dismissed EB-2 NIW Case: Financial Administration

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 04, 2024 In Re: 30627094 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a financial administrator, seeks classification as a member of the professions holding 
an advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this employment based second preference (EB-2) 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. See Flores v. Garland, 72 F.4th 85, 88 (5th 
Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) 
in concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner qualified for classification as an employment based second preference permanent 
immigrant and a discretionary waiver of the job offer requirement, and thus a labor certification was 
not merited upon the application of the analytical framework we first explicated in Matter ofDhanasar, 
26 I&N Dec. 884 (AAO 2016). The matter is now before us on appeal pursuant to 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 Christa'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. 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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines advanced degree to mean 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 and so permit 
classification as an EB-2 permanent immigrant. Progressive experience can be demonstrated by the 
Petitioner by providing letters from current or former employers showing that they have at least five 
years of progressive post-baccalaureate experience in the specialty. The regulation at 8 C.F.R 
§ 204.S(g)(l) requires letters from current or former employers include the name, address, and title of 
the writer, and a specific description of the duties performed. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(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 ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(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; 
(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. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 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. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. 
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Whilst 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, see supra. Dhanasar states that USCIS may as a matter of discretion grant a national interest 
waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-2 category 
if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national 
importance, (2) the noncitizen 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. CATEGORICAL INELIGIBILITY FOR EB-2 CLASSIFICATION 
In the first instance, we note the Director's request for evidence (RFE) requested the Petitioner provide 
evidence to demonstrate their categorical eligibility for classification as an EB-2 immigrant. We 
conclude the record as it is currently composed does not contain sufficient relevant, material, or 
probative evidence to demonstrate the Petitioner has earned a U.S. master's degree or its single source 
foreign equivalent or accrued at least five years of progressive post-baccalaureate experience after 
attaining a U.S. bachelor's degree or its single source foreign equivalent. So we conclude that the 
Petitioner is not qualified for EB-2 immigrant classification as an advanced degree professional. And 
the record does not contain sufficient evidence to establish that the Petitioner qualifies for EB-2 
immigrant classification as an individual of exceptional ability. So we conclude that the Petitioner is 
categorically ineligible for EB-2 immigrant classification. 
A. The Petitioner Has Not Sufficiently Demonstrated Eligibility For EB-2 Classification As An 
Advanced Degree Professional 
The evidence the Petitioner submitted into the 
record does not sufficiently establish the Petitioner's 
eligibility for EB-2 classification as a member of the professions holding an advanced degree. As 
stated previously, the regulation at 8 C.F.R. § 204.5(k)(2) defines advanced degree to mean 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 and so 
permit classification as an EB-2 permanent immigrant. Progressive experience can be demonstrated 
by the Petitioner by providing letters from current or former employers showing that they have at least 
five years of progressive post-baccalaureate experience in the specialty. The regulation at 8 C.F.R 
§ 204.S(g)(l) requires letters from current or former employers include the name, address, and title of 
the writer, and a specific description of the duties performed. 
The Petitioner has not submitted adequate documentation to demonstrate that they had accumulated 
at least five years of progressive post-baccalaureate work experience. In support of their progressive 
work experience, the Petitioner submitted letters from I I The 
initial letters did not contain the required description of the duties performed. In response to the 
request for evidence, the Petitioner submitted new letters, on letterhead, which contained the name, 
address, and title of the writer as well as a specific description of the duties performed. The letter from 
Ihowever, was not probative to the Petitioner's eligibility as an advanced degree professional 
because the duration of employment pre-dated the Petitioner's purported acquisition of their 
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bachelor's degree in administration on July 4, 2011. Only post-baccalaureate work experience can be 
considered to determine if an individual is an advanced degree professional. 
The Petitioner's new letter from I I was sufficient to document progressive experience 
between May 23, 2011 and February 7, 2012. 
