dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
In Re: 24062729 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 3, 2023 
Form 1-140, Immigrant Petition for Alien Worker (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, 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified as a member of the professions holding an advanced degree. 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 ofChawathe, 25 I&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. [If a doctoral degree is customarily required for the specialty, the non-citizen must a United 
States doctorate or a foreign equivalent degree. (delete if doctorate not an issue)] 
8 C.F.R . § 204.5(k)(2). 
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 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 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. 
II. ANALYSIS 
The Petitioner is a human resources specialist who proposes to establish a firm in the United States to 
provide human resources services to other U.S. companies. She holds a foreign degree that is the 
equivalent of a bachelor's degree in psychology. 
The Director concluded in his decision that the Petitioner does not qualify for the EB-2 classification 
as a member of the professions holding an advanced degree because the evidence does not show that 
she has the required five years of progressive, post-degree experience in her specialty. Specifically, 
he noted that although a letter from one of her former employers (C-P-E-) verifies approximately three 
years and two months of experience as a human resources associates, two additional letters document 
her experience as an intern prior to receiving her degree. As the Petitioner did not establish her 
eligibility for the EB-2 classification, the Director declined to address whether she merited a national 
interest waiver. 
On appeal, the Petitioner asserts that the Director erred in not requesting additional evidence of her 
post-baccalaureate work experience when he issued a request for evidence (RFE). We agree that per 
regulation and USCIS policy, when issuing the RFE the Director should have notified the Petitioner 
of all eligibility requirements that had not been established in the initial filing, thereby providing her 
with the opportunity to submit additional evidence addressing all of the deficiencies in the initial 
record. 8 C.F.R. § 103.2(b)(8)(iv); see generally 1 USCIS Policy Manual E.6(F)(3). The Petitioner 
now submits a new letter that she asserts shows additional qualifying work experience. The AAO will 
generally not accept evidence offered for the first time on appeal when a petitioner has been put on 
notice of a deficiency in the evidence, see Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). Here we will review this new evidence since notice of the 
deficiency was not provided. 
Evidence of qualifying experience must be in the form of letters from current or former employers 
which give a specific description of a petitioner's duties. Where this evidence is not available, other 
documentation will be considered. 8 C.F.R. § 204.S(g)(l ). With her appeal the Petitioner submits a 
letter from Mr. d-S-C, who states that he is the CEO of a company which was a supplier of plastic 
goods to the Petitioner's former employer, C-, from 2012 to 2018, at which point C- ceased operations. 
He further writes that he worked and collaborated with the Petitioner from 2012 to 2016 in her role as 
the company's human resources director, and that they worked together to understand mutual contract 
obligations, product specifications, and closing orders, and to monitor deliveries and payments. 
1 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
We first note that this letter is not from the Petitioner's former employer, and as such it has reduced 
probative value. In addition, the duties described by Mr. d-S-C- do not conform with the those of a 
human resources specialist as described in the materials, or with the Petitioner's own description of 
her duties with C-. For example, the Petitioner submitted a copy of the O*Net Online report for this 
position, which provides a list of duties including interpreting and explaining human resources rules 
and policies, hiring employees, preparing employment records relating to leave, promotions and other 
events, and addressing employee concerns. Also, the Petitioner's resume lists her duties with C­
simply as "plan, direct, or coordinate human resources activities and staff of an organization." 
The Petitioner must resolve these discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Rather than 
supporting the Petitioner's assertions of her employment with C- in a human resources role, the letter 
from Mr. d-S-C- indicates that, despite using the title of human resources director, the Petitioner's role 
with the company was comprised of duties unrelated to human resources functions. We therefore 
conclude that the Petitioner has not established that she has five years of post-baccalaureate experience 
in human resources, and is not eligible as a member of the professions holding an advanced degree. 
III. CONCLUSION 
The Petitioner has not established that she is eligible for the EB-2 classification as a member of the 
professions holding an advanced degree, and is therefore not eligible for a national interest waiver. 
While she asserts on appeal that she meets all three of the prongs under the Dhanasar analytical 
framework, we will reserve these issues. 2 The petition will remain denied. 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
3