dismissed EB-2 NIW Case: Transportation Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 21767923 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 1, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a transportation management entrepreneur, 1 seeks second preference immigrant 
classification as an individual of exceptional ability, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies as an individual of exceptional ability. The Director further 
concluded that the Petitioner had not established that a waiver of the required job offer , and thus of 
the labor certification, would be in the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability . -
1 In response to the Director's request for evidence (RFE), the Petitioner submitted, in relevant part, a one-page excerpt of 
a Form I-140, Immigrant Petition for Alien Workers , purporting to modify his stated job title from "entrepreneur" to 
"transportation manager." 
(A) In general. - Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their 
equivalent or who because of their exceptional ability in the sciences, arts, 
or business, will substantially benefit prospectively the national economy, 
cultural or educational interests, or welfare of the United States, and whose 
services in the sciences, arts, professions, or business are sought by an 
employer in the United States. 
(B) Waiver of job offer-
(i) National interest waiver. ... the Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the 
sciences, arts, professions, or business be sought by an employer in the 
United States. 
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 fmiherprovide 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). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or ce1iification for a particular profession or 
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occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCJS, 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); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32(D.D.C. 20l3);Rijalv. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011 ). 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." MatterofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
As noted above, the Director concluded that the record did not establish that the Petitioner qualified 
for classification as an individual of exceptional ability. Specifically, although the Petitioner asserted 
that he satisfied the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A)-(D), the Director concluded that the 
Petitioner satisfied none of them. The Petitioner does not assert, and the record does not support the 
conclusion, that he satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E)-(F), or that the standards at 
8 C.F.R. § 204 .5 (k)(3 )(ii) do not readily apply to the occupation, such that comparable evidence may 
establish eligibility. The Petitioner also does not assert, and the record does not supportthe conclusion, 
that the Petitioner may qualify as a member of the professions holding an advanced degree. For the 
reasons discussed below, the record does not establish that the Petitioner has satisfied at least three of 
the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record showing that 
the [ noncitizen] 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." The record contains a copy 
of a bachelor's degree in engineering, with a specialty of "oil and gas works," awarded to the 
Beneficiary by thel [sic] Institute in 2011. The degree is bilingual, 
including a copy written in English. The Director acknowledged the degree; however, the Director 
noted that the record does not establish how the degree "relates to the area of exceptional ability in 
transportation management." The Director further noted that the record does not contain "any degree 
evaluation explaining the level of education the [Petitioner] possesses." Based on the lack of evidence, 
the Director concluded that the Petitioner did not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
On appeal, the Petitioner reasserts, verbatim, his assertion in response to the Director's RFE that the 
"degree is relevant to the [Petitioner's] proposed endeavor. The degree has supplied the [Petitioner] 
with the skills and knowledge that will be instrumental in implementing the proposed endeavor." The 
Petitioner further reasserts, verbatim, that his coursework "is substantially equivalent to the required 
course work leading to the same degree from an accredited institution of higher learning in the United 
States." However, the Petitioner does not submit any documentary evidence to support his assertions 
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on appeal. Instead, he reasserts that he satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) "[b]]ased 
on the documentation in the record." 
The Petitioner generally described the proposed endeavor as "seek[ing] employment in the field of 
trucking industry [sic], eventually owning and operating his own trucking company, which will be 
engaged in interstate transportation." As previously noted, he purp01ied to change his job title from 
"entrepreneur" to "transportationmanager" in response to the Director's RFE. However, the Petitioner 
did not specify what "transportation management" ability he seeks to be recognized as exceptionai 
such as loading and unloading a truck, driving a truck, owning and operating a trucking company, or 
any other ability. Because of these ambiguities, the record does not establish that a bachelor's degree 
in engineering, with a specialty in "oil and gas works," relates to a specific area of exceptional ability. 
Petitioners bear the burden to establish eligibility for the requested benefit. Section 291 of the Act. 
