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DismissedNational Interest Waiver · Appeal

Food industry management consultant

Business & finance · decided 2024-04-11 · TSC · APR112024_05B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not met
    Why
    CONCLUSION The Petitioner has not established that she is eligible for classification as an individual of exceptional ability or that she is otherwise eligible for EB-2 classification. p. 6
  • Prong 1Merit and national importanceNot decided
    The Director's denial rested on this
    As noted above, the Director concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national importance, that she was well-positioned to advance the proposed endeavor, or that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. p. 6
  • Prong 2Well positioned to advance itNot decided
    The Director's denial rested on this
    As noted above, the Director concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national importance, that she was well-positioned to advance the proposed endeavor, or that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. p. 6
  • Prong 3Worth waiving the job offerNot decided
    The Director's denial rested on this
    As noted above, the Director concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national importance, that she was well-positioned to advance the proposed endeavor, or that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. p. 6

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish that she was eligible for the requested classification or that a waiver of the classification's job offer requirement, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon de nova review, we will dismiss the appeal because the Petitioner did not establish that she is eligible for the requested EB-2 classification. See in text
  • Accordingly, the petition will remain denied and the appeal will be dismissed for the above stated reasons. See in text
  • ORDER: The appeal is dismissed. See in text

Main reasons given

  • Upon review of the record, we conclude that the Petitioner did not provide evidence that she has a license to practice or certification for her profession. See in text
  • Therefore, the Petitioner has not established that she meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). See in text
  • Therefore, the Petitioner has not established that she meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). See in text
Show 2 more
  • The Petitioner has not established her qualification for the EB-2 classification and is therefore ineligible to be granted a national interest waiver as a matter of discretion. See in text
  • The Petitioner has not established that she is eligible for classification as an individual of exceptional ability or that she is otherwise eligible for EB-2 classification. See in text
Read the full decision (6 pages)

Objections found (8)

Automated tags. Each shows the sentence that triggered it.

  • Step 0Exceptional ability not established
    The Director issued a request for evidence (RFE) informing the Petitioner that the record did not establish her eligibility for EB-2 classification as an individual of exceptional ability under any of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). See in text (p. 2)
  • Prong 1Benefits limited to an employer or its clients
    The evidence does not demonstrate that the use of the Petitioner's experience wi 11 have substantial positive economic effects that will reach beyond benefitting her own company and clients or have broader implications within the field of restaurant management. p. 6
  • Prong 1Job creation or economic claims unsupported
    The evidence does not demonstrate that the use of the Petitioner's experience wi 11 have substantial positive economic effects that will reach beyond benefitting her own company and clients or have broader implications within the field of restaurant management. p. 6
  • Prong 3Did not show the waiver outweighs labor certification
    However, she concluded that the Petitioner had not demonstrated that her proposed endeavor had national importance, that she was well-positioned to advance her proposed endeavor, or that, on balance, waiving the job offer requirement would benefit the United States. See in text (p. 6)
  • Prong 3No urgency shown
    Additionally, the Petitioner did not demonstrate national interest factors such as the impracticality of a labor certification, the benefit of her prospective contributions to the United States, an urgent national interest in her contributions, the potential creation of jobs, or that her self-employment does not adversely affect U.S. workers. p. 6
  • Prong 3Labor certification not shown to be impractical
    Additionally, the Petitioner did not demonstrate national interest factors such as the impracticality of a labor certification, the benefit of her prospective contributions to the United States, an urgent national interest in her contributions, the potential creation of jobs, or that her self-employment does not adversely affect U.S. workers. p. 6
  • ProcedureEvidence submitted too late
    Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F) For the first time on appeal, the Petitioner asserts that she meets this criterion. See in text (p. 5)
  • ProcedureInconsistencies in the record
    Further, this information is inconsistent with the Petitioner's resume and business plan in the record, which states that she was a chef with the __________ from 2005 to 2018, and from 2021 to 2022.8 The translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). 6 USCIS records reflect that the RFE was sent to the Petitioner on February 13, 2023 at the address listed on the petition but it was returned as undeliverable. p. 3

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (3) AAO finding (5) Tagged objection (3)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: APR. 11, 2024 · In Re: 30231855 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver)

The Petitioner, a food industry management consultant, 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 that the Petitioner did not establish that she was eligible for the requested classification or that a waiver of the classification's job offer requirement, and thus of the labor certification, 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 apreponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de nova. Mattera/Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015).

Upon de nova review, we will dismiss the appeal because the Petitioner did not establish that she is eligible for the requested EB-2 classification. Because this identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding her eligibility for a national interest waiver of the classification's job offer requirement, and thus of the labor certification. 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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).

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. Exceptional ability means adegree 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 p. 2 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.

Once eligibility for the EB-2 visa classification is established, a petitioner 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 tenn "national interest," Matter of Dhanasar, 26 l&N Dec. 884 {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.

Exceptional Ability

The first issue to be addressed is whether the Petitioner established her eligibility for EB-2 classification. The Petitioner claims eligibility as an individual of exceptional ability.4 The Petitioner is achef and food industry manager "with innovative methodologies and deep expertise creating food products and executing a high level of service." The Petitioner asserts that she satisfies at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Specifically, the Petitioner asserts that she has at least ten years of full-time experience in the industry (B), a license to practice the profession or certification for her occupation (C), commanded a salary or other remuneration for services that demonstrates exceptional ability (D), and membership in professional associations (E). The Petitioner further asserts that the record includes comparable evidence to establish her eligibility pursuant to 8 C.F.R. § 204.5(k)(3)(iii).

