dismissed EB-2 NIW Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 23, 2024 In Re: 30413669 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, who has studied industrial management and plans to own and operate a trucking 
company, 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. § 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 EB-2 immigrant classification as an individual of exceptional 
ability. 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. 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 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 the requisite degree of expertise and will 
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. 
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. 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 discretion, 3 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. 
Id. 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner's proposed endeavor is to own and operate a long-distance trucking company. His 
business plan 
indicates he will work as the senior manager of the company. 
In reviewing the Petitioner's eligibility for the underlying EB-2 visa classification, the Director 
concluded that the evidence did not establish that he met the requisite three of the six evidentiary 
criteria under 8 C.F.R. § 204.5(k)(3)(ii) to demonstrate his eligibility as an individual of exceptional 
ability. Specifically, the Director stated that the Petitioner met the criteria related to a degree or 
diploma relating to the area of exceptional ability criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and 
membership in a professional association under 8 C.F.R. § 204.5(k)(3)(ii)(E). However, the Director 
concluded that the Petitioner did not meet the requirements of two other criteria for which he submitted 
evidence. 
On appeal, the Petitioner maintains that he also meets the license to practice a profession or occupation 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) and the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). After 
reviewing the evidence, we agree with the Director that the record does not support a finding that the 
Petitioner satisfies the requirements of at least three criteria. 
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). 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
As support for this criterion, the Petitioner submitted a diploma and accompanying transcript that he 
earned a Bachelor of Science in Industrial Management degree froml IAdditionally, 
he completed a summer session in marketing management at I I Accordingly, we 
agree with the Director that this criterion has been met. 
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 a copy of his temporary Florida state commercial driver's license (CDL), 
valid from September 2020 to July 2021, in support of this criterion. However, the Director concluded 
that the Petitioner did not demonstrate that a license to drive a commercial-sized vehicle permits him 
to practice a profession or occupation, and that entrepreneurship does not require a license. The 
Director therefore determined that this criterion was not met. On appeal, the Petitioner argues that the 
CDL is "a specialized license demonstrating his competency and expertise in the operation of 
commercial vehicles. This CDL is a crucial qualification for [his] intended profession in the trucking 
industry .... " 
The criterion 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." Although we take administrative notice that a 
CDL is required to operate certain vehicles, the record does not establish how a CDL is required to 
work as the owner and operator of a trucking company, as the Petitioner proposes to do. The 
Petitioner's business plan indicates that he will be the president of the business, working as "senior 
management," and will hire truck drivers as staff. The evidence the Petitioner has submitted does not 
state that he will work as a truck driver and will therefore require a CDL to practice his profession or 
occupation as the owner and senior manager of a trucking company. Additionally, the Petitioner 
proposes to operate his trucking company in the state of New York and does not address how a 
temporary Florida CDL is required for an occupation in another state. Therefore, the record does not 
establish how the Petitioner's CDL satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) in this case. 
Evidence that the alien has commanded a salary, or other renumeration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. In a request for evidence (RFE), the Director indicated that the Petitioner did not 
initially submit evidence in support of this criterion. In response, the Petitioner claimed that "based 
on the documentation previously submitted and/or attached hereto," the criterion had been met. In 
support of his RFE response he provided copies of his 2021 income tax return showing he reported a 
gross income of $88,877. On appeal, he again states that "based on the documentation in the record, 
the Beneficiary clearly established that this criterion has been met, and USCIS erred in finding 
otherwise." Although the Petitioner previously submitted copies of his income tax return, he has not 
offered documentation showing that his earnings are indicative of exceptional ability relative to others 
in the field. Based on the foregoing, we agree with the Director that the Petitioner has not 
demonstrated he meets this regulatory criterion. 
3 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner has provided evidence that he paid for a "TVC Pro-Driver" membership with TVC 
Marketing Associates, Inc. In response to the Director's RFE, he stated he is also a member of the 
Owner-Operator Independent Drivers Association (OOIDA). He provided information about OOIDA 
and a photocopy of a credit card transaction receipt showing the Petitioner made a membership 
payment to the organization. The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant 
definition: "Profession means one 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 in the occupation." The evidence presented is not sufficient to 
demonstrate that either TVC Marketing Associates, Inc. or OOIDA has a membership body comprised 
of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that either 
organization otherwise constitutes a professional association pursuant to the definition at 8 C.F.R. 
§ 204.5(k)(2). Accordingly, we withdraw the Director's determination that the Petitioner has satisfied 
this criterion. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner has not submitted sufficient evidence to support his claim that he 
has satisfied the regulatory criteria and achieved the level of expertise required for exceptional ability 
classification. Accordingly, the Petitioner has not established eligibility for the underlying EB-2 
immigrant classification. Because this issue is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the appellate arguments regarding his eligibility for a national interest waiver 
under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (noting 
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 has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability. The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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