dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 18038657 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a direct care worker, 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 Petitioner had not 
established her eligibility as an individual of exceptional ability and 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 asserts that she is eligible for exceptional ability classification and 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 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. 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating 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 interes~" 
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, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the 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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
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 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 discretionaiy in nature). 
2 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In perf01ming 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offerorforthepetitionerto obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to wan-ant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
Because she has not indicated or established that she qualifies as a member of the professions holding 
an advanced degree, the Petitioner must meet at least three of the regulatory criteria for classification 
as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying the petition, 
the Director determined that the Petitioner did not fulfill any of the regulatory criteria. On appeaL the 
Petitioner maintains that she satisfies three criteria. After reviewing the evidence, we conclude that 
the record does not supp01i a finding of her eligibility for at least three criteria. 
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). 
At initial filin , the Petitioner resented a document entitled, "Diploma," reflecting that she "entered in 
1986 to the named after academician! I and in 
19 8 8 completed the full course of studies at~---------~having specialized in Nursing" 
and "[b ]y the decision fo the State Examination Commission of July 9, 1995 she is qualified as a hosptial 
nurse." In addition, the Petitioner offered a document entitled, "Certificate," showing that "[t]his is to 
certify that [the Petitioner] finished training course 'DOTS-strategy of tuberculosis-fighting' organized 
by Scientific Research Institute of phthisiology of prophylaxis and ProjectHOPE, under financial support 
ofUSAID." 
The Director issued a request for evidence (RFE), acknowledged the submission of the evidence, and 
stated that "it does not appear to be from a college, university, school, or other institution oflearning" In 
addition, the Director requested the Petitioner to "submit evidence to establish that the granting entity is 
recognized as a college, university, school, or other institution ofleaming" and provided definitions of 
the entities. In response, the Petitioner provided an "Evaluation Report of Academic Records" from 
Evaluation Services, Inc. opining that the "diploma is the academic equivalent of an associate of applied 
science degree in nursing from a regionally accreddited community/junior college in the United States." 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
3 
The Petitioner did not offer evidence regarding "DOTS-strategy of turberculosis-fighting" training 
course. 
In denying the petition, the Director determined that the Petitioner did not submit the requested evidence. 
Specifically, the Petitioner offered an academic evaluation report rather than" evidence to establish that 
the granting entity is recognized as a college, university} school, or other institution of learning." On 
appeal, the Petitioner submits screenshots froml relating to I I 
However, we will not consider this evidence for the first time on appeal as it was not presented before the 
Director. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988)(providing that if "the petitioner 
was put on notice of the required evidence and given a reasonable opportunity to provide it for the 
record before the denial, we will not consider evidence submitted on appeal for any purpose" and that 
"we will adjudicate the appeal based on the record of proceedings" before the Chief); see also Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
Furthermore, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record." 4 
The Petitioner, however, did not establish how the presented "Diploma" and "Certificate" represent 
"official academic record[ s ]" consistent with this regulatory criterion. Here, the Petitioner did not show 
that she provided official academic records from the organizations, nor did she demonstrate that the 
entities qualify as "a college, university, school, or other institution of learning" pursuant to this 
regulatory criterion. 
Without evidence of official academic records from a college, university, school, or other institution of 
learning, the Petitioner has not sufficiently shown that she meets this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offull-timeexperiencein the occupationforwhichhe or she is being 
sought. 8 C.F.R § 204.5(k)(3)(ii)(B). 
At initial filing, the Petitioner provided a document entitled, "Employment Book." The Director 
informed the Petitioner in the RFE that the document "is insufficient because it is not an official letter 
from the [Petitioner's] past employer, it does not include the [Petitioner's] duties, part-time or full­
time status or the start and end date of employment." In addition, the Director instructed the Petitioner 
to submit "[ e ]mployment verification letters on official employer letterhead from the Human 
Resources Department, or other equivalent department authorized by the employer to verify 
employment" stating the "[ d ]ates of employment" and"[ s ]tatement of the duties performed while in 
the position." 
In response, the Petitioner offered a letter froJ J Manager, and .... l _____ __.I Human 
Resources. In denying the petition, the Director determined: 
This letter is insufficient because it does not establish a full ten years of employment 
or state the dates of employment such as start and end dates, it does not state if the job 
is a full-time or part-time status, it does not describe the [Petitioner's] duties and is not 
of official employer letterhead. 
