dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 12, 2024 In Re: 29229846 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the marketing field building her own brand, seeks employment­
based second preference (EB-2) immigrant classification as a member of the professions holding an 
advanced degree, 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 is a member of the professions holding an advanced degree or that she 
qualifies for a national interest waiver in the exercise of discretion. 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 ofChawathe , 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 establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016) provides the framework 
for adjudicating national interest petitions. Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as a matter of discretion 1, grant a national interest waiver if the petitioner 
demonstrates that: 
1 USCIS has previously confinn ed 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-p art-f-chapter-5 . 
• 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. 
II. ANALYSIS 
A. Petitioner's Educational Credentials 
The first issue on appeal is whether the Petitioner qualifies for the EB-2 visa classification as an 
advanced degree professional. 2 The term "advanced degree" is defined at 8 C.F.R. § 204.5(k)(2) as 
follows: 
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 ... 
The regulations at 8 C.F.R. § 204.5(k)(3)(i)(A)-(B) state that a petition for an advanced degree 
professional must be accompanied by either an official academic record showing that the noncitizen 
has a U.S. advanced degree or a foreign equivalent degree, or by an official academic record showing 
that the noncitizen has a U.S. baccalaureate degree or a foreign equivalent degree, accompanied by 
employer letters demonstrating the five required years of progressive experience in the specialty. To 
establish eligibility, the Petitioner provided diplomas, transcripts, and an educational evaluation 
regarding the following credentials: 
• Degree in fashio,n_f_ro_m----L..l_______ ~______Jl(2001-2004); and 
• Certificate froml 1(2006-2007) . 
The Director concluded that contrary to her claims, the Petitioner did not provide evidence establishing 
that she received an advanced degree in Brazil or that she has five years of progressive post­
baccalaureate work experience in her specialty, and that therefore she is ineligible for the advanced 
degree professional classification. On appeal, the Petitioner provides a brief stating that the academic 
evaluation and employment verification letters demonstrate her claimed educational credentials and 
work experience, and alleges that the Director overlooked, misinterpreted, or did not give "due regard" 
to the evidence. 3 Upon review of the entire record, we conclude that the Petitioner has not met her 
burden of proof and provided relevant, probative, and credible evidence establishing her eligibility for 
2 The Petitioner does not claim, and the record does not indicate, that she qualifies for the EB-2 classification as an 
individual of exceptional ability in the sciences, arts, or business. 
3 The Petitioner also asserts that the Director violated her due process rights because the present petition was adjudicated 
by the same officer who denied her prior national interest waiver petition. According to the Petitioner, this created "an 
inherently (sic) bias from the first case into the second review, which [led] to the officer not evaluating the second 
application with an open mind, negatively impacting the decision." However, beyond generally asserting that the decision 
did not employ the correct standard ofproot: the Petitioner does not establish how having the same officer adjudicate both 
petitions violated her right to procedural due process. Because the Petitioner provides no further elaboration on or legal 
support for this claim, we will not address it further. See Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (declining to 
address a "passing reference" to an argument in a brief that did not provide legal support). 
2 
the advanced degree professional classification. See Matter of Chawathe, 25 I&N Dec. at 375-76 
( explaining the "preponderance of the evidence" standard used in these proceedings). 
The expert opinion letter from A-W- states that the Petitioner's educational credentials, in combination 
with her work experience, are equivalent to a U.S. master's degree in business administration. As a 
matter of discretion, we may use expert opinion letters submitted by the Petitioner as advisory 
testimony. However, we are responsible for making the final determination regarding eligibility for 
the benefit sought. Where an opinion letter is not in accord with other information in the record or is 
in any way questionable, we are not required to accept or may give less weight to that evidence. Matter 
o_f Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). In this instance, A-W-'s letter is not in 
accord with the Petitioner's educational records. 
According to the Electronic Database for Global Education (EDGE),4 an online resource regarding 
foreign educational equivalencies, a Brazilian Titulo de Bacharel degree is awarded after three to five 
years of study. While a three-year degree is only equivalent to three years of university study in the 
United States, a four- or five-year degree represents a level of education comparable to a U.S. 
baccalaureate. 5 The Petitioner's baccalaureate degree transcript is for a program of study that lasted 
from 2001 to 2004. However, while not noted by the Director, this transcript also indicates that the 
Petitioner did not take any courses in the first semester of 2002, and furthermore does not state any 
grades for the classes taken from 2001 to 2002. While the Petitioner's graded classes from 2003 and 
2004 have a status of "APR," or "aprovado," the classes with no grades have a status of "DISP," or 
dispensado. According to EDGE, in a Brazilian educational document, "aprovado" means "passed," 
while "dispensado" means "waived, exempt." 6 There is no indication in the transcript or the rest of 
the petition record as to why the Petitioner was exempt from three semesters of classes or whether her 
course of study actually lasted four years. The evaluation does not mention this issue, simply stating 
that the Petitioner completed a four-year course of study that was the equivalent of a U.S. baccalaureate 
degree. 
