dismissed EB-2 NIW Case: Trucking Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 14, 2024 In Re: 29700635 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the trucking industry, seeks employment-based second preference 
(EB-2) immigrant classification as a member of the professions holding an advanced degree, 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, as required, that the Petitioner qualifies for EB-2 classification as an advanced degree 
professional. The Director further determined that the Petitioner did not establish a waiver of the 
required job offer would be 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 a member of the professions holding an advanced 
degree or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2) 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. 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 a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
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. 
II. EB-2 CLASSIFICATION 
The primary issue we will address is whether the Petitioner established his eligibility for EB-2 
classification. At the time of filing, and in his response to the Director's request for evidence, the 
Petitioner claimed eligibility for EB-2 classification as a member of the professions holding an 
advanced degree. On appeal, the Petitioner maintains that the previously submitted evidence also 
demonstrates his eligibility for EB-2 classification as an individual of exceptional ability. 
A. Member of the Professions Possessing an Advance Degree 
As evidence of his eligibility for EB-2 classification as an advanced degree professional, the Petitioner 
has submitted: 
• Bachelor's diploma issued by .________________________ ___. 
upon his completion of a degree program in "technological machines and equipment" in 2008. 
• A bachelor's diploma supplement issued by the same institution which lists the courses the 
Petitioner completed over a four-year period. 
• A letter from the Petitioner, in his capacity as sole owner ofl lindicating he has worked 
as a certified transportation professional for this entity from February 2018 through March 
2023. 
• A self-employment verification letter from the Petitioner's accountant (who is also the 
accountant forl ~-
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 USCTS has previously confirmed the applicability of this two-palt adjudicative approach in the context of aliens of 
exceptional ability. 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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• A letter from the chief executive officer of.__ _______ ~ who states the Petitioner 
worked for this company as a CDL lease truck operator between March and October 2020. 
• A letter from the president ofl l who states the Petitioner worked as a 
contracted owner operator/truck driver for this company from October 2020 through March 
2023. 
• An evaluation of academic qualifications and work experience prepared by an assistant 
professor at.__________ _, who states that the Petitioner has the equivalent of a 
master's degree. This determination is based on the evaluator's conclusion that the Petitioner 
holds the foreign equivalent of a bachelor's degree followed by five years ofpost-baccalaureate 
experience gained with I !between February 2018 and April 2023, when the evaluation 
was prepared. 
The Director concluded that the Petitioner did not establish that he qualifies for EB-2 classification as 
an advanced degree professional. Specifically, the Director determined the record does not reflect that 
the Petitioner holds either (1) a United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree, or (2) the foreign equivalent of a bachelor's degree followed 
by five years of post-baccalaureate experience. The Director acknowledged the submitted evaluation 
of the Petitioner's qualifications but observed that the evaluator's determination that he possessed the 
required five years of experience was based, in part, on experience the Petitioner accrued after the 
filing of the petition on October 23, 2022. Therefore, the Director determined that the evidence did 
not establish the Petitioner's eligibility for the requested classification at the time of filing, as required 
by 8 C.F.R. § 103.2(b)(l). 
On appeal, the Petitioner maintains that the evidence of record demonstrates that he holds the foreign 
equivalent of a bachelor's degree followed by five years of progressive experience, and that the 
Director erred in concluding otherwise. However, he does not address the Director's determination 
that he neither claimed nor established that he had accrued five years of work experience prior to the 
date of filing. Upon review of the evidence listed above, in addition to the Petitioner's resume and the 
ETA Form 750 labor certification application that accompanied the petition, we note that the Petitioner 
has claimed no relevant employment experience prior to February 2018. Therefore, based on his own 
statements, the record reflects that the Petitioner had accrued no more than four years and eight months 
of relevant work experience as of October 2022. 
Further, the Petitioner did not provide sufficient evidence to corroborate his claimed continuous full­
time employment in the transportation industry since February 2018. For example, the record 
establishes that the Petitioner established I I as a single member limited liability company in 
I 12018, but there is insufficient evidence to corroborate that he immediately began providing 
full-time services as a "certified transportation professional" from that date. Further, although he 
submitted a letter from I I indicating he started working as a contracted driver in 
October 2020, he also provided his contractor operating agreement with that company, which was not 
executed until June 2021. Similarly, the Petitioner's resume indicates that he has provided services as 
a leased operator with'--------~ since May 2018, but he provided a subcontractor and 
equipment lease agreement with this company that was executed in October 2019. Additional 
evidence would therefore be needed to address these apparent inconsistencies and to document his 
history of full-time employment in this field. 
