remanded EB-2 NIW Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 13, 2023 In Re: 28429375 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a waiter, seeks classification as an individual of exceptional ability in the sciences, arts 
or business. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(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 Texas Service Center denied the petition , concluding that the record did not 
establish that the Petitioner qualifies for classification as an individual of exceptional ability. 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Christa's , Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 
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 
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 confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F .5(B)(2), https://www.uscis.gov/policy-manual. 
users will then conduct a final merits determination to decide whether the evidence as a whole shows 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once a petitioner demonstrates EB-2 eligibility, 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 r&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that users 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. ANAL YSrS 
The Director determined that the Petitioner had not shown that he meets the initial criteria for 
exceptional ability. Therefore, the Director did not proceed to a final merits determination and a 
discussion of the national interest waiver. 
On appeal, the Petitioner asserts that the Director based substantial parts of the denial decision on 
infonnation and evidence that does not relate to the materials the Petitioner submitted. We agree with 
the Petitioner, as explained below. Nevertheless, the petition cannot properly be approved in its 
present state. 
To establish exceptional ability, a petitioner must submit documentation that satisfies at least three of 
the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii), summarized below: 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of these criteria, we then consider the totality of the evidence in a 
final merits determination and assess whether the record shows a degree of expertise significantly 
above that ordinarily encountered in the individual's field. See Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 2010) (discussing a two-part review where the documentation is first counted and then, if 
fulfilling the required number of criteria, considered in the context of a final merits determination). 
See also, generally, 6 USCJS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
The Petitioner claims to have submitted evidence to satisfy five of the six regulatory criteria. The 
Director concluded that the Petitioner had satisfied one of the claimed criteria, relating to membership 
3 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). 
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in professional associations. The Director's discussion of three other criteria, however, rested on 
evidence that appears to relate to a separate, unrelated case. 
Evidence in the form ofletter(s) from current orformer employer(s) showing that the alien 
has at least ten years ojfull-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
In the denial notice, the Director cited "letters from [an] accountant . . . which attested to the 
petitioner's employment at various companies as a partner, owner, Construction Manager, and General 
Administrator." The Director discounted these letters because they were not from a cunent or former 
employer as required by 8 C.F.R. § 204.S(g)(l ). 
The Petitioner conectly states, on appeal, that he had not submitted any such letters or claimed any 
employment in the construction industry. Therefore, we will withdraw the Director's determination 
regarding this criterion. 
At the same time, it is not evident that the Petitioner's evidence satisfies the regulatory requirements. 
The Petitioner submitted letters attesting to his employment as a waiter from October 2008 to 
November 2017, and since March 2019. During the gap from 2017 to 2019, the Petitioner indicated 
that he operated a restaurant inl lBrazil. In a request for evidence, the Director indicated 
that the submitted letters did not meet all the requirements at 8 C.F.R. § 204.S(g)(l ), but did not specify 
how the letters were deficient. As noted above, the denial notice did not address this issue, relying 
instead on enoneous references to employment in construction. 
Beyond the issues raised by the Director, without further clarification, it is not evident that these letters 
attest to at least ten years of full-time experience in the occupation sought as of the petition's 
November 2021 filing date. Parts of the Petitioner's initial submission indicate that he seeks 
employment as a waiter, who would "[t]ake orders and serve food and beverages to patrons at tables 
in dining establishment." The letter from the Petitioner's most recent employer, dated September 
2021, indicates that the Petitioner "is cunently employed but not working or receiving compensation 
due to suspension of business operations related to global developments as a result of the COVID 19 
virus." Any period when the Petitioner was technically listed as employed, "but not working or 
receiving compensation," does not constitute "full-time experience" as the regulation requires. 
Elsewhere in the record, the Petitioner indicated that he seeks to work not as a waiter, but as the owner 
of a company that will provide waitstaff services to other businesses. These two positions both relate 
to food service, but they are not the same occupation. If running such a business is the occupation in 
which the Petitioner intends to work, then he must establish at least ten years of full-time experience 
running such a business. 
Evidence that the alien has commanded a salary. or other remuneration for services. 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
In the denial notice, the Director stated that the Petitioner had submitted "statements from [an] accountant 
... which attested to the petitioner's income in 2018, 2019, and 2020" from a construction company. On 
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appeal, the Petitioner correctly asserts that he did not claim employment in construction or submit the 
evidence described. 
The Petitioner has submitted copies of pay receipts, in U.S. dollars, from the cruise lines that employed 
him. Rather than submit evidence that compares his salary to those of others similarly employed, he 
sought to show that he earned a high salary compared to waiters in Brazil, because the Petitioner and his 
family reside there. But this does not appear to be an apt comparison. The amount of the salary should 
reflect exceptional ability, a factor that is not contingent on an individual's countly of 01igin. The 
Petitioner did not provide a basis to compare his salary to those of others similarly employed, and to 
establish the extent to which differences in salaiy were related to exceptional ability. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, govemmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
Under this criterion, the Director stated that the Petitioner had submitted a cover story about himself 
from "a magazine with macro-regional publication." The Director concluded that the Petitioner had 
not established the significance of the publication. On appeal, the Petitioner correctly asserts that he 
did not submit any such article. 