Furthermore, A-W- states that the Petitioner's teaching course certificate is a Brazilian "Master's 
Degree in Education." According to EDGE, Brazilian master's-level credentials are titled "Mestrado 
Profissional," 'Titulo de Mestre," "Grau de Mestre," or "Diploma de Mestrado." There is no 
indication on the Petitioner's diploma or transcript from Universidade Candido Mendes that she 
completed a Brazilian master's degree program. For these reasons, A-W-'s evaluation is not in 
accordance with the evidence of record, and we will not grant it any evidentiary weight. Matter o_f 
Caron Int'l, Inc., 19 I&N Dec. at 795. 
4 EDGE was created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). 
AACRAO is a non-profit, voluntary association of more than 11,000 professionals in more than 40 countries. See 
AACRAO, Who We Are, https://www.aacrao.org/who-we-are; see also Viraj, LLC, v. U.S. Att'y Gen., 578 Fed. Appx. 
907, 910 ( 1 1th Cir. 2014) ( describing EDGE as "a respected source of information"). 
5 AACRAO, Titulo de Bacharel/Grau de Bacharel (Title of Bachelor), 
https://www.aacrao.org/edge/country/credentials/credential/brazil/titulo-de-bacharel-grau-de-bacharel-(title-of-bachelor) 
(last visited Dec. 15, 2023, and incorporated into the record). 
6 AACRAO, Brazil Grading Scales, https://www.aacrao.org/edge/country/grading/brazil (last visited Dec. 15, 2023, and 
incorporated into the record). 
3 
As explained above, the Petitioner has not submitted an official academic record showing that she has 
a foreign degree which is equivalent to a U.S. advanced degree. 8 C.F.R. § 204.5(k)(3)(i)(A). 
Additionally, the Petitioner's baccalaureate degree transcript and supporting materials provide no 
explanation for why she only received grades for two years of a four-year course of study, which raises 
doubts as to whether her degree is equivalent to a U.S. baccalaureate. 8 C.F.R. § 204.5(k)(3)(i)(B). 
Because the Petitioner did not receive prior notice of the concerns regarding her baccalaureate degree 
records, we discuss this issue so that the Petitioner can address these concerns in future filings in this 
matter. However, even if the record showed that the Petitioner has a qualifying baccalaureate degree, 
the Petitioner did not submit evidence establishing that she has five years of progressive work 
experience in her specialty. 8 C.F.R. § 204.5(k)(3)(i)(B). 
B. Petitioner's Work Experience 
According to 8 C.F.R. § 204.S(g)(l), evidence regarding qualifying work experience should be in the 
form of letters from current or former employers which include the name, address, and title of the 
writer, as well as a specific description of the Petitioner's duties. In U.S. Department of Labor, Form 
ETA-750, Application for Alien Employment Certification, which she signed under penalty of perjury, 
the Petitioner stated she had the following foll-time post-baccalaureate work experience: 7 
• U.S. Brand Manager (July 2020 to present); 
• Consultant,.________ ___.(May 2020 to present); 
• Marketing and Merchandizing Manager,! I(April 2018 to July 2020); 
• Travel Retail Purchasing and Merchandizing Manager,LJ (November 2017 to April 2018); 
• Travel Retail Purchaser March 2017 to November 2017); 
• Real Estate Associate, (June 2016 to June 2017); 
• Creative General Mana er, (January 2009 to August 2016); 
• Independent Teacher,.__ ________ __.(July 2006 to August 2010); and 
• Independent Corporate Consultant and Coach (February 2006 to December 2010). 
The March 2023 letter from I I states that the Petitioner was employed there from July 13, 
2020, to January 26, 2022, as their "U.S. Brand Manager," describes her duties, and provides the 
information required by regulation. Id. However, a petitioner must establish eligibility for the benefit 
sought as of the time of filing. 8 C.F.R. § 103.2(b )(1 ). The current petition was filed on September 
22, 2020. This letter therefore documents only 71 days of qualifying work experience. Similarly, the 
March 2023 letter from I Iconfirms employment that began in 2022, well 
after the petition filing date, and so does not document qualifying work experience. 
7 Form ETA-750 instructs the preparer to state every job they have held in the past three years, as well as "any other jobs 
related to the occupation for which the alien is seeking certification ... " See also 8 C.F.R. § 103.2(a)(1) (incorporating 
fonn instructions into the regulations requiring that fonn's submission). The Petitioner submitted two Fonns ET A-750 in 
connection with her prior 2018 national interest waiver petition, which also sought a position in business management. 
These forms only stated the Petitioner's positions ad land omitted the realty, teaching, and consultancy 
positions the Petitioner is now relying upon to establish her relevant work experience. Where there are inconsistencies in 
the record, it is the Petitioner's burden to resolve these inconsistencies using independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). The Petitioner has not resolved the 
inconsistencies in the job histories she provided in her various Forms ETA-750. While this was not mentioned by the 
Director, the Petitioner should be prepared to address this issue in any future filings in this matter. 
