dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re : 23069655 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 17, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or 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 Acting Director of the Texas Service Center denied the petition, concluding that the record did 
not establish that the Petitioner is an individual of exceptional ability . She further concluded that the 
Petitioner did not establish that a waiver of the classification's 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 ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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. 
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) . 
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 
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. 
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 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. 
I. ANALYSIS 
The Petitioner states on the petition and in supporting documents that she is an entrepreneur with more 
than 12 years of experience providing childcare as a nanny. With the initial filing the Petitioner did 
not submit sufficient evidence of her eligibility for the requested EB-2 immigrant classification or a 
description of her proposed endeavor. The Director issued first a request for evidence (RFE) and later 
a notice of intent to deny (NOID) the petition, informing the Petitioner of these deficiencies and 
allowing an opportunity to respond. 4 After reviewing the Petitioner's responses to the RFE and the 
NOID, the Acting Director concluded that the Petitioner did not establish that she qualified for the 
requested EB-2 classification, or that a waiver of the classification's job offer requirement would be 
in the national interest. 
For the first time on appeal, the Petitioner identifies her proposed endeavor as "seeking employment 
in the United States of America as an assistant teacher in the field of education." On appeal, she 
asserts that the record demonstrates that she is an individual of exceptional ability and is eligible for 
the national interest waiver. 
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 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 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. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 In this case, the Director issued the RFE and NOID and the Acting Director issued the decision. 
2 
A. Eligibility as a Member of the Professions Holding an Advanced Degree 
As noted above, a petition for an advanced degree professional must include evidence that a petitioner 
possesses a "United States academic or professional degree or a foreign equivalent degree above that 
of baccalaureate [or] 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." 8 C.F.R. § 204.5(k)(2). With the initial filing the Petitioner provided a copy of a 
bachelor's diploma in engineering sciences issued by the I I Technical University in 
Georgia, in 2007. The Petitioner also provided a copy of a higher education diploma in pedagogical 
primary education issued by !Teaching University! I in 2011. 
The record does not include academic transcripts or a U.S. academic equivalency in accordance with 
8 C.F.R. § 204.5(k)(3)(i) to establish the U.S. equivalency of the foreign diplomas. The Director noted 
this deficiency in both the RFE and NOID. In the RFE and NOID responses, the Petitioner asserted 
that she meets the qualifications of an advanced degree professional and "additionally and 
alternatively" is an individual with exceptional ability. However, the Petitioner did not submit the 
requested evidence to demonstrate that she is an advanced degree professional. 
The Petitioner does not address this issue or submit additional evidence on appeal. Therefore, we 
conclude that the record does not demonstrate that the Petitioner is a member of the professions 
holding an advanced degree. 
B. Eligibility as an Individual with Exceptional Ability 
As noted above, 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)(ii). When a petitioner has satisfied at least three of the six criteria, a final merits 
determination concerning the petitioner's eligibility is still required per the two-part adjudication 
framework established in Kazarian v. USC IS, 596 F .3d 1115 (9th Cir. 2010). We consider the totality 
of the record to determine if a petitioner has demonstrated, by a preponderance of the evidence, that it 
has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. In the final merits analysis, the quality of the evidence must be evaluated. Matter of 
Chawathe, 25 I&N Dec. at 376. 
In response to the RFE and NOID, the Petitioner claimed eligibility as an individual with exceptional 
ability based on the following criteria under 8 C.F.R. § 204.5(k)(3)(ii): 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
[individual] has at least ten years of fit/I-time experience in the occupation for which 
he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
3 
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). 
After reviewing the evidence in the record, including evidence submitted in response to the RFE and 
NOID, the Acting Director determined that the Petitioner did not qualify as an individual with 
exceptional ability because she had not satisfied at least three of the six criteria under 8 C.F.R. § 
204.5(k)(3)(ii). 
The Acting Director analyzed the Petitioner's evidence for each of the criteria for eligibility as an 
individual with exceptional ability as follows: 
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). 
As noted above, the Petitioner submitted a copy of a bachelor's diploma in engineering sciences and 
a higher education diploma in pedagogical primary education. The Acting Director noted that the 
Petitioner's claimed area of exceptional ability was not specifically defined. As noted above, the 
petition lists the Petitioner's occupation as entrepreneur, the experience letters describe her experience 
as a nanny and teacher, and she did not submit a description of her proposed endeavor. The Acting 
Director concluded that the Petitioner's diploma in engineering sciences does not appear to be related 
to the Petitioner's claimed area of exceptional ability in childcare, and that the record does not include 
academic transcripts for either diploma. On appeal, the Petitioner identifies the field of her proposed 
endeavor as education but does not submit additional evidence in the form of an official academic 
record to demonstrate that her diplomas relate to the area of exceptional ability. We agree with the 
Acting Director's determination that the Petitioner has not met this criterion. 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
[individual] has at least ten years of fit/I-time experience in the occupation for which 
he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The record includes the following letters documenting the Petitioner's experience: 
• An undated letter signed by I I Principal of I I Preschool, 
attesting to the Petitioner's experience as a teacher from 201 7 to 2019. 5 
• A letter dated August 2019, signed by a attesting to the Petitioner's 
experience "from October 2013 for 1 year" caring for her child and performing 
housekeeping tasks. 
• A letter dated August 9, 2019, from _____ attesting to the Petitioner's 
experience as a part-time nanny "for about a year." 
