dismissed EB-2 NIW Case: Medical Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 17, 2024 In Re: 30254467 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a medical entrepreneur, seeks classification under the employment-based, second­
preference (EB-2) immigrant visa category and a waiver of the category's job-offer requirement. See 
Immigration and Nationality Act (the Act) section 203(b)(2)(B)(i), 8 U.S.C. § 1153(b)(2)(B)(i). U.S. 
Citizenship and Immigration Services (USCIS) has discretion to excuse job offers in this category -
and thus related requirements for certifications from the U.S. Department of Labor (DOL) - if 
petitioners demonstrate that waivers of these U.S.-worker protections would be "in the national 
interest." Id.; see also Poursina v. USCIS, 936 F.3d 868,871 (9th Cir. 2019) (holding that the issuance 
of national interest waivers is discretionary). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner demonstrated neither eligibility for EB-2 classification nor the merits of a national interest 
waiver. On appeal, the Petitioner contends that the Director applied too strict a standard of proof to 
her petition and disregarded evidence that she submitted in response to a request for additional 
evidence (RFE). 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 53 7 n.2 (AAO 
2015), we conclude that she has not established EB-2 eligibility. We will therefore dismiss the appeal. 
I. LAW 
To establish eligibility for national interest waivers, pet1t10ners must first demonstrate their 
qualifications for the EB-2 category, either as members of the professions holding "advanced degrees" 
or noncitizens of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act. 
To protect the jobs of U.S. workers, this immigrant visa category usually requires prospective U.S. 
employers to offer noncitizens jobs and to obtain DOL certifications to permanently employ them in 
the country. See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D). Petitioners may avoid the 
job offer/labor certification requirements by demonstrating that waivers of the U.S.-worker protections 
would be "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
Neither the Act nor regulations define the term "national interest." So, to adjudicate these waiver 
requests, we have established a framework. If otherwise qualified as advanced degree professionals 
or noncitizens of exceptional ability, petitioners may warrant waivers of the job-offer/labor 
certification requirements by demonstrating that: 
• Their proposed U.S. work has "substantial merit" and "national importance;" 
• They are "well positioned" to advance their intended endeavors; and 
• On balance, waivers of the job-offer/labor certification requirements would benefit the United 
States. 
Matter ofDhanasar, 26 I&N Dec. 884, 889-91 (AAO 2016); see generally 6 USCIS Policy Manual 
F.(5)(D)(l), www.uscis.gov/policy-manual. 
II. ANALYSIS 
A. The Proposed Endeavor 
The record shows that the Petitioner, a Filipino native and citizen, earned a bachelor's degree in 
medical technology in her home country. She stated that she has more than a decade of experience in 
the Philippines as an entrepreneur. 
Now in the United States, the Petitioner submitted evidence that she is a part-owner and administrator 
of a U.S. nursing home. 1 She stated that she: 
plans to continue to work as an Entrepreneur in the [U.S.] medical field and/or in a 
nursing home/assisted living facility while providing advice and consultation to U.S. 
health care institutions, teaching and training medical professionals and workers in the 
medical field as well as advising U.S. companies operating or planning to venture into 
the lucrative health field. 
B. EB-2 Eligibility 
The Petitioner seeks EB-2 eligibility as both an advanced degree professional and a noncitizen of 
"exceptional ability." See section 203(b)(2)(A) of the Act. 
1. Advanced Degree Professional 
The term "advanced degree" includes "[a] United States degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty." 8 C.F.R. § 204.5(k)(2). 
The record does not support the Director's finding that the Petitioner has the foreign equivalent of a 
1 The Petitioner's RFE response included a "supplemental business statement/plan." The supplemental document indicates 
that she now operates two care facilities and seeks "to be the leading elderly care provider in the U.S. and branch out in all 
the States." A petitioner, however, must establish their eligibility "at the time of filing the benefit request." 8 C.F.R. 
§ 103 .2(b)(1 ). Thus. we will hold her to her initial proposal and disregard her supplemental plan. See Matter ofIzummi, 
22 l&N Dec. 169, 175 (AAO 1998) ("[A] petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition conform to Service requirements.") 
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U.S. bachelor's degree. She submitted copies of academic records of her Filipino bachelor of science 
degree in medical technology. A university transcript indicates that, to obtain the 1990 degree, she 
studied six semesters, or three academic years. 
U.S. bachelor's degrees usually require at least four academic years of study. Matter ofShah, 17 I&N 
Dec. 244,245 (Reg'l Comm'r 1977). The record lacks evidence that the Petitioner's Filipino bachelor 
of science degree equates to a U.S. bachelor's degree or explaining how her apparent three-year degree 
compares to a U.S. four-year degree. See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (requiring 
a petitioner to resolved inconsistencies with independent, objective evidence pointing to where the 
truth lies). 
