dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 20, 2023 In Re : 27362018 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an elementary school teacher and entrepreneur, seeks employment-based second 
preference (EB-2) immigrant classification as an individual of exceptional ability in the sciences, arts, 
or business. See Immigration and Nationality Act (the Act) section 203(b )(2) , 8 U.S .C. § l l 53(b )(2) . 
She also seeks a national interest waiver of the job offer requirement attached to this classification 
under section 203(b)(2)(1)(B) of the Act. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for EB-2 classification as an individual of exceptional ability . 
The Director further determined that the Petitioner did not establish that it would be in the national 
interest to grant a discretionary waiver of the job offer requirement. 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 Christa 's, Inc. , 26 I&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. 
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 
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 U.S. Citizenship and Immigration Services (USCIS) has previously confinned the applicability of this two-part 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
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 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. 
II. EXCEPTIONAL ABILITY 
The Petitioner holds a Brazilian licentiate degree in Portuguese language and a post-graduate 
specialization in pedagogical management and early childhood education. The record reflects that she 
has over 20 years of experience as a teacher and school-based recreation specialist, focused on early 
childhood and elementary education. She has established a Florida limited liability company and 
intends to operate a childcare center offering an early childhood education program, before and after 
school enrichment education, summer school programs, and services for children with diagnosed 
special needs. 
The Director denied the petition, in part, based on a conclusion that the Petitioner did not establish her 
eligibility for EB-2 classification as an individual of exceptional ability in the sciences, arts, or 
business. The Director determined that although she satisfied the initial evidence requirements by 
meeting three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), the record did not establish that she 
possesses a degree of expertise significantly above that ordinarily encountered in her field. On appeal, 
the Petitioner asserts that she submitted sufficient evidence to establish that she meets a fourth criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(F) and that she is otherwise eligible to be classified as an individual of 
exceptional ability. 
For the reasons provided below, we agree with the Director's conclusion that, although the Petitioner 
met the requisite three criteria under 8 C.F.R. § 204.5(k)(3)(ii), the record does not establish that she 
qualifies for the requested EB-2 classification. 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
adjudicative approach in the context of aliens of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
As noted above, the Petitioner provided official academic records demonstrating that she holds a three­
year licentiate degree from a Brazilian university and a post-graduate specialization in early childhood 
education from an institute of higher education. Based on the evidence provided, her educational 
credentials relate to her claimed area of exceptional ability as an early childhood educator. 
Accordingly, the record supports the Director's conclusion that she meets this criterion. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
individual has at least ten years offitll-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
This criterion focuses on evidence of experience in the occupation which a petitioner intends tol pursue I 
in the United States. The Petitioner submitted a letter from an administrative manager at
I I in Brazil confirming her continuous foll-time employment and job duties as a "teacher of early 
childhood education" from January 2008 until June 2019. She also submitted a letter documenting 
her employment as an elementary school teacher atl I 
c=Jbetween February 2005 and December 2007. Accordingly, we agree with the Director's 
conclusion that the submitted evidence satisfies the plain language of this criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner submitted evidence of her current membership in ._____________ ____. 
(CPP) along with evidence that CPP is an association representing "teaching professionals, active and 
retired, in the state ofI I aiming to guarantee the rights of teachers and quality public schools." 
Section 101(a)(32) of the Act defines "profession" as including, in part, "teachers in elementary or 
secondary schools." Therefore, the Petitioner established that she meets this criterion. 
Evidence ofrecognition 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). 
As evidence for this criterion, the Petitioner initially submitted four letters from former supervisors and 
colleagues atl Iwho attested to her professionalism, work ethic and dedication to teaching, 
her knowledge and skills in the field, and her rapport with students, parents, and other teachers. While the 
letters speak positively of the Petitioner as a valued member of the teaching staff who contributed to the 
school's successful operation, they did not provide evidence that she has been recognized for her 
achievements and significant contributions to the broader industry or field of education. The Director 
informed the Petitioner of this deficiency in a request for evidence (RFE) and allowed her an opportunity 
to submit additional evidence in support of this criterion. 
The Petitioner's response to the RFE included additional letters of support from personal and professional 
acquaintances and former colleagues atl I Like the letters submitted as initial evidence, 
these letters do not indicate that she has received recognition from her peers, governmental entities, or 
professional or business organizations for her achievements and significant contributions to the industry. 
For example, several of the letters are from parents and school-based therapists. The authors describe the 
Petitioner's social and classroom-based interactions with individual children with autism and other 
diagnoses, and her ability to understand and adapt to their social and academic needs. While these letters 
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indicate that she had a positive impact on these students, the authors do not assert that she has made 
contributions with broader implications for the special education field or the education industry in general. 
