dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 03, 2024 In Re: 34433680 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a foreign legal consultant, 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 Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
Workers (national interest waiver) , concluding the Petitioner had not established eligibility for the 
underlying EB-2 immigrant classification and that a waiver of the required job offer , and thus of the 
labor certification, would be in the national interest. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. 
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 r equirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&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: 
1 See Flores v. Garland , 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Third , Ninth , Eleventh, and D.C. Circuit Courts in 
concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
• 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. 
11. ANALYSIS 
In February 2022, the Petitioner filed the underlying national interest waiver. The Director denied the 
petition after issuing a request for evidence and reviewing the Petitioner's response, determining that 
the Petitioner had not established her eligibility for the underlying EB-2 visa classification as either 
an advanced degree professional or as an individual of exceptional ability. The Director further 
determined the Petitioner had not demonstrated she merits a discretionary waiver of the job offer 
requirement "in the national interest." On appeal, the Petitioner submits a brief. 
Based on our de nova review of the record, we agree with the Director that the Petitioner has not 
established her eligibility for EB-2 visa classification. Because the national interest waiver cannot be 
approved unless the Petitioner qualifies for the underlying EB-2 classification, we reserve the 
Petitioner's arguments regarding the Director's determination that she also did not establish eligibility 
for a national interest waiver under the three prongs of the Dhanasar framework. 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); see also Matter of 
L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
A. EB-2 Visa Classification as an Advanced Degree Professional 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or foreign equivalent 
degree followed by five years ofprogressive experience in the specialty is the equivalent of amaster's 
degree. Id. 
The Director acknowledged the Petitioner's documents evidencing she was awarded amaster's degree 
in September 2022 from the _____ in Italy in European studies after completing a two-
year program. However, the Director determined that the degree was awarded after the Petitioner filed 
her national interest waiver and she therefore did not demonstrate she had a foreign degree equivalent 
to a U.S. academic or professional degree above that of a baccalaureate at the time of filing her national 
interest waiver as required. 
The Director also determined that the Petitioner's de ree in international law, awarded in 2016 after 
she completed a four-year program at 
____________ was equivalent to a United States baccalaureate degree. 
However, the Director further determined the Petitioner had not established she had at least five years 
of progressive post-baccalaureate experience. According to the Director, the Petitioner submitted a 
letter evidencing that she worked as a junior lawyer from September 2015 until October 2018. 
2 
However, she acquired her degree in June 2016. The Director therefore determined that the 
Petitioner's experience from June 2016 to October 2018 did not amount to five years of progressive 
experience in the specialty following the acquisition of her foreign equivalent of a U.S. baccalaureate 
degree. The Director also determined that another letter submitted by the Petitioner evidenced she 
worked as a full-time legal assistant starting in December 2022, after she filed her national interest 
waiver in February 2022. 
The Petitioner asserts the Director erred in determining she was not an advanced degree professional 
but does not ex lain how the Director erred; rather she references havin submitted her de rees from 
the and the 
_____ in the record below . 
The Petitioner must establish her eligibility for the national interest waiver at the time of filing. 
8 C.F.R. § 103.2(b)(1). While the Petitioner submitted evidence of obtaining a master's degree, the 
degree was awarded after she filed her national interest waiver. The Petitioner therefore has not 
demonstrated she had a foreign degree equivalent to a U.S. academic or professional degree above 
that of a baccalaureate at the time of filing her national interest waiver. Similarly, while the Petitioner 
submitted evidence of obtaining a foreign degree equivalent to a U.S. bachelor's degree, she did not 
establish that at the time of filing she had at least five years of progressive experience in the specialty. 
Consequently, the Petitioner has not established that at the time of filing she was an advanced degree 
professional as required under 8 C.F.R. § 204.5(k)(2). 
B. EB-2 Classification as an Individual of Exceptional Ability 
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. 
The Director determined the Petitioner only met one of the six regulatory criteria, namely 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), and therefore did not establish the first step of the exceptional ability analysis. 
