dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 04, 2024 In Re: 34508680 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an attorney, seeks employment-based second preference (EB-2) immigrant 
classification as either a member of the professions holding an advanced degree 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. 
§ 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for the underlying EB-2 classification and therefore did not show 
that a waiver of the required job offer would be in the national interest. The matter is now before us 
on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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. Profession is 
defined as one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for 
which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into 
the occupation. 1 8 C.F.R. § 204.5(k)(2). 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
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). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 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 the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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, 4 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. 
Id. 
II. ANALYSIS 
As noted above, to qualify for the requested national interest waiver, the Petitioner must demonstrate 
eligibility for the underlying EB-2 classification. He may do so as either a member of the professions 
holding an advanced degree or as an individual of exceptional ability. We find that the record for the 
instant petition, including as supplemented on appeal, does not demonstrate that the Petitioner has 
established eligibility for EB-2 classification by a preponderance of the evidence. 
On the Form I-140, Immigrant Petition for Alien Workers (I-140), the Petitioner stated that his 
occupation was global tax consultant/military instructor. In a statement accompanying the I-140, the 
Petitioner asserted that he was a tax, labor, and corporate law attorney and also claimed that he had 
recognized expertise in the field of military science as an instructor and former military member. In 
response to a request for additional evidence (RFE) from the Director, the Petitioner submitted a 
business plan, among other documents, detailing his intention to establish a legal consulting company 
in the United States dealing with these topics as his proposed endeavor. On appeal, the Petitioner 
submits a brief and contends that he has established eligibility for the national interest waiver. He 
2 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). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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renews claims that he has ten years of professional experience "in the field of business and tax law" 
and asserts that he has the equivalent of a Master of Law degree in the United States. 
A. Advanced Degree Professional 
When he filed the petition, the Petitioner claimed eligibility as a member of the professions holding 
an advanced degree under 8 C.F.R. § 204.5(k)(2). The Petitioner did not claim to have earned an 
advanced degree academically, but he asserted that his post-baccalaureate work experience was 
equivalent to a master's degree under 8 C.F.R. § 204.5(k)(2). 
To establish this equivalency, the Petitioner must submit an official academic record showing that he 
has a United States baccalaureate degree or a foreign equivalent degree, along with letters from current 
or former employer(s) showing at least five years of progressive post-baccalaureate experience in the 
specialty. 8 C.F.R. § 204.5(k)(3)(i)(B). Regarding this requirement, in his RFE response, the 
Petitioner submitted an expert letter from I I an associate professor of management and 
law at the Department of Finance and Business Management at the I I 
The letter asserted that the Petitioner had a four-year degree and more than 
ten years of professional experience, which should be considered the equivalent to a master's degree 
in law. 
In denying the petition, the Director found that the Petitioner had earned a bachelor of law degree, but 
he had not met the requirement at 8 C.F.R. § 204.5(k)(3)(i)(B) to submit at least five years of letters 
from employers demonstrating progressive post-baccalaureate experience in the specialty. On appeal, 
the Petitioner renews claims that he is an advanced degree professional and refers to the letter from 
I I However, he does not address the specific deficiency noted by the Director in 
conforming with the regulatory requirement for this eligibility criterion. 5 He has not, for example, 
claimed that he previously submitted the requisite letters from employers documenting his five years 
of progressive post-baccalaureate experience in the specialty. Our review of the record for the instant 
petition does not disclose such documentation. Therefore, we find no error in the Director's finding 
that the Petitioner has not shown that he is an advanced degree professional. 
B. Exceptional Ability 
When he filed the petition, the Petitioner did not claim to be an individual of exceptional ability. The 
Petitioner first raised the issue after the Director issued a request for evidence (RFE) and made such 
an assertion in a personal statement. In the RFE response, the Petitioner appeared to claim to satisfy 
five exceptional ability criteria by submitting an excerpt from the USCIS Policy Manual with these 
criteria highlighted. 
To establish 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), 
summarized below: 
(A)An academic degree 
relating to the area of claimed exceptional ability; 
5 He also does not claim that the bachelor's degree he earned is equivalent to a master's degree in the United States. 
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(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D)A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of the regulatory criteria, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows a degree of 
expertise significantly above that ordinarily encountered in the individual's field. See Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the documentation is first 
counted and then, if fulfilling the required number of criteria, considered in the context of a final merits 
determination). See also, generally, 6 USCIS Policy ManualF.5(B)(2), https://www.uscis.gov/policy­
manual. 
The Director concluded, without elaborating, that the Petitioner did not satisfy qualify as an individual 
of exceptional ability. On appeal, the Petitioner asserts that his previously-submitted evidence satisfies 
four criteria; (1) an academic degree, (2) a license to practice his profession, (3) membership in a 
professional association, and (4) recognition for achievements and significant contributions to the 
field of tax and business law. 6 
1. Regulatory Criteria 
As explained below, we agree that the Petitioner has satisfied the regulatory requirements for the 
requisite three of the six claimed criteria for individuals of exceptional ability. 
An official academic record showing that the alien has a degree, diploma, certificate, or 
similar award.from a college, university, school, or other institution oflearning relating to the 
area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner cited his bachelor's degree in law completed in 2006 and his bachelor's degree in 
military sciences completed in 2000. The record contains diplomas for both of the noted degrees. 
