dismissed EB-2 NIW Case: Financial Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re : 16025402 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 20, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a financial analyst, seeks second preference immigrant classification as either a 
member of the professions holding an advanced degree or as an individual of exceptional ability, 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 had not 
established that he is an individual of extraordinary ability or 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 
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 ofChawathe, 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. 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 1 0l(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." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
2 
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 
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. 3 
II. ANALYSIS 
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. Although the Petitioner initially claimed to qualify for the 
underlying EB-2 classification as both a member of the professions holding an advanced degree and as 
an individual of exceptional ability, the Director's decision did not consider whether the Petitioner 
qualified as an advanced degree professional. 
On appeal, the Petitioner points to the Director's failure to address this issue in the request for evidence 
(RFE). The regulation at 8 C.F.R. § 103 .2(b )(8), however, permits the Director to deny a petition for 
failure to establish eligibility without having to request evidence regarding the ground or grounds of 
ineligibility identified by the Director. Further, even if the Director had erred as a procedural matter, 
it is not clear what remedy would be appropriate beyond the appeal process itself, which provided the 
Petitioner an opportunity to supplement the record and establish that he is either an advanced degree 
professional or an individual of exceptional ability. Therefore, it would serve no useful purpose to 
remand the case simply to afford the Petitioner another opportunity to supplement the record with new 
evidence. 
Notably, the Petitioner does not claim to be an individual of exceptional ability or even address any of 
the criteria at 8 C.F .R. § 204. 5 k(3 )(ii) on appeal. Therefore, we consider this claim abandoned. 4 Instead, 
the Petitioner relies upon his academic records, educational evaluation, and a letter from his employer to 
establish that he is an advanced degree professional. 
The "Evaluation of Training, Education, and Experience" ( evaluation states that the Petitioner 
"enrolled in the Master's degree program in Business Administration a.__ ________ __, an 
1 In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of 
Transportation, 22 T&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir.2019)(findingUSCTS' decision to grant or deny 
a na tionalinterest waiver to be discretionary in nature). 
3 SeeDhanasar, 26I&NDec. at 888-91, for elaboration on these three prongs. 
4 See Matter o{R-A-M-. 25 I&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att 'v Gen., 40 I F.3d 1226. 1228 n. 2 
(11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (I Ith Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 20 l l)(plaintiff's claims were abandoned as he failed to 
raise them on appeal to theAAO). 
3 
accredited institution of higher education in Brazil. [The Petitioner] completed his studies in 2014 
and he received a Master of Business Administration in Corporate Management." 
Contrary to the evaluator's description, however, the Petitioner received a "Certificate of the Lato 
Sensu Graduation Course" froml I According to the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education 
(EDGE), 5 "[p ]rofessional development and specialization programs are considered lato sensus (wide 
sense graduate-level programs) and follow independent legislation. Such programs lead toward 
professional certificates, not graduate degrees." It also states that "[c]redits earned in lato sensu 
graduate programs may later be transferred into a master's degree program given that institutional 
requirements are met and institutional approval is granted." 6 
The evaluator ultimately concludes that: 
Considering that a four-year Bachelor's degree 7 followed by more than five-years of full-time 
work experience in the field of Business Administration is equivalent to a Master's degree in 
Business Administration, it is my expert opinion that [ the Petitioner] with a four-year degree 
and more than fifteen years of experience, has no less than the equivalent of a Master's degree 
in Business Administration. 
However, the evaluator 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). 8 As a result, the 
bass for the evaluator's determination that "[t]he responsibilities handled by [the Petitioner] 
throughout his career are indicative of Master's-level coursework" and were "progressively 
responsible" is unclear. 
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. Id. 
The Petitioner also argues that because the Director "confirmed that" the letter from his previous 
employerJ lwas "sufficient for the plain language requirement[]" for the criterion at 
8 C.F.R. § 204.5k(3)(ii)(B), then it also establishes that he is an advanced degree professional. 
However, unlike the exceptional ability criterion which only requires a "showing that the alien has at 
least ten years of full-time expe1ience in the occupation," the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
5 We consider EDGE to be a reliable source of information about foreign credential equivalencies. Sec Con/I ucncc In fem .. 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, 
No. 09-cv-l 0072, 20 I0WL3464314(E.D. Mich. Aug. 30, 20 l0);SunshineRehabServices, Inc. No. 09-13605, 2010WL 
3325442(£.D. Mich.Aug. 20,2010).See also Viraj, LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. 
Ga.May 18,2013). 
6 Sec https://www.aacrao.org/edge/country/brazilforinformation regarding the education system in Brazil and credential 
equivalencies (last accessed July 20,2021). 
7 Based upon the information in EDGE, the Petitioner has established that his four-year bachelor's degree is the foreign 
equivalentofa U.S. degree 
R The job duties listed in the "professional experience" section of the evaluation are taken directly from the Petitioner's 
resume. 
4 
requires "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." The referenced letter 
only confirms that the Petitioner "was an employee of this company in the period from 6/18/2007 to 
3/27/2018 and his last position was General Manager - Middle." Without additional information 
regarding the Petitioner's duties, we are unable to conclude that the Petitioner has at least five years 
of progressive experience as required. 
For all of these reasons, without more, the Petitioner has not established that he is an advanced degree 
professional. In addition, as the Petitioner has not met the threshold requirement for this classification, 
further analysis of his eligibility for a national interest waiver would serve no meaningful purpose. 
III. CONCLUSION 
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. 
5