dismissed EB-2 NIW Case: Medical Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 19805494 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 28, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference 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 EB-2 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 Petitioner did not 
qualify for classification as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, nor had she established that a waiver of the required job off er, and 
thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting her eligibility for a 
national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 (emphasis added), as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts, or business. Because this 
classification requires that the individual's services be sought by a U.S. employer, a separate showing 
is required to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
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. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 1 0l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, to demonstrate 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). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification ( emphasis added), U.S. Citizenship and Immigration 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner 
demonstrates: ( 1) thatthe foreign national' s proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 
that, on balance, it would be beneficial to the United States to waive the requirements of a job offer 
and thus of a labor certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
On the Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the Petitioner provided 1he 
folowing: 
1. Job Title: Medical Researcher 
2. SOC Code: 19-1042 
3. Non technical Description of Job: Conduct research dealing with the understanding of human 
diseases and the improvement of health. 
ThePetitionerconfirmedthisinformationinltem9 oftheFmmETA 750PartB, U.S. Department of 
Labor, Employment and Training Administration, Application for Alien Employment Certification (Form 
ETA 7 5 OB), indicating that the "Occupation in Which Alien is Seeking Work" is "Medical Researcher." 
In addition, the Petitioner stated in herAugust29,2018 "Professional Plan and Statement"thatshe intends 
to continue working as a medical researcher. 
My career plan in the United States is to work, making substantial contributions in the Medical 
field and Healthcare industry through advanced medical research. My extensive career wmking 
in steep research capacities within the biology and microbiology sectors will be beneficial to 1he 
U.S.' s healthcare and medical environment, which is currently experiencing severe shortages of 
Medical Researchers. I will be able to work in research and development, at colleges or 
universities, professional schools, hospitals, pharmaceutical, and medicine manufacturing 
companies, and even physician offices. Medical research is at the forefront of clinical advances, 
and I will dedicate myself towards making advances of major significance. 
A. Advanced Degree 
The Petitioner holds a "Licenciada em Ciencias Biologicas" from the ________ 
I I in Brazil. According to the American Association of Collegiate Registrars and 
Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE), 3 this "is the 
professional license to teach at a designated level of instruction (pre-school through upper secondary 
education)" and is equivalent to a U.S. bachelor's degree. 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
3 We consider EDGE to be a reliable source ofinformation about foreign credentialequivalencies. See Confluence Intem., 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, 
No. 09-cv-l 0072, 20 lOWL 3464314(£.D. Mich. Aug. 30, 2010); Sunshine Rehab Services, Inc. No. 09-13605, 2010WL 
3325442(£.D. Mich.Aug. 20,2010).Seealso Viraj. LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. 
Ga.May 18,2013). 
3 
As noted above, the regulation at 8 C.F.R. § 204.5 (k)(2) indicates that"[ 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." 4 
In response to the Director's request for evidence (RFE), the Petitioner provided two letters verifying 
her employment. The first letter, froml I indicates that the Petitioner was 
employed as a "Pedagogical Consultant In Biology Teaching" on a part-time basis from February 1, 
2007 until December 3, 2012 and provided six bullet point discussing her job duties. The letter does 
not, however, specify the number of hours the Petitioner worked per week. Further, not only do these 
dates contradict the information the Petitioner provided on her resume (which lists the dates of 
employment as "2009-2012" , but she did not include this position on the Form ETA 750B 5• The 
second letter, from ______________ states that the Petitioner was a part-time 
Educational Coordinator of Biology for 20 hours per week from January 16, 2012 until December 3, 
2017 and included a list of seven duties. The Petitioner, however, indicated on the Form ETA 750B, 
that she worked 40 hours per week in this position. Notably, the Form ETA 750B also indicates that 
the Petitioner worked 40 hours per week for each of three separate employers between November 4, 
2013 and December 30, 2017. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
We also acknowledge the Petitioner's submission on appeal of a letter from ______ 
regardingpaii-time employment as an "Elementary andMiddle School Teacher." 6 However, when a 
Petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to 
respond to that deficiency, we need not accept evidence offered for the first time on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 
1988). If the Petitioner wanted the letter to be considered, she should have provided it in response to 
theRFE. Id. 
For all of these reasons, the Petitioner has not provided sufficient and consistent information to establish 
that she is a member of the professions holding an advanced degree. 7 
4 The Petitioner completed her degree on Janua1y 16, 2008. Therefore, we cannot consider experience which occurred 
before this date to meet this requirement. 
5 The regulation at 8 C.F.R. § 103.2(a)(l) states, in pertinent part: 
Every benefit request or other document submitted to DHS must be executed and filed in accordance 
with the form instructions ... and such instructions are incorporated into the regulations requiring its 
submission. 
