dismissed EB-2 NIW Case: Law Enforcement

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 23, 2025 In Re: 34997641 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a former police officer, 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 petition, concluding that the Petitioner did not 
establish that she was an advanced degree professional or an individual of exceptional ability. The 
Director further determined that the Petitioner did not establish that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. We dismissed a subsequent appeal. 
The matter is now before us on combined motions to reopen and reconsider. 
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). Upon review, we will dismiss the 
motions. 
In our appellate decision, we concluded that the Petitioner had not established that she holds the 
foreign equivalent of a U.S. bachelor's degree with five years of progressive experience in the 
specialty. 8 C.F.R. § 204.5(k)(2). We made that determination because the Petitioner did not show 
how her two years of study are equivalent to the four years of study generally required for a U.S. 
bachelor's degree. 1 We further determined that the Petitioner had not established her eligibility as an 
individual of exceptional ability because she had not demonstrated that she met at least three of the 
six criteria. 8 C.F.R. § 204.5(k)(3)(ii). Additionally, as the issue of whether she established she met 
the criteria of having an advanced degree was dispositive, we reserved on the issue of whether she 
merits a national interest waiver and waiver of the job offer. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F .R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
1 The Petitioner has not explained how the Petitioner's "6 completed courses" impacts the determination. Significantly, 
the Petitioner's newly submitted education evaluation does not explain how the addition of the one course results in her 
education being the equivalent to a U.S. bachelor's degree. 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner submits a legal brief, evaluations, education documents, and business 
documents. The Petitioner asserts that these documents establish eligibility, as a "holder of an 
advanced degree" and five years of progressive post-baccalaureate experience. 2 Further, the Petitioner 
asserts that she merits a national interest waiver. 
The Petitioner submits on motion a "Diploma Evaluation Report" from GEO Credential Services. The 
Petitioner obtained this report after we dismissed her appeal upholding the Director's determination 
that the Petitioner did not have the equivalent of a U.S. bachelor's degree. The report states that the 
Petitioner's diploma title is equivalent to a U.S. bachelor of science in criminal justice administration. 
Like the evaluation from the Foundation for International Services, Inc. that the Petitioner previously 
submitted, and we addressed on appeal, the one presented on motion does not explain how her two 
years of study are equivalent to the four years of education generally required for a U.S. bachelor's 
degree. We may, in our discretion, use an evaluation of a person's foreign education as an advisory 
opinion. Matter ofSea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is 
not in accord with other information or is any way questionable, we may discount or give less weight 
to that evaluation. Id. 
Moreover, the Petitioner does not explain, as we mentioned in our appeal dismissal, why the first 
education evaluation the Petitioner submitted initially claims that her diploma title is only equivalent 
to a U.S. associate's degree. The Petitioner's two separate evaluations conflict significantly without 
an explanation of the critical difference in degree equivalency determination. For instance, the GEO 
evaluation states that the Petitioner attained a "Titulo de Licenciatura," yet no document exists in the 
record with that name to exhibit this level of education. The Petitioner must resolve inconsistencies 
in the record with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
Counsel states that due to the Petitioner's oversight, the company that provided the initial education 
evaluation did not have the entirety of the Petitioner's educational documents to review and evaluate. 
Thus, counsel states that the evaluation from GEO Credential Services submitted on motion clarifies 
the Petitioner's degree equivalency. The Director issued a Request for Evidence ("RFE") and 
specifically noted that the Petitioner had not submitted sufficient evidence to establish that the 
Petitioner had an advanced degree. The Petitioner had the opportunity to demonstrate any asserted 
bachelor's degree in response to the RFE, or on appeal. Because the evidence in the record does not 
support the new evaluation's claims in the form of a Titulo de Licenciatura, the Petitioner does not 
meet the requirements of a motion to reopen. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to reviewing our 
2 On motion, the Petitioner makes no claim to eligibility for EB-2 classification as an individual of exceptional ability. As 
such, that issue is waived. 
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latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. Specifically, the Petitioner 
disagrees with our reservation of our appellate decision on her eligibility for a national interest waiver. 
The Petitioner contends that she has "demonstrated, through substantial evidence, that she meets the 
criteria for a waiver of the job offer requirement" as outlined in Matter ofDhanasar, 26 T&N Dec. 884 
(AAO 2016). 
In support of her motion, the Petitioner relies on Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 l 0), 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013), and Rijal v. USCIS, 772 F. Supp. 2d 
1339 (W.D. Wash. 2011) for the proposition that when a petitioner meets initial evidence 
requirements, USCTS should then consider the totality of the evidence in a final merits determination 
to assess "whether the record shows sustained national or international acclaim and demonstrates that 
the individual is among the small percentage at the very top of the field of endeavor." The Petitioner 
misunderstands and asserts the application of this approach to the advanced degree and national 
interest waiver determination. The Petitioner states the "decision to reserve judgment on the waiver's 
applicability overlooks the compelling evidence presented that clearly supports the Petitioner's 
eligibility for the waiver under the national interest exception." As such, the Petitioner argues that we 
erred in reserving our decision on her eligibility for a national interest waiver. 
We disagree. First, as we stated in our decision dismissing the Petitioner's appeal, we did not make 
any determination on the Petitioner's eligibility for a national interest waiver because we did not 
conclude that she had demonstrated her eligibility for EB-2 classification. A petitioner must first show 
eligibility for the underlying EB-2 classification. As the Petitioner did not demonstrate eligibility for 
the EB-2 classification we reserved our decision on the Petitioner's eligibility related to the national 
interest waiver. 3 
Second, the Petitioner's citation to Kazarian, Visinscaia, and Rijal, is unavailing. In the advanced 
degree exceptional ability context, where a petitioner meets the initial evidence requirements as a 
person of exceptional ability, we then consider the totality of the material provided in a final merits 
determination and assess whether the petitioner has demonstrated that they have a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. See Kazarian v. 
USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010); see also 6 USCIS Policy Manual F.5(8)(2) n.21, 
https://www.uscis.gov/policy-manual ("USCIS has interpreted Kazarian as applicable to exceptional 
ability petitions.") Contrary to the Petitioner's contentions, there is no final merits determination 
involving a petitioner's eligibility for a national interest waiver. Because we did not conclude that the 
Petitioner demonstrated her eligibility for EB-2 classification, we did not consider her eligibility for a 
national interest waiver. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established 
3 See INS v. Bagamashad. 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessmy 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 the applicant did not otherwise meet their burden of proof). 
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that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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