But the Petitioner's new letter from I I introduced ambiguity and uncertainty due to its 
inconsistency with the letter froml lthe Petitioner submitted initially with the petition. The 
first letter indicated the Petitioner served as a vehicle financing manager between December 7, 2012 
and December 28, 2016. The letter submitted with the Petitioner's response to the RFE indicated the 
Petitioner's job title was manager of financing and contained an inexact and period of employment 
from December 2012 to February 2017 conflicting with the period of employment listed in the first 
letter. Moreover, the new letter contained reference to a different initial starting job title as a 
commercial operator and also conflicted with the employment history the Petitioner listed on the Form 
ETA 750B submitted initially with the Petition. These unexplained inconsistencies and discrepancies 
materially diminish the weight we ascribe to the Petitioner's submitted evidence. Doubt cast on any 
aspect of a petitioner's evidence may undermine the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988). So 
we cannot reliably determine the Petitioner's employment period. 
And the Petitioner's part-time employment with _______ is not material, probative, or 
relevant to an evaluation of the Petitioner's progressively responsible post-baccalaureate work 
experience because it commenced after the filing of the petition. A petitioner must establish eligibility 
for the benefit they are seeking at the time the petition is filed. See Matter ofKatigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 
176 (Assoc Comm'r 1998). 
Moreover, we harbor doubts as to whether the Petitioner has earned the single source equivalent of a 
U.S. bachelor's degree. The Petitioner purportedly finished a bachelor of administration degree from 
I on July 4, 2011. The Educational Database for 
Global Education (EDGE), created by the American Association of Collegiate Registrars and 
Admissions Officers (AACRAO), reflects that bachelor's degrees earned at accredited institutions of 
higher education in Brazil are the single source equivalent to a United States bachelor's degree if they 
are of either four or five years in duration, but programs of study of three years are not. The 
Petitioner's transcript reflects that they engaged in their course of study between 2003 and 2011. It is 
unclear, and the record does not contain documentation indicating, whether the Petitioner's course of 
study was three, four, or five years in duration. 
And the educational evaluation the Petitioner submitted from I I senior evaluator, United 
States Credential Evaluations, is not sufficiently probative because it concludes the Petitioner earned 
a master's degree in financial management upon evaluation of the combination of the Petitioner's 
education and work experience. The plain language of the regulation at 8 C.F.R. § 204.5(k)(2) states 
an advanced degree equivalency must consist of a single source degree, with no provision for 
substituting experience or combining lesser educational credentials with work experience. USCIS 
may, in its discretion, use as advisory opinion statements submitted as expert testimony. See Matter 
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of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). But the evaluation the Petitioner 
submitted relies upon a combination of a degree and work experience to reach its conclusion. It does 
not comply with the requirements of the regulations. So, it is not of sufficiently relevant, material, or 
probative value to evaluating if the Petitioner's claimed educational credential is an advanced degree 
or its single source foreign equivalent. 
Consequently, we are unable to determine if the Petitioner has earned the single source equivalent to 
a U.S. bachelor's degree and we withdraw the Director's conclusion to the contrary. And the record 
as it is currently composed does not contain sufficient relevant, material, or probative evidence to 
demonstrate the Petitioner has earned a U.S. master's degree or its single source foreign equivalent or 
accrued at least five years of progressive post-baccalaureate experience after attaining a U.S. 
bachelor's degree or its single source foreign equivalent. So we conclude the Petitioner has not 
demonstrated eligibility for classification in the employment based second preference permanent 
immigrant as an advanced degree professional. 
