dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 12, 2023 In Re: 28650277 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree or as 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 petition, concluding the record did not 
establish the Petitioner's eligibility for the EB-2 classification or for a national interest waiver under 
the Dhanasar analytical framework, as a matter of discretion. 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 l&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, under 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). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. We 
will then conduct a final merits determination to determine 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. See Matter ofChawathe, 25 I&N Dec. at 369 (holding that the "truth is to be determined 
not by the quantity of evidence alone but by its quality"). USCIS has previously confirmed the 
applicability of this two-part adjudicative approach in the context of individuals of exceptional ability. 
See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
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). 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, 1 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. 
II. ANALYSIS 
As a preliminary matter, we conclude that the Petitioner has submitted insufficient and inconsistent 
evidence regarding the substantive nature of his proposed endeavor, and the occupation in which he 
intends to be employed. The Petitioner initially stated that he is a computer programmer who will: 
[C]ontinue working in [g]eneral and IT [ o ]perations management to advise American 
companies on how to properly plan, direct and coordinate the operations of public or 
private sector organizations. I [ will use] my extensive experience and knowledge in the 
areas of business administration, business operations and management to provide 
specialized business services to U.S. companies and corporations. 
The Petitioner also provided a business plan for a Florida company that he started in 201 7, (T-), 
through which he claims he will provide software development and implementation services to U.S. 
companies. The plan discusses aspects of software products that he asserts to have developed and 
marketed to businesses abroad. He intends to market these products to U.S. companies to address 
"management and control of restaurant operations, manage[ ment] and control[] of the sales and cashier 
front of the restaurant, [for] small to large establishments, with product reports, customer service, 
closings, cash control and the best management practices in the market." 
The Director concluded that the Petitioner did not establish that he qualified for the requested EB-2 
classification either as an advanced degree professional or as an individual of exceptional ability. He 
also determined that the Petitioner had not established that he merits a national interest waiver, as a 
matter of discretion, determining that while his proposed endeavor has substantial merit and he is well­
positioned to advance it, he did not demonstrate its national importance, or that a waiver of the job 
offer and thus a labor certification was in the national interest. 
1 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). 
2 
On appeal, the Petitioner references his previously submitted business plan for T- contending it "shows 
how [he will work] in the IT field." However, Florida governmental records indicate that T- was 
administratively dissolved in September 2020 for lack of filing its state-required annual report - prior 
to filing this petition on March 18, 2021. See generally https://search.sunbiz.org/Inquiry/Corporation 
Search/By Name. The Petitioner has not provided supporting evidence about T-' s business operations 
for any time period after 2018. While he provided copies of payroll statements reflecting his 
employment with other organizations located in Florida since 2018, the record does not substantiate 
that he prospectively intends to offer IT-related business services through T-. Here, the Petitioner has 
not adequately explained why he provided T-' s business plan with the petition in March 2021 -
indicating that through this business he will offer information technology services, even though the 
business was administratively dissolved by Florida in September 2020. The Petitioner must resolve 
these inconsistencies and ambiguities in the record with independent, objective evidence pointing to 
where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Other insufficient and inconsistent evidence in the record raises additional important questions 
regarding the nature of the work the Petitioner will perform should this petition be approved. For 
instance, the Petitioner also initially stated that he would perform services for U.S. companies as a 
general manager - by providing services such as "facilitating cross-border projects and commercial 
operations between the U.S. and Latin American markets, including Brazil." He noted that "[b ]y 
formulating policies, managing daily operations and planning the use of materials and human 
resources, I can guarantee the success of any company that employs me." However, he does not 
further explain his prospective plans to seek a general manager position with a U.S. employer. 
We conclude that the Petitioner has not submitted plans or explanations that adequately address the 
means through which he will provide services to U.S. companies, and the types of services he actually 
intends to offer as a general manager or as a computer programmer entrepreneur. In evaluating the 
evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. Matter 
of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Importantly, it is not apparent what specific 
occupation or specialty he will be employed in - which is critical to establishing his eligibility for the 
EB-2 classification and that he merits a national interest waiver, as a matter of discretion. For 
efficiency's sake, we incorporate the above discussion and analysis regarding this insufficient and 
inconsistent information into each of the bases in this decision for dismissing the appeal. 
