dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 25786557 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 05, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a nurse, seeks employment-based second preference (EB-2) immigrant classification 
as a member of the professions holding an advanced degree and/or 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
the Petitioner's eligibility for a national interest waiver under the Dhanasar framework. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Christa '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. 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)(i i)(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 l&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 discretion3, 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 
We withdraw the Director's determination that the Petitioner qualifies as a member of the professions 
holding an advanced degree. Upon de nova review, we conclude the Petitioner has not established 
eligibility for the EB-2 classification either as a member of the professions holding an advanced degree 
or as an individual of exceptional ability. 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present 
"[a]n official academic record showing that the [individual] has a United States baccalaureate degree 
or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) 
showing that the [individual] has at least five years of progressive post-baccalaureate experience in 
the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director determined the Petitioner has the equivalent of an advanced degree based on the 
Petitioner's foreign equivalent of a U.S. bachelor's degree combined with at least five years of 
progressive post-baccalaureate experience.4 The Director determined the Petitioner possessed the 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 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 discretionary in nature). 
4 The Director concluded the Petitioner has the equivalent of a U.S. bachelor's degree in nursing; however, in the Notice 
of Intent to Deny (NOID), the Director explained that the Petitioner had not established she holds an advanced degree. 
Although the Petitioner may have completed a graduate program in which she received graduate credits leading to a 
professional certificate, she has not established that a lato sensu is a graduate degree. Therefore, we agree with the 
Director's conclusion that the Petitioner's foreign lato sensu is not the equivalent of a U.S. master's degree. 
2 
requ1s1te experience; however, we withdraw that finding. For the reasons discussed below, we 
conclude the Petitioner has not established she has the requisite five years or more of post­
baccalaureate experience. 
The Petitioner initially submitted employer letters which contain no explanation of her duties or 
experience as a nurse or any indication about whether the Petitioner worked full-time or part-time in 
her past positions. In response to the NOID, the Petitioner provided new letters of experience from 
prior employers. The updated letters include a brief summary of the Petitioner's duties and a statement 
that she worked full-time in her prior positions. The letters submitted in her NOID response feature 
the same format, font, and page layout, which suggests that each individual employer did not 
independently write a letter, but perhaps one individual or entity created all the letters. Multiple letters 
contain the same punctuation and spacing errors, which further supports a conclusion that they were 
not independently written. 
In addition, the information contained in the letters conflicts with other information in the record. For 
instance, the Petitioner initially submitted a document stating that she worked at thel I I lfrom July 14, 2003 to October 10, 2003. In her NOID response, the updated letter states that 
she worked at this same job from October 1, 2007 to April 1, 2008. Many of the letters state the 
Petitioner worked as a registered nurse; however, the Petitioner's resume states that she worked in 
those same positions as a nursing assistant. Another letter states the Petitioner worked as a registered 
nurse, while the Petitioner's resume states she worked as a nursing assistant and a nursing director. 
The duties listed in the resume also differ from the duties listed in the letters. To illustrate, the letter 
from thel !Association for the Development of Medicine states that she provided pediatric 
care as part of her duties whereas her resume does not state that she provided pediatric care, rather, 
only adult care. Another letter from the !Association for the Development of Medicine states 
that she worked as a registered nurse, while her resume states that she worked as a manager of a health 
unit for this employer during the same time period. Further, the duties provided in this letter differ 
from the duties provided in the resume. Specifically, the letter in response to the NOID includes 
patient care duties, while her resume does not list such work. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. Here, the Petitioner has not explained the changes 
in her employment titles, dates, and duties. As such, these inconsistencies undermine the credibility 
of the letters. The inconsistencies, combined with detai Is suggesting the letters were not independently 
written, lead us to conclude the Petitioner has not sufficiently established she has at least five years of 
post-baccalaureate experience. Moreover, even considering the duties from all the letters together, we 
cannot detennine how the Petitioner's experience is progressive. Many of the duties appear to be the 
same across multiple jobs, which does not sufficiently demonstrate they are progressive nature. 
