dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 22667167 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 19, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a general and operations manager, seeks second preference immigrant classification as 
either an advanced degree professional or an individual of exceptional ability in the sciences, arts or 
business, 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). After a petitioner has established eligibility for EB-2 classification, U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that the evidence did not 
establish the national importance of the proposed endeavor or that a waiver of the requirement of a job 
offer would be in the national interest. Accordingly, the Director determined that the Petitioner had 
not established eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner reasserts her eligibility, arguing that the Director 
did not review the evidence under the proper standard of proof and erred in the decision. In these 
proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Section 291 
of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 10l{a)(32) of the Act, 8 USC § 1101(a)(32), 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 101(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)(i i). 
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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 l&N Dec. 884 (AAO 2016). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
The Director did not provide any analysis or specific determination regarding whether the Petitioner 
established that she qualifies as a member of the professions holding an advanced degree or as an 
individual of exceptional ability. On appeal, the Petitioner notes the decision's lack of analysis, 
specifically on whether she qualifies as an individual holding an advanced degree. Based upon the record 
as currently constructed, we conclude that the Petitioner has not established eligibility for the underlying 
EB-2 classification. 
A. Advanced Degree Professional 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may 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." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner provided evidence of a "tftulo de bacharel" in economic sciences, which she earned after 
completing a program of study in Brazil from 1993 to 1999. Following this education, the Petitioner 
submitted documentation indicting that she pursued a post-graduate course of study ("lato sensu") in 
controlling and finance, which she completed in 2001. The record also reflects that in 2006, she 
completed a specialization program ("curso de especializacao") in economics and energy management. 
In addition, the Petitioner provided certificates of completion for various trainings and individual 
courses, such as "Fundamental Negotiations," "Fiscal Metering of Gas and Liquids," and "Management 
Development Program Level I," among others. 
To support a finding that she qualifies as an advanced degree professional, the Petitioner provided an 
academic and experience evaluation froml I a professor at thel I College of the 
I I in the academic portion of the evaluation, the only information specific to 
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the Petitioner's education appears to be the titles of her academic programs, name of her university, and 
the dates in which she completed her various courses of study. Although I I stated that the 
courses completed and the number of credit hours earned indicated the equivalency of the Petitioner's 
educationj I offered little explanation of the Petitioner's courses and credit hours and did not 
explain how they are the equivalent of a U.S. education. Here! I restated in paragraph form 
basic information found in the Petitioner's academic records without adding actual analysis of the 
programs. Therefore, his generalized conclusions are insufficient to establish the U.S. equivalency of the 
Petitioner's education. For this reason, we conclude that this evaluation is of little probative value in this 
matter. Additionally, we question! I knowledge of the Brazilian academic system and the 
specific qualifications he has as a U.S. professor that demonstrate his ability to credibly opine on the 
equivalency of Brazilian academic degrees. 
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. Id. Here, the evaluator did not demonstrate specific knowledge of the Brazilian 
education system, the Petitioner's specific university, or how her credit hours, grades, and the content of 
her courses translate to a U.S. education. Nor did the evaulator offer sufficient analysis or support for the 
conclusions contained in the evaluation. As such, we conclude that this evaluation is insufficient to 
establish the academic equivalency of the Petitioner's foreign education. 
Based on the information contained in the record, we conclude that the Petitioner has not met her burden 
to establish the U.S. equivalency of her foreign education in accordance with 8 C.F.R. 
§ 204.5(k)(3)(i)(B). The Petitioner should be prepared to address this evidentiary shortcoming in any 
of her future filings. Nevertheless, we reviewed the AACRAO EDGE database to determine whether 
the Petitioner's foreign education is comparable to any U.S. degree. The AACRAO EDGE database 
is a reliable resource concerning the U.S. equivalencies of foreign education. See generally American 
Association of Collegiate Registrars and Admissions Officers, Electronic Database for Global 
Education, https://www.aacrao.org/edge (last visited Sep. 13, 2022). Although the database reflects 
that a "titulo de bacharel" may be a foreign equivalent of a U.S. bachelor's degree, it does not indicate 
that the post-graduate "lato sensu" is the foreign equivalent of a U.S. master's degree. Rather, the 
database suggests that the Petitioner may have completed a graduate program in which she received 
graduate credits leading to a professional certificate, but not necessarily leading to a graduate degree. 
