dismissed EB-2 NIW Case: Education Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 23372937 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 06, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an education administrator, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree and 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 that the Petitioner did not 
establish eligibility for a national interest waiver under the Dhanasar framework. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Christa 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. 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. 
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)(i i)(A)-(F).1 Meeting 
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). 
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 l&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 discretion3, 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 Director issued a request for evidence (RFE) containing conflicting and confusing statements 
about whether the Petitioner had established eligibility as an advanced degree professional. In 
addition, the Director did not provide analysis of the Petitioner's eligibility for the underlying EB-2 
classification when issuing the decision. In our de nova review, we conclude that the Petitioner has not 
established he is a member of the professions holding an advanced degree or an individual of exceptional 
ability. While we do not discuss each piece of evidence individually, we have reviewed and considered 
each one. 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present 
"[a]n official academic record showing that the [individual] 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 [individual] 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 reflects that in February 2019, the Petitioner earned a Brazilian Tftulo de Licenciado in 
pedagogy. Although the Petitioner provided an academic equivalency evaluation which states that the 
Petitioner's degree is the foreign equivalent of a four-year U.S. bachelor's degree in early childhood 
education, the record does not support this conclusion. Rather, the academic records accompanying 
2 USCIS 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). 
2 
the Petitioner's certificate state that he began his studies in 2017, which indicates that his Tftulo de 
Licenciado is a two-year credential. We may, in our discretion, use an evaluation of a person's foreign 
education as an advisory opinion. Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). 
However, where an opinion is not in accord with other information or is in any way questionable, we 
may discount or give less weight to that evaluation. Here, the Petitioner's academic record indicates 
that he earned a Tftulo de Licenciado after only two years of study. Therefore, we question the 
accuracy of the academic evaluation and conclude that it holds little probative value in this matter. 
We reviewed the AACRAO EDGE database to determine whether the Petitioner's foreign education 
is comparable to any U.S. degree. The AACRAO EDGE database is a reliable resource concerning 
the U.S. equivalencies of foreign education. For more information, visit https://www.aacrao.org/edge. 
According to the database, a Tftulo de Licenciado is a teaching qualification awarded after two to four 
years of academic study. The database does not indicate that a "teaching qualification" is the 
equivalent of a bachelor's degree. Moreover, as the Tftulo de Licenciado may be awarded after only 
two years of study, we conclude that it is not the foreign equivalent of a U.S. bachelor's degree, which 
is typically awarded after four years of study.4 For this additional reason, the evidence does not 
demonstrate that the Petitioner's has the equivalent of a U.S. bachelor's degree. 
Without a minimum of a U.S. bachelor's degree or foreign equivalent, the Petitioner cannot qualify as 
an advanced degree professional, regardless of whether he has at least five years of experience. The 
Petitioner earned his degree in 2019; therefore, even if we determined that his degree is the equivalent 
of a U.S. bachelor's degree, he would not be able to establish that he has at least five years of post­
baccalaureate experience. Accordingly, the Petitioner has not established that he qualifies as an 
advanced degree professional. 
B. Evidentiary Criteria for Exceptional Abi I ity 
As the Petitioner has not established his eligibility as an advanced degree professional, we provide the 
following analysis of his eligibility under the evidentiary criteria for exceptional ability. 
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) 
The record demonstrates that the Petitioner earned a two-year teaching qualification in pedagogy. 
Therefore, the Petitioner meets this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the alien 
has at least ten years of full-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Petitioner signed under penalty of perjury a Form ET A 750 Part B (ET A) that I ists his education and 
work experience. According to the ETA, the Petitioner concurrently works four full-time (40 hours per 
4 Because the evidence does not indicate that the Petitioner earned a Tftulo de Licenciado after four years of study, we 
need not analyze whether a four-year Tftulo de Licenciado would be the equivalent of a U.S. bachelor's degree. 
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week) jobs and has done so since 2017. The Petitioner's resume also states that he concurrently works 
four jobs. His employment letters do not state whether he works full-time or part-time and therefore, they 
do not comply with the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B).5 Working four 40-hour-per-weekjobs 
amounts to 160 hours of work per week. As there are 168 hours in one week, working 160 of them 
appears to be physically impossible. Without further evidence or explanation concerning the Petitioner's 
work hours, we conclude that this evidence is not credible. 
We acknowledge the Petitioner's assertion that he began working in 1999 when he founded his own 
company, and that he has continued to work through the founding of additional 
companies. However, his business ownership documents do not necessarily serve as evidence of work 
experience in education administration. Although a self-employed petitioner may need to demonstrate 
his work experience through additional documentation, such petitioners must still establish by a 
preponderance of the evidence that they have at least ten years of full-time experience in the occupation. 