For this reason, the Director did not conduct a final merits analysis. On appeal, the Petitioner asserts 
the Director erred in determining she did not provide evidence demonstrating membership in 
professional associations under 8 C.F.R. § 204.5(k)(3)(ii)(E) or evidence demonstrating recognition 
for achievements and significant contributions to the industry or field by peers, governmental entities, 
or professional or business organizations under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
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). Here, the Petitioner has not submitted comparable 
evidence to establish her eligibility. 
3 USCIS has 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 (explaining, as guidance, 
how to evaluate evidence in the exceptional ability context). 
3 
We agree with the Director that the Petitioner established she has a degree, diploma, certificate, or 
similar award from an institute of learning relating to the area of exceptional ability, satisfying 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). With respect to 8 C.F.R. § 204.5(k)(3)(ii)(E), the Petitioner asserts she is a 
member of the National Association of Legal Assistants (NALA), whose membership encompasses a 
diverse range of individuals, from experienced paralegal experts to students currently enrolled in 
accredited paralegal studies. She also states she is a member of the National Federation of Paralegal 
Associations, Inc. (NFPA), which is comprised of almost 40 member associations and represents over 
4,000 individual members reflecting a broad range of experience, education, and diversity. She 
provides her membership certificate for both and information from the website of NFPA. The term 
"profession" is defined as one of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. 
§ 1101(a)(32), 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.4 8 C.F.R. § 204.5(k)(2). The 
Petitioner does not assert and the documentation in the record does not demonstrate that a U.S. 
bachelor's degree or foreign equivalent is a requirement for membership in either NALA or NFPA. 
The Petitioner also claims she is a member of the American Bar Association (ABA) and American 
Immigration Lawyers Association (AILA). The record does not contain evidence of the Petitioner's 
membership in the ABA. Further, the printouts the Petitioner includes to evidence her membership in 
Al LA states she is ineligible for membership and her "type" is student. The Petitioner has therefore 
not established her membership in professional associations to satisfy the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). 
With respect to 8 C.F.R. § 204.5(k)(3)(ii)(F), which requires evidence demonstrating recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations, the Director acknowledged the Petitioner's letters of 
recommendation and her certificates recognizing her grade school achievements, community service, 
and completion of educational events. The Director however determined that the Petitioner's evidence 
did not establish this criterion. The Petitioner does not provide arguments for how the Director erred 
in the analysis. Rather, she refers to three of the letters of recommendation submitted to the Director 
below that she asserts support this criterion. One letter is authored by an attorney who supervised her 
internship with his law firm, but the author does not describe the length of the internship. He describes 
how the Petitioner assisted with filings and improved the "company's statistics" for the Central Asian 
region. He, however, does not explain or provide context what he meant by the company's statistics. 
A second letter is authored by a managing partner at another employer, who praises her work for the 
firm as an intern and then paralegal and says he is very satisfied with her work. A third letter is by 
another attorney for the same employer who praises her language ski Ils and her abi I ity to learn quickly. 
While the letters are highly complimentary of the Petitioner, they do not detail how the Petitioner's 
contributions to their employer's practices or successfully fulfilling her duties amount to significant 
contributions to the broader legal industry or field as required by the plain language of 8 C.F.R. 
§ 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner does not contest the Director's findings with respect to the remaining three 
evidentiary criteria. Accordingly, the Petitioner has not established three out of the six evidentiary 
4 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 101(a)(32) of the Act. 
4 
criteria of 8 C.F.R. § 204.5(k)(3)(ii) to satisfy step one of the analysis for EB-2 classification as an 
individual of exceptional ability. We therefore need not conduct a final merits determination to decide 
whether the evidence in its totality shows that the Petitioner is 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, under section 203(b)(2)(A) of the Act and reserve the 
Petitioner's arguments in support. See INS v. Bagamasbad, 429 U.S. at 25-26; see also Matter of L­
A-C-, 26 l&N Dec. at 526 n.7. 
111. CONCLUSION 
The Petitioner has not established that she qualifies as a member of the professions holding an 
advanced degree or as an individual of exceptional ability in the sciences, arts, or business. Therefore, 
the Petitioner has not shown eligibility for the underlying EB-2 classification. Without such a 
showing, the Petitioner cannot qualify for the national interest waiver of the job offer attached to that 
classification. 
ORDER: The appeal is dismissed. 
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