dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 25, 2024 In Re: 30624749 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(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. § 1153(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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that she qualifies for the underlying visa classification or merits a discretionary waiver of the 
job offer requirement " in the national interest." 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
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 eligibility for 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 l&N Dec. 884 (AAO 2016), provides the framework for adjudicating national interest 
waiver petitions. Dhanasar states that USCIS may, as matter of discretion,2 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. 
Id. at 889. 
II. ANALYSIS 
For the underlying EB-2 immigrant classification, the Petitioner claims to be an advanced degree 
professional having earned the foreign equivalent of a U.S. baccalaureate degree and having over five 
years of progressive experience in her indicated specialty. In denying the petition, the Director 
determined that although the Petitioner holds the foreign equivalent of a U.S. bachelor's degree in 
nursing, she did not establish that she has five years of progressive post-baccalaureate experience in 
her intended occupation, a nurse practitioner. Upon de novo review, we agree with the Director's 
determination that the Petitioner has not established eligibility for the EB-2 classification as an 
advanced degree professional.3 
On appeal, the Petitioner argues that the Director "did not apply the proper standard of proof in this 
case, instead imposing a stricter standard, and enoneously applied the law .... " (emphasis omitted). 
The appeal brief acknowledges the Director denying her eligibility for the underlying EB-2 
classification, however, does not provide an argument for why the Director's dete1mination is 
incorrect. Instead, the Petitioner's brief generally argues the Director made an enoneous decision and 
focuses her arguments on her eligibility for the national interest waiver. 
Initially, the Petitioner provided conflicting descriptions of her proposed endeavor. Her petition states 
her intended job title would be "nurse practitioner" with the duties and responsibilities for SOC Code 
29-1171 occupation, 
Diagnose and treat acute, episodic, or chronic illness, independently or as part of a 
heathcare team. May focus on health promotion and disease prevention. May 
order, perform, or interpret diagnostic tests such as lab work and x rays. May 
2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
Circuit Court in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
3 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
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prescribe medication. Must be registered nurses who have specialized graduate 
education. 
See U.S. Department of Labor, O*NET Summary Report for "Nurse Practitioners," 
https://www.onetonline.org/link/summary/29-1171.00. However, in the Petitioner's initial 
professional plan and statement, she indicates her intention to work as anurse stating that "[m]y career 
plan in the United States is to work with a health care facility to provide expert nursing advice and 
treatment to patients. My career working with a wide array of patient injuries and illnesses, will be 
beneficial to the U.S. health industry, which is currently experiencing a severe shortage of nurses." 
Much of the initial supporting evidence, including counsel's letter, articles, reports, an opinion letter, 
and recommendation letters support the Petitioner's statement that she intends to work as anurse. 
In response to a request for evidence notice, the Petitioner submitted a new professional plan and 
statement to clarify her proposed endeavor stating that "[t]o advance my proposed endeavor in the 
United States, I intend to continue using my expertise and knowledge in the medical field by working 
as a Nurse Practitioner in the field of Nursing and offering my expertise to clinics and hospitals to help 
improve their resources management and/or patient care in the United States." (emphasis omitted). 
With her updated statement, her counsel's letter also repeatedly references the Petitioner's intention 
to work as a nurse practitioner in the field of nursing. On appeal, the Petitioner restates her proposed 
endeavor is "to offer her expertise as aNurse Practitioner in the field ofNursing." ( emphasis omitted). 
The record demonstrates that the Petitioner has the foreign equivalent of a U.S. bachelor's degree in 
nursing. However, we agree with the Director that the Petitioner has not demonstrated that she has at 
least five years of progressive post-baccalaureate experience in her indicated specialty as a nurse 
practitioner. Instead of having experience as a nurse practitioner, the evidence shows that the 
Petitioner has experience as a nurse, an assistant nurse, and a technical mana er. For instance, 
em loyment letters show her work experience as a nurse with and 
as a technical manager with I I and as an assistant nurse with _ 
______ Her job duties for these positions do not indicate she has experience for her 
intended specialty, nurse practitioner, as stated in her petition. 
The record includes additional letters verifying the Petitioner's employment as anurse with __
I I and as a nursing technician with However, because 
these letters do not include the Petitioner's job duties, we are unable to determine whether her work 
included the job duties of a nurse practitioner. She submitted additional letters relating to her work as 
a nurse with I Iand However, in 
addition to the letters not stating her job duties, the letters indicate her work was performed after the 
date of filing the petition. This additional evidence presents facts that did not exist at the time of filing 
the petition. Eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter 
of Katigbak, 14 l&N Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, we will not consider the letters 
showing her work experience after the date of filing the petition. 
Ill. CONCLUSION 
The Petitioner has not established her qualification for the EB-2 classification as a member of the 
professions holding an advanced degree and is therefore ineligible for anational interest waiver. While 
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the Petitioner asserts on appeal that she meets all three of the prongs under the Dhanasar analytical 
framework, we reserve our opinion regarding these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (noting that "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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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