dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 13, 2023 In Re: 27465600 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a human resources specialist, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree and/or 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. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish that the Petitioner is eligible for the EB-2 classification as an individual of exceptional ability. 
In addition , she concluded that the Petitioner was not eligible for, and did not merit as a matter of 
discretion, 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 demon strate 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 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 . Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree . A United States 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. 8 C.F.R. § 204.5(k)(2). 
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). 1 Meeting 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 2 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 a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit 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 T&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 3, 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. EB-2 CLASSTFICA TION 
The Petitioner initially claimed eligibility for the EB-2 classification as a member of the professions 
holding an advanced degree, but in responding to the Director's request for evidence (RFE) added her 
claim to qualify as an individual of exceptional ability. In her decision, the Director considered only 
the latter claim, concluding that the Petitioner did not meet the requisite three evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner does not challenge the Director's decision 
regarding her qualification as an individual of exceptional ability, but asserts instead that she qualifies 
as a member of the professions holding an advanced degree. 
The record shows that the Petitioner earned a titulo de bacharel, or title of bachelor, degree in 
psychology froml !University in Brazil in October 2011. An educational evaluation 
submitted by the Petitioner concludes that this degree is the equivalent of three and one half years of 
study towards a bachelor's degree at an accredited institution of higher learning in the United States, 
and does not conclude that it is a foreign degree equivalent to a United States bachelor's degree as 
required under the regulation. While the evaluation ultimately concludes that she holds the foreign 
equivalent of a U.S. bachelor's degree in psychology and human resource management, this is based 
upon the Petitioner's receipt of a postgraduate lato sensu certificate in human resources management, 
issued byl !University in September 2020. 4 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. ~ 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 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). 
4 We note that the transcript for the Petitioner's lato sensu certificate indicate that she completed her coursework in April 
2015, and lists a "date of defense" of her thesis as November 10, 2015. Neither the Petitioner not the evaluator explain 
the nearly five-year gap between this date and the date her certificate was issued. 
2 
The Petitioner asserts on appeal that she has the requisite five years of progressive, post-baccalaureate 
experience in the human resources field. However, the evaluation concludes that she attained the 
foreign equivalent of a U.S. bachelor's degree in 2020, and it is therefore not possible for her to have 
completed five years of post-baccalaureate work experience prior to the filing of her petition in August 
2021. 
In addition, we note that the letters from her former employers do not document at least five years of 
work experience in the specialty of human resources. A letter from a partner of the I I 
verifies that the Petitioner was employed in progressively responsible human resources positions by 
that company from October 2, 2013 to March 6, 2018, a period of four years and five months. 
However, another letter from was submitted not from the Petitioner's former emy1oyer, as required by 
the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B), but from a former co-worker at I 
~ A third letter was submitted by one of the Petitioner's former professors, who indicates that she 
"invited [the Petitioner] to conduct a project at my company." This letter does not indicate when the 
Petitioner conducted this project or if it was on a full-time basis. 
The Petitioner also submits new evidence on appeal pertaining to her work experience. Additional 
pages of what she describes as her "work identity card" list start dates and dates of pay increases with 
two companies, one of which appears to be the legal name ofthel IHowever, where, as 
here, a Petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time 
on appeal. Matter o_fSoriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 
(BIA 1988). The Petitioner was notified in the Director's RFE that the evidence was insufficient to 
show her eligibility as a member of the professions holding an advanced degree, and was provided 
with examples of evidence which could cure these deficiencies. We also note that even ifwe were to 
accept this evidence, it does not change the date on which she earned the foreign equivalent of a 
baccalaureate degree issued by an accredited college or university in the United States. 
For the reasons discussed above, we conclude that the Petitioner has not established her eligibility for 
the EB-2 classification. 
III. NATIONAL INTEREST W AIYER 
As the Petitioner has not established her eligibility for the underlying EB-2 classification, she is not 
eligible for a national interest waiver. We will nevertheless briefly address her proposed endeavor. 
The Petitioner proposes to work as a human resources manager for a company in the United States. 
