dismissed EB-2 NIW Case: Business Computing

U.S. Citizenship 
and Immigration 
Services 
In Re: 13454120 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2022 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a professional holding an advanced degree or an individual of exceptional 
ability, and that he had not established that a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. On appeal , the Petitioner asserts that the Director erred 
in his decision. The Petitioner has the burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe , 25 I&N 
Dec . 369, 375 (AAO 2010) . 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 ofjob 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. 
To determine eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." 
8 C.F.R. § 204.5(k)(2). The regulations at 8 C.F.R. § 204.5(k)(3)(ii) further provide six criteria, at 
least three of which must be satisfied, for an individual to establish exceptional ability: 
(A) 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 of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the alien has at least ten years of foll-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration [sic] for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. Where a petitioner meets these initial evidence requirements, we then 
consider the totality of the material provided in a final merits determination and assess whether the 
record shows the petitioner possesses exceptional ability. See Kazarian v. USCIS, 596 F.3d 1115 (9th 
Cir. 2010) (discussing a two-part review where the documentation is first counted and then, iffolfilling 
the required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
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determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. at 376. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
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 
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 offer and thus of a labor 
certification. 3 
II. ANALYSIS 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. For the following reasons, the Petitioner has not demonstrated 
his eligibility for the EB-2 classification. 4 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner has not established that he is a member of the professions holding an advanced degree. 
First, he has not established that his occupation meets the definition of a profession. In Part 6 of the 
Form I-140, "Basic Information About the Proposed Employment," the Petitioner listed his job title 
as "entrepreneur," but he did not further describe his occupation. His resume indicates that he co­
founded Z-, a company involved in "CCTV, telephone systems, alarm systems, networks, intercom, 
and etc." The resume also reflects that the Petitioner is self-employed as a founder of B-, a company 
which installs the same products as Z-, as well as computers and servers. The Petitioner maintains 
that he is "seek[ing] employment in the field of business computing." 
To qualify as a member of the professions holding an advanced degree, a petitioner must show that 
his occupation meets the definition of a profession, and that he holds a qualifying advanced degree. 
With respect to the Petitioner's occupation meeting the definition of a profession, section 101(a)(32) 
of the Act does not include entrepreneurs in the list of occupations and he has not established that a 
U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into his 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
2 See also Poursina v. USCIS. 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91. for elaboration on these three prongs. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
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occupation. 8 C.F.R. § 204.5(k)(2). Without more, merely identifying a general field in which he will 
work is insufficient to demonstrate that his occupation meets the definition of a profession. 
Second, he has not established that he holds an advanced degree. 8 C.F.R. § 204.5(k)(3)(i)(B) requires 
a petitioner to present "[a]n official academic record showing that the [individual] has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current 
or former employer(s) showing that the [individual] has at least five years of progressive post­
baccalaureate experience in the specialty." In denying the petition, the Director observed that the 
Petitioner has a bachelor's degree but determined that the record did not establish the requisite five 
years of progressive post-baccalaureate experience in the specialty. 
The record contains the Petitioner's foreign bachelor's degree in business computing. An evaluator 
for a credential evaluations service to establish claims that the Petitioner has a U.S. equivalent of a 
master's degree in computer science. However, the Petitioner's reliance on this letter is misplaced. 
The evaluator first concludes that the Petitioner holds the equivalent of an advanced degree through 
obtaining "a bachelor's degree followed by more than five years of foll-time work experience." As 
discussed above, 8 C.F.R. § 204.5(k)(3)(i)(B) requires a petitioner to possess "at least five years of 
progressive post-baccalaureate experience in the specialty" (emphasis added) not just five years of 
foll-time work experience following a bachelor's degree. The evaluator further refers to a "3-for- l 
Rule," where three years of relevant work experience is equal to one year of education. The evaluator 
then concludes that "it can be determined that the [B]eneficiary attained sufficient years of specialized 
training and work experience to equate to the college coursework in computer science." 
It appears that the evaluator is confused about the standards upon which he can evaluate education and 
experience credentials in immigrant visa petition proceedings under section 203(b )(2) of the Act; 8 
C.F.R. § 204.5(k)(3)(i)(B). 5 We acknowledge that in nonimmigrant visa petition proceedings under 
section 214(i)(2) of the Act, the H-lB beneficiary-qualification regulations provide for the application 
of a "three-for-one" ratio analysis of work experience to education in the provision at 8 C.F.R. § 
214.2(h)(4)(iii)(D)(5). That provision reserves its application exclusively for USCIS agency­
determinations in H-lB nonimmigrant petitions. Id. Therefore, the Petitioner may not rely on the 
evaluator's conclusions to show that he possesses the foreign degree equivalent of a U.S. bachelor's 
degree. 