B. The Petitioner Is Not An Individual of Exceptional Ability 
The Director's decision did not evaluate whether the Petitioner demonstrated eligibility for EB-2 
classification as an individual of exceptional ability. But the Petitioner submitted evidence in their 
initial petition, the response to the RFE, and the appeal for us to consider their eligibility for EB-2 
permanent immigrant classification as a non-citizen of exceptional ability. Whilst it is not evident in 
the record whether the Petitioner's bachelor's degree in administration is the single source equivalent 
of a U.S. bachelor's degree, it is sufficiently evident that the Petitioner has earned a degree from a 
university relating to the claimed area of exceptional ability as contained in 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). And the Petitioner has submitted evidence in the form ofletter(s) from current 
or former employer(s) showing that they have at least ten years of work experience spanning pre and 
purportedly post baccalaureate periods of time in the occupation as contained in 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). Nevertheless, the remaining evidence in the record does not sufficiently 
demonstrate the Petitioner's eligibility for EB-2 nonimmigrant classification as an individual of 
exceptional ability. 1 
Evidence of 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 the assertion that they possess licensure or certification to perform the duties of a 
financial administrator, the Petitioner submitted a copy of their "Certificate of Registration and 
Current Professional Status" and "Professional Identity Card" issued by the Regional Administration 
Council of Minas Gerais, Brazil. But these documents are not persuasive to demonstrate the 
Petitioner's financial administrator license or certification. 
Licenses and certifications show that a person has the specific knowledge or skill needed to do a job. 
A license, generally conferred by an official government body, confers legal authority to work in an 
1 The Petitioner initially provided evidence to assert they commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii)(D), but then chose to abandon their pursuit of eligibility 
under that prong on appeal. 
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occupation. A certification, whilst not always required to work in an occupation, generally requires 
demonstrating competency to do a specific job. 
The licensure or certification submitted by the Petitioner appears to apply to a different profession or 
occupation than the one the Petitioner intends to undertake in the United States. The record reflects 
that the Petitioner's registration and professional identity are classified by the respective regulatory 
bodies as an "administrator." But the Petitioner intends to perform the duties in financial services. 
Although the field of administration is vast, the Petitioner's evidence does not adequately demonstrate 
that their licensure or certification as an "administrator" corresponds to their financial services 
occupation. 
In further support of their licensure or certification to perform the duties of a financial analyst, the 
Petitioner submitted a copy with translation of a certificate reflecting the Petitioner was approved for 
"CPA-1 O" certification from ANBIMA - Brazilian Association of Financial and Capital Market 
Entities. But these documents are not persuasive to demonstrate a financial license or certification. 
ANBIMA - Brazilian Association of Financial and Capital Market Entities is not an official 
government body. It is a trade organization representing institutions in Brazil operating in the financial 
and capital markets. The record does not contain an indication of the mandate or authority that 
ANBIMA exercises over the financial analyst occupation. And the record does not establish that the 
"CPA-1 O" certification is a licensure or certification related to financial analysis occupations. Publicly 
available information on the ANBIMA - Brazilian Association of Financial and Capital Market 
Entities indicates that the "CPA-1 O" is for bank or other financial institution professionals who 
distribute retail investment products from bank branches or service platforms irrespective to adhered 
to a certification code. The certification is also open to students, which also draws into question its 
applicability to and necessity for performance of the duties of a profession. The evidence in the record 
simply does not demonstrate how the Petitioner's "CAP-1 O" certification is related to performing the 
overarching duties of the Petitioner's profession or occupation. And the evidence in the record does 
not describe how the certification demonstrates the Petitioner's competency to perform their job 
duties. The record does not indicate what standards the certification reflect the Petitioner met. Nor 
does the certification indicate whether they must be periodically refreshed or renewed to ensure the 
professional holding the certifications maintains the competency or standards the certificate purport 
to reflect. And, as the Petitioner conceded on appeal, a requirement of a license or certification is not 
a prerequisite to serve in financial services in the United States or in Brazil in the manner the Petitioner 
contemplates. Accordingly, we cannot conclude that the Petitioner has a license to practice the 
profession or certification for the particular profession or occupation of a finance professional. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted their membership in the American Finance Association as evidence of their 
membership in professional associations. But the evidence in the record does not adequately describe 
the criteria for membership in this organizations and consequently we are unable to conclude that 
membership in it is reserved for professionals. Consequently, the record does not convincingly 
describe the Petitioner's membership in the American Finance Association as membership in 
professional associations as that term is contemplated in the regulations, and we conclude the 
Petitioner has not met this criterion. 
