dismissed EB-2 NIW Case: Labor Relations

U.S. Citizenship 
and Immigration 
Services 
In Re: 17322681 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 14, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a labor relations consultant, seeks second preference immigrant classification as an 
individual of exceptional ability in the sciences, arts or business, as well as a national interest waiver 
of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act 
(the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 
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. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified as a member of the professions holding an advanced degree, the record did not establish the 
substantial merit or national importance of the proposed endeavor. On appeal, the Petitioner submits 
a brief and additional evidence to assert that the Director erred in denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts, or business. Because this 
classification requires that the individual's services be sought by a U.S. employer, a separate showing 
is required to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
{A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, orb usiness, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, profess ions, or 
business be sought by an employer in the United States. 
Section 101 (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." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any 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. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
2 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interesi" 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, USCIS may, as matter of discretion ,2 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. 3 
11. ANALYSIS 
A Member of the Professions Holding an Advanced Degree 
Although the Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree, we herebywithdrawthisf inding and concludethatthe Petitioner has not met her burden 
in this regard. In order to show that a petitioner holds a qualifying advanced degree, the petition must 
be accompanied by "[a]n official academic record showing that the [individual] has a United States 
advanced degree or a foreign 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 [individual] 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 [individual] has at least five years of progressive post­
baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
Although the Petitioner did not provide any evidence that she holds a bachelor's or undergraduate 
degree, the record contains general academic information stating that in Ukraine, a bachelor's degree or 
other "first level ofhigher education" is required before pursuing either a "specialist diploma" ora "master 
diploma." The Petitioner provided copies of her specialist and master diplomas, along with a list of the 
courses and her grades within each program. She also submitted an academic equivalency evaluation 
containing the following conclusions concerning the U.S. equivalencyof her Ukrainian education. 
Claimed Ukrainian Education Evaluator's Conclusions on U.S. Equivalency 
One-year graduate program in jurisprudence, 31 credits of graduate study in Ukrainian law 
resultinQ in a Specialist DeQree 
One-year graduate program in law, resulting in a Master's degree in law 
Master DeQree and qualification as a lawyer 
Candidate for Juridical Sciences dearee Doctoral dearee in iuridical sciences 
We note that the academic equivalency evaluation does not contain an analysis of any undergraduate 
education, nor does it contain any information on the duration of the Petitioner's doctoral studies. The 
evaluation listed courses for the Petitioner's specialist and master diploma programs and assigned each 
course a number of academic credits "in terms of U.S. courses, semester credit hours and grades." 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998). 
2 See also Poursinav. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest wa iverto bed iscretionary in nature). 
3 See Dhanasar, 261 &N Dec. at 888-91, for elaboration on thesethreeprongs. 
3 
However, the evaluation does not contain sufficient information to substantiate how the courses and 
academic hours are actually equivalent. For instance, among the Petitioner's courses are those entitled 
"Higher Education I 'The Bologna Process"' and "Fire Training." The evaluation contains no explanation 
or analysis for what these courses involve, how they would be equivalent to any U.S. course, or how such 
courses would fit within a U.S. graduate program in law. 
Additionally, we have little information concerning how the evaluator arrived at his conclusions about 
the credits earned for each course. For instance, the Petitioner submitted a specialist diploma course list 
that states she earned 108 academic hours in Special Physical Education and 36 academic hours in Fire 
Training. Not only has the evaluator not explained how academic hours translate to credits, he has also 
not explained how 108 academic hours and 36 academic hours are both worth an equal number of credits. 
We cannot ascertain how the evaluator arrived at his conclusion that the academic hours for both these 
courses are worth 0.5 credit hours each when there appear to have been many more academic hours spent 
in physical education than in fire training. Due to the the lack of explanation for the course content 
equivalencies, as well as the unexplained correlation of academic hours to credits, we question the 
credibility of the evaluation. 
In addition, we question the evaluator's over al I conclusions concerning the equivalency of the Petitioner's 
education. In order to practice law in the United States, students must generally complete a four-year 
bachelor's degree program, along with three years oflaw school, followed by successfully passing a state 
bar examination. Here, the evaluator concluded that the Petitioner was awarded the "qualification of 
lawyer" after her master diploma program. Based on the academic records provided, the Petitioner's 
professional status after completing a specialist diploma program was the permission to "work in a 
speciality," which is the same professional status she received after completing her master diploma 
program. Therefore, we cannot ascertain whether the Petitioner was eligible to practice law in Ukraine 
after only 31 credit hours of graduate study and if so, how this would indicate a level of education 
equivalent to that which is required in the United States for the same profession. The evaluation offers 
little clarity in this matter. 
