dismissed EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 21, 2025 In Re: 34816337 
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 a 
member of the professions holding an advanced degree or, in the alternative, 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 Form 1-140, Immigrant Petition for Alien Workers 
(Form 1-140), concluding that the Petitioner did not establish eligibility for EB-2 classification as 
either an advanced degree professional or as an individual of exceptional ability. The Director further 
determined that the Petitioner also did not merit a national interest waiver as a matter of discretion. 
The Petitioner subsequently filed a combined motion to reopen and reconsider the adverse decision, 
but the Director dismissed the motions. Regarding the motion to reconsider, the Director determined 
that the Petitioner had not demonstrated that the denial was based on an incorrect application of law 
or policy and that it was otherwise incorrect based on the evidence in the record at the time the decision 
was issued. 8 C.F.R. § 103.5(a)(3). The Director reviewed the supplemental documents in support of 
the motion to reopen but concluded that the Petitioner did not establish new facts and did not present 
new evidence sufficient to overcome the basis for the denial of his Form 1-140. 8 C.F.R. § 103.5(a)(2). 
On appeal, the Petitioner references the evidence submitted in support of his combined motion and 
asserts that the Director erred by failing to consider it in evaluating his work experience and other 
criteria relevant to his eligibility for the underlying EB-2 classification. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawath e, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Ch rista's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for EB-2 visa classification, a petitioner must first establish that 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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. See 
generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 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 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. Matter ofDhanasar, 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, 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. 
II. ANALYSIS 
The issue on appeal is whether the Petitioner has established that the Director erred by dismissing his 
combined motion to reopen and reconsider. 2 For the reasons discussed below, we conclude that the 
motions did not meet the applicable requirements and were properly dismissed. 
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 The Petitioner did not appeal the denial of the underlying Form I-140 denial. Accordingly, that decision is beyond the 
scope of our review, and we will refer to certain evidence and facts only in so far as they relate to the Director's dismissal 
of the motions. 
2 
The Petitioner claims EB-2 eligibility both as an advanced degree professional and as an individual of 
exceptional ability. The Director evaluated the evidence the Petitioner submitted in support of the 
Form I-140, including his response to a subsequent request for evidence (RFE), and explained in the 
denial why it was not sufficient to establish his claimed eligibility for EB-2 classification in either 
category. The Director reaffirmed this adverse determination in dismissing the Petitioner's combined 
motion to reopen and reconsider. 
The Petitioner avers on appeal that the additional evidence he submitted on motion was adequate to 
show not only that he qualifies for the requested classification but also that he merits a national interest 
waiver and the Director's decision to dismiss his motions was therefore in error. We are not persuaded. 
A. Member of the Professions Holding an Advanced Degree 
To establish that a noncitizen holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that [they have] a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). On appeal, the Petitioner does not claim, 
and the record does not show that he has a United States advanced degree or a foreign equivalent 
degree. Id. Alternatively, a petitioner may present "[a]n official academic record showing that the 
noncitizen has a United States baccalaureate degree or a foreign equivalent degree, and evidence in 
the form ofletters from current or former employer(s) showing that [the noncitizen] has at least five 
years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner asserts that he qualifies as a member of the professions holding an advanced degree 
based on his foreign baccalaureate degree in Business Administration and five years of progressive 
work experience in the specialty. The supporting evidence at the time the Director denied the Form 
I-140 included copies of the Petitioner's diploma from the academic 
transcripts, and an expert opinion from a __________ professor that the Petitioner 
had the equivalent of a Master of Business Administration based on his bachelor's degree and 
professional work experience. The Director concluded that although this evidence was sufficient to 
show that the Petitioner held a foreign equivalent of a United States baccalaureate degree, the expert 
opinion alone was inadequate to establish five years of his progressive work experience, as it did not 
meet the regulatory requirement that the evidence be in the form of letters from current or former 
employers. See 8 C.F.R. §§ 204.5(k)(3)(i)(B) and 204.S(g)(l). 
