dismissed EB-2 NIW Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 8, 2023 In Re: 28511595 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a truck driver and owner, seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the underlying visa classification or merits a discretionary 
waiver of the job offer requirement "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 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 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). 
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 listed at 8 C.F.R. § 204.5(k)(3)(ii). 1 
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 having a degree of expertise 
significantly above that ordinarily encountered in the field. 3 
Once a petitioner demonstrates eligibility for the underlying classification, 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 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 discretion4, 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 
A. Member of Professions Holding an Advanced Degree 
With respect to the underlying EB-2 classification, the Petitioner did not establish that he is an 
advanced degree professional. The Petitioner has provided sufficient evidence to establish he holds 
the equivalent of a U.S. bachelor's degree. However, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires, in pertinent part, "evidence in the form ofletters from current or former employer(s) showing 
that the alien has at least five years of progressive post-baccalaureate experience in the specialty." 
On appeal, the Petitioner argues that the Director erred by not considering his work experience from 
2009 to 2011 as a logistician atl Iin Kazakhstan, and from 2012 to 2014 as a driver 
forwarding specialist forl lin Kazakhstan. Additionally, he asserts that "[i]n both the 
initial application and the [] RFE Response," he attested to his work at these two companies. However, 
the record reflects that he fust attested to his employment at these two companies in his RFE response 
and not in his initial application. Moreover, he did not list these positions on his U.S. Labor 
Department's Employment and Training Administration (ETA), Application for Alien Employment 
1 If these types of evidence do not readily apply to the individual 's occupation, a petitioner may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii) . 
2 USCIS has previously confim1ed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCJS Policy Manual F.5(B)(2), https: //www.uscis.gov /policy-manual. 
3 See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination) ; see 
generally 6 USCJS Policy Manual, supra at F.5(B)(2). 
4 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
Certification, Form 7505 (or even on his resume) or provide letters from these two employers as 
required by 8 C.F.R. § 204.5(k)(3)(i)(B). 6 While we acknowledge the Petitioner 's statement that he 
is unable to obtain letters from these employers as they have gone out ofbusiness, it remains his burden 
to establish that he qualifies as an advanced degree professional. See Matter of Chawathe, 25 I&N 
Dec. at 375-76 (AAO 2010). Without evidence that he has five years of progressive experience in the 
specialty, we cannot conclude that he is an advanced degree professional. 8 C.F.R. § 204.5(k)(2). 
We also note that profession is defined as any of the occupations listed in section 101(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. 7 8 C.F.R. § 204.5(k)(3). The Petitioner has not established 
that his stated occupations of truck driver and/ or owner satisfies the regulatory definition ofprofession. 
For all of the above reasons, the evidence is insufficient to conclude the Petitioner is an advanced 
degree professional. 
B. Individual of Exceptional Ability 
The Director concluded that the Petitioner met three criteria, 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), and 
(D), 8 but did not establish that he possesses a degree of expertise significantly above that ordinarily 
encountered in the field. While we affirm the Director's determination for the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (C), we withdraw the Director's conclusion as it relates to 8 C .F.R. 
§ 204.5(k)(3)(ii)(D) regarding salary or other remuneration for services which demonstrates 
exceptional ability. We also note that, on appeal, the Petitioner limits his arguments to the criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(D) and (F) and does not address the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
or (E). As such, we consider these issues waived and will not address them further. 9 
On appeal, the Petitioner asserts that because his "earnings are several magnitudes greater than the 
earnings of the average worker in his field," he "clearly meets th[e] criterion" at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). To satisfy this criterion, the evidence must show that the Petitioner has 
commanded a salary or remuneration for services that is indicative of his claimed exceptional ability 
relative to others working in the field. See generally, 5 USCIS Policy Manual B.2, 
https://www.uscis.gov/policymanual. In support, the Petitioner relies on the 2021 U.S. Bureau of 
Labor Statistics median salary for heavy and tractor-trailer truck drivers (which is $48,130 per year), 
the 2021 gross income of $106,635 from his sole proprietorship and his 2022 non-employee 
compensation. 
5 The Form ETA 750 has been discontinued. See, https://www.dol.gov/agencies/eta/foreign-labor/forms. However, the 
form's instructions in Item 15 required the Petitioner to "[l]ist all jobs held during the last three (3) years. Also, list any 
other jobs related to the occupation for which the [foreign national] is seeking ce1tification .... " 
6 Unsubstantiated assertions do not constitute evidence. See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) 
("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). 
7 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 10 I ( a)(32) of the Act. 
8 On appeal, the Petitioner incorrectly argues that the Director found he did not meet the criterion under 8 C.F.R. 
§ 204.5(k)(3)(ii)(D) , however this is not correct because the Director found he did meet this criterion. Regardless, we 
withdraw the Director 's finding for the reasons noted in this decision. 
9 An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) ( citing Matter 
ofR-A-M- , 25 l&N Dec. 657, 658 n.2 (BIA 2012)). 
3 
As an initial matter, the Petitioner must establish eligibility at the time of filing, which in this matter was 
February 16, 2022. 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
Therefore, we cannot consider his 2022 non-employee compensation. Further, a comparison of the 
gross profit of his sole proprietorship to the median salary for heavy and tractor-trailer truck drivers is 
not a proper one, as the former reflects the gross receipt or sales and total income of the business and 
the latter is limited to the median wages for the occupation. Without more, we cannot conclude that 
the Petitioner has established that his salary or other remuneration for services is indicative of his 
claimed exceptional ability relative to others working in the field and we withdraw the Director's 
determination to the contrary. 
The Petitioner also asserts that he has provided sufficient evidence of his recognition for achievements 
and significant contributions to the industry or field by peers, government, and professional or business 
entities and contends that the Director mischaracterized the submitted recommendation letters. 
Specifically, the Petitioner cites to~----------~ letter to argue that he "made a 
significant contribution to the industry because '[h ]is experience and work ethic have been invaluable 
in promoting the company as a safe and trusted carrier in the trucking and transportation business."' 
He farther states that "[h ]elping a carrier become established is a significant contribution to the 
trucking industry as a whole." The Petitioner also claims thatl Iletters support his 
significant contributions to the trucking industry because he "train[ed] new truck drivers on how to 
operate their vehicles safely and efficiently," which reduces "the severe shortage of truck drivers" and 
resulting supply chain issues. 
While the letters demonstrate the authors' favorable opinions of him, they are insufficient to establish 
that he meets the plain language of this criterion. Here, the Petitioner has not sufficiently established 
recognition for achievements and significant contributions to the trucking industry, as required, rather 
than contributions to his employer(s). Merely repeating the language of the statute or regulations does 
not satisfy the petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, 
Inc. v. The Attorney General ofthe United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
C. Final Merits Determination 
Per the analysis above, the Petitioner has not established that he meets at least three of the evidentiary 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) through (F). Since the Petitioner did not satisfy the initial 
evidence requirements, we need not conduct a final merits analysis to determine whether the evidence 
in its totality shows that he is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not established that he meets 
the evidentiary requirements 
for the underlying EB-2 classification. Since this issue is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the remaining appellate arguments as to whether he is eligible for, 
and merits as a matter of discretion, a national interest waiver. 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 
4 
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). 
ORDER: The appeal is dismissed. 
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