Even if the Petitioner's own asse1iions regarding the equivalency of his degree were sufficient to 
establish the nature of his foreign degree, which they are not, 2 his generalized statement that his 
coursework "supplied [him] with the skills and knowledge that will be instrumental in implementing 
the proposed endeavor" of generally working "in the field of trucking industry [sic]" and "eventually 
owning and operating his own trucking company" does not provide sufficient information regarding 
the skills and knowledge he gained while earning a his degree, or how that relates to a specified area 
of exceptional ability. Because the record does not establish how the Petitioner's foreign degree in 
engineering relates to the area of exceptional ability, or even what the area of exceptional ability is, 
the Petitioner has not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). See section 291 of the 
Act. 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from 
current or fonner employer(s) showing that the [noncitizen] has at least ten years of full-time 
experience in the occupation for which he or she is being sought." The record contains letters from 
former employers of the Petitioner, stating his dates of employment and job titles. However, the 
Director noted that the letters do not describe the duties the Petitioner performed for his employers. 
The Director further noted that the record does not establish how the Petitioner's prior employment 
constitutes experience in the occupation for which he seeks. The Director concluded that, because the 
record does not establish that the Petitioner's prior employment experience is in the occupation he 
seeks, the record did not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
On appeal, the Petitioner reasserts his assertion in response to the Director's RFE that he "has the 
requisite 10 years of experience in the occupation that is directly relevant to his proposed endeavor." 
The Petitioner does not submit any documentary evidence to supp ort his asse1iions on appeal. Instead, 
he reasse1is that he satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) "[b]]ased on the 
documentation in the record." 
As discussed above, the Petitioner does not articulate the specific nature of the "employment in the 
field of trucking industry [sic]" he seeks, other than "eventually owning and operating his own trucking 
company." However, in response to the Director's RFE, the Petitioner submitted, in relevant part, a 
2 See 6 USC IS Policy Manual E.9, https://www.uscis.gov/policymanual (referring to "a credentials evaluation performed 
by an independent credentials evaluator who has provided a credible, logical, and well-documented case for such an 
equivalency determination that is based solely on the noncitizen's foreign degree(s)"). 
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one-page excerpt of a Form 1-140 purporting to modify his stated job title from "entrepreneur" to 
"transportation manager," whose duties entail "overseeing the logistics of the company's 
transportation-related activities." Although the record contains letters from two former employers, as 
the Director observed, none of the letters establish that the Petitioner has at least 10 years of full-time 
experience in the occupation of "transportation manager." 
First, a letter from the piping department manager of indicates that the 
Petitioner worked as a "piping engineer" from April 2014 to May 2015; however, it does not elaborate 
on the duties the Petitioner performed during that 14-month period, whether the Petitioner w01ked on 
a full-time basis, and how the occupation of a "piping engineer" is in the occu ation of a 
"transportation manager." Next, an undated, one-sentence letter from the director of 
states that the Petitioner "has been working at the _________ Air Base _ 
through! !company as a [t]rusted [a]gent since January 2004 
t ill present." The letter omits any indication of how long the Petitioner worked forl I 
beyond January 2004. Further, like the letter from __________ the letter from 
I I does not elaborate on the duties the Petitioner performed during that unspecified period, 
whether the Petitioner worked on a full-time basis, and how the position of a "trusted agent" is in the 
occupation of a "transpmiationmanager." The Petitioner asserted on a DOL Form ETA 750 Part B, 
Application for Alien Employment Certification, in the record that he worked 40 hours per week as a 
"driver" forl I in Uzbekistan from "l 2016" until "5 2018." However, as the Director 
observed, the record does not contain a letter from !indicating that he may have accrued 
full-time experience during that 19-month period in the occupation of "transportation manager." 