The Petitioner, who is currently enrolled in an English language program in the United States, also 
provided a letter from an instructor in the program, who praises her for her focus, empathy, and reliability 
and notes that she "shows all the important qualities of an effective teacher." 
In concluding the Petitioner did not meet this criterion, the Director emphasized that the authors of the 
letters did not speak to the Petitioner's significant contributions to her field and that the record lacked any 
additional evidence that would support a finding that she meets the plain language of this criterion. 4 
On appeal, counsel asserts that the Petitioner's RFE response included "letters written from [the 
Petitioner's] senior officers and managers, peers and professional organizations in Brazil and the U.S. 
who recognize her professional achievements and significant contributions to the field of information 
technology" and contends that the Director did not consider such evidence. However, the record does 
not reflect that the Director failed to consider the evidence submitted in response to the RFE, which 
included the letters described above, attesting to the Petitioner's work in the field of education. The 
Petitioner did not submit evidence from professional organizations attesting to significant contributions 
in the field of information technology and does not claim to have exceptional ability in that field. 
Overall, the submitted recommendation letters praise the Petitioner's teaching methods and 
performance, her commitment to the profession and students, and her successful inclusion of children 
with special needs in her classroom. However, the evidence does not show how the Petitioner's 
activities had an impact beyond her students and employers at a level indicative of achievements and 
significant contributions to the industry or field. We therefore agree with the Director's determination 
that she did not meet this criterion. 
B. Final Merits Determination 
As discussed, the Petitioner established that she meets three of the six criteria at 8 C.F.R. § 
204.5(k)(3)(ii). Therefore, we will consider this evidence together with the balance of the record to 
determine whether the Petitioner is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field, consistent with the definition of exceptional ability. 
In reviewing the totality of the evidence in a final merits determination, we consider the quality of the 
evidence. 5 While the Petitioner submitted evidence of her educational credentials, the mere possession 
of a degree or diploma from a college or university is not by itself considered sufficient evidence of 
exceptional ability. The record includes a letter from the pedagogical manager atl Iwho 
states that the Petitioner's "post-graduate specialization has made her significantly different from other 
professionals in her field." However, the author of the letter does not elaborate on what qualifications 
are typically possessed among early childhood and elementary educators in Brazil or otherwise explain 
her conclusion that the Petitioner's educational background sets her apart from similarly employed 
workers. The record does not provide sufficient support for a determination that the Petitioner's 
4 Formal recognition in the form of certificates and other documentation that are contemporaneous with the individual's 
claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the 
individual's achievements. See generally 6 USC1S Policy Manual, supra, at F.5(B)(2). 
5 Id. 
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completion of a three-semester post-graduation specialization in pedagogical management and 
training in early childhood education signifies her possession of expertise that is significantly above 
that ordinarily encountered in her field. 
Further, the Petitioner offered documentation of her employment as a school-based recreation 
specialist and as a teacher in early childhood and elementary education settings since 1995. Although 
the evidence indicates that she has more than 20 years of work experience in the field, the Petitioner 
did not demonstrate how her experience relates to other teachers or how it is indicative of a heightened 
degree of expertise that sets her apart from others. One of the letters from an administrative manager 
atl Istates that "[ o ]n completing ten years of our institution, [ the Petitioner] received a 
compensation amount significantly higher than the other teachers of her grade due to her vast 
professional experience, educational and pedagogical skills, and excellent performance with the 
students." However, a comparison between the Petitioner's salary and that of other teachers "of her 
grade" within the same school does not support a determination that her salary is indicative that she 
has a degree of expertise significantly above that ordinarily encountered in the broader field. In this 
regard, we observe that the Petitioner did not claim that she was submitting evidence that she has 
commanded a salary, or other remuneration for services, that demonstrates exceptional ability under 
8 C.F.R. § 204.5(k)(3)(ii)(E). While she may have commanded higher earnings than less experienced 
teachers in her school after 10 years of employment, it is unclear how this limited comparison 
establishes her exceptional ability in the field. 
As noted, the Petitioner provided evidence of her membership CPP, an organization for teachers in 
the State ofl IHowever, the evidence does not demonstrate, for example, that CCP limits its 
membership to teaching professionals that possess credentials, experience or some other qualifications 
that would differentiate them as having expertise significantly above that of other teachers. Rather, 
the evidence suggests that CPP is an inclusive association with 120,000 members that is open to active 
and retired teachers who are located within specific geographic region and who pay the required 
membership dues. Therefore, the record does not show that the Petitioner's membership in this 
association is indicative of her exceptional ability in the field of education. 
Finally, although the Petitioner has submitted more than ten reference letters, this evidence does not 
establish that she possesses expertise that places her significantly above other teachers working in her 
field. As discussed, many of the letters praise the Petitioner for her personal qualities and professional 
capabilities and address her contributions to her employer and her impact on individual students. 
