dismissed EB-2 NIW Case: Military Affairs

U.S. Citizenship 
and Immigration 
Services 
In Re: 24217759 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 6, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a former military officer, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree and as 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. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the EB-2 classification or that he merited a national interest 
waiver. 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 I&N Dec . 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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). 1 Meeting 
1 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). 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 
We will then conduct a final merits determination to decide whether the evidence in its totality shows 
that they are recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 of 
Dhanasar, 26 I&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 3, grant a national interest waiver if the petitioner demonstrates that: 
• 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. EB-2 CLASSIFICATION 
The Petitioner asserts that he is eligible for the EB-2 classification as both an advanced degree 
professional and an individual of exceptional ability. Per the analysis below, we agree with the 
Director that he qualifies as neither. 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner submitted a diploma and transcripts showing that after three years of study at F-T-E-S­
M- (and one semester of transfer credits from previous study at a different school), he earned a 
bachelor's degree in administration. He also submitted an academic evaluation which concluded that 
he had completed requirements substantially similar to those of a bachelor's degree program in 
business administration from an accredited institution in the United States. In addition, a letter from 
an official ofF-T-E-S-M- confirms that at the time of the Petitioner's graduation in 2005, the business 
administration degree program "was offered in three and a half years," and notes that the National 
Council of Education in Brazil had not yet standardized the duration of bachelor's degree programs. 
The Director considered this evidence but concluded that the Petitioner's diploma was not the foreign 
equivalent of a United States baccalaureate degree as required. Specifically, he noted that United 
States bachelor's degrees typically require four years to complete. Matter of Shah, 17 I&N Dec. 244, 
245 (Comm'r 1977). In addition, the Director referred to material regarding the Brazilian educational 
system found in the Electronic Database for Global Education (EDGE) created by the American 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
Association of Collegiate Registrars and Admissions Officers (AACRAO), noting that bachelor's 
degrees are awarded after three to five years of study. 4 
On appeal, the Petitioner asserts that the letter from the official at F-T-E-S-M- indicates that he 
graduated from an accelerated program. However, the letter does not state that this was an accelerated 
program, only that the course length was three and a half years. As the Petitioner has not established 
that he holds the equivalent of a baccalaureate degree from an accredited college or university in the 
United States, he is not eligible as a member of the professions holding an advanced degree. 
B. Individual of Exceptional Ability 
The Director concluded that the Petitioner met two of the evidentiary categories under 
8 C.F.R. § 204.5(k)(3)(ii), those relating to a degree, diploma or similar award relating to his area of 
exceptional ability, and evidence of 10 years of full-time experience in the occupation sought. 
However, we disagree that the evidence establishes that he meets the requirements of the second of 
these categories. 
The Petitioner initially indicated that his proposed endeavor would be to work as a military instructor 
in the United States, but provided conflicting details regarding this endeavor. He initially noted that 
"whether slogging through basic training with a pack of new recruits or teaching prospective second 
lieutenants about the finer points of warfare, instructors are important and necessary fixtures." 
However, when further describing this endeavor, he indicated that he would "provide expert advice 
and guidance regarding personnel management, cross-border maritime transactions, naval electronics 
and military IT systems, and investment opportunities for U.S. maritime and shipbuilding companies." 
In response to the Director's request for evidence (RFE), he submitted a business plan for a proposed 
company which would "provide sales consultancy services" to U.S. companies selling weapons and 
other goods to the Brazilian military. Leaving aside the issue of this significant change in his proposed 
endeavor, the record does not show that the Petitioner has 10 years of full-time experience as a military 
instructor, an entrepreneur or a sales consultant, the occupations in which he has alternatively sought 
to be engaged. The experience letters rather document his experience as a military officer in a variety 
of administrative roles, with the N-E-C- from August 2002 to September 2009, and with the N-H-M­
D- from October 2009 to May 2014 and again from March 2015 to July 2017, much of which involved 
human resources functions. So we disagree with the Director regarding the Petitioner's satisfaction 
of the category at 8 C.F.R. § 204.5(k)(3)(ii)(B) and retract that part of his decision. 
On appeal, the Petitioner asserts that the record shows that he also meets the evidentiary categories 
regarding a license to practice his occupation and recognition for his achievements and significant 
contributions to his industry or field. But he does not identify specific evidence in the record to support 
these assertions, or specific errors in the Director's analysis. He also did not respond to the RFE with 
additional evidence or arguments about meeting either of these categories, despite the Director's 
notification that he did not meet them, and stated in his initial submission that he was not submitting 
evidence oflicenses or certifications. 
4 EDGE further indicates that a bachelor's degree earned after three years of study at a Brazilian institution of higher 
education is the equivalent of three years of study towards a bachelor's degree from an institution in the United States, and 
that degrees earned after four or five years of study at a Brazilian institution are the foreign equivalent of a United States 
bachelor's degree. 
3 
In addition, the evidence of military medals received by the Petitioner are acknowledgment of his 
service as a military officer and do not reflect recognition for achievements and significant 
contributions to the fields of military instrnction, entrepreneurship, or sales. Similarly, the letters 
describe his successful completion of a variety of administrative projects or tasks for the organizations 
that employed him, but do not demonstrate recognition for achievements or significant contributions 
to the fields encompassing his disparate proposed endeavors. 
The Petitioner has not established that he meets three of the evidentiary categories under 
8 C.F.R. 204.5(k)(3)(ii), and so has not met the initial requirement to demonstrate his eligibility as an 
individual of exceptional ability. We thus need not conduct a final merits determination of whether 
he is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. 
III. NATIONAL INTEREST W AIYER 
The Petitioner has not established his qualification for the EB-2 classification under either of the two 
categories, and is therefore ineligible for a national interest waiver. While he asserts on appeal that he 
meets all three of the prongs under the Dhanasar analytical framework, we will reserve these issues. 5 
The petition will remain denied. 
ORDER: The appeal is dismissed. 
5 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). 
4