According to the information provided concerning the education system in Ukraine, 60 to 90 ECTS 
credits are required for a specialist diploma, while 60 to 120 ECTS credits are required for a master 
diploma. The academic documentation in the record indicates that the Petitioner completed 52 ECTS 
credits for her specialist diploma and 40.5 ECTS credits for her master diploma. Neither the academic 
equivalency evaluator nor the Petitioner has acknowledged or explained why the Petitioner's ECTS 
credits appear to fall short of the stated requirements for both degrees. It is not apparent how the Petitioner 
advanced from a specialist program to a master program and then onward to her "candidate of sciences" 
doctoral program without the requisite amount of ECTS credits. 
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. Id. Because the evaluator offered little evidence to conclude that the content of the 
Petitioner's courses is equivalent to a U.S. education, nor has he provided an adequate or consistent 
analysis of the credit hours earned, we conclude that this evaluation is of little probative value in this 
matter. 
4 
On her resume and ETA 750 Part B, the Petitioner claimed the following education: 
• Bachelor of Law degree, earned from study between September 2004 to June 2007; 
• Specialist Degree in Law, earned from study between September 2007 to June 2008; 
• Master Degree in Law, earned from study between September 2008 to July 2009; and 
• Ph.D. in Juridicial Sciences, earned from study between September 2009 to January 2014. 
To evidence her doctoral study, the Petitionersubmitted academic documentation that included a diploma 
of candidate of sciences, awarded in January 2014, along with a certificate that she passed her candidacy 
examinations. She also provided information about the education system in Ukraine, which states that a 
"Candid ate of Sciences, scientific degree" is considered a doctoral course of studies and requires three or 
more years of study. We conclude that the Petitioner has not provided sufficient evidence to establish 
that she has a doctoral-level education in Ukraine, particularly as the documentation in the record 
substantiates only three courses in her candidate of sciences program: one in 2009 and two in 2011. We 
have little information to substantiate a finding that the Petitioner undetwent three or more years of study 
in accordance with Ukranian education requirements. The record also contains insufficient 
documentation to substantiate the Petitioner's claims that she underwent a program lasting from 
September 2009 to January 2014. Even if the record substantiated a finding that the Petitioner completed 
a doctoral program in Ukraine, this evidence alone would still be insufficient to conclude that the 
education is the equivalent of a U.S. doctoral-level education. 
While the record supports a finding that the Petitioner has some level of education, it is currently 
insufficient to persuasively establish that her education is the equivalent to a particular degree or level 
of education in the United States. Even if we were to conclude that the Petitioner has at least a 
bachelor's degree in the specialty, the evidence of record would still be insufficient to establish 
eligibility as an advanced degree professional. We conclude that the Petitioner has not provided 
evidence in the form of letters from current or former employer(s) sufficient to show that she has at 
least five years of progressive post-baccalaureate experience in the specialty. We acknowledge the 
letter from I I of the~-------------~;" however, this letter 
indicates that the Petitioner has less than one year of work experience. 
Due to the evidentiary deficiencies described above, the record does not persuasively establish that the 
Petitioner is a member of the professions with an advanced degree. 
B. Exceptional Ability 
The Petitioner alternatively asserted her eligibility as an individual of exceptional ability. As discussed 
below, a review of the record indicates that the Petitioner does not meet at least three of the relevant 
evidentiary criteria. 4 
4 While we may not discuss each piece of evidence individually, we have reviewed and considered each one. In general, 
we note that the record contains many printouts and translations of written work, often without sufficient explanation as 
to how the documentation relates to the underlying classification criteria or the Dhanasar prongs. Eligibility for the beneftt 
sought is not determined by the volume of evidence alone but also by the quality. Chawathe, 25 I &N Dec. at 376 (citing 
Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). It is always the Petitioner's responsibility to ensure the record 
demonstrates how she qua I if ies for a national interestwa iver. Section 291 of the Act, 8 U.S.C. § 1361. 
5 
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 of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The evidence is insufficient to conclude that the Petitioner completed education that is the equivalent of 
a U.S. degree. However, the record adequately shows that the Petitioner has earned a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of learning relating to 
the area of exceptional ability. Accordingly, the evidence establishes that the Petitioner satisfied this 
criterion. 
Evidence in the form of letter(s)from current or former employer(s) showing that the alien 
has at leastten years offull-timeexperience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
We return to the letter froml • • I which states that the Petitioner worked in the legal 
department of I lfrom June 2014 to March 2015. Although the Petitioner listed additional 
employment experience on her Form ETA750 Part B, some of which may have been obtained prior to 
the filing of the petition, the record contains no other letters from current or former employer(s) 
evidencing her work experience in the occupation. Accordingly, the evidence does not support a finding 
that the Petitioner has at least ten years of full-time experience in the occupation of labor relations 
consultant. 