5 The record includes a second letter from !Preschool. The second letter is dated August 11, 2021, and is 
signed by I Principal. The second letter is nearly identical in content to the letter signed by ____ 
4 
• An undated letter from _____ attesting to the Petitioner's experience as a 
nanny from September 2008 to July 2011. 
• An undated letter froml I attesting to the Petitioner's experience as a full-
time nanny from July 2017 to July 2019. 
• A letter dated August 9, 2021, signed by I attesting to the Petitioner's 
experience as a nanny, no dates provided. 
• A letter dated August 16, 2021, signed by _____ President of __ 
____ attesting to the Petitioner's experience as a teacher assistant "since 
October 2020." 
In the NOID and the decision, the Director and Actin Director only considered the letters of 
experience from Preschool, and I I They 
specifically noted that the letter from did not rovide any specific dates of employment 
or length of employment and the letter from Preschool also did not provide specific 
dates of employment. They also noted that the letter from I I documented 
employment that occurred after the filing of the petition. However, a petitioner must establish 
eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
Although the Acting Director did not consider the additional letters in her decision, this error is 
immaterial. Even if the additional letters are considered, the total amount of experience documented 
is less than 10 years. Only two of the letters state specific dates of employment and only one letter 
states that the employment was foll-time. Additionally, the letters from Preschool 
provide dates of experience that overlap with the Petitioner's claimed foll-time employment as a nanny 
for I where Ms.I lstates that she worked "ten hours each day." This inconsistency 
casts doubt on the Petitioner's claimed experience withl I Preschool. Inconsistencies 
must be resolved with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, at 591-92. 
On appeal, the Petitioner does not submit new evidence documenting her experience. The regulation 
at 8 C.F.R. § 204.5(g)(l) states, "Evidence relating to qualifying experience or training shall be in the 
form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed ... or of the training received." 
As the record does not include this regulatory prescribed evidence of the Petitioner's qualifying 
experience, we cannot determine that she has at least 10 years of foll-time experience in the 
occupation. Therefore, this criterion has not been met. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner asserts that the field of endeavor does not require a license but "comparable evidence 
[ establishing] that the [Petitioner] possesses a degree of expertise that is significantly above that 
ordinary [sic] encountered in the field should be considered." The Acting Director determined that 
the Petitioner did not meet this criterion and we agree. The Petitioner did not identify or describe the 
field of her proposed endeavor with the initial filing or in response to the RFE and NOID. Although 
on appeal she states that the field of her proposed endeavor is education, she does not submit evidence 
5 
demonstrating that her expertise is significantly above that encountered in the field of education. 
Further, she did not submit evidence to support her assertion that a license is not required for the 
occupation of her proposed endeavor in education. Therefore, this criterion has not been met. 
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 has made no assertion of eligibility regarding this criterion and submitted no evidence. 
Therefore, this criterion has not been met. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner has made no assertion of eligibility regarding this criterion and submitted no evidence. 
Therefore, this criterion has not been met. 
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). 
The Acting Director considered the letters documenting the Petitioner's experience in childcare. She 
noted that the letters discuss the Petitioner's duties and responsibilities and commend her work, but 
do not offer specific examples of how her work has been recognized as a significant contribution to 
the field of childcare. She concluded that the Petitioner had not met this criterion to establish that she 
is an individual with exceptional ability. 
In response to the RFE, the Petitioner provided the following certificates in support of this criterion: 
• Certificate of Achievement, Bug Busting in Early Care and Education Settings, earned 
August 1, 2021, 
• Certificate of Completion, Mandated Reporter Training: Identifying and Reporting 
Child Abuse and Maltreatment, earned December 12, 2020. 
Although the Acting Director did not discuss these certificates, this error is immaterial. As noted 
above, a petitioner must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12). Both 
certificates were issued after the filing of the petition on June 17, 2020. Further, neither certificate 
demonstrates a significant contribution to the field. Rather, both appear to represent completion of 
mandatory requirements for employment in childcare. 
On appeal, the Petitioner does not submit new evidence of her eligibility under this criterion. 
Therefore, this criterion has not been met. 
6 
The record demonstrates that the Petitioner is qualified and experienced in the field of childcare. 
However, this alone is insufficient to establish that the Petitioner qualifies as an individual of 
exceptional ability in the field of education. The Petitioner has not established that she possesses a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 
The Petitioner has not shown that she is as an advanced degree professional or an individual of 
exceptional ability. Therefore, the Petitioner has not demonstrated and the documentation in the record 
does not establish eligibility for the underlying EB-2 classification. 
As explained in the legal framework above, 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 the Petitioner has not established this threshold issue, the remainder of the Petitioner's 
arguments need not be addressed. It is unnecessary to analyze any remaining independent grounds 
when another is dispositive of the appeal. Therefore, we decline to reach whether she meets the first 
prong on national importance, or the second and third prongs under the Dhanasar framework. See 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds 
when another independent issue is dispositive of the appeal); 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). 
Even if we had addressed the remaining issues and arguments, we still would have dismissed this 
appeal. As noted above, the Director requested that the Petitioner submit a detailed description of her 
proposed endeavor in both the RFE and NOID. Despite these two opportunities, the Petitioner did not 
provide the requested detailed description. On appeal, the Petitioner still does not provide a 
description but states for the first time that she "is seeking employment ... as an assistant teacher in 
the field of education." The purpose of the RFE is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 
§§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). As in the present matter, 
where 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. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). 
III. CONCLUSION 
As the Petitioner has not established that she qualifies for the underlying EB-2 classification, she has 
not established that she is eligible for or otherwise merits a national interest waiver. The appeal will 
be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
7