4 
The letter from F-V-J- ofD is dated January 11, 2018, and indicates that the Petitioner began 
working there "in the beginning of 201 7." This letter provides a detailed account of the Petitioner's 
duties, as required by regulation, but does not state an exact start date. It also appears to detail only 
her duties as a purchasing man;ger, not in her initial position as a purchaser. Given the Petitioner's 
claim that she began working a 1in March 201 7, this letter documents, at most, approximately 10 
months of work experience. 
The April 2023 letter from J-W- otO states that the Petitioner "was working forl Ifrom March 
21st, 2017 to July 10th, 2020 in the full-time position as Global Marketing and Visual Merchandising 
Manager." However, this contradicts the Petitioner's own account of her work history in her ETA-750, 
which states that she was initially hired atc=Jas a purchaser, was promoted to purchasing manager 
in November 2017, and was promoted to the marketing and merchandising manager position in April 
2018. The Petitioner has not provided evidence to resolve the contradictions between thisOletter 
and her ETA-750. Matter ofHo, 19 I&N Dec. at 591-92. The letter relates to three years and three 
and a half months of the Petitioner's work experience. 
The record contains a letter withl~--~lletterhead in which the Petitioner describes her own work 
experience at that organization. However, this letter is dated April 2023, and by its own account, the 
Petitioner stopped working atl lin 2017. 8 It is not apparent how the Petitioner had the 
authority to write a reference letter onl lbehalf six years after she stopped working there. 
Because the Petitioner has not resolved this discrepancy, we do not consider this letter to be from the 
Petitioner's former employer, as required by regulation. Id. 
We further note that the accountant letter which states the Petitioner worked atl Ifrom 2009 
to 2017 also states that '1 l[is the] commercial name of the engineering and construction 
company I f'9 The Petitioner, however, describes the company as providing 
"consultancy in design, event planning, branding, marketing, store design, and advertising." There is 
no independent, reliable evidence in the record establishing the nature ofl Ibusiness or the 
Petitioner's duties there, and so we will not accept this letter as evidence of qualifying work 
experience. Matter of Ho, 19 I&N Dec. at 591-92. ("Attempts to explain or reconcile conflicting 
accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not 
suffice."). While this issue was not mentioned by the Director, the Petitioner should be prepared to 
address it in any future filings in this matter. 
The letters from C-F-, of the I l1° state that the Petitioner "provided 
teaching services" tol Ifrom 2006 to 2010. As noted by the Director, the 
Petitioner's field is business management, not teaching, and so this experience is not in her specialty. 
The letters from A-L- state that the Petitioner worked as a "freelance service provider" atl Iin 
Brazil for an average of 30 hours a week from 2005 to 2009. First, while A-L- states that she 
8 It is noted that the Petitioner's ET A-750 states that she stopped working atl in 2016, not 2017. as she states in 
her experience letter. She has not resolved this inconsistency. Id. 
9 As this letter is not from I I and does not detail the Petitioner's duties, we will not accept it as evidence of her 
work experience. 
10 The record indicates that this institute administrates the fashion department at the.__ _______ ___. 
I
5 
supervised the Petitioner at I I the letters are written on her personal letterhead and describe her 
as an "independent consultant." These letters are therefore not from the Petitioner's former employer. 
Second, the letters indicate that the Petitioner was employed b~ Ias a fashion instructor, which 
is not work experience in her field of business administration. While A-L- states that the Petitioner 
eventually "became a member of our corporate consulting team," the letter does not say when this 
occurred, it is not apparent how the Petitioner's time was divided between qualifying business 
administration duties and non-qualifying duties as a classroom teacher. We therefore cannot conclude 
that this letter documents the Petitioner's work experience in her specialty of business administration. 
Finally, the letter from
,_________ ____.states that the Petitioner began working there in 2016, 
but does not state a specific start or end date, give a detailed list of duties, state that the Petitioner 
worked there full-time, or state the address of the writer. It is also not apparent whether the position 
ofreal estate associate is one that is in the Petitioner's field. 
The only experience letters in the record which come from the Petitioner's employers and relate to 
qualifying work history are those from~-------~· If we were to accept the D letters 
despite their contradictions with the ETA-750, the work experience documented by these two 
employers adds up just under three years and five months. This is well below the requirement of five 
years of relevant post-baccalaureate experience in the specialty which is required to establish 
eligibility as an advanced degree professional in combination with a baccalaureate degree. 8 C.F.R. 
§ 204.5(k)(2) 
The Petitioner has not met the evidentiary requirements of 8 C.F.R. § 204.5(k)(3)(i)(A)-(B) by 
providing either an official academic record showing that she has a qualifying advanced degree, or an 
official academic record showing that she has a qualifying baccalaureate degree in combination with 
experience letters showing five years of post-baccalaureate work experience in her specialty. As such, 
she does not qualify for the EB-2 classification as an advanced degree professional. 
III. CONCLUSION 
Because the Petitioner's ineligibility for the EB-2 classification is dispositive of the case, we need not 
reach the issue of whether she qualifies for a waiver of the job offer requirement in the exercise of 
discretion and hereby reserve it. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies 
are not required to make "purely advisory findings" on issues that are unnecessary 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). The 
petition will remain denied. 
ORDER: The appeal is dismissed. 
6