On appeal, the Petitioner notes that an online database to which USCIS sometimes refers equates 
Filipino bachelor of science degrees to U.S. bachelor's degrees. 2 The database, however, indicates 
that Filipino baccalaureate degrees reflect four to five years of college or university studies. As 
previously indicated, the Petitioner's university transcript indicates that she studied three years for her 
degree. Also, the current database information might not apply to older Filipino bachelor's degrees 
like the Petitioner's, which she received more than 30 years ago. The Petitioner therefore has not 
demonstrated that her foreign degree equates to a U.S. bachelor's degree. We will therefore withdraw 
the Director's contrary finding. 
Also, as the Director found, the Petitioner has not demonstrated possession of at least five years of 
progressive, post-baccalaureate experience in the medical field. To prove qualifying experience, a 
petitioner must submit letters from former or current employers. 8 C.F.R. § 204.5 (k)(3)(i)(B). The 
letters must contain the employers' names, addresses, and titles, and specifically describe a 
beneficiary's job duties. 8 C.F.R. § 204.5(g)(l). "If such evidence is unavailable, other 
documentation relating to the [ noncitizen] 's experience or training will be considered." Id. 
The Petitioner submitted seven recommendation letters. Contrary to 8 C.F .R. § 204.5(g)( 1 ), however, 
none of the letters contains "a specific description of the duties performed by the [noncitizen]." The 
Petitioner does not claim or demonstrate that the required letters are unavailable. The letters also are 
not on the purported employers' letterheads, and the record lacks evidence that the authors worked for 
the claimed employers. 
Further, the record contains inconsistencies regarding the Petitioner's purported job as a nursing 
instructor at a U.S. medical arts school. A recommendation letter from a purported school employee 
indicates the Petitioner's work as an instructor at the school from 2010 until at least 2022. The 
Petitioner also stated that she has worked full-time for the school since 2010. But she also stated her 
full-time work as a resident care director of a nursing home from February 2017 to February 2018. 
The Petitioner has not explained how she simultaneously worked two full-time jobs for a year. 
Elsewhere in the petition, she stated: "During my free time, I teach in Nursing school." This statement 
2 The Petitioner refers to the Electronic Database for Global Education (EDGE) created by the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO). AACRAO is a non-profit group with more than 14,000 
members representing more than 2,300 institutions in more than 40 countries. See AACRAO, " Who We Are," 
www.aacrao.org/who-we-are; see also Viraj, LLCv. U.S. Att'y Gen. , 578 Fed. Appx. 907, 910 (11th Cir. 2014) (describing 
EDGE as "a respected source of information"). 
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suggests that the Petitioner does not work as a nursing instructor on a full-time basis. The 
discrepancies cast doubt on her claimed qualifying experience as an advanced degree professional. 
See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (requiring petitioners to resolve inconsistencies 
with independent, objective evidence pointing to where the truth lies). 
For the foregoing reasons, the Petitioner has not demonstrated EB-2 eligibility as an advanced degree 
professional. 
2. Noncitizen of Exceptional Ability 
The Director found that the Petitioner met two of six initial evidentiary requirements for this 
classification - one less than needed to obtain a final merits determination. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). 3 The Director concluded that the Petitioner submitted an official academic 
record showing her receipt of a university degree relating to her claimed area of exceptional ability 
and a license to practice in her profession. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (C). 
On appeal, the Petitioner contends that she also submitted evidence that she has: commanded a salary 
demonstrating exceptional ability; membership in professional associations; and recognition for her 
achievements and significant contributions to her field. See 8 C.F.R. § 204.5(k)(3)(ii)(D), (E), (F). 
a. Salary or Other Remuneration for Services 
To meet this criterion, a petitioner must submit "[e]vidence that the [noncitizen] has commanded a 
salary, or other renumeration for services, which demonstrates exceptional ability." 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). 
The Petitioner submitted a copy of a job offer letter she received from a nursing home in 2022. The 
letter, however, does not indicate the offered job's salary or wage rate. Also, the Petitioner did not 
submit evidence of the salaries or wage rates of other nursing home administrators. 
On appeal, the Petitioner submits copies of her 2021 earnings statements from February through April. 
But she has not provided evidence of the salaries or wage rates of other nursing home administrators. 
Thus, we are unable to compare her wages to those of others in her field and determine whether her 
wage rate reflects exceptional ability. We therefore agree with the Director that the Petitioner has not 
demonstrated her commandment of a salary or other renumeration for services demonstrating 
exceptional ability. 
b. Membership in Professional Associations 
This criterion requires "[e]vidence of membership in professional associations." 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). 