On motion, the Petitioner submitted additional documents, all but one dated after the denial of his 
Form I-140, including a new evaluation of his academic credentials confirming that he had a foreign 
equivalent of a U.S. bachelor's degree, and an amended statement from thel !professor, who 
opined that based on the Petitioner's detailed resume and letters from former colleagues, the Petitioner 
"has worked for more than nine years in Business Administration and related fields .... in both non­
managerial and managerial capacities, at a level of work experience equal to Master's level training." 
The Petitioner also provided an additional letter from a faculty member at a Georgia business college 
(faculty member) indicating that in his opinion the Petitioner's combined education and work 
experience equated to a Master of Business Administration "under immigration law." The faculty 
member indicated that his opinion was based on the Petitioner's degree certificate and academic 
transcripts from Argentina; his detailed resume and supporting employment verification letters; as 
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well as copies of the Form 1-140, the Director's 2022 RFE, and the 2023 denial decision. The new 
evidence on motion also included letters from a sales manager at a a cargo care 
company in Florida, attesting to the Petitioner's employment as a marketing and commercial manager, 
and a 2017 letter from the owner ofl !confirming the Petitioner's employment with the 
company in Argentina from 2016 through 201 7 as their commercial and marketing manager. 
The Director determined that this evidence did not establish any new facts sufficient to reopen the 
proceedings and reconsider the determination concerning the Petitioner's ineligibility for EB-2 
classification as an advanced degree professional. We agree. 
Firstly, as the Director had previously determined that the Petitioner held a foreign equivalent of a 
United States baccalaureate degree, the new academic evaluation did not constitute a new fact or 
evidence with respect to this EB-2 classification requirement. Furthermore, the additional expert 
opinions and letters from former coworkers did not cure the lack of the requisite "letter(s) from current 
or former employer(s) showing that [the noncitizen] has at least five years of progressive post­
baccalaureate experience in the specialty." The sole letter from the Petitioner's former employer 
shows only that he had been employed as a commercial and marketing manager for a year, far less 
than five years, regardless of whether this employment might qualify as progressive experience in the 
specialty. 
In addition, the Petitioner did not identify any legal or policy errors in the Director's decision, nor did 
he claim that the decision was incorrect based on the evidence in the record at the time. 
Consequently, the Petitioner's motions to reopen and reconsider the determination concerning his 
ineligibility for EB-2 classification as an advanced degree professional degree did not meet the 
applicable requirements and were properly dismissed. See 8 C.F.R. § 103.5(a)(4) (providing that a 
motion that does not meet applicable requirements shall be dismissed). 
B. Exceptional Ability 
The Director concluded in the Form 1-140 denial, and reaffirmed on motion, that the Petitioner also 
did not meet the plain language requirements of at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)­
(F). Specifically, the Director determined that the Petitioner only satisfied the official academic record 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the membership in professional associations criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director explained in the Form 1-140 denial that the Petitioner did not show he met the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(B) of having at least ten years of full-time experience in the occupation 
for which he was being sought, because the regulations at 8 C.F.R. § 204.5(g)(l) require the evidence 
of qualifying experience to be supported by letters from employers giving the name, address, title of 
the employer, and the Petitioner's resume, and recommendation letters from his colleagues working 
at different companies did not meet these requirements. 
On appeal, the Petitioner references his resume and the five letters submitted on motion, which he 
characterizes as "confirmation of experience letters." He states that the Director erred by failing to 
consider them as evidence that he meets the criterion of having at least ten years of full-time experience 
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in the occupation for which he is being sought. However, the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) specifically requires the evidence often years of foll-time experience to be "in the 
form ofletter(s) from current or former employer(s)." (Emphasis added). As discussed above, the 
letters the Petitioner submitted on motion (with one exception) were from his colleagues or coworkers, 
and not from his current or former employers. As such, they did not establish any new facts or 
evidence that might overcome the lack of the requisite letters from current or former employers. The 
Petitioner therefore has not shown that the Director erred by declining to reopen the proceedings on 
that basis. See Matter ofCoelho, 20 I&N Dec. 464, 4 73 (BIA 1992) (requiring that new evidence have 
the potential to change the outcome). 