The Form ET A 750B, which the Petitioner signed under penalty of perjury, instructs the preparer to "list any other jobs 
related to the occupation for which the a lien is seeking certification, as indicated in Item 9 ." 
6 Although the Petitioner included this position on the Form ETA 750B, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
states that a petition foran advanced degree professionalm ust be accompanied by"[ a ]n official academic record showing 
that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters 
from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate 
experience in the specialty." We would further note that, a !though the letter states that the position was part-time, the 
Petitioner indicated on the Form ETA 750B that it was full-time i.e., 40 hours per week. 
7 We would also note that according to the submitted "How to Become a Medical Scientist" section of the Occupational 
4 
B. Exceptional Ability 
On appeal, the Petitioner asserts that she meets the four criteria addressed below. 8 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director concluded that the Petitioner meets this criterion and we agree. However, we note that 
section203(b )(2)(C) of the Act provides that the possession of a degree, diploma, certificate or similar 
award from a college, university, school or other institution ofleaming shall not by itself be considered 
sufficient evidence of exceptional ability. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The record contains information such as the Petitioner's salary for her part-time positions, income 
from her business in Brazil, tax records, and bank statements. While we may agree with the Petitioner 
that she "should be evaluated based on the wage statistics or comparable evidence in" her home 
country, that does not relieve her from providing evidence which establishes that such payments were 
a result of, or otherwise demonstrates, exceptional ability. Without more, we cannot conclude that she 
meets this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner asserts that her membership in the Association of Southeastern Biologists meets this 
criterion. 9 As explained by the Director, however, the provided information "does not indicate the 
date of membership." The Petitioner must establish eligibility at the time of filing. 8 C.F.R 
§ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Without evidence which 
demonstrates that she was a member at the time of filing, we cannot conclude that she has met this 
criterion. 
Outlook Handbook ( OOH) entry for Medic a 1 Scientists, which corresponds to the provided SOC code 19-1042, they 
"typically have a Ph.D., usually in biology ora related life science. Some medical scientists get a medical degree instead 
of, orin addition to, a Ph.D." While not a basis forourdecision, the Petitioner has not established thatherteachingdegree 
qualifies herforthepositionofmedical researcher. Further, we note thatthe definitionat8 C.F.R. § 204.5(k)(2) states, in 
pertinent part, that "[i]f a doctoral degree is customarily required by the specialty, the a lien must have a United States 
doctomte or a foreign equivalent degree." In other words, the regulation does not allow for a combination of education 
and experience if "a doctoral degree is customarily required by the specialty." 
8 As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter of R-A-M- 25 I&N 
Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, 
that issue is waived). See also Sepulveda v. US. Att 'vGen., 401 F.3d 1226. 1228 n. 2 (I Ith Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristovv. Roark, No. 09-CV-27312011, 2011WL4711885 at *1, 
*9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned ashe failed to raise them on appeal to the AAO). 
9 The Petitioner did not claim to meet this criterion in the initial filing. 
5 
Evidence 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). 
As explained by the Director, the submitted evidence does not establish that the Petitioner has been 
recognized for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations as required by the plain language of 
the regulation. For example, while the letters are complimentary, they do not sufficiently establish the 
Petitioner's significant contributions to the field. Regarding the submitted certificates and/or awards, 
the Petitioner has not demonstrated the requirements to receive them or that they are the result of her 
achievements and significant contributions such that we may conclude that she meets this criterion. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three 
of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. As the Petitioner has not met the threshold requirement for this 
classification, further analysis of her eligibility for a national interest waiver would serve no 
meaningful purpose. 
We will, however, note that in response to the Director's RFE, the Petitioner provided a new 
"Professional Plan & Statement" dated January 5, 2021, in which she added "entrepreneur" to her 
proposed endeavor and indicated that she will "serve as a Biologist, Researcher, and Entrepreneur for 
[her] company." In addition, she submitted a business plan which describes the company as follows: 
This company will operate in the online trade of vitamin and supplement[] products, among 
others, but those of organic origin, either in natural form or with some complexity in packaging 
and encapsulation. 
The company's first products will be mixed dried plants, natural juices, and supplement 
capsules of organic origin. 
The company will also ... publish[] recipes for the preparation of organic products, as well as 
online and in-person training for current or future producers of organic products, as a way to 
expand the offer of products on the marketing portal and to off er consumers with these new 
products, selling them online or through points of sale in agreed establishments. 
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. See 8 C.F.R. § 103.2(b )(1 ), (8), and (12). 
Here, the Petitioner did not clarify her specific proposed endeavor, but rather added the role of 
"entrepreneur." A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). If significant material changes are made to the initial request for approvaL a 
petitioner must file a new petition rather than seek approval of a petition that is not supported by the 
facts in the record. 
ORDER: The appeal is dismissed. 
6