Because the record does not contain evidence in the form of letters from current or former employers 
showing that the Petitioner has at least 10 years of full-time experience in the occupation of 
"transportation manager," the record does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." The record contains a copy of a commercial 
driver license (CDL) issued by the state of New York to the Petitioner on "0 1/22/2021." The Director 
concluded that the CDL did not satisfy the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) because the 
record does not establish whether "possession of a CDL is needed or required for transportation 
management." 
On appeal, the Petitioner reasserts that his CDL "is directly relevant to his proposed endeavor. 
Therefore, the [Petitioner] has established that he has a license that pertains to the area of exceptional 
ability for his particular endeavor." 
As noted above, the state ofN ew York issued the CDL to the Petitioner in 2021, after the 2020 petition 
filing date. A petitioner must establish eligibility for the benefit it is seeking at the time the petition 
is filed. See 8 C.F.R. § 103 .2(b )(1 ). A visa petition may not be approved based on speculation of 
future eligibility oraftera petitioner becomes eligibleunderanew set of facts. SeeMatterofMichelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitionermaynotmakematerialchanges 
to a petition in an effort to make a deficient petition conform to U.S. Citizenship and Immigration 
Services requirements. SeeMatteroflzummi, 22 I&NDec. 169, 176 (Assoc. Comm'r 1998). Because 
the Petitioner's CDL is dated after the petition filing date, it presents a new set of facts that may not 
establish eligibility. See 8 C.F.R. § 103.2(b)(l ); see also Matter of Michelin Tire Corp., 17 I&N Dec. 
5 
at 249; Matter of Izummi, 22 I&N Dec. at 176. Moreover, even if the record established that the 
Petitioner had been issued a CDL as of the petition filing date, which it does not, it does not establish 
that a CDL is required to practice the profession of "transportation manager." Because the record does 
not establish that the Petitioner had a license to practice, or a certification for, the profession of 
"transportation manager," it does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]vidence that the alien has 
commanded a salary, or otherrenumeration [sic] for services, which demonstrates exceptional ability." 
In the RFE, the Director advised the Petitioner that the record did not establish that he "commands a 
salary or other remuneration for services which demonstrates exceptional ability." The extent of the 
Petitioner's response to the RFE regarding this criterion was "[b]]ased on the documentation previously 
submitted and/or attached hereto, the [Petitioner] clearly established that this criterion has been met," 
without identifying any particular documentation relevant to the issue. The Director concluded that, 
without evidence, the Petitioner had not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
On appeal, the extent of the Petitioner's assertions regarding the regulation at 8 C.F.R. 
§ 2 04. 5 (k )(3 )(ii)(D) is: "Based on the documentation in the record, the [Petitioner] clearly established 
that this criterion has been met, and USCIS erred in finding otherwise," again not identifying any 
particular documentation relevant to the issue. 
On the Form I-140, the Petitioner omitted the wages for the proposed employment. However, in the 
one-page excerpt of a Form I-140 submitted in response to the Director's RFE, purporting to modify 
the Petitioner's stated job title from "entrepreneur" to "transportation manager," the Petitioner asserted 
that his wages would be $80,000 per year. 3 As noted above, the Petitioner did not specify what his 
"transportation management" exceptional ability is, such as loading and unloading a truck, driving a 
truck, owning and operating a trucking company, or any other ability. Given this ambiguity and the 
lack of supporting evidence, the record does not establish how an income of $80,000 may demonstrate 
exceptional ability. Accordingly, the record does not satisfy the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). 
In summation, the record does not satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
Therefore, the record does not establish that the Petitioner qualifies for second-preference 
classification as an individual of extraordinary ability. See section 203(b)(2)(A) of the Act. We 
reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth in the 
precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see alsoMatterofL-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). 
3 We note that the Petitioner also submitted a copy of his 2020 IRS Form 1040, U.S. Individual Income Tax Return, in 
response to the RFE, indicatingthathis total income was $9,552. 
6 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of extraordinary ability; therefore, we conclude that the Petitioner has not established 
eligibility for, or otherwise merits, a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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