A. Member of the Professions Holding an Advanced Degree 
In order to establish whether the Petitioner qualifies for the EB-2 classification as an advanced degree 
professional, he must provide evidence to demonstrate the professional specialty that he will be 
engaged in. Section 10l(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." As discussed above, it is not apparent from 
the evidence provided whether he intends to be employed as a computer programmer entrepreneur or 
as a general manager working for U.S. companies, and whether his occupation qualifies as aprofession 
as defined by section 10l(a)(32) of the Act. Matter ofHo, 19 I&N Dec. at 582. 
To show that a petitioner holds a qualifying advanced degree, the petition must be accompanied by 
"[ a ]n official academic record showing that the alien has a United States advanced degree or a foreign 
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equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may 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." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petitioner initially asserted he was eligible for the EB-2 classification as a member of the 
professions holding an advanced degree "because he is a very experienced [ c ]omputer programmer 
and entrepreneur, with many courses in the area." He further explained: 
I have an incomplete Higher Education in Bachelor of Computer Engineering from 
._________________ ____., Brazil. Despite not having completed my 
graduation, I believe that a diploma is a milestone in life and means a victory after years 
of extreme work and dedication. However, at the same time, I believe that a diploma 
does not define someone's ability. We can see this every day seeing many successful 
entrepreneurs build great legacies without needing a diploma to do so. 
The Petitioner also submitted a copy of his resume reflecting an "Incomplete degree - Attended for 3 
years" as part of his academic history. The Director denied the petition, concluding in part that the 
Petitioner did not provide evidence that he holds an advanced degree, or a foreign equivalent degree 
as required by 8 C.F.R. § 204.5(k)(3)(i)(A), or in the alternative that he possesses a U.S bachelor's 
degree or a foreign equivalent degree and five years of post-baccalaureate progressive work 
expenence. 
On appeal, the Petitioner references the definition of advanced degree at 8 C.F.R. § 204.5(k)(2) 
asserting it provides that "any United States academic or professional degree or foreign equivalent 
[degree]" may qualify as an advanced degree for EB-2 purposes. However, the Petitioner misquotes 
the regulation. The definition at 8 C.F.R. § 204.5(k)(2) defines advanced degree as requiring at least 
a U.S. bachelor's degree or foreign equivalent degree, in pertinent part, as follows: 
[ A ]ny 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. 
The Petitioner also alludes to "previous [ unpublished] decisions by USCIS where a 2-year 
undergraduate degree has been accepted as equivalent to a U.S. bachelor's degree for [EB-2] 
purposes." Decisions not published as precedents do not bind USCIS officers in future adjudications. 
8 C.F.R. § 103.3(c). Even so, we note that the Petitioner does not provide specific identifying 
information about these cases. Even if such information were provided, we would conclude the 
Petitioner's suggestion that we review unpublished decisions and possibly request and review case 
files relevant to those decisions, while being impractical and inefficient, would also be a shift in the 
evidentiary burden in these proceedings from the Petitioner to USCIS, which would be contrary to 
section 291 of the Act, 8 U.S.C. § 1361. 
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The Petitioner observes that the Act "does not define 'bachelor's degree' for [EB-2] purposes," and 
contends that the statute "defers to the Department of Labor's Occupational Outlook Handbook (OOH) 
for guidance educational requirements." But the Petitioner does not cite to relevant law or regulation 
to illustrate his proposition that the Act defers to the OOH. Importantly, the Joint Explanatory 
Statement of the Committee of Conference, made at the time Congress adopted the Immigration Act 
of 1990, stated that the equivalent of an advanced degree is a bachelor's degree plus at least 5 years 
progressive experience in the professions. See 60 FR 29771. USCIS incorporated this standard with 
respect to establishing equivalency to an advanced degree at 8 CFR 204.5(k)(3)(i)(B). 
The Petitioner further alleges: 
While a two-year degree is generally considered lower in educational attainment 
compared to a four-year U.S. bachelor's degree, USCIS may still recognize it as 
equivalent if the [petitioner] can provide substantial evidence to demonstrate that their 
education, achievements, and experience compensate for the shorter duration of the 
degree. 
The Petitioner has not provided evidence that he holds a U.S. two-year degree or its foreign equivalent 
from a qualifying institution of higher learning, rendering this argument moot in the instant matter. 
However, we take note that the Petitioner is inappropriately asking us to ignore the evidentiary 
requirements at 8 C.F.R. § 204.5(k)(3)(i). We lack the authority to waive or disregard any of the Act's 
requirements, as implemented by regulation. See United States v. Nixon, 418 U.S. 683, 69 5 (197 4) 
("So long as this regulation is extant it has the force oflaw."). Immigration regulations carry the force 
and effect oflaw. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260,265 (1954). 
