dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 29, 2024 In Re: 30776302 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a nurse, seeks employment-based second preference (EB-2) immigrant classification 
as an advanced degree professional or as an individual of exceptional ability. See Immigration and 
Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). The Petitioner also seeks a 
national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § l l 53(b )(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for the EB-2 classification as either an advanced degree professional or as an individual of 
exceptional ability. The Director also determined that the Petitioner did not merit a national interest 
waiver as a matter of discretion. 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 afChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Chri sta's, Inc., 26 I&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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. If a petitioner does so, 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. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 ofDhanasar, 26 I&N Dec. 884, 889 ( AAO 2016), provides the framework 
for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as matter of 
discretion, 1 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
A. Advanced Degree 
The Director determined the Petitioner did not establish that he qualified as an advanced degree 
professional because he did not demonstrate that he had a U.S. advanced degree or a foreign equivalent 
degree at the time his petition was filed. The petition was filed in May 2022, and the Petitioner 
submitted an academic record showing he obtained a master's degree in June 2023. On appeal, the 
Petitioner points to his advanced degree and maintains that he qualifies for the EB-2 classification 
based on his master's degree. However, because the degree post-dates the filing date of the petition, 
it is not relevant to demonstrating the Petitioner's eligibility; eligibility must be established at the time 
of filing. 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971) 
(stating that a petition cannot be approved at a future date after the self-petitioner becomes eligible 
under a new set of facts). 
The Director further determined the Petitioner did not establish that he qualified as an advanced degree 
professional because he did not demonstrate that he had a U.S. bachelor's degree or a foreign 
equivalent degree and at least five years of progressive post-baccalaureate experience in his specialty. 
The Director explained that a letter submitted as evidence of the Petitioner's employment history 
stated that he was employed from November 2018 to April 2020, which reflects fewer than the 
required minimum of five years of progressive employment experience. On appeal, the Petitioner 
does not dispute the Director's conclusion regarding this point. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Goining the Ninth, Eleventh, and D.C. Circuit Comts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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The Petitioner has not demonstrated that he qualifies for the EB-2 classification as an advanced degree 
professional. 
B. Exceptional Ability 
As noted above, to demonstrate eligibility as an individual of exceptional ability, a petitioner must 
initially submit documentation that satisfies at least three of the six categories of evidence at 8 e.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). The Director determined that the Petitioner satisfied the requirements at (A) 
and (C) regarding his degree and certification. The Director concluded, however, that the Petitioner 
did not meet the requirements of the following categories under which he claimed eligibility: 
• Evidence in the form of letter(s) from current or former employer(s) showing that 
the individual has at least ten years of full-time experience in the occupation for 
which he or she is being sought, 8 C.F.R. § 204.5(k)(3)(ii)(B); 
• Evidence of membership in professional associations, 8 C.F.R. § 204.5(k)(3)(ii)(E); 
• Evidence that the individual has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability, 8 C.F.R. § 204.5(k)(3)(ii)(D); and 
• Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 e.F.R. § 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner does not contest the Director's conclusions concerning whether he met the 
requirements at 8 C.F.R. § 204.5(k)(3)(ii)(B), (E), or (F). We therefore consider the issue of whether 
the Petitioner qualifies under these categories to be waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 
330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, I&N Dec. 657,658 n.2 (BIA 2012)). 
As to whether the Petitioner met the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(D), on appeal, the 
Petitioner asserts that the initial evidence of record establishes his eligibility. In denying the petition, 
the Director discusses tax documents that the Petitioner submitted and determined that this evidence 
did not meet the criterion. The Petitioner provides the following in his appeal brief: 
I maintain that I did make a sufficient salary to demonstrate that I have exceptional 
ability. users did not mention any salary range or even a minimum salary that would 
demonstrate exceptional ability . . . . Because there is no salary range, minimum salary 
or even any rules or criteria [that] would establish what a salary [ would be] for someone 
with exceptional ability, I do not understand why I do not qualify. This is an erroneous 
conclusion by users that should be reversed and clarified. 
Prior to the denial of the petition, the Petitioner received a request for evidence (RFE) stating that, 
although the Petitioner had submitted tax documentation as evidence of his salary, he had not 
submitted documentary evidence to demonstrate that his salary was high relative to others in the field. 
The RFE advised the Petitioner to submit evidence to demonstrate how his claimed exceptional ability 
led to a high salary or other remuneration relative to others in the field or any other relevant evidence 
to show how his salary demonstrated exceptional ability. The Petitioner did not submit supporting 
evidence, such as documentation of comparable salaries in his field, or otherwise show how his salary 
was higher than that of others in his field as a result of his exceptional ability. The burden was and is 
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on the Petitioner to provide evidence to support his assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. at 376. He has not done so here. Therefore, the 
record does not satisfy this criterion. 
Because the Petitioner has not established that he meets three of the six evidentiary criteria under 
8 C.F.R. 204.5(k)(3)(ii), he has not met the initial requirement to demonstrate his eligibility as an 
individual of exceptional ability. Therefore, we 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 sciences, arts, or business. Nevertheless, we have reviewed the totality of the 
evidence and conclude that he does not meet the elevated standard for this classification. While the 
Petitioner may have experience in the field of nursing, the record does not show that he has a level of 
expertise that is unusual or stands out in the field. 
In sum, the Petitioner has not established eligibility for the EB-2 classification as either an advanced 
degree professional or as an individual of exceptional ability. Therefore, he is ineligible for a national 
interest waiver. Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, 
we decline to reach and hereby reserve remaining arguments concerning eligibility under the 
Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not 
required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); 
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 Petitioner has not established that he meets the requirements of EB-2 classification. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
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