Id. In addition, the database suggests that the "curso de especializacao" is a program in a particular 
area of study in which a student may select to specialize. Id. It is not apparent from the documentation 
the Petitioner provided whether this specialization program is a degree program, nor is it apparent that 
upon completion of it, students would receive the foreign equivalent of a U.S. advanced degree. 
Moreover, the evidence provided is insufficient to conclude that the Petitioner has at least five years 
of progressive post-baccalaureate experience in the specialty. Although the employment letters 
indicate that the Petitioner has over five years of post-baccalaureate employment experience, the 
letters only list the titles of the positions the Petitioner held. As the letters do not discuss the 
Petitioner's duties, it cannot be concluded that the Petitioner's work was progressively responsible in 
nature. To illustrate, one letter stated that the Petitioner worked in the same position from 2001 to 
2013. As such, it is not apparent from the title of the position alone that her work was progressive in 
nature, particularly as the letter indicates that she remained in the same position throughout her tenure 
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with that employer. Accordingly, we cannot conclude that the Petitioner possesses an advanced 
degree, nor can we conclude that the Petitioner's foreign equivalent of a U.S. bachelor's degree is 
followed by five years of progressive post-baccalaureate experience. 
B. Individual of Exceptional Ability 
We reviewed the entirety of the record and have considered the Petitioner's eligibility as an individual of 
exceptional ability. We conclude that the Petitioner has not satisfied at least three of the six criteria and 
therefore we need not reach a final merits determination. Accordingly, the Petitioner does not qualify as 
an individual of exceptional ability. While we may not discuss each piece of evidence individually, we 
have reviewed and considered each one. 
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) 
Although the academic documentation in the record combined with the information found in the 
AACRAO EDGE database is sufficient to conclude that the Petitioner completed education that is the 
equivalent of a U.S. bachelor's degree, the record does not show that the Petitioner earned this degree in 
the area of claimed exceptional ability. The Petitioner proposes to work in general and operations 
management. Based on the record as currently constructed, we cannot conclude that her bachelor's degree 
in economic sciences is sufficiently related to general and operations management as to be in the "area of 
exceptional ability." Accordingly, the Petitioner has not persuasively established that she has satisfied 
this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the alien 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) 
By a preponderance of the evidence standard, the Petitioner has established that she satisfies this criterion. 
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. 
§ 204.5(k)(3)(ii)(C) 
The Petitioner provided evidence that she received an "economist" professional identity card from the 
Regional Economic Council of "region I" of I The associated documents in the record 
suggest that the Petitioner registered as an economist in 2015 and that the purpose of the Regional 
Economic Council "is to supervise the professional activity of economists and service providers." 
However, this evidence is insufficient to establish that the Petitioner's identity card is a license or 
certificate to practice as a general and operations manager. First, the Petitioner has not provided evidence 
that a license or certification is required to practice the profession of general and operations manager. The 
Petitioner appears to have fully performed in her prior positions of"business operations coordinator" and 
"coordinator oflogistics programming" without previously registering, such that we cannot conclude that 
a license or certification is required for the occupation of general and operations manager. Even if it were 
established that the identity card is a license or certificate, it is not apparent whether a professional license 
or certificate to practice as an economist would be sufficiently related to the claimed area of exceptional 
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ability. Finally, the Petitioner's identity card with the council expired in December 2018, prior to the 
filing of the 1-140 petition. USCIS regulations affirmatively require a petitioner to establish eligibility 
for the benefit sought at the time the petition is filed. See 8 C.F.R. § 103.2(b)(1). Therefore, we cannot 
conclude that the Petitioner has a license to practice the profession or certification for a particular 
profession. Accordingly, the record is insufficient to establish the Petitioner's eligibility under this 
criterion. 
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) 
The Petitioner provided a website printout of salary data for the position of "operations manager" in 
Brazi I. Although the printout stated that the data provided is from August 2017 to August 2018, it is 
unclear if the salaries listed correspond to an hourly, monthly, annual, or some other salary timeframe. 
