dismissed EB-2 NIW Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 12, 2024 In Re: 29735381 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a trucking company entrepreneur, seeks classification as an individual of exceptional 
ability. 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. 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the EB-2 immigrant classification. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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 immigrant 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner 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 statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 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) . 
• 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 Petitioner proposes to work as a truck driver and trucking business owner, having established a 
trucking company based in Washington state. The Petitioner's business plan states that the company 
"aims to become a premier truck-load (TL) and less-than-truck-load (LTL) freight trucking company 
offering transportation of bulk commodities serving a myriad of sectors." The business plan states 
that the company will serve the construction, manufacturing, wholesaling, and retailing industries. 
The Director found that the Petitioner did not establish either that he is an advanced degree 
professional or that he is an individual of exceptional ability and, as such, did not establish 
qualification for the EB-2 classification. The Director denied the petition, concluding that, without 
being eligible for the underlying immigrant classification, the Petitioner was therefore not eligible for 
a national interest waiver. As such, the Director did not reach the question of whether the Petitioner 
established eligibility under any of the three prongs in the Dhanasar analytical framework. 
On appeal, the Petitioner submits copies of evidence already in the record and a brief in which he 
asserts that he is an individual of exceptional ability and eligible for a national interest waiver. 
A. Qualification for the EB-2 Classification 
As discussed above, to qualify for the underlying EB-2 classification, an individual must establish 
eligibility as either a member of the professions holding an advanced degree, or as an individual of 
exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. The Petitioner 
does not assert that he qualifies as an advanced degree professional and seeks qualification for the 
EB-2 classification only as an individual of exceptional ability.2 
"Exceptional ability" means a degree of expertise significantly above that ordinarily encountered in 
the field. 8 C.F.R. § 204.5(k)(2). An individual 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). Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a petitioner 
does demonstrate meeting at least three criteria, USCIS then conducts a final merits determination to 
2 Although the Petitioner does not claim to qualify as an advanced degree professional, we do note that the record contains 
a copy of the Petitioner's "diploma of jurist" degree from Kyrgyzstan, an English translation of this diploma, and an 
academic credential evaluation regarding the U.S. equivalency of the Petitioner's diploma. The credential evaluation states 
both that the Petitioner's diploma "represents completion of an undergraduate program equivalent to a bachelor's degree" 
and that it is equivalent to a "first professional degree in law" in the United States. A first professional degree would be 
equivalent to an advanced degree in the United States. See 8 C.F.R. § 204.5(k)(2). However, because the credential 
evaluation is not sufficiently clear, and because the Petitioner does not claim to be an advanced degree professional, we 
conclude that the Petitioner has demonstrated that he qualifies for the EB-2 classification as an advanced degree 
professional. 
3 USCIS has previously confirmed the applicability of this two-pait adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
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decide whether the evidence in its totality shows that the individual is recognized as having a degree 
of expertise significantly above that ordinarily encountered in the field. 
The Director determined that the Petitioner established only one of the six initial criteria, specifically 
8 C.F.R. § 204.5(k)(3)(ii)(A), possessing an academic record relating to the area of exceptional ability. 
On appeal, the Petitioner asserts that he has demonstrated five of the six regulatory criteria and that he 
is an individual of exceptional ability. We examine each of the regulatory criteria in tum. 
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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
In support of this criterion, the Petitioner submitted a copy of his degree in law and asserted that this 
degree is relevant to operating a trucking business because the industry is heavily regulated, deals with 
employees and employment law, uses contracts and agreements, requires insurance, and may require 
litigation and dispute resolution. The Director accepted this as evidence to meet this criterion. 
As such, the Petitioner has established eligibility under this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-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 that the Petitioner's employment verification letters did not establish ten 
years of full-time experience in the occupation. The Petitioner does not address or claim to establish 
this criterion on appeal. 
As such, the Petitioner has not established eligibility under this criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner submitted a copy of his Washington state commercial driver's license (CDL) in support 
of this criterion. However, the Director concluded that the Petitioner did not demonstrate that the 
occupation requires this license or certification, because the Petitioner seeks to work as an entrepreneur 
operating a trucking company, and not as a truck driver. The Director therefore concluded that this 
criterion was not met. 
On appeal, the Petitioner asserts that the Director erred in this finding, because the Petitioner is an 
owner-operator of his trucking business and is "both a businessman and a truck driver himself" The 
Petitioner contends that the CDL is therefore required for his occupation and that this criterion is 
established. Based upon the plain language of the regulation, we agree with the Petitioner that the 
CDL constitutes a license for the occupation, and we withdraw the Director's finding to the contrary. 
As such, the Petitioner has established eligibility under this criterion. 
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Evidence that the alien has commanded a salmy, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Director concluded that the Petitioner did not submit evidence in support of this criterion and 
therefore did not establish this criterion. On appeal, the Petitioner asserts that he did submit evidence 
in support of this criterion. Specifically, the Petitioner submitted a copy of his company's 2021 U.S. 
income tax return and information from the U.S. Bureau of Labor Statistics regarding the average 
wage of a truck driver. The Petitioner asserts that the evidence establishes this criterion, because the 
evidence shows that the average salary for a truck driver is $48,310 per year and the Petitioner earned 
$77,501 in 2021. 