The Petitioner's initial evidence under this criterion consists of several "letters from people who 
worked directly or indirectly with [ the Petitioner] and who testify to the 10 years of experience 
throughout [his] professional career." Length of experience is covered by a separate criterion and is 
not, itself, an achievement or significant contribution to the industi·y or field. Letters must attest not 
only to an individual's value to their own employer, but to their achievements and significant 
contributions to the industry or field. 
Also, letters prepared specifically to support the petition may have less weight than contemporaneous 
documentation of formal recognition in the form of certificates. See, generally, 6 USCIS Policy 
Manual F.5 (B)(2), supra. 
The Petitioner has also submitted printouts of four articles that he wrote and posted on Linkedln. The 
Petitioner does not explain how his own authorship of these articles amounts to recognition for 
achievements and significant contributions to the industry or field. He has not shown, for instance, 
that Linkedln will only publish articles that are considered to be significant contributions. If the 
Petitioner contends that the articles themselves are significant contributions, then the Petitioner must 
objectively establish that the articles have been recognized as such. The articles are not evidence of 
their own significance. 
Below, we will briefly discuss the remaining two claimed 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). 
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The Petitioner claims no degree above a high school diploma. The Petitioner claims that this high school 
diploma satisfies the requirement, but the Petitioner has not shown that it relates to the area of claimed 
exceptional ability. 
The Director noted the Petitioner's submission of"training certificates," but found them deficient. These 
certificates appear to demonstrate his completion of short-term vocational training courses. As such, the 
Petitioner has not shown them to be from "a college, university, school, or other institution ofleaming," 
or that they are "similar" to "a degree, diploma, or ce1tificate" from such an institution. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director concluded that the Petitioner satisfies this criterion through his membership in the American 
Management Association. The Petitioner also documented his membership in the International Council 
on Hotel, Restaurant, and Institutional Education. 
The record does not appear to contain any further evidence or information about these associations. The 
Petitioner has confomed his membership but has not established that either organization is a professional 
association. 
A "profession" is defined as of the occupations listed in section 10l(a)(32) of the Act, 8 U.S.C. 
§ 110l(a)(32), 4 as well as any occupation that requires at least a U.S. baccalaureate degree or its 
foreign equivalent for entry into the occupation. 8 C.F.R. § 204.5(k)(2). The Petitioner does not claim 
to hold a baccalaureate degree; he stated that he complete high school but did not complete university­
level education. With no indication that the Petitioner is a professional, we disagree with the Director 
that the Petitioner has established membership in a professional association. 
For the reasons described above, the evidence does not appear to establish that the Petitioner satisfies at 
least three of the exceptional ability c1iteria at 8 C.F.R. § 204.5(k)(3)(ii). But the Director's discussion 
of those criteria relied largely on incorrect information, and therefore the Director must issue a new 
decision based on the correct record of proceeding. 
The Director's decision focused solely on the question of exceptional ability, and did not address the 
issue of the national interest waiver. In the event that the Director's new decision addresses the 
national interest waiver, a significant issue requires attention. 
A petition for an individual seeking a national interest waiver must provide specific information about 
the individual's proposed endeavor in the United States. Matter ofDhanasar, 26 I&N Dec. at 889. 
In this case, however, the Petitioner has described two different proposed endeavors. On part 6 of 
Form I-140, "Basic Information About the Proposed Employment," the Petitioner stated his intended 
"Job Title" as "Waiters and Waitresses," with the following job description: "Take orders and serve 
food and beverages to patrons at tables in dining establishment." But the business plan submitted with 
the petition states that "there are two employability possibilities for" the Petitioner. The business plan 
4 The listed occupations are architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academics, or seminaries. 
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indicates that the Petitioner's "primary intention ... is setting up his own business ... in the corporate 
and social event and party planning," providing waitstaff to "event planners and party houses." But 
the Petitioner also reserved the option of accepting employment as a waiter himself. 
The Petitioner cannot establish eligibility by discussing the merits of multiple related but distinct 
proposed endeavors. He must describe one specific proposed endeavor and submit supporting 
evidence relating that endeavor. If the Petitioner claims exceptional ability as a waiter, but his 
proposed endeavor is not to work as a waiter himself, then the Director may take this discrepancy into 
account when weighing the evidence of record. 
III. CONCLUSION 
While there are deficiencies in the Petitioner's evidence concerning his claim of exceptional ability, 
the Director's decision contains several references to unrelated evidence. We cannot determine that 
the Director based the denial decision on the evidence and infonnation in the record. The Director 
must issue a new decision, giving proper consideration to the evidence in the record. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the ent1y of a new 
decision consistent with the foregoing analysis. 
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