The Petitioner highlighted the figures pertaining to the professional level for which she believes she 
qualifies. Among "trainee," "junior," "full," "senior," or "master," the Petitioner selected "senior," 
indicating that she has six to eight years of experience. In addition, she highlighted the size of the 
company for which she worked during the relevant time frame. Among "little," "average," or "great," 
the Petitioner highlighted "little." Nevertheless, the Petitioner has not offered sufficient evidence to 
establish that these figures in the chart apply to her. For instance, the record contains insufficient evidence 
of the size of her employer during the relevant time frame in which to conclude that it is a "little" 
employer. Additionally, the Petitioner provided insufficient documentation to establish that she is a 
"senior" level operations manager. While we acknowledge that the Petitioner has experience in 
operations management, the record does not sufficiently reflect that she occupied an operations manager 
position for six to eight years, as opposed to a coordinator within operations management. 
The Petitioner's paystubs, tax returns, and bank documents indicate that during the years 2013 to 2015, 
she received income from However, the chart provided does not reflect salary data 
from this time period. Therefore, the salary data in the chart is inapplicable to the Petitioner, as it does 
not correspond to the relevant years for which she provided evidence of her income. Even if it were 
established that the Petitioner received a salary that exceeded certain figures on the chart, it would still 
only provide a very limited picture of the Petitioner's salary in comparison to others in the profession. In 
other words, even if the Petitioner provided sufficient evidence that her salary was in fact higher than 
other operations managers, it would simply establish that she earned a higher-than-average salary. The 
evidence does not suggest that the salary she earned was due to her ability. 
The record does not support a finding that the Petitioner commands a salary that demonstrates exceptional 
ability. For the foregoing reasons, the Petitioner has not satisfied this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
For this criterion, the Petitioner submitted her registration and identity card as an economist with the 
Regional Economic Council of "region 1" of I As previously noted, the Petitioner has not 
established how registration as an economist is relevant to the profession of general and operations 
manager. In addition, the Petitioner's 2015 registration expired in December 2018, prior to the filing of 
her national interest waiver petition. Therefore, this evidence does not establish eligibility at the time of 
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filing. Accordingly, the Petitioner has not provided evidence sufficient to establish eligibility under this 
criterion. 
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) 
We reviewed the entire record for evidence of recognition for the Petitioner's achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations. We acknowledge evidence that includes, but is not limited to, certificates of 
completed trainings and courses, a national interest waiver eligibility evaluation, and letters of support 
from professional acquaintances. As previously stated, while we may not discuss each piece of evidence 
individually, we have reviewed and considered each one. 
Although the letters of support indicate that her professional acquaintances hold her in high regard 
personally and professionally, as well as that she has received recognition for achievements and 
significant contributions within the companies she has worked for, this evidence does not suggest that the 
Petitioner has received recognition for achievements and significant contributions to the industry or field. 
To illustrate with several examples ______ a gas and policy regulatory affairs manager at 
I I described the Petitioner's role and performance, the value of her as an employee, and the results 
she achieved for the company. However.I I did not provide sufficient detail concerning how 
these internal accomplishments constituted recognition for achievements or significant contributions to 
the field. Similarly, _________ a project manager at the ______ 
described specific milestones in the Petitioner's career, the duties she performed, and her value as an 
employee, as well as stated that her work on the project led to the success of the initiative. However, it 
cannot be concluded from the information presented that the Petitioner's career, performance, value, and 
success constituted recognition for achievements and significant contributions to the industry or field. 
Although _________ a packing manager working within a joint venture, stated that 
the Petitioner "developed a unique methodology to negotiate with the IRS" and that "[the Petitioner] 
developed the "transfer p1ice," thus creating a new and clear understanding of the rules of impmtation 
and commercialization of natural gas," I I does not explain how this "transfer price" could be 
construed as an achievement or significant contribution to her field, as opposed to an accomplishment for 
the individual companies and clients involved in the transaction. Likewise.I lwrote thatthe project 
upon which the Petitioner worked "was a nationally important project for [company name], as well as a 
strategic contribution to the country's energy matrix." However, it is not apparent from the details in 
I I letter or the evidence in the record, what she means by the phrase "strategic contribution to the 
country's energy matrix" or how this would be considered a contribution to the field or industry. □ 
did not provide sufficient details concerning how the Petitioner's work constituted recognition for 
achievements and significant contributions to the industry or field, as opposed to the individual companies 
and clients for whom she worked. Overall, the authors of the letters explained how the Petitioner's past 
accomplishments were important to the Petitioner's employers, but the letters do not support a finding 
that such accomplishments constitute recognition for achievements and significant contributions to the 
industry or field. 