4 Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual. 
4 
On appeal, the brief claims that "[p ]lease be advised that [the Petitioner] has well over 10 years 
experience in her field of endeavor" and "[b ]ased on documentation in the record, the [Petitioner] 
established that this criterion has been met, and US CIS erred in finding othe1wise." The Petitioner, 
however, does not identify specifically any erroneous conclusion of law or statement of fact in the 
Director's decision regarding this criterion. For the reasons articulated, we agree with the Director 
that the letter does not demonstrate probative evidence to show that the Petitioner has at least ten years 
of full-time experience in the occupationforwhichheorshe is being sought consistent with the regulation 
at 8 C.F.R. § 204.5(k)(3)(ii)(B). 5 
Accordingly, the Petitioner did not show that she meets this regulatory criterion. 
Evidence of recognition/or 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 did not provide any evidence for this criterion at initial filing. In response to the RFE, 1he 
Petitioner provided two recommendation letters. The Director determined: 
The authors of the petitioner's letters do speak highly of her work ethnic and contribution 
to her employer and client, but they do not describe the type of significant contribution 
required by this criterion. This type of evidence does not describe the type of widespread 
influence or impact that would indicate that the petitioner's contribution has been 
significant. To successfully meet this criterion, the petitioner should submit documentary 
evidence that shows that her contribution is significant, and that it is felt beyond 1he 
confines of her immediate employment. 
The appeal brief contends that" [ t ]he [Petitioner] has providedrecommendation letters clearly establishing 
recognition for her achievements and significant contributions to her field of endeavor by her peers." The 
Petitioner, however, does not identify those achievements and contributions, and ex rain how they have 
been recognized and significant. The record contains a letter froni O who stated: 
I have known [the Petitioner] since January 2020. Over the course of this period she has 
demonstrated that she is a very honest, reliable, and kind person. [The Petitioner] 
occasionally assists me with my housework, including cooking, cleaning, and doing 
laundry. She has a very kind, outgoing personality, a great sense of compassion and 
goodwill. In the time she has worked with me we have become very close and I have a 
lot of trust and confidence in her abilities. It is a great pleasure to be acquainted wi1h [1he 
Petitioner]. She makes my life a lot easier and is a very important part of my team. 
The letter from"-1 ____ _____.I stated: 
[The Petitioner] has been employed a~ I since January 2020. During 
this time, she has shown herself to be a hard worker, reliable, and conscientious. [The 
Petitioner] can be counted on to provide quality care consistently and lovingly for our 
seniors. Her compassion and dedication to those she cares for is much appreciated and is 
5 6 USCISPolicyManual,supra,atF.5(B)(2). 
5 
much needed in this line of work. She has received many compliments from our 
consumers and their family members, as well as supervisors and peers. I am continually 
impressed by [the Petitione1J 
We note that both letters indicate events occurring after the filing of the petition. Eligibility, however, 
mustbeestablishedatthetimeoffiling. See8 C.F.R. § 103.2(b)(l). Moreover, theregulationat8 C.F.R 
§ 204 .5(k)(3)(ii)(F) requires"[ e ]vidence of recognition for achievements and significant contributions 
to the industry or field." 6 While the letters praise the Petitioner's personal and professional 
characteristics, they do not identify her achievements and contributions to the industry or field. 
Moreover, the letters do not show that the Petitioner has been recognized for her achievements and 
that her contributions have risen to the level of significance as required by this regulatory criterion. 
Without sufficient evidence demonstrating 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, she has not established that she meets this criterion. 
III. CONCLUSION 
The Petitioner did not establish that she satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3 )(ii). 
As a result, we need not provide a final merits determination to evaluate whether the Petitioner has 
achieved the required level of expertise required for exceptional ability classification. 7 In addition, 
we need not reach a decision whether, as a matter of discretion, she he is eligible for or otherwise 
merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reseive 
these issues. x The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6 6 USCIS Policy Manual,supra, atF.5(8)(2). 
7 6 USCISPolicyManual,supra,atF.5(8)(2). 
8 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); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
6