dismissed EB-2 NIW Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 29, 2023 In Re: 28744385 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an information security analyst in the cybersecurity field, seeks classification as a 
member of the professions holding an advanced degree or, in the alternative, as an individual of 
exceptional ability in the sciences, arts, or business. Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § l l 53(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the 
Act, 8 U.S.C. § l 153(b)(2)(B)(i). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for EB-2 classification as a member of the professions holding 
an advanced degree or as an individual of exceptional ability. The Director further determined that 
the Petitioner did not establish that a waiver of the job offer requirement would be in the national 
interest. 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 afChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Chri sta'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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States 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). 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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, 1 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. 
II. ANALYSIS 
The primary issue to be addressed is whether the Petitioner established that she is eligible for EB-2 
classification as a member of the professions possessing an advanced degree. 
The Petitioner initially claimed eligibility for classification under section 203(b )(2) of the Act as both 
an advanced degree professional and as individual of exceptional ability in the sciences, arts, or 
business. The Director evaluated the evidence submitted in support of both claims and concluded that 
the Petitioner did not establish her eligibility for either classification. On appeal, the Petitioner does 
not raise her previous claim that she qualifies for EB-2 classification as an individual of exceptional 
ability or otherwise acknowledge or contest the Director's adverse determination regarding her 
exceptional ability claim. Issues or claims that are not raised on appeal are deemed to be waived. See, 
e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
A. Member of the Professions Holding an Advanced Degree 
In support of her claim that she qualifies as a member of the professions holding an advanced degree, 
the Petitioner provided copies of her diploma, academic transcripts, certified English translations, and 
an educational evaluation demonstrating that she holds the foreign equivalent of a U.S. bachelor's 
degree in "Control and Instrumentation Engineering Technology" from.___________ ____, 
University. 
In the Director's request for evidence (RFE), he noted that although the Petitioner's personal 
statement, resume, and list of exhibits indicate she was also attaching a copy of a master's degree she 
received in digital forensics and cybersecurity froml !College of Criminal Justice, the record 
does not contain that documentation. In addition, the Director noted that the Petitioner did not submit 
evidence to establish she has at least five years of progressive post-baccalaureate experience in the 
specialty. 
The RFE advised the Petitioner that in order to show that she holds an advanced degree, the petition 
must be accompanied by an official academic record showing that she has a U.S. advanced degree or 
a foreign equivalent degree. 8 C.F.R. § 204.5(k)(3)(i)(A). The Director further explained that, 
alternately, the Petitioner may present "[ a ]n official academic record showing that [she] has a United 
1 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
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States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from 
current or former employer(s) showing that [she] has at least five years of progressive post­
baccalaureate experience in the specialty." § 204.5(k)(3)(i)(B). The record reflects that the Petitioner 
did not provide a response to the Director's RFE. 
The Director determined that the Petitioner has not established that she qualifies as a member of the 
professions holding an advanced degree as defined at 8 C.F.R. § 204.5(k)(2), as she has not sufficiently 
established she possess a U.S. academic or professional degree or foreign equivalent above that of a 
bachelor's degree, or, in the alternative, evidence of a bachelor's degree or its foreign equivalent and 
evidence in the form of letters from current or former employers showing her five years of progressive 
post-baccalaureate experience in the specialty. 
On appeal, the Petitioner asserts that the Director erred in concluding that she did not provide sufficient 
evidence that she obtained a master's degree froml !college of Criminal Justice. 2 She submits 
new evidence pertaining to her educational qualifications. Specifically, the Petitioner provides a copy 
of a program dated May 26, 2021, of a Virtual Recognition Celebration in which she is listed as a 
Spring 2021 candidate for a Master of Science degree, and asserts that the program "confirms that 
[she] received a Master's of Science in the year 2021 []." 
However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has 
been given an opportunity to respond to that deficiency, we will not accept evidence offered for the 
first time on appeal. Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N 
Dec. 533 (BIA 1988). The Petitioner was notified in the Director's RFE that the evidence was 
insufficient to show her eligibility as a member of the professions holding an advanced degree, and 
was provided with examples of evidence which could cure these deficiencies. 
Based on a review of the record, we agree with the Director that the Petitioner has not provided 
sufficient evidence that she possesses an advanced degree. Accordingly, she has not established her 
eligibility for the requested EB-2 classification. 
B. National Interest Waiver 
The Petitioner has not established her qualification for an EB-2 classification as a member of the 
professions holding an advanced degree and she has waived her prior claim that she qualifies as an 
individual of exceptional ability in the sciences, arts, or business. She is therefore not eligible for a 
national interest waiver. While the Petitioner asserts on appeal that she meets all three of the prongs 
under the Dhanasar analytical framework and that the Director erred in concluding otherwise, we will 
reserve these issues. 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 of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
2 The Petitioner does not challenge the Director's determination that she has not established, in the alternative, that she has 
at least five years of progressive post-baccalaureate experience in the specialty. 8 C.F.R. § 204.5(k)(3)(i)(B). 
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III. CONCLUSION 
The Petitioner has not established that she is eligible to be classified as a member of the professions 
holding an advanced degree or that she is otherwise eligible for EB-2 classification. 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. 
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