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 has not submitted evidence that she possesses a license to practice the occupation. 
Further, the Petitioner has not submitted evidence to support a finding that a license is required to 
practice the profession of labor relations consultant. In fact, her academic documents indicate that the 
mere completion of education qualifies her to work in a speciality, which suggests that a license is not 
required. Accordingly, the Petitioner has not satisfied th is criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
We once again acknowledge the letter froni lwhich states that during her employment 
atl I the Petitioner earned a salary of 10,000 Ukrainian hryvnia (UAH) per month. We also 
reviewed the Petitioner's employment contract with! I which contained the same salary figure. 
In addition, the Petitioner submitted website and article printouts containing Ukrainian salary data for 
lawyers during years 2014-2015, currency conversion information, Ukrainian cost of living statistics, 
national salary averages, and general economic analysis. The 2014 salary statistics specific to the law 
profession were categorized by geographic region in Ukraine and contained the following conclusions: 
(1) the lawyer profession is highest paid in thB Region with an average salary of 15,000 UAH, 
followed bytheb t Region and th Region; (2) the profession of lawyer is the highest 
paid in the city ;0 at 10,000 UAH; and (3) real estate lawyers are the highest paid at 35,000 UAH, 
followed by civil lawyers at 18,000 UAH, and copyright lawyers at 18,000 UAH. 
6 
Although the Petitioner asserted that she has received the highest possible compensation for her 
professional abilities, we conclude that the evidence of record does not support such a conclusion. The 
Petitioner has not provided salary data for the specific Ukrainian region in which she worked, nor does 
the evidence of record suggest that her salary was high within the profession. Finally, the Petitioner 
offered no evidence that she actually earned any salary for her claimed employment. The record contains 
no tax documentation, pay stubs, or bank statements to corroborate that Techkomv or any other employer 
actually paid the Petitioner a salary. Even if this information had been provided, it would still be 
insufficient to satisfy eligibility under this criterion. To satisfy this criterion, the evidence must show 
that the Petitioner "has commanded a salary or remuneration for services that is indicative of his or 
her claimed exceptional ability relative to others working in the field." 6 USCIS Policy Manual 
F.5(8)(2). As such, earning a higher salary than others in a specific profession does not in itself 
establish that such a salary demonstrates exceptional ability. 
For the foregoing reasons, the Petitioner has not satisfied this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner has not submitted evidence that she is a member of a professional association. 
Accordingly, the evidence does not establish that the Petitioner satisfied this criterion. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
Returning to the letter froml _ _ I of I f. we note that the author claimed that the 
Petitioner is "a specialist" and that she "had the information about employment policy in the company 
and made the correct interpretation of legal acts helped to avoid time-consuming and significant issues, 
which influenced on economic growth of the company" ( errors in the original). The author did not offer 
specific examples or detail of what legal interpretations the Petitioner made, what time-consuming issues 
that the company avoided as a result of the Petitioner's work, or how the Petitioner's work influenced 
company growth. Accordingly, this letter provides insufficient detail to substantiate the author's claims, 
much less a finding of recognition for achievements and significant contributions. In addition, even if the 
author provided sufficient details to support such a finding, the achievements and significant contributions 
would appear to have benefitted I I alone, rather than the industry or field as a whole. 
Although, Professor! pf~-------~University stated that the Petitioner made 
"scientific achievements in the field oflaw," his letter does not support such a finding. The Professor 
described how the university invited the Petitioner to give a lecture "as an expert in matters relating to the 
protection of human rights" and that she raised topics that have preoccupied society, including the 
relationship between patients and doctors, the ways patient rights are violated under the current system, 
and the imperfections of medical legislation. As a result of the lecture, the Professor claimed that the 
university offered the Petitioner an assistant position.5 Based upon this letter, we cannot ascertain how 
the Petitioner achieved or contributed anything to the field. While she may have lectured about topics 
relevant to the medical community or raised important issues, there is insufficient evidence to conclude 
5 The record does not contain evidence of an actual job offer or that the Petitioner accepted the position of assistant. 
7 
that such activity is an achievement or a significant contribution to the industry of labor relations or law. 
The Professor offered little evidence to substantiate how she was selected as an expert or what has 
occurred in the field of law as a result of her lecture. Therefore, it can not be concluded that the Petitioner 
made "scientific achievements in the field of law," as the Professor claimed. 
