dismissed EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
InRe : 18042156 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 20, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as either an advanced degree 
professional oran individual of exceptional ability, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 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 had not 
established 1) he was an advanced degree professional or an individual of exceptional ability and 2) 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 
On appeal, the Petitioner submits a brief asserting that he meets the requirements of the requested 
classification and is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 1 0l(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. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of 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). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interesf' 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
1 In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job off er and thus of a labor 
certification. 3 
II. ANALYSIS 
A. Advanced Degree 
The Petitioner submitted a transcript which shows that he completed 10 classes in a "Business 
Administration" course 4 at the I I in Brazil 
The transcript also indicated that three courses are "pending completion" and that he is "to attend" four 
additional courses. In addition, the Petitioner provided an "Evaluation of Education" which clearly 
indicated that the evaluator's conclusion regarding the Petitioner's equivalence of a U.S. bachelor's 
degree in business administration was based on a combination of work experience and coursework. 
At issue is the fact that the Petitioner does nothold a "a United States baccalaureate degree or a foreign 
equivalent degree," as required by the regulations at 8 C.F.R. § 204.5(k)(2) and (3)(i)(B). When the 
analysis of a petitioner's credentials relies on a combination of experience and coursework to obtain 
equivalence to completion of a U.S. baccalaureate degree, the result is the "equivalent" of a degree 
rather than a "foreign equivalent degree." 5 
As explained by the Director, there is no provision which would allow the Petitioner to qualify as an 
advanced degree professional without the foreign equivalent of a U.S. baccalaureate degree. On 
appeal, the Petitioner relies on a portion of Matter of Caron International, Inc., 19 I&N Dec. 791 
(Comm. 1988) which states that "substantial academic coursework in a professional field combined 
with professional experience may be considered equivalent to a bachelor's degree." However, while 
some classifications permit such a combination of experience and education to qualify as the 
equivalent of a U.S. bachelor's degree, as noted above, to qualify as an advanced degree professionaL 
an individual must have the "foreign equivalent degree." 
B. Exceptional Ability 
The Director determined that the Petitioner met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (C). On 
appeal, the Petitioner asserts that he also meets the criterion at 8 C.F.R. § 204 .5(k)(3 )(ii)(A). 6 
2 Sec also Poursinav. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in na hue). 
3 See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 We are unable to determine whether the "Business Administration" course was part ofa degree program. 
5 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (definingforpurposes ofa nonimmigrantvisa classification, the"equivalence to 
completion of a United States baccalaureate or higher degree.") The regulations pertaining to the immigrant classification 
sought in this matter do not contain similar language. 
6 As the Petitioner does not address the remaining criteria, we consider them abandoned. SeeMatterofR-A-M-. 25 I&N 
3 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award fi'om a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner asse1is that Director applied a "stricter standard" than that which is required by the 
criterion. As evidence, the Petitioner relies on his "educational background along with his professional 
experience and expert letters." The plain language of the regulation, however, does not include 
"professional experience" or "expe1i letters" as evidence, but rather requires "an official academic 
record," such as a transcript. As noted above, the record does not contain any evidence to establish that 
he received "a degree, diploma, certificate or similar award" from the university where he attended 
classes. 7 
For the reasons set f01ih 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 expe1iise required for 
exceptional ability classification. 
As the Petitioner has not met the threshold requirement for this classification, further analysis of his 
eligibility for a national interest waiver would serve no meaningful purpose. 
III. CONCLUSION 
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. 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, 
that issue is waived). See also Sepulveda v. US. Att 'vGen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristovv. Roark, No. 09-CV-27312011, 2011WL4711885 at *1, 
*9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned ashe failed to raise them on appeal to the AAO). 
7 We would also note that, although the Petitioner submitted a "diploma" for an "English as a Second Language" course, 
the record does not establish that it is related to his area of exceptional ability as required by the regulation, or that it is an 
official academic record. Similarly, the Petitioner failed to establish that the "training certificates," "certificates of 
achievement," and "course certificate" are official academic records. 
4