dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 5, 2024 In Re: 29583480 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an information technology (IT) analyst/entrepreneur, seeks classification under the 
employment-based, second-preference (EB-2) immigrant visa category and a waiver of the category's 
job-offer requirement. See Immigration and Nationality Act (the Act) section 203(b )(2)(B)(i), 
8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) has discretion to 
excuse a job-offer in this category - and thus a related requirement for certification from the U.S. 
Department of Labor (DOL) - if a petitioner demonstrates that waiving these U.S.-worker protections 
would be "in the national interest." 
The Director of the Nebraska Service Center denied the petition. The Director found the Petitioner 
qualified for the requested EB-2 category. But the Director concluded that the Petitioner did not 
demonstrate the requested waiver's merits. On appeal, the Petitioner contends that the Director 
undervalued evidence of her positioning to advance her proposed endeavor and a waiver's benefits to 
the United States. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we affirm the Director's finding that the Petitioner has not demonstrated her positioning to 
advance her proposed endeavor. We will therefore dismiss the appeal. 
I. LAW 
To establish eligibility for national interest waivers, petlt10ners must first demonstrate their 
qualifications for the requested EB-2 immigrant visa category, either as members of the professions 
holding "advanced degrees" or noncitizens of "exceptional ability" in the sciences, arts, or business. 
Section 203(b )(2)(A) of the Act. To protect the jobs of U.S. workers, this category usually requires 
prospective employers to offer noncitizens jobs and to obtain DOL certifications to permanently 
employ them in the country. See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1 l 82(a)(5)(D). To avoid 
the job offer/labor certification requirements, petitioners must demonstrate that waivers of the U.S.­
worker protections would be in the national interest. Section 203(b )(2)(B)(i) of the Act. 
Neither the Act nor regulations define the term "national interest." So, to adjudicate these waiver 
requests, we have established a framework. See Matter ofDhanasar, 26 I&N Dec. 884, 889-91 (AAO 
2016). If otherwise qualified as advanced degree professionals or noncitizens of exceptional ability, 
petitioners may merit waivers of the job-offer/labor certification requirements if they establish that: 
• Their proposed U.S. work has "substantial merit" and "national importance;" 
• They are "well positioned" to advance their intended endeavors; and 
• On balance, waivers of the job-offer/labor certification requirements would benefit the United 
States. 
Id. 
II. ANALYSIS 
A. The Proposed Endeavor 
The record shows that the Petitioner, a Brazilian native and citizen, worked in the IT field for various 
companies in her home country for more than eight years, from 2013 to 2022. During that time, she 
completed one university course in financial technology management in 2014 and another in project 
management and organizational processes in 2017. Also, in 2021, she received a post-graduate 
certificate in "Lato Sensu MBA Excellence in Project Management and Organizational Processes." 1 
The Petitioner came to the United States in 2022 and intends to establish a company here offering 
technical education and training in the IT field. Her business plan states that the company would also 
provide IT consulting services and "mapping of the professional profile of human capital." The 
business plan projects that, within five years of operation, the company would employ 36 people and 
generate revenues of more than $3.9 million. 
B. Eligibility for the EB-2 Category 
The Director erred in finding the Petitioner eligible for EB-2 classification as an advanced degree 
professional. First, as the Petitioner stated in her response to the Director's request for additional 
evidence (RFE), she seeks EB-2 eligibility only as a noncitizen of exceptional ability. See section 
203(b)(2)(A) of the Act (allowing petitioners to qualify for the EB-2 category either as advanced 
degree professionals or noncitizens of exceptional ability). Thus, the Director need not have 
considered her qualifications as an advanced degree professional. 
Moreover, the Director erroneously cited evidence that the Petitioner has an advanced degree. The 
Director found her lato sensu certificate equivalent to a U.S. master's degree. See 8 C.F.R. 
§ 204.5(k)(2) ( defining the term "advanced degree" to include "any United States academic or 
professional degree or a foreign equivalent degree above that of baccalaureate"). The Petitioner did 
not submit any evidence of the certificate's equivalence to a U.S. master's degree. But the Director 
found that the Electronic Database for Global Education (EDGE) - an online resource that U.S. federal 
1 The Latin phrase "lato sensu" means "in the broad sense." See, e.g., Oxford Reference, www.oxfordreference.com/ 
display/I 0.1093/acref/9780195369380.001.0001/acref-9780195369380-e-l l 92. 
2 
courts have described as a reliable source of foreign educational equivalencies - shows that the 
Petitioner's certificate "appears" to equate to a U.S. master's degree. 2 
Contrary to the Director's finding, however, EDGE does not equate a Brazilian lato sensu certificate 
to a U.S. master's degree. Rather, EDGE states that mestrado profissional and titulo de mestre degrees 
from Brazil equate to U.S. master's degrees. EDGE indicates that a lato sensu certificate constitutes 
recognition of professional development and specialization but is not a professional or academic 
degree. In describing Brazil's educational system, the database states: "Professional 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." 
Thus, the record lacks evidence that the Petitioner's lato sensu certificate equates to a U.S. master's 
degree or even constitutes a "degree" as the regulations require. See, e.g., 8 C.F.R. § 204.5(k)(2) 
(defining the term "advanced degree" as "any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate") ( emphasis added). 