To qualify as an advanced degree professional, a petitioner relying on foreign education must have a 
single, foreign degree that equates to at least a U.S. baccalaureate degree. The regulations do not allow 
baccalaureate equivalents based on combinations of lesser educational credentials or of education and 
experience. See Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
(stating that "both the Act and its legislative history make clear that, in order to .... have experience 
equating to an advanced degree under the second [preference category], a [ noncitizen] must have at 
least a bachelor's degree") ( emphasis added). On appeal, the Petitioner does not assert nor the does 
record show that he possesses a U.S. advanced degree or bachelor's degree, or foreign degrees 
determined to be equivalent to such degrees. 8 C.F.R. § 204.5(k)(3)(i). The Petitioner repeatedly 
acknowledged as much in statements offered at various times throughout this proceeding. Therefore, 
the Petitioner has not established that he qualifies as a member of the professions holding an advanced 
degree pursuant to section 203(b )(2)(A) of the Act and 8 C.F.R. § 204.5(k)(2). Furthermore, as he did 
not receive such a degree, the Petitioner has not demonstrated that he has at least five years of 
progressive post-baccalaureate experience in the form of employer letters consistent with 8 C.F.R. §§ 
204.5(k)(2) and (k)(3)(i)(B). The Petitioner has not established that he qualifies for the EB-2 
classification as an advanced degree professional. 
B. Individual of Exceptional Ability 
In denying the petition, the Director determined the Petitioner did not meet any of the criteria at 8 
C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner asserts that he met the four criteria at 8 C.F.R. § 
5 
204.5(k)(3)(ii)(A), (B), (C), and (F) at the time of filing the petition on March 18, 2021. He does not 
discuss the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D) and (E) on appeal, and the record does not establish 
his eligibility for them. Thus, we consider these issues waived on appeal. See Matter ofR-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). Based on our de novo review of the record, we agree 
with the Director that the Petitioner has not met at least three of the criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director determined that the Petitioner did not submit evidence sufficient to meet the plain 
language of this criterion. Before the Director and again on appeal, the Petitioner contends that by 
combining his high school certificate and his work experience, he possesses the requisite educational 
credentials to meet this criterion. He references an "education and work experience evaluation" letter 
authored byl Iwho determined that the Petitioner obtained two years of undergraduate 
study in the information technology field by virtue of his "high school certificate" and his prior work 
experience. In this case, the Petitioner asserts without supporting evidence, that the general education 
he obtained in high school relates to his area(s) of exceptional ability. We agree with the Director that 
without more, this evidence is insufficient. 
On appeal, the Petitioner also points to training certificates that he was given for taking various IT­
related training courses offered by companies, such as NCR, Oracle Corporation, and Microsoft. The 
record does not include evidence that shows these training certificates are official academic records, 
or that any of the companies that issued these documents qualify as a college, university, school, or 
other institution of learning. Id. We conclude the Petitioner has not provided evidence that satisfies 
this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
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 Director determined the Petitioner did not establish eligibility under this criterion. In our de novo 
review of the record we considered all of the evidence provided, including letters from former employers, 
colleagues, clients, and opinion authors as well as evidence about businesses that he has owned in the 
U.S. and abroad and conclude he has submitted insufficient and inconsistent evidence of his work history. 
Matter of Ho, 19 I&N Dec. at 582. For instance, in his initial letter he indicates that his "first [work] 
experience was in 2009 [ with E-] where I was trained to work with networks, databases and support," and 
performed such duties as "following instructions, either written or in diagram format, in order to set up a 
system or fix a fault." He stated "[ a ]fter almost two years as an intern, I was promoted to be a systems 
analyst." He did not describe his duties as a systems analyst other than to note that he was involved in 
performing services related to "system development" and "WEB systems," among other things. His 
resume indicated that he was employed by E- from December 2008 - December 2009 as a "trainee 
technical support," then as a "systems analyst" from January 2010 to December 2012. 
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In contrast, he later provided an opinion letter from professor Q-, who indicates that as part of his analysis 
he reviewed evidence of the Petitioner's "experiential qualifications," but he did not identify the specific 
documents he considered to arrive at his opinions. Professor Q- discussed the Petitioner's employment 
with E- asserting "from 2009 to 2012, [the Petitioner] was General Director of [E-]. In this role, he was 
responsible for all creation and programming, including broad decision-making power in areas of 
technical management, service, administrative, strategic and products." Professor Q-'s description of the 
Petitioner's responsibilities as E-' s general director varies significantly from those described by the 
Beneficiary in statements about his employment with E- provided with the petition. 
