dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 25, 2024 In Re: 34345054 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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 Texas Service Center denied the petition, concluding the Petitioner did not 
establish that he qualifies for the underlying EB-2 classification or that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. The Director also explained 
that the Petitioner had not complied with the regulation at 8 C .F.R. § 204.5(k)(4)(ii), requiring 
submission of the employee-specific sections of the labor certification. 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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 
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 U.S. Citizenship and Immigration Services (USCIS) has previously confirmed 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-manu al/volume-6-part-f-chapter-5 . 
the requisite degree of expertise and will 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 l&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. 
As an initial matter, and as explained in the Director's request for evidence and decision, the Petitioner 
did not submit the Form ETA-750B, as required by the regulation at 8 C.F.R. § 204.5(k)(4)(ii). 4 For 
this reason alone, the petition is not approvable. 
Further, the Petitioner solely addresses his eligibility for a national interest waiver on appeal. Because 
the brief does not contest the Director's specific findings regarding the underlying EB-2 visa 
classification as an individual of exceptional ability, we deem this ground to be waived. An issue not 
raised on appeal is waived. See, e.g., Matter of O-R-E, 28 I&N Dec. 330, 336 n.5 (BIA 2021) (citing 
Matter ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012). 
As the petition is not approvable for the reasons above, we need not reach, and hereby reserve, the 
Petitioner's appellate arguments regarding his qualification for a national interest waiver. 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 l&N 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where applicants do not 
otherwise meet their burden of proof). 
ORDER: The appeal is dismissed. 
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 USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
4 In the alternative. the Petitioner may provide Sections J, K, and L of the ETA Form 9089, Application for Permanent 
Employment Certification. 
2