dismissed EB-2 NIW Case: Finance And Administration

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 18, 2023 In Re: 27416165 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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. 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner 
also seeks anational interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. 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 of 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. 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) 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: 
(A) An official academic record showing that the [noncitizen] 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 [noncitizen] has at least ten years of full-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the [noncitizen] has commanded a salary, or other renumeration 
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. 
8 C.F.R. § 204.5(k)(3)(ii). 
In determining whether an individual has exceptional ability under section 203(b)(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "If the above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
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examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 l&N Dec. at 376. 
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 eligibility for 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 USCIS may, as matter of discretion2, 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 Petitioner proposes to work in the United States as an administrator and financial analyst. He 
earned a diploma specializing in administration from Universidade~-------~in Brazil 
in 2020. 
The Director did not make a determination as to the Petitioner's eligibility for the EB-2 classification 
but found that the Petitioner did not establish that a waiver of the requirement of a job offer, and thus 
a labor certification, would be in the national interest. 
A. Individual of Exceptional Ability 
The Petitioner asserted that he is eligible for the EB-2 classification as an individual of exceptional 
ability having met three of the six exceptional ability criteria, specifically 8 C.F.R. § 
204.5(k)(3)(ii)(A), (C) and (F). In a request for evidence notice, the Director indicated that the 
Petitioner satisfied one criterion, official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A). For the 
reasons discussed below, we do not agree with the Director that the Petitioner met this criterion. 
Furthermore, the record does not satisfy at least three of the six exceptional ability criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii).3 
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 of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner submitted a copy of his foreign language diploma from Universidadel~--~ 
lin Brazil accompanied with an English translation, an English translation of his academic 
transcripts, and an evaluation of his academic credentials. However, the Petitioner did not submit a 
2 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). 
3 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
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copy of his original untranslated academic transcripts corresponding to the English translation. The 
Petitioner is required to submit a copy of documents accompanied by a full English language 
translation. See 8 C.F.R. § 103 .2(b)(3). English language translations may not be provided in lieu of 
foreign language documents. Without acopy ofthe Petitioner's untranslated academic transcripts, the 
Petitioner has not submitted documentation meeting the evidentiary requirements for "official 
academic record" in order to demonstrate the Petitioner's eligibility for the EB-2 classification. 8 
C.F.R. § 204.5(k)(3)(i). 
The Petitioner has not met the plain language of the 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 this criterion, the Petitioner submitted a foreign language professional statement 
accompanied with an English translation. The Petitioner's English translation includes the statement, 
"I hereby declare that this translation is faithful to the original document." However, the document 
does not include the required certification of competence. See 8 C.F.R. § 103 .2(b)(3). Furthermore, 
we note errors in the translation, such as incorrectly transcribing dates, that detract from the credibility 
of the translation. Because the Petitioner did not submit a properly certified English language 
translation of the professional statement, we cannot meaningfully determine whether the translated 
material is accurate and thus supports his claims in support of this criterion.4 . 
As previously discussed, "foreign language documents must be accompanied by a full English 
language translation." 8 C.F.R. § 103.2(b)(3). The translator must certify that the English language 
translation is complete and accurate, and that the translator is competent to translate from the foreign 
language into English. Id. Without a certified English translation, we are unable to determine the 
evidence's relevance and reliability on the issue of whether the Petitioner has a license to practice his 
profession or is certified in his occupation. 
Had the Petitioner submitted the required English translation for the professional statement, it would 
nevertheless be insufficient to meet the criterion. The professional statement appears to indicate that 
the Petitioner is registered in the profession of administration by the Federal Council of 
Administration. The Petitioner asserts this professional statement "was issued by the main supervis01y 
body for the Administration professionals in Brazil, and it certifies that [he is] able to exercise the 
profession according to Brazilian laws." However, the Petitioner did not submit evidence supporting 
his claims, nor does the record contain documentation from the Federal Council of Administration 
indicating that the Petitioner is licensed or certified to practice his profession. Without documentary 
evidence to support the claims, the Petitioner's assertions will not satisfy his burden of proof. 
The Petitioner also submitted foreign language certificates to show his eligibility for this criterion. 
However, the certificates are not accompanied by full English translations. Without the requisite full, 
4 In support of this criterion, the Petitioner also submitted foreign language certificates. Like the other documents in the 
record, these too lack properly certified English translations. Moreover, we note that, absent more, certificates showing 
class completion do not demonstrate the Petitioner has a license or certification to practice a particular profession under 
this criterion. 
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certified English language translations of the foreign language certificates, we are unable to consider 
their relevance and reliability in meeting this criterion. 
The record does not satisfy 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 indicates he meets this criterion based on his work with his previous employer, □
I I He submitted a letter of support and an honor certificate, both issued by 
._________ _. The letter and certificate show that the Petitioner's employer valued the 
Petitioner's services and recognized the Petitioner's financial management skills helped his 
employer's business. However, they do not demonstrate how the Petitioner's services had an impact 
or extended beyond his employer, at a level that the Petitioner has been recognized for achievements 
and significant contributions to his industry or field. The Petitioner has not established that he meets 
the criterion. 