Although we acknowledge that the record contains the evidence to which the Petitioner refers, we 
conclude that it is insufficient to establish that the Petitioner has commanded a salary which 
demonstrates exceptional ability. As noted above, the Petitioner is operating his own trucking 
company. The Petitioner has not established that his salary, as an entrepreneur and business owner in 
the trucking industry, demonstrates exceptional ability as compared to others in that same field. 
Instead, the Petitioner seeks to compare his salary to that of the average truck driver. Moreover, the 
Petitioner did not submit evidence to support the claim that his salary was determined based upon his 
exceptional ability. 
As such, the Petitioner has not established eligibility under this criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In support of this criterion, the Petitioner submitted a letter, dated February 20, 2023, from the
I I. The letter welcomes the Petitioner to 
the association and discusses the benefits of membership in the association. The Director noted that 
the letter is dated after the filing of the petition, and therefore does not establish the Petitioner's 
membership in this organization at the time of filing. 4 Because the evidence does not establish the 
Petitioner's eligibility at the time of filing, the Director concluded that this criterion was not met. 
On appeal, the Petitioner acknowledges that the letter is dated after the filing of the petition, but states 
that "the letter does not state the date that [the Petitioner] joined the organization" and therefore the 
Director should have found this criterion to be established. 
As noted by the Director, a petitioner must establish eligibility at the time the petition is filed. See 
8 C.F .R. § 103 .2(b)(1 ). A visa petition may not be approved when a beneficiary, initially ineligible at 
the time of filing, becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). The Petitioner is correct that the letter does not provide the date that he 
joined this organization. But this is not sufficient to establish this criterion. If the Petitioner was in 
fact a member of this organization prior to the filing of the petition, this is the Petitioner's burden to 
establish. See Matter o_f Chawathe, 25 I&N Dec. at 3 75-76. The record does not establish that the 
Petitioner was a member of a professional organization at the time of filing the petition. Therefore, 
this criterion has not been met. 
4 The instant petition was filed on November 29, 2022. 
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As such, the Petitioner has not established eligibility under this criterion. 
Evidence ofrecognition 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). 
In support of this criterion, the Petitioner submitted letters of recommendation. The Director 
concluded that this criterion was not met, finding that the letters, although complimentary of the 
Petitioner, do not demonstrate achievements or significant contributions to the industry or field. 
On appeal, the Petitioner asserts that the letters do establish this criterion. The Petitioner repeats some 
of the complimentary claims of the letter writers and concludes that the letters "demonstrate that [the 
Petitioner's] focus on safety and efficiency helps to optimize the trucking field and enables him to 
train other drivers, thus improving the quality of the workforce." 
Upon de novo review, we agree with the Director that criterion has not been met. While the letters 
reflect the letter writers' positive experiences in working with the Petitioner, the letters do not describe 
achievements or significant contributions to the trucking field, nor describe the Petitioner receiving 
recognition for the same. We also note that two of the letters of recommendation contain very similar 
wording, including identical sentences and phrases. As a result, those letters possess diminished 
probative value. 5 In evaluating the evidence, the truth is to be determined not by the quantity of evidence 
alone but by its quality. See Matter of Chawathe, 25 I&N Dec. at 376 (quoting Matter ofE-M-, 20 I&N 
Dec. 77, 79-80 (Comm'r 1989)). 
As such, the Petitioner has not established eligibility under this criterion. 
Therefore, the Petitioner has established that he satisfies only two of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). Because the Petitioner does not satisfy at least three of the criteria, we need not conduct 
a final merits determination to evaluate whether he has achieved the degree of expertise required for 
exceptional ability classification. As such, the Petitioner does not qualify as an individual of exceptional 
ability. Having determined that the Petitioner does not qualify as an individual of exceptional ability, 
we conclude that the Petitioner has not demonstrated eligibility for the underlying EB-2 classification. 
5 As a general concept, when a petitioner has provided affidavits from different persons that contribute to the eligibility claim, 
but the language and structure contained within the affidavits is notably similar, the trier of fact may treat those similarities as 
a basis for questioning a petitioner's claims. See Matter of R-K-K-, 26 T&N Dec. 658, 665 (BIA 2015); Singh v. Garland, 
No. 19-60937, 2021 WL 5984797, at *2 (5th Cir. Dec. 17, 2021 ); Surinder Singh v. Board ofImmigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587,592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 
2011); Hamal v. US. Dep ·1 of Homeland Security, No. 19-2534, WL 2338316, at *4, n.3 (D.D.C. June 8, 2021). When 
affidavits contain such similarities, it is reasonable to infer that the petitioner who submitted the notably similar documents is 
the actual source from where the suspicious similarities derive. Cf Mei Chai Ye v. US Dept. ofJustice, 489 F.3d 517,519 (2d 
Cir. 2007); Wang v. Lynch, 824 F.3d at 592. 
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B. Eligibility for a National Interest Waiver 
The next issue is whether the Petitioner has established that a waiver of the classification's job offer 
requirement is in the national interest. Because the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address 
whether he is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. 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 ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternate issues on appeal 
where the applicant did not otherwise meet their burden of proof). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability. 8 C.F.R. § 204.5(k)(3). Because the Petitioner has not established 
eligibility for the underlying EB-2 immigrant classification, we conclude that the Petitioner has not 
established eligibility for a national interest waiver. We reserve our opinion regarding whether the 
Petitioner has satisfied any of the three prongs of the Dhanasar analytical framework. 
ORDER: The appeal is dismissed. 
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