dismissed EB-2 NIW Case: Education Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 20478160 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 09, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an education administrator, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree , as well as a national interest waiver of the job 
offer requirement attached to this EB-2 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 
qualify for classification as an advanced degree professional or an individual of exceptional ability , 
and that he had not established that a waiver of the required job offer, and thus of the labor certification, 
would be in the national interest. 
On appeal, the Petitioner submits a brief asserting that he is an advanced degree professional and is 
eligible for a national interest waiver. 
In these proceedings , it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. Because this classification requires that the 
individual's services be sought by a U.S. employer , a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines an advanced degree to mean the following: 
Any United States academic or professional degree or a foreign equivalent degree 
above that of a baccalaureate. 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. If a doctoral degree 
is customarily required by the specialty, the individual must have a United States 
doctorate or a foreign equivalent degree. 
The regulation at 8 C.F.R. § 204.5(k)(3)(i) sets forth the following criteria an individual must meet in 
order to qualify as a professional holding an advanced degree: 
(A) An official academic record showing that the individual has a United States 
advanced degree or a foreign equivalent degree; or 
(B) An 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. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which 
an individual must meet in order to qualify as an individual of exceptional ability in the sciences, the 
arts, or business: 
(A) 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; 
(B) Evidence in the form of letter( s) from current or former employer( s) showing that 
the alien has at least ten years of foll-time experience in the occupation for which he or 
she is being sought; 
2 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Only those who demonstrate "a degree of expertise significantly above that ordinarily encountered" 
are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign 
national's proposed endeavor has both substantial merit and national importance; (2) that the foreign 
national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be 
beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 
II. ANALYSIS 
The Director found that the Petitioner did not have an advanced degree or a foreign equivalent 
baccalaureate degree followed by at least five years of progressive experience in the specialty under 
8 C.F.R. § 204.5(k)(3)(i) and did not meet at least three of the six regulatory criteria for exceptional ability 
at 8 C.F.R. § 204.5(k)(3)(ii). 
A. Evidentiary Criteria for Advanced Degree 
The Petitioner in this case earned a foreign master's degree in business administration in 2007 from 
I I and a fore ign n baccalaureate degree in social communication from 
I School of Social Communication in 1996. However, the 
Petitioner does not allege, and did not submit evidence to indicate, that his business administration 
degree is a foreign equivalent degree above that of a United States baccalaureate. Therefore, the issue 
on appeal is whether the Petitioner has a foreign equivalent to a United States baccalaureate degree 
followed by five years of progressive experience in education administration, the Petitioner's 
specialty. 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 
We agree with the Director's finding that while the Petitioner's degree in social communication is a 
foreign equivalent to a United States baccalaureate degree, he did not establish he had five years of 
progressive experience in his specialty. The Director determined the Petitioner's letters of 
employment only noted his last held executive position but did not specify how long the Petitioner 
had held the last known executive positions and did not provide sufficient detail to show the Petitioner 
obtained progressive work experience in his specialty. On appeal the Petitioner argues he has 22 years 
of progressive experience in education administration and therefore qualifies as an advanced degree 
professional. 
The record includes two academic evaluations, from ________ and I finding 
the Petitioner's foreign baccalaureate degree in social communications followed by "more than five 
years of full-time work experience in the field of education administration" is the foreign equivalent 
of a master's degree in education administration. The academic evaluations state that their 
determinations were based on an accurate reading of the work experience documents submitted by the 
Petitioner of which there is at least one inconsistency. Throughout the record, the Petitioner claims 
he held dual em loyment from July 2017 to January 2018 as an executive director at bothl I 
and I I However, the Petitioner provided a service agreement from 
which states that it hired the Petitioner through his company] I 
and classified the Petitioner as a contractor. This inconsistency is not explained in the record 
and casts doubt on the Petitioner's submitted work experience documentation. Doubt cast on any 
aspect of the Petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
As noted by the Director, the letters from the Petitioner's previous employers, I and 
I I only state the Petitioner last held an executive position and provide a list of 
macro assignments performed by the Petitioner. The letter froml I states the Petitioner 
was employed from August 2, 1999, until February 1, 2011, and his "last executive position was as a 
Marketing Manager." The letter froml I states the Petitioner was employed 
from February 11, 2011, until April 8, 2015, and his last executive position was as a sales director. 
However, neither letter provides enough detail to show the Petitioner obtained progressive experience 
in education administration in these positions as the letters do not state how long the Petitioner was an 
executive, whether he held any other positions during his employment from which he was promoted 
or given greater responsibility, or provide sufficient detail of his work duties to show progressive 
experience in his specialty. 
Additionally, the Petitioner claims he earned progressive experience as an education administration 
through his companies in the United States. However, the Petitioner has not provided evidence to 
show that his employment atl I orl I provided 
progressive ex erience in education administration. While the Petitioner's resume indicates he was a 
shareholder at from October 2018 to November 2018, and a shareholder 
and executive director a from January 2019 to present, his assertions are 
not supported by documentary evidence. The Petitioner only provided incorporation documents from 
the State of Florida for both companies as proof of his obtaining progressive experience. However, 
4 
none of these documents specify his job duties, work achievements, or provide details into his business 
activities at these companies. 