Since the Petitioner has not established that he meets at least three of the evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) through (F), we need not conduct a final merits analysis to determine whether the 
evidence in its totality shows that he is recognized as having a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). Nevertheless, 
we advise that we have reviewed the record in the aggregate and conclude that it does not support a 
finding that the Petitioner has established the recognition required for classification as an individual 
of exceptional ability. 
For the reasons discussed, the Petitioner has not established his eligibility for EB-2 classification. 
B. The Proposed Endeavor 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education.5 In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Matter of Dhanasar, 26 l&N Dec. at 889. 
The Director found that that the Petitioner did not establish that his proposed endeavor is of substantial 
merit and therefore is not eligible for a national interest waiver as a matter of discretion. On appeal, 
the Petitioner asserts that the Director did not thoroughly review the evidence and provides a general 
argument that he meets al I three Dhanasar prongs. 
Initially, the Petitioner provided little detail concerning his proposed endeavor. In his Form 1-140, he 
stated that he would work as an administrator and financial analyst. He included a statement 
explaining that he would be "available to work at any time in companies based in the United States .. 
5 See generally 6 USCIS Policy Manual F.5(0)(1), https://www.uscis.gov/policymanual. 
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." with a goal "to work in the areas of [f]inance and [p]roject [m]anagement." In his personal plan, 
the Petitioner stated, "Find a job that I identify myself with and that pays me well in the finances or 
project management areas." The Petitioner asserted that his "services can serve as a key competitive 
advantage for companies to overcome the new challenges of the economic recovery that the country 
is facing." 
In support of his petition, he submitted printouts of many job opportunities for varying positions, 
including financial analyst, account manager, product manager, payroll manager, finance recruiter, 
senior analyst revenue manager, business analyst, accounts payable clerk, finance strategist for 
banking and financial products, budget analyst, investment consultant, real estate finance specialist, 
banking account specialist, and personal banker. The Petitioner did not sufficiently explain the 
relevance of these separate job opportunities in relation to his proposed endeavor. This is important, 
as we held in Dhanasar that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." Matter of Dhanasar, 26 l&N Dec. at 889. 
The Director issued a request for evidence notice advising the Petitioner that, among other 
shortcomings, he provided insufficient detail about his specific proposed endeavor. In his response to 
the request for evidence notice, the Petitioner submitted further evidence relating to his proposed 
endeavor, including his statement and a business plan describing the establishment a new business 
namedl I The business plan states, i Iis a brand new technology company 
focused on energy solutions" by using wind turbines for clean and renewable energy. The business 
plan indicates that the Petitioner would work as the business's chief executive officer with 
responsibility for its management, commercial activities, and commanding the business's operations 
in the United States. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit sought at 
the time the petition is filed. 8 C.F.R. § 103.2(b)(1). As explained by the Director, the purpose of the 
request for evidence notice is to elicit further information that clarifies whether a petitioner has 
established eligibility for the benefit sought as of the time the petition was filed. See 8 C.F.R. § 
103.2(b)(8). When responding to a request for evidence notice, a petitioner may not make material 
changes to the petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). The Petitioner cannot materially 
change the proposed endeavor after submitting his petition. If significant, material changes are made 
to the initial request for approval, a petitioner must file a new petition rather than seek approval of a 
petition that is not supported by the facts in the record as at the time of filing. 
The Petitioner's reply to the request for evidence explaining his plan to establish a new business 
constituted a materially different endeavor and changed the focus of the Petitioner's endeavor from 
what he indicated in his petition. The Petitioner did not acknowledge or explain this material change. 
The Petitioner's plan to establish anew business will not be considered in this decision, and we limit 
our decision to the proposed endeavor stated in the Petitioner's initial petition, 
The Petitioner initially proposed working in the field of administration and finance for U.S. companies 
submitting more than 30 different job postings he may seek to pursue. The job postings relate to a 
range of fields, including an accounts payable clerk, an accountant, a retail finance manager, a bank 
investment consultant, a real estate finance specialist, recruitment, and consulting work. The record 
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lacks evidence demonstrating the virtues of these different and diverse fields. The record developed 
at the ti me of fi Ii ng demonstrated that the Petitioner's proposed endeavor was essentially a job search. 
And the purpose of a national interest waiver is not to facilitate a petitioner's U.S. job search. 
Therefore, the Petitioner has not established by a preponderance of the evidence, that each of these 
potential fields of endeavor have substantial merit. Therefore, we agree with the Director that "the 
[P]etitioner has not submitted a detailed description of the proposed endeavor and documentary 
evidence demonstrating that the proposed endeavor has substantial merit .... " 
Upon de novo review, we agree with the Director that the Petitioner has not established that the 
proposed endeavor is of substantial merit. 
Because the record does not sufficiently establish the substantial merit of his proposed endeavor, as 
required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstrated 
eligibility for a national interest waiver. Since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding his eligibility under the second and third prongs. 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 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
Ill. CONCLUSION 
As the record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability, or that the Petitioner has met the requisite first prong of the Dhanasar 
analytical framework, we find that the Petitioner is not eligible for anational interest waiver as amatter 
of discretion. 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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