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For the reasons discussed, the Petitioner did not establish that he is eligible to be classified as a member 
of the professions holding an advanced degree under section 203(b )(2) of the Act. 
B. Individual of Exceptional Ability 
On appeal, the Petitioner contends that the previously submitted evidence demonstrates his eligibility 
for EB-2 classification as an individual of exceptional ability under section 203(b)(2) of the Act. 
Specifically, the Petitioner maintains that he meets four of the six evidentiary 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 an official academic record showing that the 
individual has a degree, diploma, certificate, or similar award from a college, university, school, or 
other institution oflearning relating to the area of exceptional ability. As noted, the Petitioner provided 
evidence that he has a bachelor's degree from an institution in Uzbekistan that satisfies this criterion. 
The Petitioner also maintains that he has a commercial driver's license (CDL) and therefore has "a 
license to practice the intended profession" as required under the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). The record contains multiple references to the Petitioner's CDL and we note that 
he indicated in the initial filing that a copy of his license was attached. However, the Petitioner did 
not in fact include a copy of his CDL in the initial filing or with his response to the Director's RFE. 
Therefore, he has not established that he satisfies this criterion. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires evidence that the individual has commanded 
a salary, or other remuneration for services, which demonstrates exceptional ability. On appeal, the 
Petitioner asserts that "based on the documentation previously submitted and/or attached hereto, [he] 
clearly established that this criterion has been met." The Petitioner previously provided copies of his 
IRS Forms 1040, U.S. Individual Income Tax Return, with Schedule C, Profit or Loss from Business, 
for the years 2019, 2020, 2021 and 2022, which show the gross receipts and net profit earned byD 
~ However, this evidence alone does not demonstrate how the Petitioner's earnings are 
comparably higher than the earnings of others in his field. Information concerning salaries or other 
remuneration for similarly employed persons is necessary to support the Petitioner's claim that he has 
commanded remuneration for his services that demonstrates exceptional ability. This type of 
comparative evidence has not been provided. Accordingly, the Petitioner did not meet his burden to 
demonstrate he meets this criterion. 
Finally, the Petitioner asserts that he provided evidence of his membership in a professional 
association and therefore meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). The Petitioner submitted 
evidence of his membership in the.__ _____________________ ___., which 
is described in the record as "the international trade association representing the interests of 
independent owner-operators and professional drivers on all issues that affect truckers." The 
Petitioner provided screenshots from the I I website that discuss the mission, history, and 
activities of the association, but did not include information regarding the association's specific 
membership requirements in support of his claim that it is a "professional association." The reference 
to "professional drivers" on the association website is insufficient. The term "profession" includes 
the occupations listed in section 10l(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 into the 
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occupation. 4 8 C.F.R. § 204.5(k)(2). Here, the Petitioner has not offered sufficient evidence to 
establish the professional nature of the association of which he is a member. Accordingly, we cannot 
conclude the Petitioner meets this criterion. 
In summation, the Petitioner has not established that the evidence of record satisfies at least three of 
the exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we need not determine whether 
the record establishes the Petitioner is recognized as having a degree of expertise significantly above 
that ordinarily encountered in his field. See 8 C.F.R. § 204.5(k)(2). Furthermore, because the record 
does not establish that the Petitioner satisfies at least three of the exceptional ability criteria, it does 
not establish that he qualifies for second-preference classification as an individual of exceptional 
ability. 
Based on the foregoing discussion, the Petitioner has not demonstrated that he is eligible for EB-2 
classification as either a member of the professions holding an advanced degree or as an individual of 
exceptional ability. 
III. NATIONAL INTEREST W AIYER 
The Director also denied the petition based on a conclusion that the Petitioner did not establish his 
eligibility for the 
requested national interest waiver. We acknowledge that the Petitioner contests this 
determination in his appellate brief. However, the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification. Because this issue is 
dispositive, we need not address whether he is eligible for, and merits as a matter of discretion, a 
national interest waiver. Accordingly, we reserve this issue. 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 also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) (declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
IV. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability; 
therefore, we conclude that the Petitioner has not established eligibility for the immigration benefit 
sought. 
ORDER: The appeal is dismissed. 
4 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 10l(a)(32) of the Act. 
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