Turning to the evidence provided regarding the Petitioner's work experience, the evaluator lists 
"information" about the Petitioner's work experience obtained from the Petitioner's resume. As 
discussed, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) specifies that the evidence of post­
baccalaureate progressive work experience must be "in the form of letters from current or former 
employer(s)." Moreover, the regulation at 8 C.F.R. § 204.S(g)(l), provides in pertinent part that 
"[ e ]vidence relating to qualifying experience or training shall be in the form of letter( s )from current 
or former employer( s) or trainer( s) and shall include the name, address, and title of the writer, and a 
5 To qualify as an advanced degree professional, a petitioner relying on foreign education must have a single, foreign 
degree that equates to at least a U.S. baccalaureate. The regulations do not allow baccalaureate equivalents based on 
combinations of lesser educational credentials or of education and experience in Form I-140 immigrant petitions. See 
Final Rule for Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (stating that "both the 
Act and its legislative history make clear that, in order to ... have experience equating to an advanced degree under the 
second [preference category], an alien must have at least a bachelor's degree"). 
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specific description of the duties performed by the [individual] or of the training received." The 
evaluator did not explain how the Petitioner's self-reported employment history meets the regulatory 
requirements for establishing the requisite years of work experience within the occupation. 
Overall, it appears that the evaluator lacks sufficient understanding of the requirements for eligibility 
for the EB-2 classification to provide a credible evaluation of the Petitioner's qualifications. 
Therefore, we conclude that the opinion letter provided lends little probative value to the matter here. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject 
an opinion or give it less weight if it is not in accord with other information in the record or if it is in 
any way questionable. Id. 
The Petitioner also provides letters from various entities located in Uzbekistan which discuss his prior 
work experience. For instance, an August 2012 letter from I- states that the Petitioner worked there 
"for more than two years," but does not (1) indicate whether he was employed on a full-time basis, (2) 
adequately describe his job duties, or (3) provide his dates of employment. Notably, according to his 
college transcript the Petitioner attended university from 2007 to 2012 and his diploma indicates that 
he graduated in July 2012. Therefore, it does not appear that the Petitioner's employment with I­
qualifies as "post-baccalaureate" employment. Nevertheless, the letter does not describe his specific 
duties other than noting that the Petitioner first worked with the "'DUET' Plastic Cards system," then 
was later "promoted to management and modification of bank's website and working with Oracle 10g 
database." 
The record also contains letters from two other employers, dated May 13, 2019, who each state: 
[We] expresses gratitude for the collaboration and quality work in organization of 
servicing automated workplaces and mobile placement of personal, server 
infrastructure, network equipment, software, peripheral and office technology at the 
company's office. 
[The Petitioner's] expertise allowed [us] to solve several tasks in the sphere of 
Information Technology infrastructure and increase quality in user experience. 
The identical language in the submitted letters undermines their probative value. Identical language 
in letters "suggests that the letters were all prepared by the same person and calls into question the 
persuasive value of the letters' content." Hamal v. US. Dep 't of Homeland Security, No. 19-2534, 
2021 WL 2338316 at *8, n.3 (D.D.C. June 8, 2021). Further, as a general concept, when a petitioner 
has provided material from different entities, but the language and structure contained within it is 
notably similar, the trier of fact may treat those similarities as a basis for questioning a petitioner's 
assertions. See Matter of O-M-O-, 28 I&N Dec. at 195 (BIA 2021 ). 6 When affidavits ( or in this case, 
work experience letters) contain such similarities, it is reasonable to infer that the petitioner who 
submitted the strikingly similar documents is the actual source from where the similarities derive. 7 
Given the unique similarities in the letters that the Petitioner presented as evidence, he has not 
6 Cf. Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006). 
7 Cf. Mei Chai Ye v. US. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007). 
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established, by a preponderance of the evidence, that these work experience letters originated from his 
previous employers. Matter of Chawathe, 25 I&N Dec. at 376. 
Further, the submitted letters collectively present inconsistent and ambiguous information. For 
example, the certificate from B- shows that he was employed as a "department manager of marketing 
and sales" from August 2015 to May 2018, and as a "server administrator" from June 2018 to 
September 2018. The certificate from K- states he was employed as a "manager" from February 2017 
to September 2018. The document from A- reflects his employment in various positions there from 
July 2010 to November 2018. 8 The evidence in the record suggests the Petitioner was simultaneously 
employed by B-, K-, and A- in 2017 and 2018. In contrast, the Petitioner presents his employment 
with these entities in other documents in sequential order and does not indicate that he was employed 
by these three companies at the same time. Also, the amount of time that the Petitioner devoted to 
each work assignment and the substantive nature of the duties performed therein is not apparent from 
the documentation provided. The Petitioner must resolve these inconsistencies and ambiguities in the 
record with independent, objective evidence pointing to where the truth lies. Doubt cast on any aspect 
of the Petitioner's [evidence] may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
For the foregoing reasons we determine that the Petitioner's submitted employment letters do not 
credibly and sufficiently describe the Petitioner's specific job duties, indicate whether he was 
employed on a foll-time basis, or substantiate his period(s) of employment. Based on this evidence, 
we cannot discern whether the Petitioner has the requisite five years of post-baccalaureate progressive 
work experience. 
