dismissed EB-2 NIW Case: Computer Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 18052168 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 7, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree, 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 had not 
established eligibility as a member of the professions holding an advanced degree and 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 he is eligible for second preference classification and 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. 
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. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien 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 alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
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determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor ce1iification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offerorforthepetitionerto obtainalaborcertification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to wan-ant forgoing the labor ce1iification process. In each case, the factor(s) 
considered must, taken together, indicate 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. The initial cover letter claimed that the Petitioner "is eligible for 
EB-2 classification as a member of the professions holding an advanced degree ... once he holds a 
bachelor's degree in Science of Computer Engineering at the University o~ IBrazil."4 
In addition, the cover letter asserted that he "started working as a trainee in systems analyst at 
~----r---------r-------------r--..,... while attending the University for Bachelor's in 
Computer Engineering" and "[a]fter a few years, in 2012, [the Petitioner] started his own IT company, 
.__ ________ __.t The Petitioner also provided a statement indicating that he "ha[s] incomplete 
higher education~ Bachelor in Computer Engineeringfroml !University inl I 
Brazil" and included certificates showing his completion of various professional courses and classes. 
The Director issued a request for evidence (RFE) indicating: 
The personal statement you provided stated that you received a bachelor's degree in 
computer engineering fromj I University inl._ ____ __.~ Brazil. However, 
after reviewing the evidence submitted there is no documentation of your bachelor's 
degree. The only educational documentation is the professional certificates. 
Furthermore, no evidence was submitted that shows you possess at least five years of 
progressive post-baccalaureate experience in your specialty. Please provide a copy of 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 The Petitioner did not claim eligibility as an individual of exceptional ability. 
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your degree or diploma along with official transcripts and letters from current or former 
employers that show at least five years experience in the specialty. 
In response, the cover letter stated: 
The petitioner/beneficiary is a highly recognized professional and very respected by 
his colleagues and bosses. He attended the higher education course of Computer 
Engineering in 2009 but did not complete the graduation. He believes that a diploma 
is a milestone, a form to show victory after years of extreme work and dedication. 
However, he also believes that a diploma does not define someone's ability, as many 
successful entrepreneurs built great works without having a diploma. 
In addition, the Petitioner provided another statement indicating: 
I have an incomplete Higher Education in Bachelor of Computer Engineering from 
Universidadel I Brazil. Despite not having completed my 
graduation, I believe that a diploma is a milestone in life and means a victory after years 
of extreme work and dedication. However, at the same time, I believe that a diploma 
does not define someone's ability. We can see this every day seeing many successful 
entrepreneurs build great legacies without needing a diploma to do so. 
The Petitioner also submitted a copy of his resume reflecting an "Incomplete degree - Attended for 3 
years" under his education experience. Further, he presented his worker's card and documentation 
relating td I In denying the petition, the Director concluded: 
In statements provided by the petitioner and counsel of record, they have stated that the 
[Petitioner] is not in possession [of] a U.S. foreign equivalent of a bachelor's degree in 
computer engineering. However, the [Petitioner] in their personal statement said "that 
a diploma is a milestone in life after years of work and dedication but a diploma does 
not define someone's ability" while this [is] the belief of the [Petitioner] it is not 
documentary evidence that shows possession of an advanced degree. 
On appeal, the Petitioner repeats his RFE response letter claims. We agree with the Director that the 
Petitioner did not demonstrate his eligibility as a member of the professions with an advanced degree. 
In order to show an individual holds an advanced degree, the petition must be accompanied by "[a]n 
official academic record showing that the alien has a United States advanced degree or a foreign 
equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present "[a]n 
official academic record showing that the alien 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 alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R 
§ 204.5(k)(3)(i)(B). 
The record does not reflect that the Petitioner possesses either a foreign equivalent degree of a United 
States advanced degree or a foreign equivalent of a United States baccalaureate degree with at least 
five years of progressive post-baccalaureate experience in the specialty. The Petitioner rep:;tedly I 
stated, and maintains on appeal, that he did not complete or receive a baccalaureate degree fro 
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..........,_~!University or from any other university. 5 Therefore, the Petitioner did not establish that he 
qualifies as a member of the professions holding an advanced degree pursuant to section 203 (b )(2)(A) 
of the Act and 8 C.F.R. § 204.5(k)(2). Furthermore, as he did not receive such a degree, the Petitioner 
did not demonstrate that he has at least five years of progressive post-baccalaureate experience in 1he 
form of employer letters consistent with 8 C.F.R. § § 204.5(k)(2) and (k)(3)(i)(B). 
III. CONCLUSION 
The Petitioner did not establish that he qualifies for the underlying EB-2 visa classification as an advanced 
degree professional. As a result, we need not reach a decision whether, as a matter of discretion, he is 
eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework. 
Accordingly, we reserve this issue. 6 The appeal will be dismissed for the above stated reasons, wi1h 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
5 The record does not contain an official academic record showing that he received a baccalaureate degree, let alone that 
he everattendedl !university. See 8 C.F.R. § 204.5(k)(3)(i)(A). 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
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