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Evidence ofrecognition 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 several letters of support prepared contemporaneously with these immigrant 
petition proceedings to demonstrate that they have been recognized for achievements and significant 
contributions to their field by peers, governmental entities or professional or business organizations. 
But the evidence the Petitioner submitted did not meet the standard of proof because it did not satisfy 
the basic standards of the regulations. See Matter ofChawathe, 25 I&N Dec. at 3 7 4 n. 7. The regulation 
requires evidence of recognition of achievements and significant contributions. When read together 
with the regulatory definition of exceptional ability, the evidence of recognition of achievement of 
significant contributions should show expertise significantly above that ordinarily encountered in the 
field. 
The Petitioner's letters of support generally contain vague statements about the writers' impressions 
of the Petitioner's positive work attributes and their overall strength of character. The Petitioner asks 
us to conclude the writers' conclusions alone constitute recognition of achievements and significant 
contributions. But these statements are not supported by any evidence in the record which reflects 
that these letters represent noteworthy achievements and significant contributions. For example, one 
letter writer attested the Petitioner "has extensive experience in coordinating teams" and "prepared the 
strategic action plan for the introduction and maintenance of products" by searching for "new ways to 
achieve better sales performance." But it is not clear how sales performance relates to the financial 
administration the Petitioner seeks to perform as part of their proposed endeavor. Nor are the "new 
ways to achieve better sales performance" identified such that they can be evaluated to determine if 
they are a significant contribution showing expertise significantly above that ordinarily encountered 
in the field. Another letter writer credited the Petitioner with "developing and implementing new 
projects and processes" under the writer's management. Again, the new projects and processes were 
not identified nor supported with evidence in the record so that they could be examined to determine 
if they are a significant contribution showing expertise significantly above that ordinarily encountered 
in the field. Another letter writer lauded the Petitioner for "excelling in delivering results and 
achieving the goals set every month." But the competent prosecution of assigned job duties, in and of 
itself, is not indicative of a significant contribution or achievement showing expertise significantly 
above that ordinarily encountered in the field. The Petitioner's responsibility for reducing financial 
waste by two percent was noted in one writer's letter. But material, relevant, and probative evidence 
in the record does not specify how a two percent reduction in financial waste is an achievement or 
significant contribution showcasing the Petitioner's expertise significantly above that ordinarily 
encountered in their field. One letter writer who worked with the Petitioner at a bank drew special 
attention to their mutual employer's increase in market share in financing of heavy vehicles from 10% 
to 50% in six months. However, the record does not contain any corroborating evidence for this claim 
and we are unable to evaluate whether an increase in market share, in and of itself, is an achievement 
or significant contribution demonstrating expertise significantly above that ordinarily encountered in 
the field. The Petitioner's "advice" is similarly credited with "a 30% increase in our revenues." But 
the record does not identify the contours of that advice with material, relevant, or probative evidence 
such that we can determine if it is an achievement or significant contribution evidencing expertise 
significantly above that ordinarily encountered in the field. So we cannot conclude that the Petitioner 
meets this ground of eligibility. 
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The Petitioner has established eligibility in only two of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). So we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. 
Consequently, we conclude the Petitioner has not demonstrated their eligibility for permanent 
immigrant classification in the EB-2 category. 
III. CONCLUSION 
The Petitioner has not adequately established categorical eligibility as an advanced degree professional. 
Moreover the Petitioner has not established eligibility in any of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). And we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. Without the 
Petitioner's demonstration of the predicate employment based second preference permanent immigrant 
categorical eligibility, we need not reach a decision on whether, as a matter of discretion, the Petitioner is 
eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework. 
Accordingly, we reserve these 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 
alternate issues on appeal where an applicant is otherwise ineligible). The appeal is 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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