Similarly, the letter fro ml I of I I contained information that the 
Petitioner participated in an event tori I concerning the emerging challenges in the 
field of labor rights I I stated that the Petitioner "outlined the main areas, identified problems 
and proposed measures to prevent further deterioration of the situation, namely, to implement realization 
of social policy." AlthoughJ I expressed his appreciation to the Petitioner, we have 
insufficient information to conclude that the Petitioner was recognized outside of this particular 
organization and event 
Generalized conclusory statements that do not identify specific contributions or their impact in the field 
have little probative value. See J 756, Inc. v. U.S. Att'y Gen., 745 F. Supp. 9, 15 (D.D.C.1990)(holding 
that an agency need not credit conclusory assertions in immigration benefits adjudications). The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility. 
USCIS may evaluate the content of those letters so as to determine whether they support the 
petitioner's eligibility. Id. See also Matter of V-K-, 24 l&N Dec. 500, n.2 (BIA 2008) (noting that 
expert opinion testimony does not purport to be evidence as to "fact"). Overall, the letters of record do 
not support a finding that the Petitioner has been recognized for achievements and significant 
contributions to the industry or field. 
The Petitioner submitted numerous copies of articles and abstracts that she wrote as a student. The 
record contains little evidence that the Petitioner has written anything more recently than 2013 or that 
she has produced any written work beyond that which she produced as a student. Although many of 
these written materials may have been collated and distributed to libraries, as well as academic and 
governmental institutions, this does not indicate that they were published in a manner suggestive of 
an achievement or significant contribution in the field. The record indicates that many, if not all, 
student dissertations and research papers are collected and contained as a matter of course, regardless 
of their actual value to the industry or field. The record contains I ittle information to suggest that 
among the students, the Petitioner's work was singled out for publication. Although some of the 
Petitioner's student work appears to have been posted in on line forums or periodicals, the record 
contains insufficient information to substantiate a finding that these forums and periodicals are of a 
nature or reputation that publication in them would suggest an achievement or significant contribution 
in the field. 6 The Petitioner presented little evidence showing that her participation in scholarly or 
academic realms as a student indicates that she has sustained influence in the field as a whole. 
The Petitioner asserted that she attended events and conferences related to her claimed area of 
exceptional ability, however in support of this assertion, the Petitioner submitted title pages of 
abstracts and collections of articles. We cannot determine how this evidence represents actual 
attendance or presentations at events and conferences. Accordingly, we conclude that the record does 
not suppmi the Petitioner's asse1iion that she has participated in events and conferences. In addition, the 
6 While some forums claim to peer review and filterthecontentthrough an editorial board, others appearto be little more 
than informal biogs related to a particular topic. 
8 
Petitioner has not explained how producing academic research papers or participating in events and 
conferences as a part of one's education would comprise an achievement or significant contribution to 
the field. 
We reviewed the documentation suggesting that the Petitioner's written work has been cited by three 
people within academia. The record contains evidence that a student pursuing a geography degree cited 
the Petitioner's work in her dissertation, along with two associate professors from different universities. 
While such citations support a finding that libraries have cataloged the Petitioner's written work, there is 
little indication that the Petitioner's work has been read or acknowledged outside of academia. As such, 
we conclude that these three citations do not persuasively establish that the Petitioner has received 
recognition for achievement of significant contributions within the field of law or labor relations. 
Accordingly, the evidence does not establish that the Petitioner satisfied this criterion. 
Summary 
The record does not support a finding that the Petitioner meets at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner has not established her eligibility as 
an individual of exceptional ability under section 203(b)(2)(A) of the Act. As previously outlined, the 
Petitioner must show that she either possesses exceptional ability or is an advanced degree professional 
before we reach the question of the national interest waiver. We conclude that the evidence does not 
establish that the Petitioner meets the regulatory criteria for classification as an individual of 
exceptional ability or that she is a member of the professions holding an advanced degree. As the 
Petitioner has not established eligibility for the underlying immigrant classification, the issue of the 
national interest waiver is moot. The waiver is available only to foreign workers who otherwise qualify 
for classification under section 203(b)(2)(A) of the Act. Further analysis of her eligibility under the 
prongs outlined in Dhanasar would serve no meaningful purpose.7 
Ill. CONCLUSION 
The Petitioner has not demonstrated that she qualifies for classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability under section 203(b)(2)(A) of the 
Act. Accordingly, the Petitioner has not established eligibility for the immigration benefit sought 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 l&N Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
7 Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve the arguments regarding the Dhanasarframework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)('"courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"): 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). 
9