Although one former co-worker indicates that the Petitioner "is exceptional in her field" and another 
states that she is "at the top of her field," they do not specify how the Petitioner's skills, education, 
experience or work-related achievements and contributions demonstrate her exceptional ability. 
Another individual who provided a "declaration" in support of the petition identifies herself as a 
special education teacher at a Pennsylvania public school district. She states that the Petitioner "has 
attributes and qualities that set her apart from other professionals" and that she reached this conclusion 
after "analyzing" the Petitioner. However, the author of this declaration offers no additional 
information about her method of analysis or the basis for her conclusion; she does not indicate that 
she is personally acquainted with the Petitioner or explain whether she conducted some form of 
independent review of her qualifications and experience. 
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After review of the totality of the record, we agree with the Director's conclusion that the Petitioner 
has not established that she possesses a degree of expertise significantly above that ordinarily 
encountered in the field of education. She has therefore not shown that she is eligible for EB-2 
classification as an individual of exceptional ability in the sciences, arts, or business. 
III. ADV AN CED DEGREE PROFESSIONAL 
We have also considered whether the Petitioner established that she qualifies, in the alternative, as a 
member of the professions holding an advanced degree under section 203(b )(2) 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). 
As noted, the Petitioner holds a Brazilian licentiate degree in Portuguese language and a post-graduate 
specialization in pedagogical management and early childhood education. The Petitioner has not 
claimed that she qualifies for EB-2 classification as an advanced degree professional under section 
203(b )(2) of the Act, however, she has referred to her licentiate degree as a "bachelor of arts" degree. 
The Petitioner's academic records reflect her completion of three years of postsecondary education to 
obtain her licentiate degree and one and one-half years of postgraduate coursework to complete her 
specialization. We have consulted the Electronic Database for Global Education (EDGE), 6 created by 
the American Association of Collegiate Registrars and Admissions Officers (AACRAO). 7 EDGE 
includes a list of credentials from Brazil. The list includes the following credentials that represent 
attainment of a level of education comparable to a bachelor's or master's degree, respectively, in the 
United States: 
• Titulo de bacharel (title of bachelor); 
• Titulo de mestre (master's degree program); and 
• Mestrado professional (professional master's degree program). 
Here, the Petitioner did not provide an official academic record demonstrating that she possesses any 
of these credentials. EDGE indicates that a "licentiate" is "a teaching qualification" that "varies in 
length of study from 2 to 4 years," while a "specialist" title is awarded "following programs of various 
lengths; most are at least 1 year long." 8 This information is consistent with the academic transcripts 
provided for the Petitioner's respective postsecondary programs. 
To demonstrate education and experience equating to an advanced degree under section 203(b )(2) of 
the Act, the Petitioner must have a single degree that is the "foreign equivalent degree" to a United 
States baccalaureate degree (plus five years of progressive experience in the specialty). See 8 C.F.R. 
6 EDGE is described on its registration page as "a web-based resource for the evaluation of foreign educational credentials." 
http://edge.aacrao.org/info.php. 
7 AACRAO is described on its website as "a nonprofit, voluntary, professional association of more than 11,000 higher 
education admissions and registration professionals who represent more than 2,600 institutions in over 40 countries." 
http://www.aacrao.org/who-we-are. 
8 See Brazil Credentials, https://www.aacrao.org/edge/country/credentials/brazil. 
6 
§ 204.5(k)(2). A United States baccalaureate degree is generally found to require four years of 
education. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). There is no provision 
in the statute or the regulations that would allow a petitioner to qualify under section 203(b)(2) of the 
Act as a member of the professions holding an advanced degree with anything less than a foll 
baccalaureate degree (plus five years of progressive experience in the specialty). The record does not 
establish that the Petitioner possesses a single degree that is the foreign equivalent of a U.S. bachelor's 
degree. 
Accordingly, we conclude that the Petitioner does not qualify for EB-2 classification as a member of 
the professions possessing an advanced degree. 
IV. NATIONAL INTEREST WAIVER 
As noted, the Director made a separate determination that the Petitioner did not establish her eligibility 
for a national interest waiver under the Dhanasar framework. However, because the Petitioner has 
not established her qualification for the underlying EB-2 classification, she is not eligible for a national 
interest waiver. We will therefore reserve this issue and the Petitioner's appellate arguments related 
to her request for a national interest waiver of the job offer requirement. 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 ofL-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). 
V. CONCLUSION 
For the reasons discussed, the Petitioner has not established that she is eligible for EB-2 classification 
as an individual of exceptional ability in the sciences, arts, or business or as a member of the 
professions holding an advanced degree. 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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