We acknowledge the background materials about operations manager careers and other written materials 
that offer an overview of the operations management profession, including industry reports and articles 
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concerning the field, foreign direct investment, the competitiveness of U.S. companies, and the need for 
operations management professionals, among others. Nevertheless, these materials do not mention the 
Petitioner specifically, or how she has impacted the field or industry such that we can conclude she has 
received recognition for achievements and significant contributions. Merely working in an important 
field is insufficient to establish that she has received recognition for achievements and significant 
contributions in that field. 
In the Petitioner's professional plans and statements, she described her past achievements as well as 
reiterated the information that I I provided about her "unique methodology to negotiate with the 
IRS" and the "transfer price." However, the Petitioner did not offer a sufficient explanation for what the 
unique methodology is, how she is credited with the development of the methodology and transfer price, 
how the methodology and transfer price differ from other methods used, or whether others in the industry 
know about and now use the methodology and transfer price. To further illustrate, it is not apparent from 
the record how the "transfer price" created a new and clear understanding of the rules of importation and 
commercialization of natural gas or what effect, if any, this development had outside the parties to the 
transaction. Even if the Petitioner offered evidence to support a finding that she developed the 
methodology and transfer price, this would still not establish how others in the field or industry would 
know about and benefit from what she developed such that the Petitioner's work would constitute 
achievements and significant contributions to the industry or field. The Petitioner must support her 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 
376 {AAO 2010). The Petitioner has not done so here. 
Finally, we return to the evaluation froml I Although I I offered his opinion on 
the Petitioner's education, experience, and eligibility under the Dhanasar framework, the evaluation 
does not contain a cogent discussion of how the Petitioner qualifies as an individual of exceptional 
ability nor does it contain support for a conclusion that the Petitioner has received recognition for 
achievements and significant contributions to the industry or field. Much of the evaluation repeats the 
contents of the Petitioner's resume or contains statements repeated by other authors.1 As previously 
explained, the record contains insufficient evidence to establish that the Petitioner has received 
recognition for achievements and significant contributions to the industry or field. Rather, as noted, the 
Petitioner's professional accomplishments appear to impact the parties relevant to the transaction but do 
not appear to reach the industry or field as a whole. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 l&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. We are ultimately responsible for making 
the final determination regarding an individual's eligibility for the benefit sought; the submission of 
expert opinion letters is not presumptive evidence of eligibility. Id. Here, the evaluation from 
I I does not sufficiently address the Petitioner's eligibility for the underlying employment 
classification. Therefore, it has little probative value under this criterion. 
Based on the evidence provided, we conclude that the Petitioner has not established how her professional 
accomplishments extend beyond her individual employers, clients, and projects. While the Petitioner 
may be a valuable employee with an impressive record of success, her professional performance does not 
1 It is unclear if has repeated Counsel's statements or if Counsel repeated! I statements. In either 
case, portions of the petition contain statements that the signing author may not have independently written. 
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represent achievements and significant contributions to the industry or field. Accordingly, the evidence 
does not establish that the Petitioner satisfied this criterion. 
Summary 
The record does not support a finding that the Petitioner meets at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner therefore has not established her 
eligibility as an individual of exceptional ability under section 203(b)(2)(A) of the Act. As previously 
outlined, the Petitioner must show that she either possesses exceptional ability or is an advanced degree 
professional before we reach the question of the national interest waiver. We conclude that the evidence 
does not establish that the Petitioner meets the regulatory criteria for classification as an individual of 
exceptional ability or that she is a member of the professions holding an advanced degree. It is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 {AAO 2012). As the Petitioner 
has not established eligibility for the underlying immigrant classification, the issue of the national interest 
waiver is moot. The waiver is available only to foreign workers who otherwise qualify for classification 
under section 203(b)(2){A) of the Act. 
Ill. CONCLUSION 
The Petitioner has not established that she is eligible for the underlying classification as an advanced 
degree professional or as an individual of exceptional ability. Therefore, further analysis of her 
eligibility under the framework outlined in Dhanasar would serve no meaningful purpose. 
Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's remaining arguments concerning her eligibility under the 
Dhanasar framework. 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). 
The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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