As stated, the employment letters appear to be signed by the Petitioner's relative and they do not state 
whether the Petitioner worked full-time or part-time. Accordingly, the evidence does not sufficiently 
demonstrate that the Petitioner meets this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
In support of his eligibility under this criterion, the Petitioner provided a Brazilian civil identity card from 
the Federal Board of Educators and Pedagogues (CFEP). The certificate of registration document states 
that the Petitioner, "a [p]edagogue, has been registered with [CFEP] ... since 8-19-2019 ... [T]his 
registration is active and there are no financial debts." On its website, CFEP describes itself as a non­
profit institution "which aims to regulate and recognize professionals in the area of Education ... Its 
main objective is the recognition of the professional educator and associated pedagogue .... " The 
evidence does not suggest that this identity card and registration is a license or certification to practice the 
teaching profession or that Brazilian state or national law requires a license or certification to teach. In 
addition, the Petitioner registered his identity with CFEP in 2019, which suggests that prior to 2019, the 
Petitioner performed his employment duties without this identity card. Accordingly, the evidence does 
not establish the Petitioner has a license or certification to practice his occupation. 
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 not submitted evidence for our consideration under this criterion. Therefore, the 
Petitioner has not established el igibi I ity under this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner submitted his CFEP civil identity card, registration document, and information about CFEP 
as evidence for our consideration under this criterion. The Petitioner did not provide independent and 
5 In addition, the Petitioner and the author of the letters share an identical last name. As such, the employment letters 
appear to be signed by a relative of the Petitioner. While this does not necessarily diminish the credibility of the letters, 
without further explanation, the apparent familial relationship is a relevant consideration in the totality of circumstances. 
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objective evidence to establish the relevance and significance of registering his identity with CFEP. 
Here, it appears the Petitioner received the document after registering and meeting his financial 
obligations. It cannot be concluded from the documents provided that the registration document is 
evidence of membership in a professional association, as the record does not demonstrate what 
professional qualifications, if any, the CFEP considers prior to issuance of the document. 
Accordingly, we conclude that the Petitioner has not established that he satisfies this criterion. 
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 Petitioner provided numerous letters of recommendation in support of his eligibility under this 
criterion. The authors of the letters praise the Petitioner's personal and professional qualifications, but do 
not sufficiently describe any recognition for achievements and significant contributions to the industry or 
field. For instance, mentioned that the Petitioner increased revenue and student 
enrollment for his organizations, but her letter does not describe how these achievements affected the 
field of education. Likewise, ____________________ describe 
the results the Petitioner achieved for individual students, but do not provide detail suggesting that he 
achieved or contributed anything to the field of education as a whole. I !writes that the 
Petitioner: 
[P]romoted the fusion and integration with the colleges existing portfolio of courses to 
train students for the job market as a whole, and not just for the Metropolitan Hospital. 
Those students who graduated from the Metropolitan Education Center are prominent 
professionals renowned for the excellence in learning and training offered by his college. 
While this statement supports a finding that the Petitioner impacted his students and that they became 
productive members of society, it does not provide sufficient detail concerning the Petitioner's impact to 
the field of education. Further, the record contains little independent, objective, and corroborating 
evidence to substantiate her claims that the Petitioner's graduates are "are prominent professionals 
renowned for the excellence in learning and training." Similarly.I !attests to 
the quality of the Petitioner's private teaching institutions and their positive reputation, as well as how the 
Petitioner positively impacts his institutions; however, the author does not describe how these constitute 
achievements and significant contributions to the industry or field. 
The Petitioner provided numerous articles and industry reports concerning education administration and 
the importance of education. However, none of these materials recognize the Petitioner for achievements 
and significant contributions to the industry or field. 
Accordingly, the evidence does not establish the Petitioner qualifies under this criterion. 
Summary of Exceptional Ability Determination 
The record does not support a finding that the Petitioner meets at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Rather, we conclude that the evidence supports a 
finding of eligibility under only one criterion. Therefore, the Petitioner has not established his eligibility 
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as an individual of exceptional ability under section 203(b)(2)(A) of the Act. As the Petitioner has 
satisfied only one criterion, a final merits determination is not required. Nevertheless, we conclude 
that the record does not establish the Petitioner's experience is beyond that which is ordinarily 
encountered in the profession. 
Ill. CONCLUSION 
The Petitioner has not sufficiently demonstrated that he qualifies as a member of the professions holding 
an advanced degree or as an individual of exceptional ability under section 203(b)(2)(A) of the Act. 
Accordingly, the Petitioner has not established eligibility for the immigration benefit sought. See 
section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 l&N Dec. 127, 128 (BIA 2013). 
Because qualification for the underlying EB-2 classification is a threshold issue and dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning el igibi I ity 
under the Dhanasar framework. See I NS 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). 
ORDER: The appeal is dismissed. 
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