Further, in concluding that the Petitioner did not show he commanded a salary, or other remuneration 
for services, which demonstrated exceptional ability to meet the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D), 3 the Director acknowledged general information about average base pay of 
business development managers and the Petitioner's tax returns but explained that this documentation 
did not establish how his salary showed exceptional ability relative to others working in the same field. 
On appeal, the Petitioner resubmits copies of his 2018-2020 tax returns originally provided with the 
Form I-140 and printouts from websites with general information about jobs and compensation. 
However, the Director had previously considered these documents and explained that they were not 
probative of the Petitioner's eligibility absent evidence that he commanded a salary which 
demonstrates exceptional ability relative to others working in the field. Resubmission of essentially 
the same evidence on motion did not establish any new facts that might warrant a different conclusion 
concerning the Petitioner's eligibility under this criterion. Consequently, the Petitioner has not shown 
that that the Director erred by declining to reopen the proceedings and reexamine the record based on 
this evidence. 
Lastly, the Petitioner submits previously provided and new testimonials from former coworkers 
describing his performance and contributions at his former place of employment. He reasserts that 
they are evidence of his recognition for achievements and significant contributions to the field of 
business development by peers, governmental entities, or professional or business organizations, 
required under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F). But, in denying the Form I-140 the 
Director explained that the letters of recommendation and certificates of recognition from the 
Petitioner's former coworkers did not establish his eligibility under this criterion, because they did not 
show how the impact of his work, achievements and recognitions went beyond the private employer 
he had worked for and rose to the level of significant contributions to the field of business development 
in general. 
On appeal, the Petitioner again references the recommendation letters as evidence that he was 
recognized for playing a crucial role in improving his former employer's brand positioning and 
shaping the company image and public perception. He reasserts that his contributions as a managerial 
professional transcend private employers and have elevated his former employer's business 
development initiatives. We acknowledge the Petitioner's statements, but he still has not demonstrated 
3 The Petitioner has not claimed or submitted evidence that he meets the criterion in 8 C.F.R. § 204.5(k)(3)(ii)(C) (a license 
to practice the profession or certification for a particular profession or occupation). 
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how his work performance and achievements at his former place of employment rise to the level of 
having been recognized for significant contributions to the field of business development in general. 
Consequently, we agree with the Director that the additional evidence on motion did not establish new 
facts sufficient to support a different conclusion concerning this criterion. And, while we acknowledge 
that the Petitioner disagrees with the Director's assessment, he does not identify any specific legal or 
policy errors underlying the Director's ultimate conclusion that the evidence in the record at the time 
of the decision and as supplemented on motion was insufficient to show that he met at least three of 
six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 
In sum, the Petitioner's evidence and claims on motion did not overcome the Director's initial 
determination that he did not meet at least three of the six regulatory criteria for exceptional ability. 
Moreover, as discussed above, the new evidence and the Petitioner's statements on motion were also 
insufficient to overcome the deficiencies concerning his claimed eligibility for EB-2 classification as 
an advanced degree professional. 
C. National Interest Waiver 
As stated, to qualify for a national interest waiver, the Petitioner must first show that he qualifies for 
classification under section 203(b )(2)(A) of the Act as either an advanced degree professional or an 
individual of exceptional ability. The Petitioner has not shown that he is an advanced degree 
professional or that he has achieved the level of expertise required for exceptional ability classification. 
Consequently, he has not established eligibility for the underlying EB-2 immigrant classification. 
Because this ineligibility is dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve the appellate arguments regarding his eligibility for a national interest waiver under the 
Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) 
(holding that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision). 
III. CONCLUSION 
The Petitioner has not demonstrated that the additional evidence he submitted in support of his 
combined motion to reopen and reconsider established new facts sufficient to warrant reopening of 
the proceedings. Nor did he show that the denial of his Form I-140 was in error as a matter oflaw or 
USCIS policy, or that it was otherwise incorrect based on the evidence in the record at the time. The 
Director therefore properly determined that the Petitioner's combined motion to reopen and reconsider 
did not satisfy the requirements under the regulations at 8 C.F.R. § 103.5(a)(2)-(3). 
ORDER: The appeal is dismissed. 
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