In this case, the Petitioner asserts that he gained at least ten years of work experience in the occupation(s) 
in which he intends to be employed between December 2008 - when he states he started his work career 
and March 2021 - when the petition was filed. On appeal, he quotes from professor Q-' s opinion letter 
reasserting that he was employed as a general director for E-, but he does not provide probative 
contemporaneous evidence to substantiate the nature of his employment with E- from 2008 to 2012. As 
the Petitioner has not provided evidence sufficient to demonstrate the specifics of his employment prior 
to December 2012, we conclude that he has not met this criterion. Doubt cast on any aspect of the 
Petitioner's [evidence] may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591-92. 
Nonetheless, we observe the submitted letters discussing his employment do not meet the requirements 
of the regulation at 8 C.F .R. § 204.S(g)(l) which provides in pertinent part that "[ e ]vidence relating to 
qualifying experience or training shall be in the form of letter(s) from current or former employer(s) 
or trainer(s) and shall include the name, address, and title of the writer, and a specific description of 
the duties performed by the alien or of the training received." 
Most letters were not authored by the Petitioner's current or former employers. They do not state whether 
the Petitioner worked full-time or part-time, and do not provide his specific job titles with employment 
start and end dates. Moreover, the letters do not provide sufficient details about the experience the 
Petitioner gained through his employment. For instance, some letters contain no indication of the 
Petitioner's duties while other letters list a few general duties. Other employment evidence reflects that 
the Petitioner has owned businesses, but this material does not constitute evidence of work experience in 
a particular occupation. It is not apparent from this evidence whether the Petitioner has the requisite 
experience in the occupation(s) in which he intends to work. For example, the Petitioner provided letters 
authored by his clients to demonstrate the work he performed within his own business. Although some 
of the client letters contain a description of the services the Petitioner performed, none demonstrate how 
the work experience the Petitioner ained was full-time. Rather the ex erience ained while serving 
clients, such as~-----------------------------~ appear 
to be for services that were provided on a discrete project basis. While contracts with these clients may 
have been ongoing, the evidence does not suggest the actual work performed for these clients was full­
time. Moreover, it is not apparent what work experience the Petitioner purports to have gained as a result 
of serving these clients. For the foregoing reasons, the Petitioner has not satisfied this criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
7 
The Director determined that previously discussed training certificates given to the Petitioner by NCR, 
Oracle Corporation, and Microsoft did not meet this criterion. On appeal, the Petitioner asserts that 
these certificates "make [him] certified for the [IT] occupation." However, the record does not 
demonstrate that employment in his proposed occupations require a license, and the evidence in the record 
does not reflect he has licensure or a certification to practice for any particular profession or occupation. 
This criterion has not been met. 
Per the analysis above, the Petitioner has not established that he meets any of the evidentiary criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(A) through (E). The Petitioner also claims that he can satisfy the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(F), which requires evidence of recognition of his achievements and 
significant contributions to the industry or field. However, the record does not currently establish that 
he has fulfilled the initial evidentiary requirement of three out of six criteria under 8 C.F.R. § 
204.5(k)(3)(ii). As he is ineligible for the EB-2 classification, we will not address the additional 
criteria. 
Because the Petitioner did not satisfy the initial evidence requirements, we need not conduct a final 
merits analysis to determine whether the evidence in its totality shows that he is recognized as having 
a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 
8 C.F.R. § 204.5(k)(2). Nevertheless, we advise that we have reviewed the record in the aggregate 
and conclude that it does not support a finding that the Petitioner has established the recognition 
required for classification as an individual of exceptional ability. Therefore, he has not established 
that he qualifies for the EB-2 classification through this avenue. 
C. National Interest Waiver 
As explained in the legal framework above, 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 the Petitioner has not established this threshold issue, the remainder of the Petitioner's 
arguments need not be addressed. It is unnecessary to analyze any remaining independent grounds 
when another is dis positive of the appeal. Therefore, we decline to reach whether he meets the three 
prong Dhanasar framework, as a matter of discretion. 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 established that he satisfies the regulatory requirements for classification as an 
advanced degree professional or as an individual of exceptional ability. 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. 
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