She initially provided a letter from a company proposing to hire her in a human resources position, 
but in response to the Director's RFE submitted a new letter which confirmed her employment with a 
different company in a banking customer service position. 5 In addition, she submitted a personal 
statement describing her proposed endeavor and her qualifications to advance that endeavor. 
5 Although a job offer is not required of a petitioner seeking a national interest waiver, we may look to evidence regarding 
their cunent and proposed employment in determining their eligibility under the Dhanasar analytical framework. 
3 
On appeal, the Petitioner submits new evidence along with her brief, including a business plan for a 
human resource consulting firm which the Petitioner intends to start and serve as its chief executive 
officer (CEO). As with the evidence relating to her work experience which was discussed above, the 
Petitioner was put on notice of the deficiency in the evidence relating to her proposed endeavor and 
was given an opportunity to respond to that deficiency. We will therefore not accept this evidence 
offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In addition, the Petitioner's initial description of her proposed endeavor did not include plans to form 
a consulting company and serve as its CEO. A petitioner may not make material changes to a petition 
in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1998). Here, the Petitioner has made significant changes to her 
initial proposed endeavor of working as a human resources manager for an employer. As the 
Dhanasar framework requires an analysis of the substantial merit and national importance of the 
specific endeavor proposed by an individual, such a change is material to their eligibility for a national 
interest waiver. Also, a petitioner must meet eligibility requirements for the requested benefit at the 
time of filing the petition. 8 C.F .R. § 103 .2(b )(1 ). The Petitioner's new plans, submitted for the first 
time on appeal, to establish and direct a new company cannot retroactively establish eligibility. We 
will therefore not consider this new evidence in our analysis under the Dhanasar framework. 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
As stated above, the Petitioner intends to work as a human resources manager for a company in the 
United States. In her decision, the Director concluded that the Petitioner failed to provide sufficient 
detail regarding her proposed endeavor to show that it was of substantial merit. We agree that the 
Petitioner's statement includes generic descriptions of a human resources manager's duties, but does 
not shed light on her specific proposed endeavor. Per our decision in Dhanasar, it is the substantial 
merit of the specific endeavor that must be established, not the merits of an entire field or industry. 
Id. On appeal, the Petitioner does not challenge the Director's conclusions, but instead focuses on the 
merits of her newly submitted business plan which was never before the Director. She has thus not 
shown that her original proposed endeavor is of substantial merit in the area of business. 
Similarly, the Petitioner does not address the Director's conclusion that her proposed endeavor would 
not have broader implications for the field of human resources management, or have significant 
potential to employ U.S. workers or have other substantial positive economic effects. We note that in 
her statement submitted in response to the Director's RFE, she provided links to articles regarding the 
happiness of employees and the mental health effects of the COVID-19 pandemic. However, this 
evidence concerns the overall impact of the human resources and psychology fields in general, and 
does not show that the Petitioner's work for a single company in the United States would have broader 
implications for those fields or would otherwise be of national importance. 
4 
On appeal, the Petitioner states that her proposed business will create jobs and benefit the wider U.S. 
economy. Even if we were to consider this new evidence and proposed endeavor, it is insufficient to 
show that the potential prospective impact of this endeavor would have the sort of potential to employ 
U.S. workers or other positive economic effects that would rise to the level of national importance. 
As the Petitioner does not challenge the Director's reasons for concluding that her proposed endeavor 
is not of substantial merit or national importance, the Petitioner has not established that she meets the 
first prong of the Dhanasar analytical framework. 
A petitioner must meet all three prongs of the Dhanasar analytical framework to establish 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 the 
Dhanasar's second and third prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that 
agencies are not required to make "purely advisory findings" on issues that are unnecessary to the 
ultimate decision); 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). 
III. CONCLUSION 
The Petitioner has not met her burden of proof to establish her eligibility for the EB-2 classification, 
either as a member of the professions holding an advanced degree or an individual of exceptional 
ability. She also has not shown that she merits, and merits as a matter of discretion, a waiver of the 
classification's job offer requirement. 
ORDER: The appeal is dismissed. 
5