3 If the criteria "do not readily apply" to a petitioner ' s occupation, they may submit "comparable evidence" to establish 
their eligibility. 8 C.F.R. § 204.5(k)(3)(iii) . 
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The Director found that the Petitioner did not submit evidence to meet this requirement. On appeal, 
she claims she did. 
The Petitioner's initial filing states that Exhibit 12 contains, in part, "proof of membership in [an] 
association." The exhibit contains copies of numerous certificates indicating her completion or 
attendance at courses, programs, or training sessions. But the certificates do not indicate her 
membership in associations. Thus, the Petitioner has not met this requirement. 
c. Recognition for Achievements and Significant Contributions 
To meet this requirement, a petitioner must submit "[ e ]vidence 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). 
The Petitioner claims that she met this criterion by submitting "[n]umerous letters of support and 
reference from [her] colleagues, previous employers, [and] co-workers." We agree with the Director, 
however, that these letters do not constitute recognition for achievements and significant contributions 
to the industry or field. 
The letters praise the Petitioner's work and describe her, for example, as "exceptionally motivated and 
talented," "very perceptive," and "very well-organized." But most of the letters do not identify 
achievements or significant contributions that she made to her field. One letter states that, during the 
Petitioner's employment, her nursing home employer reached a "100% Occupancy" rate. The record, 
however, does not explain her role in the accomplishment or indicate its significance in the field. The 
Petitioner therefore has not submitted evidence of her recognition for achievements and significant 
contributions to her field. 
As the Petitioner has not met the requisite three evidentiary requirements, we need not make a final 
merits determination on her eligibility as a noncitizen of exceptional ability. See generally 6 USCIS 
Policy Manual F.(5)(B)(2). 
For the foregoing reasons, the Petitioner has not demonstrated EB-2 eligibility as an advanced degree 
professional or a noncitizen of exceptional ability. We will therefore affirm the petition's denial. 
C. Marriage Fraud Bar 
Although the Director did not address the issue, USCIS records indicate that the Act's "marriage fraud 
bar" may apply to this petition. 
USCIS cannot approve a petition if a noncitizen previously sought permanent residence as the spouse 
of a U.S. citizen or lawful permanent resident based on a marriage "entered into for the purpose of 
evading the immigration laws." Section 204(c)(l) of the Act, 8 C.F.R. § 1154(c)(l). The bar also 
applies to a noncitizen who "has attempted or conspired to enter into a marriage for the purpose of 
evading the immigration laws." Id. 
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To apply the bar, the record must contain "substantial and probative" evidence of marriage fraud. See 
Zerezghi v. USCIS, 955 F.3d 802, 805 (9th Cir. 2020) (stating that USCIS may issue a notice of intent 
to deny a petition if the Agency finds "substantial and probative" evidence of marriage fraud). This 
standard is higher than a "preponderance of the evidence" but lower than "clear and convincing 
evidence." Matter ofP. Singh, 27 I&N Dec. 598, 607 (BIA 2019). Substantial and probative evidence 
establishes that a marriage is "more than probably" fraudulent. Id. 
USCIS records indicate that, in 2014, the Petitioner told immigration officers that, in 2010, she married 
a U.S. citizen, W.M., solely for immigration purposes. She reportedly signed a sworn statement that, 
during the marriage, she did not live with her spouse but rather with her former spouse, J.E., whom 
she had divorced earlier in 2010. She stated that she did not consummate her marriage with W.M. and 
that she agreed to pay him $15,000 for marrying her. She stated that she ultimately paid him nearly 
$20,000. "A sworn statement by the parties is direct evidence of fraud that is 'substantial and 
probative ." Matter ofP. Singh, 27 I&N Dec. at 607 ( citations omitted). 
The Director did not notify the Petitioner of this derogatory information or give her an opportunity to 
rebut it. Thus, we will not consider whether the marriage fraud bar prevents this petition's approval. 
In any future filing in this matter, however, to avoid the bar, the Petitioner must explain the derogatory 
information and submit evidence that she and W.M "intended to establish a life together at the time 
they were married." Matter ofP. Singh, 27 I&N Dec. at 601 (citations omitted). 
D. The Remaining Issues 
Our conclusion that the Petitioner has not demonstrated EB-2 eligibility resolves this appeal. We 
therefore decline to reach and hereby reserve her appellate arguments regarding: the claimed national 
importance of her proposed endeavor; her positioning to advance it; and a waiver's purported benefits 
to the United States. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies need not 
make "purely advisory findings" on issues unnecessary to their ultimate decisions); see also Matter of 
L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal where an 
applicant did not otherwise qualify for relief from removal). 
III. CONCLUSION 
The Petitioner has not demonstrated EB-2 eligibility as either an advanced degree professional or a 
noncitizen of exceptional ability. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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