dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
InRe : 21482246 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 8, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a nurse, seeks second preference immigrant classification as 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for classification as an individual of exceptional ability. The 
Director further concluded that the record did not establish that a waiver of the required job offer, and 
thus of the labor certification, would be in the national interest. On appeal , the Petitionerreasserts that 
he qualifies for classification as an individual of exceptional ability and that a waiver of the job offer, 
and thus of the labor certification, would be in the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
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, 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. ... the 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. 
For the purpose of determining eligibility under section 203(b )(2)(A) of the Act, '"exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability: 
(A) 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; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) 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). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
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Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and 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. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32(D.D.C. 2013);Rijalv. USCJS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." MatterofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
As noted above, the Director concluded that the record did not establish that the Petitioner qualified 
for classification as an individual of exceptional ability. Specifically, although the Petitioner asserted 
that he satisfied the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A)-(C) and (F), the Director concluded 
that the Petitioner satisfied none of them. On appeal, the Petitioner reasse1is that he satisfies the 
requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A)-(C) and (F). The Petitioner does not assert, and the 
record does not support the conclusion, that he satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D)­
(E), or that the standards at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply to the occupation, such that 
comparable evidence may establish eligibility. The Petitioner also does not assert, and the record does 
not supp01i the conclusion, that the Petitioner may qualify as a member of the professions holding an 
advanced degree. For the reasons discussed below, the record does not establish that the Petitioner 
has satisfied at least three of the six criteria at 8 C.F.R. § 204.5(k)(3 )(ii). 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record showing that 
the [noncitizen] 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." The record contains two 
diplomas written in a language other than English, accompanying academic records, and their English 
translations. One diploma indicates that the Petitioner received a diploma for completing the 
"technical course in nursing high school level" from the inl I 
Brazil. The other diploma indicates that the Petitioner received a diploma for completing the nursing 
technician professional qualification course fro ml I which describes itself as a health care 
specialized education company. In response to the Director's request for evidence (RFE), the 
Petitioner submitted an academic evaluation from United States Credential Evaluations, which opined 
that the Beneficiary "has no less than the equivalent of an [a]ssociate's [d]egree in [n]ursing." 
The Director concluded that "an associate' s degree is the lowest level of degree one can obtain to work 
in any nursing field[; therefore, the Beneficiary's] education does not reflect 'a degree of expertise 
significantly above that ordinarily encountered in the sciences."' On appeal, the Petitioner asserts that 
"not every person qualifies for a Bachelor's degree (the person must have a previous academic 
education), nor to receive a license to practice in his field (it is required for the applicant to have 
graduated from a University)." 
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The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) does not specify a required level of"degree, diploma, 
certificate, or similar award from a college, university, schoo 1, or other institution ofleaming re la ting 
to the area of exceptional ability." Specifically, it does not require education that reflects "a degree of 
expertise significantly above that ordinarily encountered in the sciences" as stated by the Director. 
Accordingly, the Petitioner's equivalent to an associate's degree in nursing from an institution of 
learning, relating to the proposed endeavor in the field of nursing, satisfies the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), and we withdraw the Director's conclusion to the contrary. 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from 
current or former employer(s) showing that the [noncitizen] has at least ten years of full-time 
experience in the occupation for which he or she is being sought." The record contains letters, most 
of which are written in a language other than English, regarding the Petitioner's work experience, and 
their English translations. 
The Director noted that the letters in the record regarding the Petitioner's experience "are not properly 
certified in accordance with 8 C.F.R. § 103 .2(b )(3)." The Director further noted that the letters "do 
not provide 'a specific description of the duties performed by [the Petitioner],"' citing 8 C.F.R. 
§ 204.S(g)(l). On appeal, the Petitioner generally asserts that the record satisfies the regulation at 
8 C.F.R. § 204.5(k)(3)(ii)(B), without addressing how the Director may have erred in concluding that 
the letters do not provide a specific description of the duties performed by the Petitioner. The 
Petitioner does not submit any additional documentary evidence regarding this criterion on appeal. 
We first note that, in response to the RFE, the Petitioner submitted a letter regarding employment he 
held from October 2020 through the date of writing, June 2021; however, petitioners must establish 
eligibility at the time of filing. 8 C.F.R. § 103.2(6)(1). A visapetitionmaynotbe approvedatafuture 
date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). The Petitioner filed the Form 
I-140, Immigrant Petition for Alien Workers, in July 2020; therefore, the letter regarding his 
employment beginning in October 2020 may not establish eligibility. Accordingly, we need not 
address that letter further. 
