within the industry as robust indicators of professional training and expertise." The 
Petitioner asserts his certificates should be considered academic records. 
The record does not support the Petitioner's claims. The Petitioner does not submit evidence that 
academic programs are not available in his field or otherwise explain why his certificates should be 
considered academic records. Without an academic record from a learning institution in his field, the 
Petitioner does not meet this criterion. 
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2. Ten Years of Experience in the Occupation 
This criterion requires evidence "in the form of letter(s) from current or former employer( s) showing 
that the alien has at least ten years of foll-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 the Petitioner did not meet this 
criterion because the letters the Petitioner submitted did not include salary information and did not 
address the Petitioner's employment before 2012 and after 2017. 
On appeal, the Petitioner asserts the Director disregarded his extensive foll-time professional 
experience due to "minor gaps" in the documentation he submitted and he "accumulated significant 
experience over the requisite ten-year period." The Petitioner submitted a letter from 
Istating he was employed with the company foll-time from July 2012 to November 2017 as 
a driver. This letter shows the Petitioner has over five years, but not at least ten years of experience 
as a driver. Consequently, the Petitioner does not meet this criterion. 
3. License or Certification 
This criterion requires evidence of a "license to practice the profession or certification for a particular 
profession or occupation." 8 C.F.R. § 204.5(k)(3)(ii)(C).The Petitioner submitted evidence of his 
Brazil national driver's license, ANTT license, Hall transport identification card as an 
assistant driver, and course completion certificates. The Director determined the Petitioner did not 
meet this criterion because the record did not show that the Petitioner's licenses were professional as 
profession is defined at 8 C.F.R. § 204.5(k)(2) and the Petitioner did not possess the equivalent of a 
United States bachelor's degree. The Director also concluded the Petitioner's certificates evidenced 
completion of courses, but not certification for the profession or occupation of an entrepreneur. 
On appeal, the Petitioner claims the Director erroneously dismissed his licenses and certifications as 
insufficient. The Petitioner asserts his licenses and certifications "underscore his qualifications and 
compliance with industry standards" such that they satisfy this criterion. The evidence does not 
support the Petitioner's claim. The Petitioner's driver's licenses are not to practice a profession, as 
that term is defined at 8 C.F.R. § 204.5(k)(2) as "any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation." The Petitioner did not establish that any of the licensing entities require a baccalaureate 
degree for entry into the occupation of a driver. The Petitioner's certificates also do not satisfy this 
requirement because they evidence completion of coursework, but not certification for a particular 
profession or occupation. Consequently, the Petitioner does not meet this criterion. 
4. Salary Demonstrating Exceptional Ability 
This criterion requires evidence that an individual "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 the Petitioner did not meet this criterion because he submitted no relevant evidence. On 
appeal, the Petitioner claims the Director did not consider "industry-specific practices where such 
disclosures are not customary" and asserts his employment history indicates "a level of expertise and 
remuneration commensurate with exceptional ability." Although the Petitioner submitted a letter from 
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his past employer verifying his work as a driver, the letter does not state his salary and the Petitioner 
submitted no other evidence that he has commanded a salary or other remuneration indicative of 
exceptional ability. Consequently, the Petitioner does not meet this criterion. 
5. Membership in Professional Associations 
This criterion requires evidence of "membership in professional associations." 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). The EB-2 regulations define "profession" as "any occupation for which a United 
States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation." 8 C.F.R. § 204.5(k)(2). The Petitioner submitted evidence of his benefits club card for 
the Union of Self-Employed Cargo Transporters of Vale Do Paraiba SP, information about the union, 
his registration with national road cargo transporters of the National Agency for Terrestrial 
Transportation, and information about the Agency. 3 The Director determined the Petitioner did not 
meet this criterion because the Petitioner did not submit evidence that the associations were 
professional and the Petitioner did not submit evidence that he possesses a bachelor's degree. 
On appeal, the Petitioner asserts the Director did not appropriately weigh the Petitioner's "active 
involvement in transportation and logistics associations" which reflect "his recognized status and 
active engagement within the professional community." However, the information the Petitioner 
provided about the Union of Self-Employed Cargo Transporters of Vale Do Paraiba SP and the 
National Agency for Terrestrial Transportation does not indicate that a baccalaureate degree is 
required for entry into the cargo transporter occupation. Consequently, he has not shown that either 
entity is a professional association within the meaning of the regulations at 8 C.F.R. § 204.5(k)(2) and 
(3)(ii)(E). The Petitioner does not meet this criterion. 
6. Recognition for Achievements and Significant Contributions to the Field 
This criterion requires 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). The Director determined the support letters the Petitioner submitted praised his 
skills, expertise, and work on specific client projects, but did not recognize him for achievements and 
significant contributions to his industry or field. 
On appeal, the Petitioner claims the Director overlooked substantial evidence of recognition and 
accolades the Petitioner received from peers and industry professionals. The Petitioner submitted an 
Affidavit of Award granted to him "for being a good employee and not missing working time 
according to the filed registration" by He also submitted a certificate ofno 
records in the I I traffic infractions system. This evidence shows the Petitioner was 
3 In response to the Director's request for evidence, the Petitioner submitted a January 2024 e-mail message welcoming 
him to the Association of Latino Professionals for America (ALPF A). As the e-mail indicates the Petitioner joined ALPF A 
after his petition was filed, we cannot consider it. Eligibility must be established at the time of filing. 8 C.F.R. 
§ I03.2(b )( 1 ); see also Matter ofKatigbak, 14 T&N Dec. 45, 49 (Comm 'r 1971) (providing that "Congress did not intend 
that a petition that was properly denied because the beneficiary was not at that time qualified be subsequently approved at 
a future date when the beneficiary may become qualified under a new set of facts."). 
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recognized as a good employee and had a clear driving record, but it does not demonstrate recognition 
for achievements and significant contributions to his industry. 
The Petitioner also submitted letters from employers and colleagues who praise his work, skills and 
experience. For example, A-B-D-A- 4 praises the Petitioner's work and skills as a bus driver and 
describes him as "a great professional." D-C-D-C- describes the Petitioner as "a great driver" and 
"correct employee." L-C-N-D-A- states the Petitioner was "an excellent driver" who grew within the 
Icompany and praises his skills and "good conduct." R-C-D-N- recounts the Petitioner's 
"evolution was impeccable" at the I I company and states he is "a highly capable and very 
responsible professional." Professor F-J-Q- summarizes the Petitioner's responsibilities as a driver 
and states he has "vast experience in areas of transport and logistics." M-P-D-S- commends the 
Petitioner's work on "various household projects." W-D-S-D-S-T- states the Petitioner "exhibited 
exceptional skills in performing his duties." 
These letters evidence the Petitioner's successful work as a driver and on household projects, but they 
do not recognize any specific achievements or significant contributions the Petitioner has made to the 
transportation and logistics industries. Consequently, the Petitioner does not meet this criterion. 
B. National Interest Waiver 
The Petitioner has not met at least three of the regulatory criteria required to establish exceptional 
ability and he consequently does not qualify for EB-2 classification. As this issue is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve determination of his eligibility for a waiver 
of the job offer requirement in the national interest. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(stating 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 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 does not meet at least three of the regulatory criteria to establish exceptional ability and 
is consequently ineligible for EB-2 classification. 
ORDER: The appeal is dismissed. 
4 We use initials to protect the privacy ofreferenced individuals. 
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