While the Petitioner has documented some employment in the field of education administration, the 
submitted documentary evidence does not provide sufficient detail to show that he has five years of 
progressive work experience and the record contains some inconsistent information regarding his job 
titles and work history which casts doubt on the reliability and sufficiency of his submitted 
documentation. Therefore, the Petitioner has not established that he meets this regulatory criterion. 
B. Evidentiary Criteria for Exceptional Ability 
As discussed below, a review of the record indicates that the Petitioner does not meet at least three of the 
relevant evidentiary criteria. 
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 Petitioner submitted a diploma in social communication from 
I I School of Social Communication in 1996. Accordingly, the Petitioner has established that he 
meets this regulatory criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
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) 
The Director determined the Petitioner did not meet this criterion because submitted employment letters 
from I and encompassing 16 years of his claimed 22 years of 
employment, were not sufficient to establish the Petitioner has at least 10 years of full-time experience in 
the occupation sought by the Petitioner. The Director found the letters only stated the Petitioner's last 
position was an executive position but did not specify the dates of employment for his last known position 
or any other positions within the organization which would show he obtained full-time experience in the 
occupation for which he is being sought. 
On appeal, the Petitioner argues the Director erroneously imposed a stricter standard for the requirement 
under 8 C.F.R. § 204.5(k)(3)(ii)(B) by finding the submitted employment letters do not provide a 
description of the duties performed by the Petitioner. The Petitioner argues he has 22 years of experience 
in the field and therefore qualifies under this criterion. We disagree. The Director noted that the Petitioner 
must not just who that he has at least 10 years of full-time experience but that the experience must be in 
the occupation for which the Petitioner is being sought. The employment letters at issue stated the 
Petitioner's last position was in an executive position but did not provide enough detail to show the 
executive position or the Petitioner's job duties provided full-time experience in education administration. 
Since the Petitioner has not demonstrated he has at least 10 years of full-time experience in education 
administration, he has not established that he meets this regulatory criterion. 
5 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Petitioner did not claim to meet this criterion. Therefore, the Petitioner has not established that he 
meets this regulatory criterion. 
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 Director determined the Petitioner did not meet this criterion because the submitted wage surveys, 
were only partially translated and therefore not in compliance with 8 C.F.R. § 103.2(b)(3) and the 
record otherwise lacked evidence that would establish the Petitioner's alleged remuneration was 
comparable to the wage survey. However, neither the Petitioner's appellate brief nor the evidence 
submitted on appeal address his qualification under this criterion. When dismissing an appeal, we 
generally do not address issues that were not raised with specificity on appeal. Issues or claims that 
are not raised on appeal are deemed to be "waived." 3 Since the Petitioner did not address this issue 
with specificity on appeal, we deem the issue waived and find the Petitioner has not established that he 
meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner provided evidence of membership in the Associacao Brasileira de Educacao a Distancia 
(ABED) as well as the mission statement for ABED. As such, the submitted evidence meets 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 submitted four letters of reference in support of this criterion. However, the Director 
found these letters did not establish his achievements and contributions to his employers constituted 
an achievement or significant contribution to his industry or field. However, neither the Petitioner's 
appellate brief nor the evidence submitted on appeal address his qualification under this criterion. 
Since the Petitioner did not address this issue with specificity on appeal, we deem the issue waived 
and find the Petitioner has not established that he meets this regulatory criterion. 
Summary 
The record supports the Director's finding that the Petitioner did not meet at least three of the six 
regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). In addition, the regulation at 
8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if the above standards 
"do not readily apply to the beneficiary's occupation." In this case, the Petitioner has not demonstrated 
3 See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies from circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 
F .3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief). 
6 
that the standards at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his occupation, or that any of 
his documentation is "comparable" to the specific objective evidence required at 8 C.F.R. § 
204.5(k)(3)(ii)(A) - (F). 
The Petitioner in this matter has not established eligibility as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. As previously outlined, the Petitioner must show that he is either an 
advanced degree professional or possesses exceptional ability before we reach the question of the 
national interest waiver. The Petitioner did not demonstrate that he is an advanced degree professional, 
and as previously discussed, has not shown that he meets regulatory criteria for classification as an 
individual of exceptional ability. 
C. National Interest Waiver 
Because the Petitioner has not first established he is an advanced degree professional or an individual 
of exceptional ability, further analysis of his eligibility for a national interest waiver under Dhanasar 
would serve no meaningful purpose. 4 
III. CONCLUSION 
The Petitioner has not demonstrated he is an advanced degree professional. 8 C.F.R. § 204.5(k)(3)(i). 
Additionally, the Petitioner has not demonstated he meets at least three of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). 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. 
4 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, USCIS may, as matter of 
discretion, grant a national interest waiver. 
7