Although the Director erred by stating that the English translations of the letters in the record 
referencing the Petitioner's employment as of the petition filing date "are not properly certified," the 
Director correctly noted that the letters do not provide a specific description of the duties performed 
by the Petitioner. Moreover, none of the letters indicate whether the Petitioner's experience was on a 
full-time basis. For example, one letter from the I Brazil, municipal government merely lists 
the location and starting and end dates during which the Petitioner worked as a "nursing technician" 
through temporary contracts, without elaborating on the duties the Petitioner performed and whe1her 
he performed them on a full-time basis. As another example, a letter from 
I I in Brazil, asserts that the Petitioner "was 
responsible for the following tasks: provide regular and/or emergency care, doing first aid actions, 
actin [sic] onshore and offshore" as a "licensed practice nurse" from May through November 2017; 
however, it does not elaborate on what regular and emergency care are and how they may differ when 
performed onshore and offshore, or whether the Petitioner provided that care on a full-time basis. As 
another example, a letter froml I asserts that the Petitioner "[held] the position of offshore 
nursing technician" from May 2018 to May 2019, without elaborating on the duties the Petitioner 
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performed and whether he performed them on a full-time basis. The other letters in the record 
regarding the Petitioner's work experience provide similarly limited information about his 
employment. Because the letters in the record regarding the Petitioner's work experience neither 
provide a specific description of the duties performed by him nor a statement that he performed those 
duties on a full-time basis, they do not establish that he has at least 10 years of full-time experience in 
the occupation. See 8 C.F.R. § 204.5(k)(3)(ii)(B); see also 8 C.F.R. § 204.5(g)(l ). 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) requires "[a] license to practice the profession or 
certification for a particular profession or occupation." In support of the petition, the Petitioner 
submitted an identification card written in a language other than English, and its English translation. 
The card indicates that the Petitioner was enrolled with the Federal Nursing Council of Brazil with an 
issuing date of"4/11/2014" and an expiration date of "4/10/2019," prior to the July 2020 petition filing 
date. In response to the Director's RFE, the Petitioner submitted a certificate from the Regional 
Nursing Council ofl I Brazil, and its English translation, certifying the Petitioner as a 
nurse technician from "08/08/2021 ".through "02/03/2022." The Petitioner also submitted a bilingual 
document from the Brazilian Maritime Authority with a "validity" ending "12/07/2021." The 
document indicates that the Petitioner has passed the personal safety and social responsibilities 
examination carried out in I _ from "04/04/2016" through 
"31/5/2016." 
The Director noted that the identification card that expired in 2019 did not establish eligibility as of 
the petition filing date and that the Brazilian Maritime Authority document does not establish how it 
satisfies the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) Ibe Director concluded that the record did 
not establish that the Regional Nursing Council o certificate "is reflective of 'a degree 
of expe1iise significantly above that ordinarily encountered in the sciences."' On appeal, the Petitioner 
generally reasserts that the record satisfies the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C), without 
addressing how the Director may have erred in concluding that the various documents do not establish 
eligibility. The Petitioner does not submit any additional documentary evidence regarding this 
criterion on appeal. 
We first note that the identification card is not a license to practice a profession or certification for a 
particular profession or occupation; moreover, it expired prior to the petition filing date. Therefore, 
the identification card does not satisfy the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C) in either form or 
substance. Similarly, although the bilingual document indicates that the Petitioner passed an 
examination, the record does not establish how the document is a license to practice a profession or 
certification for a particular profession. Specifically, the record does not establish that passing the 
examination and earning the document is required to practice a particular profession. The Director 
incorrectly required the Regional Nursing Council ofl !certificate to be "reflective of 'a 
degree of expertise significantly above that ordinarily encountered in the sciences.'" The regulation 
at 8 C.F.R. § 204.5(k)(3)(ii)(C) does not require a license to practice the profession or certification for 
a particular profession or occupation to demonstrate such a level of expertise-it merely requires a 
valid license or certificate to practice the particular profession or occupation. However, although the 
certificate asserts that the Petitioner has held "permanent active registration since 04/07/2014" as a 
nurse technician, the certificate specifically states, "This Certificate was issued on 08/08/2021 at 
11 :41 :00 PM," after the July 2020 petition filing date. Because the certificate was issued after the 
petition filing date, it does not establish eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter of 
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Michelin Tire Corp., 17 I&N Dec. at 249. Even if the certificate could establish eligibility-which it 
does not-its reference to the Petitioner having held "permanent active registration since 04/07/2014" 
specifically addresses registration prior to the petition filing date, which is distinct from licensure or 
certification to practice a particular profession. In summation, the record does not establish that the 
Petitioner had a license to practice the profession or certification for a particular profession or 
occupation as of the petition filing date. See 8 C.F.R. § 204.5(k)(3)(ii)(C); see also 8 C.F.R. 
§ l03.2(b)(l);MatterofMichelin Tire Corp., 17 I&N Dec. at 249. 
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence of recogmt10n for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations." The record contains four letters from the Petitioner's former 
colleagues atl II II !Hospital, and _____ The Director 
noted that the letters discuss the Petitioner's skills and abilities but they do not demonstrate that the 
Petitioner made significant contributions to the industry or field. On appeal, the Petitioner generally 
reasserts that he satisfies the regulation at 8 C.F.R. § 204.5 (k )(3 )(ii)(F), without specifying how the 
Director may have erred in concluding the contrary. The Petitioner does not submit any additional 
documentary evidence regarding this criterion on appeal. 
The reference letters in the record address the Petitioner's qualifications to work as a nurse and provide 
examples of how he benefitted his various employers and their clients or workers; however, as the 
Director noted, the letters do not address how the Petitioner may have earned achievements or made 
significant contributions to the healthcare industry or nursing field. Because the record does not 
contain evidence of recognition for achievements and significant contributions to the industry or field 
by peers, governmental entities, or professional or business organizations, it does not satisfy the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In summation, the record does not satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
Therefore, the record does not establish that the Petitioner qualifies for second-preference 
classification as an individual of extraordinary ability. See section 203(b )(2)(A) of the Act. We 
reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth in the 
precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 
(BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of extraordinary ability; therefore, we conclude that the Petitioner has not established 
eligibility for, or otherwise merits, a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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