The Director issued a request for evidence (RFE) informing the Petitioner that the record did not establish her eligibility for EB-2 classification as an individual of exceptional ability under any of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii).Exceptional ability not established The Director noted that recommendation letters in the record attesting to the Petitioner's experience and salary did not include certified English translations.5 The 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).

Director also noted that the record did not include evidence to demonstrate the Petitioner's license to practice the profession or certification for her occupation or her membership in professional associations. Regarding comparable evidence, the Director noted that the Petitioner did not submit evidence to establish that the six criteria do not apply to her field of endeavor, or explain the reasons required evidence is not available.

The Petitioner did not submit a response to the RFE. The Director reviewed and analyzed the evidence submitted with the initial filing and denied the petition. The Director determined that the record did not establish that the Petitioner met any of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) to demonstrate that she is an individual of exceptional ability and that she was, therefore, not eligible for the requested EB-2 classification.

On appeal, the Petitioner states that she has experienced repeated difficulties in receiving correspondence from USCIS and did not receive the RFE before its deadline. 6 She submits evidence of her inquiries to USCIS requesting a duplicate copy of the RFE, as well as the RFE response she was unable to submit timely. With her appeal, the Petitioner provides certified English language translations of letters attesting to her experience and salary as a chef and event promoter.

Evidence in the form of letter(s) from current or former employer(s) showing that the individual has at least ten years of full-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B)

This criterion focuses on evidence of experience in the occupation which a petitioner intends to pursue in the United States. The Petitioner submits letters from several individuals stating that she provided chef services from 2005 to 2021.7

A letter from,______________ of the ____________

I

Petitioner must resolve any material inconsistencies in the record by competent, objective evidence. Matter of Ho, at 591-92.

A second letter from identifies her as partner and president of In this letter, states that the Petitioner provided services to the company as a chef and promoter of events from December 2005 to January 2021. However, the dates of this experience overlap with the Petitioner's claimed experience with the ____________ and the letter does not document whether the Petitioner's experience was full- or part-time.

A letter from of states that the Petitioner "provided us with services in the gastronomic area from 2005 to 2021, meeting the needs in all commemorative events of the company, meetings, dinners, birthdays, get-togethers."

However, the dates ofthis experience overlap with the Petitioner's claimed experience with thel I I I and others, and the letter does not document whether the Petitioner's experience was full- or part-time.

A letter from of the states that p. 5 her "employment identity card issued by the Ministry ofLabor ofBrazil" with the original submission but does not submit a copy of this document.

Upon review of the record, we conclude that the Petitioner did not provide evidence that she has a license to practice or certification for her profession. Therefore, the Petitioner has not established that she meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C).

Evidence that the individual has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) With respect to this criterion, the Petitioner states in her initial filing, and again on appeal, that the letters documenting her experience as a chef also document her salary that demonstrates exceptional ability. The letters in the record state that the Petitioner earned R$7,500 to R$10,000 per event for her services as a chef.

The Director noted in the RFE that the record does not include documentary evidence to demonstrate how the Petitioner's services led to salary based on her exceptional ability, tax documents to support the Petitioner's claimed salary, or other relevant evidence. The Petitioner does not submit any other evidence to support her eligibility for this claimed criterion on appeal.

With the initial filing the Petitioner submitted asalary survey from Salario BR showing salary data for the position of "Administrative Consultant" in 2022. However, as the salary data is for a different occupation than the occupation for which the Petitioner was compensated, we are precluded from conducting an analysis of the Petitioner's earnings per event based on this data. Therefore, the Petitioner has not established that she meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D).

Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) On appeal, the Petitioner states, "No evidence was submitted to meet this criterion." Accordingly, we deem this ground to be waived. An issue not raised on appeal is waived. See, e.g., Matter of O-R-E-, 28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of RA-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012)).

Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.Evidence submitted too late

analysis to determine whether the evidence in its totality shows that she is recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. § 204.5(k)(2). Ill. NATIONAL INTEREST WAIVER

The Petitioner asserts that she meets all three prongs of the analytical framework set forth in Matter of Dhanasar, 26 l&N Dec. 884. She states that her proposed endeavor is to continue using her expertise and knowledge to work as a "food industry management consultant."

In the RFE the Director addressed the evidence submitted with the initial filing and allowed the Petitioner an opportunity to submit additional evidence in attempt to establish her eligibility for the national interest waiver. As noted above, the Petitioner did not submit a response to the RFE.

The Director determined that the Petitioner submitted sufficient evidence to demonstrate that her proposed endeavor has substantial merit. However, she concluded that the Petitioner had not demonstrated that her proposed endeavor had national importance, that she was well-positioned to advance her proposed endeavor, or that, on balance, waiving the job offer requirement would benefit the United States.Did not show the waiver outweighs labor certification On appeal, the Petitioner submits a business plan.

The Petitioner has not established her qualification for the EB-2 classification and is therefore ineligible to be granted a national interest waiver as a matter of discretion. Although the Petitioner asserts on appeal that she meets all three of the prongs under the Dhanasar analytical framework and that the Director erred in concluding otherwise, as noted above, we will reserve these issues.9 See INS v. Bagamasbad, 429 U.S. at 25.

Conclusion

The Petitioner has not established that she is eligible for classification as an individual of exceptional ability or that she is otherwise eligible for EB-2 classification. Accordingly, the petition will remain denied and the appeal will be dismissed for the above stated reasons.

ORDER: The appeal is dismissed.