For these reasons, the Petitioner has not established eligibility for the EB-2 classification under 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
B. Exceptional Ability 
The Director concluded in the denial that the Petitioner did not satisfy the plain language requirements 
of at least three criteria. Specifically, the Director determined that the Petitioner fulfilled only the 
degree 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). On appeal, the Petitioner contends that he meets four of 
these criteria and possesses "exceptional ability in the field of computer science." 
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 of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner has submitted a copy of his college transcript and diploma. We agree with the 
Director's determination that the Petitioner met this criterion. 
8 It is not apparent why the document from A- states that he commenced employment with them in July 2010. but then 
indicates his initial date of hire was in January 2013. The Petitioner has not explained this inconsistency in the evidence. 
Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
6 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
[individual] has at least ten years of fitll-time experience in the occupation for which 
he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
As previously discussed, the record does not clearly define the Petitioner's occupation. The Petitioner 
asserts on appeal, and in response to the Director's request for evidence (RFE), that he has "over 20 
years of foll-time experience in his field." Notably, he was 30 years old at the time of his 2020 
response to the RFE and would have had to start working in the computer science field at the age of 
10 should his assertion be accurate. In other evidence the Petitioner states that he commenced his 
work career in 2010, when he was 20 years old. The Petitioner must resolve these inconsistencies 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591-92. 
Considering the material provided about the Petitioner's work experience, we incorporate our previous 
discussion about the inadequate evidence submitted in support of his asserted eligibility for the EB-2 
classification as a professional holding an advanced degree under 8 C.F.R. § 204.5(k)(3)(i)(B). The 
record lacks credible evidence to substantiate the Petitioner's assertion that he has at least ten years of 
foll-time experience in his prospective occupation. This criterion has not been met. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner met this criterion. However, we withdraw the Director's 
determination as the evidence does not show that he belonged to a professional association at the time 
of filing the petition. The Petitioner states that he is a "member of the [I-] technical societies." As 
evidence of his I- membership he submitted an undated invoice for his I- membership fee, along with 
copies of pages from I-'s website which appear to have been printed in May 2020, 10 months after 
the filing of the petition. A petitioner must establish eligibility at the time of filing a nonimmigrant 
visa petition. 8 C .F .R. § 103 .2(b )( 1 ). Here, the record does not show that the Petitioner held 
membership in I- or any other professional association at the time of filing the petition. This criterion 
has not been met. 
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). 
On appeal, the Petitioner asserts that he "provided in the original submission extensive documentation 
clearly establishing recognition for [his] achievements and [his] significant contributions to the field," 
alleging that he has "made and continues to make significant scientific contributions in the field of 
[b]usiness [c]omputing." However, he did not specifically identify this evidence in the appeal. The 
initially submitted evidence includes the previously discussed documentation about his academic 
pursuits and his work experience, as well as two certificates. The 2007 "acknowledgement of 
achievement" from W- recognized his results in a keyboard touch typing test in which he typed 75 
characters per minute with a 69.2% error rate. This certificate reflects the Petitioner's typing 
proficiency in 2007, not his scientific contributions. He also submitted an undated "certificate of 
achievement" from UCD Micros, entitled, Theory of Databases. Introduction to SQL and PLISQL, 
which serves to document that he completed a computer training course. 
7 
Irnp01iantly, the Petitioner has not explained the nature of his specific scientific contributions to the 
computer science field, supported by documentary evidence. Instead, the record contains letters from 
authors who offer general praise about his abilities such as the letter from B- who indicates that the 
Petitioner has a "wide range of knowledge in his specialization and stays on top of the industry news 
and innovations. He is a master of business negotiations." The letter does not support the Petitioner 's 
assertions that he has made "significant scientific contributions in the field of [b ]usiness 
[c]omputing ." Therefore, we agree with the Director the record does not demonstrate the Petitioner 
has received "recognition for achievements and significant contributions to the industry or field." 
This criterion has not been met. 
Accordingly , the Petitioner has not shown that he satisfies the plain language of at least three of the 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we need not provide a final merits determination to 
evaluate whether the Petitioner has achieved the required level of expertise required for the exceptional 
ability aspect of the EB-2 classification. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a 
job offer, and thus a labor certification , is in the national interest. As discussed, 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. As the Petitioner has not established eligibility for the underlying immigrant classification , 
the issue of the national interest waiver is moot. Further analysis of his eligibility would serve no 
useful purpose. 9 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
advanced degree professional or as an individual of exceptional ability. 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. 
9 It is unnecessary and would be an unwise use of the government's time and resources to analyze the remaining 
independent grounds when another is dispositive of the appeal. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (finding 
it unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal); 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). 
8