The record does not support the Petitioner's qualifications for EB-2 classification as an advanced 
degree professional. We will therefore withdraw the Director's contrary finding. 
The Petitioner could still qualify for the EB-2 category as a noncitizen of exceptional ability. See 
section 203(b)(2)(A) of the Act. But, to avoid deciding the matter in the first instance and because we 
can resolve this appeal on another issue, we will not reach and hereby reserve consideration of the 
Petitioner's EB-2 eligibility as a noncitizen of exceptional ability. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) (stating that agencies need not make "purely advisory findings" on issues unnecessary 
to their ultimate decisions); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal in removal proceedings where an applicant did not 
otherwise qualify for relief). 
C. Positioning to Advance the Proposed Endeavor 
The record supports the Director's conclusions that the Petitioner met the first prong of the Dhanasar 
framework by demonstrating that her proposed endeavor has substantial merit and national 
importance. Thus, we will next review the Director's finding that she did not meet Dhanasar' s second 
prong: demonstrating her positioning to advance her proposed venture. 
To determine whether a petitioner is well positioned to advance their proposed endeavor, USCIS 
focuses on the petitioner and considers multiple factors, including: 
• their education, skills, knowledge, and record of success in related or similar efforts; 
• the existence of a model or plan for future activities; 
• progress towards achieving the proposed endeavor; and 
• interest or support in the endeavor by potential customers, users, investors, or others. 
2 EDGE was created by the American Association of Collegiate Registrars and Admission Officers (AACRAO), a non­
profit association of more than 11 ,000 higher education professionals representing about 2,600 institutions in more than 
40 countries. See AACRAO, "Who We Are," www.aacrao.org/who-we-are ; see also Viraj, LLC v. U.S. Att'y Gen., 
578 Fed. Appx. 907,910 (11th Cir. 2014) (describing EDGE as "a respected source of information"). 
3 
Matter ofDhanasar, 26 I&N Dec. at 890. A petitioner need not demonstrate that their venture would 
more likely than not succeed. Id. But they must establish their positioning to advance their endeavor. 
Id. 
The Director acknowledged the Petitioner's academic certificates and "record of success in the IT 
field." But the Director found that she did not sufficiently demonstrate "how [she] will continue to 
advance [her] proposed endeavor as an entrepreneur." Noting that the Petitioner's business plan calls 
for an initial investment of $180,000, the Director found insufficient evidence of the required funds' 
availability. The Director also found that the Petitioner did not demonstrate interest in her proposed 
endeavor from potential customers or investors. 
In response to the Director's concerns about the interest level in her proposed endeavor, the Petitioner 
notes that "she has already filed and registered the necessary company documents towards establishing 
a business." She states: "[I]t is crucial to understand that building significant interest and securing 
contracts often requires time, networking, and the establishment of a track record, which can be 
achieved as the [Petitioner's] business progresses." 
The Petitioner documented that, in March 2023, she established a corporation in the United States. As 
the Director's decision notes, however, a petitioner must demonstrate eligibility "at the time of filing 
the benefit request." 8 C.F .R. § 103 .2(b)(1 ). The Petitioner filed this petition in August 2022. Thus, 
her company's formation in March 2023 does not demonstrate her positioning to advance the endeavor 
at the time of the petition's filing. 
Regarding the $180,000 initial investment, the Petitioner submitted evidence suggesting that she, her 
spouse, or both own real estate properties in Brazil valued at more than 1,327,500 reals, or about 
$270,000.3 The July 2022 property appraisal reports state their preparation at the request of the 
Petitioner's spouse. But the record does not document or specify the properties' owner(s). Also, the 
properties may not be immediately convertible to cash. See, e.g., Corp. Finance Inst., "Non-Current 
Assets," https: // corporatefinanceinstitute. com/resources/ accounting/non-current -assets (listing 
property as a non-current asset that will not be converted to cash within one year). Thus, the appraisal 
reports do not demonstrate the current availability of the initial investment funds. The Petitioner has 
neither documented the availability of the required funds nor explained how she would obtain them. 
Also, the Director's RFE gave the Petitioner an opportunity to submit proof of her positioning to 
advance her proposed endeavor. But she has not provided evidence of interest in her venture from 
customers, investors, or others. Further, because the Petitioner has not demonstrated that she has the 
foreign equivalent of a U.S. master's degree, she may not be as educationally qualified to advance the 
proposed venture as the Director initially found. 
Considering the totality of the circumstances, a preponderance of the evidence does not establish that 
the Petitioner is well positioned to advance her proposed endeavor. We will therefore affirm the 
petition's denial. 
3 We based the U.S.-dollar estimate on information at Currency Converter, Foreign Exchange Rates, www.oanda.com/ 
currency-converter/en. 
4 
D. Benefits of a Waiver 
Our conclusion that the Petitioner has not demonstrated her positioning to advance her proposed 
endeavor resolves this appeal. Thus, similar to the determination regarding her potential EB-2 
eligibility as a noncitizen of exceptional ability, we hereby also reserve consideration of her appellate 
arguments regarding a waiver's purported benefits to the United States. See Bagamasbad, 429 U.S. 
at 25; Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
The Petitioner has not demonstrated that she is well positioned to advance her proposed endeavor. As 
she has not established the 
merits of a national interest waiver, we will affirm the petition's denial for 
lack of a required job offer and labor certification. 
ORDER: The appeal is dismissed. 
5