Accordingly, the Petitioner has demonstrated that he possesses a degree relating to the area of claimed 
exceptional ability. 
A license to practice the profession or cert[fication for a particular profession or occupation. 
8 CF.R. § 204.5(k)(3)(ii)(C). 
The Petitioner indicated that he intended to work as an attorney in the United States. With the initial 
petition, he submitted a document from the Director Secretary General of the Order of Lawyers of 
6 Before the Director, the Petitioner appeared to additionally claim to be eligible for the criterion related to ten years of 
full-time experience in the occupation under 8 C.F.R. § 204.5(k)(3)(ii)(B). However, as the Petitioner did not claim this 
on appeal, we consider the issue waived. Additionally, the appeal submission only refers to the Petitioner's professional 
experience in the field of business and tax law. Therefore, we consider his claims below of an occupation as a military 
instructor waived. See, e.g., Matter of O-R-E-, 28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 l&N 
Dec. 657, 658 n.2 (BIA 2012) (an issue not raised on appeal is waived). 
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Brazil, Section of Minas Gerais, stating that the Petitioner was a registered lawyer in good standing. 
We therefore find that the Petitioner possesses the requisite license to practice his particular profession. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The record includes a certificate of approval from the Brazilian BAR Association, Regional Council 
of Minas Gerais, attesting that the Petitioner "was approved" and able to apply for registration in the 
board of attorneys of the Brazilian BAR Association. The Petitioner has provided sufficient evidence 
to satisfy this requirement. 
We also note the evidence submitted in support of the Petitioner's claim that has been recognized for 
achievements and significant contributions to his field in support of this criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). However, as we find that he has established that he meets the initial evidentiary 
requirement, we need not consider whether he also meets additional criteria. Rather, we will consider 
this evidence together with the balance of the record to determine whether the Petitioner is recognized 
as having a degree of expertise significantly above that ordinarily encountered in the field, and is 
therefore eligible for the requested classification. 
2. Final Merits Determination 
In reviewing the totality of the evidence in a final merits determination, we consider the quality of the 
evidence. 7 Upon de novo review of the record for the instant petition, we find that the Petitioner has 
not shown that he has exceptional ability in the legal field, or in the field of tax law. He has not 
demonstrated that he has a degree of expertise significantly above that ordinarily encountered in the 
field. 
As an initial matter, the evidence of the Petitioner's educational credentials, attorney license, and bar 
association membership document showed that he possesses the minimum qualifications to perform 
in his field. However, this documentation did not demonstrate that the organizations have any 
membership requirements above those commonly found in attorneys working in the field. 
Additionally, the testimonial evidence in the record did not establish that the Petitioner is recognized 
by others in his field for significant expertise not ordinarily encountered. Although most of the letters 
attested that the Petitioner is knowledgeable about tax law and is an excellent lawyer, they largely 
repeated the Petitioner's claims of his own contributions to the field without further probative detail. 
The Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter 
ofChawathe, 25 I&N Dec. at 376. Some letters were from professional associates who attest that the 
Petitioner's skills helped their businesses or clients, but do not discuss how his expertise compares to 
others in the field. A letter from an American law professor claimed that the Petitioner was well­
positioned to advance the national interest "more than other individuals with similar credentials," but 
similarly did not support this claim with specific facts. 
The Petitioner also submitted industry reports and articles. However, these focused on the complexity 
of tax law in Brazil and Latin America and did not discuss any particular achievements or contributions 
7 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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by the Petitioner or otherwise establish that the Petitioner has a degree of expertise significantly above 
that ordinarily encountered in his field. 
Finally, on appeal the Petitioner does not identify any erroneous conclusion of law or statement of fact 
regarding the Director's finding that he did not demonstrate that he is an individual of exceptional 
ability, aside from generally stating that he has submitted sufficient evidence of his eligibility. See 8 
C.F.R. § 103.3(a)(l)(v). While the Petitioner argues that he has demonstrated exceptional ability, he 
does not elaborate this claim with details about specific facts or pieces of evidence that support this 
claim. Commensurate with the Petitioner's burden of proof is the responsibility for explaining the 
significance of proffered evidence. Repaka v. Beers, 993 F. Supp. 2d 1214, 1219 (S.D. Cal. 2014); see 
also Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1481 n. 12 (11th Cir. 1997) (noting in a civil case 
that, absent plain error, it is not the place of an appellate body to grant appellants relief "based on facts 
they did not relate"). 
III. CONCLUSION 
The Petitioner has not established that he qualifies as a member of the professions holding an advanced 
degree or as an individual of exceptional ability in business. Therefore, the Petitioner has not shown 
eligibility for EB-2 classification. Without such a showing, the Petitioner cannot qualify for the 
national interest waiver. Because this petition cannot be approved without an underlying 
determination that the Petitioner qualifies for EB-2 classification, we will reserve discussion of the 
Petitioner's national interest waiver claim under the Dhanasar framework. 8 We will dismiss the 
appeal for these reasons. 
ORDER: The appeal is dismissed. 
8 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 unnecessmy to the results they reach); see also Matter ofL-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). 
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