dismissed EB-2 NIW Case: Health Psychology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 4, 2025 In Re: 36097196 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a health psychology researcher, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, as well as a national interest waiver of 
the job offer requirement attached to this 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 Form 1-140, Immigrant Petition for Alien 
Workers (the petition), concluding that the record did not establish that the Petitioner is either a 
member of the professions holding an advanced degree or an individual of exceptional ability. The 
Director also concluded that he is not eligible for a national interest waiver. 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 novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 8 C.F.R. § 204.5(K)(2). A U.S. bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. See 
generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. If a petitioner 
does so, we will then conduct a final merits determination to decide whether the evidence in its totality 
shows that they are recognized as having the requisite degree of expertise and will substantially benefit 
the national economy, cultural or educational interests, or welfare of the United States. Section 
203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 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. 
Id. 
II. ANALYSIS 
The Director found that the record did not establish that the Petitioner is an advanced degree 
professional or an individual of exceptional ability. 2 Additionally, the Director found that the 
Petitioner did not establish he meets the national interest waiver requirements. Specifically, while the 
Director determined that the proposed endeavor has substantial merit, the Director did not find that 
the proposed endeavor has national importance, the Petitioner is well-positioned to advance the 
proposed endeavor, and waiving the job offer requirement would benefit the United States. 
We determine that the record does not establish that the Petitioner is an individual of exceptional 
ability, and he is therefore not eligible for EB-2 classification. As such, we reserve our opinion 
regarding whether the Petitioner satisfies the requirements for a national interest waiver. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that agencies are not required to make 
"purely advisory findings" on issues that are unnecessary to the ultimate decision). 
The record does not establish that the Petitioner is an individual of exceptional ability as he does not 
meet at least three of the six relevant evidentiary criteria. We will analyze the criteria below. 
1. "An official academic record showing that the [noncitizen} has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution oflearning relating to 
the area ofexceptional ability." 8 C.F.R. § 204.5(k)(3)(ii)(A). 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of 
Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
2 We note that the Petitioner did not assert that he is an advanced degree professional. Rather, he conceded in response to 
a request for evidence that he was not one. As such, we will not address this issue on appeal. 
2 
As mentioned, the Petitioner obtained a bachelor's degree in psychology, with a concentration in health 
psychology, from the _______ His degree relates to the area of exceptional ability, 
which the Petitioner described as research and community-based interventions focused on understanding 
and addressing the psychological detriments of health disparities in the United States. Accordingly, the 
Petitioner has met this regulatory criterion. 
2. "Evidence in the form of letter(s) from current or former employer(s) showing that the 
[noncitizen} 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 record includes a letter from verifying the Petitioner was an independent 
contractor delivery provider from December 2020 until November 2022, and an employer letter from 
I verifying the Petitioner's employment as a guest 
services host from February 2023 until December 2023. These letters do not establish at least ten years 
of full-time experience in the occupation being sought. On appeal, the Petitioner submits a letter from 
his current employer, Idetailing his leadership and commitment to improving healthcare access 
in his position as health outreach program fellow. The record indicates this employment took place after 
the Petitioner filed the petition on June 11, 2024, and therefore it will not be considered. The affected 
party has the burden of proof to establish eligibility for the requested benefit at the time of filing the 
benefit request and continuing until the final adjudication. 8 C.F.R. § 103.2(b)(l); see also Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971) (providing that "Congress did not intend that a petition 
that was properly denied because the beneficiary was not at that time qualified be subsequently approved 
at a future date when the beneficiary may become qualified under a new set of facts."). Even if we 
considered this letter, the Petitioner has not established that he meets this regulatory criterion. The first 
two letters detail work unrelated to the occupation being sought, and the third letter does not establish ten 
years of full-time experience. 
3. "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 previously stated he does not "hold a professional license or advanced certification." He 
now contends that his Responsible Conduct of Research certification is essential to his work as a health 
psychology researcher, and his certifications from the World Health Organization (WHO) and Centers 
for Disease Control and Prevention (CDC) bolster his qualifications. The record includes a document 
from the I I providing that the Petitioner "[h]]as completed the following Icourse: 
Responsible Conduct of Research (RCR) (Curriculum Group) (Course Leamer 
Group) l - Basic Course (Stage)[.]" The record includes certificates and records of achievement from 
the WHO reflecting successful completion of several health-related online courses. The record includes 
certificates from the CDC reflecting participation in educational activities and awarding of continuing 
education units. 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 occupation. A certification, whilst not always required to work in an occupation, generally 
requires demonstrating competency to do a specific job. While the record includes documentation that 
the Petitioner has taken courses through multiple organizations, these records do not establish that he has 
a license to practice his profession or has a certification for his profession or occupation. Accordingly, 
the Petitioner has not established that he meets this regulatory criterion. 
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4. "Evidence that the [noncitizen] has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability." 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner does not assert, and the record does not include evidence, that he meets this regulatory 
criterion. 
5. "Evidence ofmembership in professional associations." 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner asserts that his memberships in the Global South Coalition for Dignified Menstruation 
(GSCDM) and the American Psychological Association (APA) fulfill this requirement. The record 
includes a letter from the USA Director of GSCDM, an organization headquartered in Kathmandu, Nepal, 
who states that the Petitioner has been an active member for five years. However, the record does not 
include sufficient documentation to establish that this is a professional association. Additionally, the 
record does not include evidence of the Petitioner's membership card, membership number, or payment 
of any membership fees. The record includes a letter from the AP A confirming the Petitioner's 
membership in the APA Division 38: Society for Health Psychology. The letter is dated August 27, 2024, 
which is after June 11, 2024, the date the Petitioner filed the petition. The record does not mention that 
he was a member prior to June 11, 2024, and therefore that he was a member of the AP A at the time he 
filed the petition. The Petitioner has not established that he meets this regulatory criterion. 
As the Petitioner has not established that he meets at least two of the first five regulatory criteria for 
exceptional ability, we decline to reach and hereby reserve the appellate arguments regarding whether 
he has met the sixth criteria, which requires evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations. See INS v. Bagamasbad, 429 U.S. at 25. 
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 
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). Additionally, as the Petitioner has not established that he has met three of the 
six regulatory criteria for exceptional ability, no purpose would be served in us conducting a final merits 
determination to decide whether the evidence in its totality shows that he is recognized as having the 
requisite degree of expertise and will substantially benefit the national economy, cultural or 
educational interests, or welfare of the United States. 
The record does not establish that the Petitioner is an advanced degree professional or an individual 
of exceptional ability. Therefore, the Petitioner is not eligible for EB-2 classification. Since this issue 
is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments 
regarding his eligibility for a national interest waiver under three prongs outlined in Dhanasar. See 
Bagamasbad, 429 U.S. at 25. 
ORDER: The appeal is dismissed. 
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