dismissed EB-2 NIW Case: Film And Video Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 22221609 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 14, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a director and producer, 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 Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but 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 asserts he 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; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 
2010). 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 ( emphasis added). 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 of job 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. 
Section 101(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of 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 alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien 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 alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
Furthermore, 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 
2 
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. See Id. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
A. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. 3 While we may ultimately agree with the Director that the 
Petitioner has not established eligibility for a national interest waiver under the Dhanasar analysis, for 
the reasons discussed below, the Petitioner has also not demonstrated that he is an advanced degree 
professional. 
The Petitioner has established that he holds the equivalent of a U.S. bachelor's degree. The issue here 
is whether he has demonstrated five years of post-baccalaureate experience as required by the 
regulations at 8 C.F.R. § 204.5(k)(2) and (3)(i)(B). 
The Petitioner provided a variety of documents as evidence that he meets the above regulations, 
including two letters, an education and experience evaluation, his resume, and a copy of his "Labor 
and Social Security" document from the Ministry of Labor and Employment. Regarding the letters, 
one is from an outside accountant for one of the Petitioner's businesses and the other is from his 
business partner, who is the co-owner of the company with the Petitioner. 4 However, the regulation 
requires "letters from current or former employer(s)" and the Petitioner has not established how the 
signatory of either letter qualifies as an "employer." Id. Further, neither one addresses whether the 
position was full-time. This is particularly relevant given the project-oriented nature of the Petitioner's 
work in advertising and video production. 
Regarding the evaluation, the evaluator concludes that based upon a combination of the Petitioner's 
foreign bachelor's degree and professional experience, he holds the equivalent of a U.S. Master of 
Fine Arts degree in directing. The evaluator, however, does not claim to have reviewed any 
employment letters to establish the Petitioner's work history or experience, as required by 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 5 Where an opinion is not in accord with other information, or is in any way 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
3 As the Petitioner does not claim to be an individual of exceptional ability, we will not address it fmiher. 
4 The signatory of the letter is the co-owner of the business who is also his mother. 
5 The evaluator indicated that he reviewed the Petitioner's diploma and resume. 
3 
questionable, we may discount or give less weight to that evaluation. See Matter of Sea, Inc., 19 l&N 
Dec. at 820. 
We also note a number of discrepancies between information in the letter from his business partner 
and co-owner and other documents in the record. For example, the letter lists his dates of employment 
as April 2002 until January 2010. However, his resume lists his end date as January 2009 and the 
"National Registry of Legal Entities" document from the Federal Republic of Brazil confirms that the 
company was closed as of January 27, 2009. In addition, his resume and the "Labor and Social 
Security" document indicate that the Petitioner was also working for two different companies at 
various times between April 2002 and May 2007 (although his resume indicates it was three other 
companies), and the letter makes no mention of this other employment. 6 It is also unclear why the 
"Labor and Social Security" document does not include any employment after May 2, 2007. The 
Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For all of the above reasons, the record does not establish that the Petitioner has at least five years of 
post-baccalaureate experience in the specialty and, thus, we cannot conclude that he qualifies for the 
underlying EB-2 visa classification as an advanced degree professional. Since this issue is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
the remaining issues. 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 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). 
ORDER: The appeal is dismissed. 
6 According to the "Labor and Social Security" document, the Petitioner held the positions of "assembly auxiliary" and 
"finalization assistant." 
4