dismissed EB-2 NIW Case: Crime And Intelligence

U.S. Citizenship 
and Immigration 
Services 
In Re: 25692650 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a crime and intelligence specialist , seeks employment-based second preference (EB-
2) immigrant classification 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 petition, concluding the record did not establish 
that the Petitioner was an individual of exceptional ability. The Director also determined that the 
Petitioner did not demonstrate that it would be beneficial to waive the requirements of the job offer 
and a labor certification . The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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 . 
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. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
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 USCIS has previously confinn ed the applicability of this two-part adjudicativ e approach in the context of individual s of 
exceptional ability . See generally 6 USCIS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter- 5. 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 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 3, 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. 4 
II. EXCEPTIONAL ABILITY 
The Director concluded that the Petitioner met four of the six claimed categories of evidence for 
exceptional ability. Specifically, the Director indicated the Petitioner satisfied the following criteria: 
1) official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A); 2) ten years of experience at 8 C.F.R. § 
204.5(k)(3)(ii)(B); 3) a salary demonstrating exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(D); and 
4) membership in a professional association at 8 C.F.R. § 204.5(k)(3)(ii)(E). Because the Petitioner 
fulfilled at least three criteria, the Director conducted a final merits determination, concluding that the 
Petitioner did not possess a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 
On appeal, the Petitioner contends that the Petitioner received various promotions, medals, and titles 
in his field and indicates that he has been recognized for his work in the departments he has served. 
The Petitioner points to his receipt of two awards, specifically bronze and silver military merit medals 
he received while working for the Brazilian! I The Petitioner states that his educational 
background and experience demonstrate extensive practical knowledge based on his 25 years of 
service in "international and multicultural contexts." 
The Petitioner provided evidence reflecting that he completed a certificate of learning from the 
Brazilian I I academy related to his appointment as a sergeant in 2010. Further, the 
Petitioner submitted several training certificates the Petitioner earned during his career, including 
several in basic computing throughout 1995 and 1996, a course in emergency rescue in 1998, I I I I improvement cycle" in 2000, intelligence basic internship operations in 2004, first 
specialization in authorities security in 2007, maintaining a Microsoft windows server in 2003, training 
seminar of I in 2008, investigation of crimes against children in 2009, amongst several 
other trainings. However, the Petitioner did not demonstrate how this training sets him apart from 
other crime and intelligence specialists to show a degree of expertise significantly above that ordinarily 
3 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). 
4 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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encountered in his field. The Petitioner did not sufficiently explain or establish how his completion 
of these trainings and courses compared to the overall education of others working in law enforcement 
and intelligence, where it is reasonable to conclude that continuing education and training is a typical 
part of the profession. 5 
Further, the Petitioner offered documentation related to his employment history as a member of the 
Brazilian! I including him working in the followin ositions: 1 intelligence analyst 
sergsergeant/teacher, Intelligence Board of Directors, Brazilian (October 2010 -
March 2018); 2) corporal/expert analyst in cybercrimes, Brazilian ____ Ministry of 
I I (September 2008 - November 2010), 3) corporal government security 
analyst/instructor I of the Governorship (November 2005 - September 2008); and 4) 
L_Jcorporal- police care commander/intelligence agent, (July 1992 -
November 2005). Although the evidence reflects that the Petitioner had approximately 25 years of 
experience as a I !officer, intelligence analyst, and trainer within the Brazilian! I I I the Petitioner did not sufficiently indicate how he has obtained a level of expertise significantly 
above others who work in law enforcement and intelligence. For instance, on appeal, the Petitioner 
only vaguely discusses his "25 years of vast experience in international and multicultural contexts," 
but does not describe in detail how this experience is significantly above that of other law enforcement 
officers or intelligence analysts. 
On appeal, the Petitioner emphasizes his receipt of bronze and silver military merit awards from the 
Brazilian! land further emphasizes his receipt of various "promotions, medals, and titles 
in his field." However, again, the Petitioner does not clearly articulate how his receipt of these medals 
and his career promotions reflect expertise above that ordinarily encountered in the field of law 
enforcement and intelligence. For example, although we do not diminish the Petitioner's service, the 
certificates related to his bronze and silver awards indicate that they are for ten and twenty years of 
"good services" respectively. Therefore, it is not clear how they demonstrate significant expertise 
beyond others working in law enforcement and intelligence. Otherwise, on appeal, the Petitioner does 
not discuss any other specific "promotions, medals, and titles" which establish his expertise 
significantly beyond others working in the field. 
Finally, the Petitioner also submitted several letters from colleagues and others discussing his career 
and accomplishments. However, these letters are mostly focused on the Petitioner's proposed 
endeavors in the United States and they provide little discussion as to how his expertise is significantly 
above others in the field. For instance, the Petitioner provided a letter from an experienced military 
police officer who worked with him and this officer explained the Petitioner's creation of several 
databases, his service as a coordinator and instructor "enabling dozens of !officers to 
secure the safety of dignitaries and their families," and his work in conducting 250 background checks 
for al I awards ceremony. The Petitioner's colleague further stated that he was "very 
competent in his field." However, this letter did not indicate how the Petitioner's expertise it 
significantly above that normally encountered in the law enforcement and intelligence fields. Without 
further explanation, it appears that a regular member of the military police could perform many of the 
5 Qualifications possessed by most members of a given field cannot demonstrate a degree of expertise significantly above 
that ordinarily encountered. See generally 6 USCIS Policy Manual, supra, F.5(B)(2). 
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Petitioner's stated functions, such as creating criminal databases and performing background checks. 
Likewise, another letter submitted by Brazilian prosecutor discussed the Petitioner's involvement with 
a team "providing important information for the quality of the methodology employed in the 
prevention of crimes committed over the internet," including a booklet reaching "thousands of students 
and educators." However, again, this letter did not clearly articulate how the Petitioner's expertise 
was significantly developed beyond his colleagues. Therefore, although the Petitioner provided 
several recommendation letters from colleagues discussing his work experience and some of his 
accomplishments, these letters do not clearly indicate how his expertise is significantly developed 
beyond his colleagues in the field. 
Similarly, the Petitioner also provided a letter from a U.S. Air Force lead instructor at the Junior 
Reserve Training Corps. However, this letter only discussed how the Petitioner's proposed endeavor 
could benefit the United States' national interest and listed his work experience; it did not detail how 
the Petitioner's expertise was significantly above that normally encountered in the field. 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). 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 letter from the U.S. Air Force instructor 
does not sufficiently address the Petitioner's eligibility as an individual with exceptional ability. 
Therefore, it has little probative value in demonstrating this requirement for eligibility. 
The record as a whole, including the evidence discussed above, does not establish the Petitioner's 
eligibility as an individual of exceptional ability. Although the Director determined that the Petitioner 
satisfied four of the initial categories of evidence, the Petitioner has not demonstrated by a 
preponderance of the evidence that he has obtained a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 6 As such, we need 
not reach a decision on whether, as a matter of discretion, he is eligible for or otherwise merits a 
national interest waiver. Accordingly, we reserve this issue. 7 
III. CONCLUSION 
As the Petitioner has not established that he qualifies for the underlying EB-2 classification, he has 
not established that he is eligible for or otherwise merits a national interest waiver. Thus, the appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
6 See generally 6 USCTS Policy Manual, supra, F.5(B)(2). 
7 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). 
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