We conclude the record does not support a finding that the Petitioner possesses the requisite five years 
of progressive post-baccalaureate experience. For the foregoing reasons, the Petitioner has not 
established she is a member of the professions holding an advanced degree. 
B. Evidentiary Criteria for Exceptional Abi I ity 
3 
Upon de novo review, we conclude the Petitioner has not established eligibility under at least three of the 
six criteria listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 
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) 
The record establishes the Petitioner meets this criterion. 
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. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
For the same reasons explained in the prior section concerning eligibility as a member of the professions 
holding an advanced degree, we conclude the evidence of the Petitioner's employment is inconsistent and 
does not appear to be independent and objective. Accordingly, the Petitioner has not established that she 
meets this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Director's NOTD stated: 
[T]he record includes a certified English translation of the petitioner's professional 
identity card issued by the Federal Nursing Council in 1986 which shows that at that 
time, she was both a licensed and registered nurse in Brazil as of the priority date. 
However, the petitioner's Diploma of Nursing shows that she attended a nursing 
program from 1993 through 1996 which is several years after the issuance of the 
petitioner's professional identity card in 1986. 
Because the Federal Nursing Council issued the Petitioner an identity card when she was age fourteen 
and about seven years prior to her beginning nursing school, we cannot conclude that this document 
is a license to practice the profession. Additionally, the Petitioner provided certificates of completion; 
however, these evidence the Petitioner's training in particular nursing topics, not certifications to 
practice the profession. Accordingly, the Petitioner has not established eligibility under this criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates 
exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The Petitioner did not submit evidence for consideration under this criterion. Therefore, the Petitioner 
has not established eligibility under this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
4 
The Petitioner provided a copy of the professional identity card the Federal Nursing Council issued her 
in 1986 to evidence her membership in a professional association. The Petitioner submitted a website 
printout about the Federal Nursing Council and its various regional councils. We acknowledge the 
statements in the printout, including that the council disciplines and supervises the professional 
practice of nursing, issues identity cards which are "indispensable for practicing the profession," 
ensures the quality of nursing services provided, and deliberates on membership. Nevertheless, the 
Petitioner has not explained how her identity card evidences her membership in a professional 
association. While the printout provides information about the council as currently constructed, there 
is little evidence of the council's purpose or authority in 1986, when the Petitioner received her identity 
card. The record does not demonstrate what professional qualifications, if any, the council considered 
for issuance of the document to the Petitioner. As the Federal Nursing Council issued this identity card 
to a fourteen-year-old with no degree in nursing, we cannot conclude that it evidences membership in 
a professional association.5 Accordingly, we conclude the Petitioner has not established she satisfies this 
criterion. 
Summary of Exceptional Ability Determination 
We need not analyze the Petitioner's eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F), relating to "evidence 
of recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations." Even if the evidence established the 
Petitioner satisfies this criterion, this would only establish that she meets two of the regulatory criteria. 
If a petitioner satisfies less than three of the criteria, then a final merits determination is not required. 
The record does not support a finding that the Petitioner satisfies at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we do not analyze the Petitioner's 
eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F) or provide a final merits analysis.6 Accordingly, the 
Petitioner has not established her eligibility as an individual of exceptional ability under section 
203(b)(2)(A) of the Act. 
Ill. NATIONAL INTEREST WAIVER 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Dhanasar, 26 l&N Dec. at 889. In Dhanasar, we noted that "we look for broader implications" of the 
proposed endeavor and that "[a]n undertaking may have national importance for example, because it 
has national or even global implications within a particular field." Id. 
5 A "profession" is defined as one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for 
which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 8 
C.F.R. § 204.5(k)(3). Section 101(a)(32) of the Act states that a profession shall include but not be limited to architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or 
seminaries. 
6 Nevertheless, we conclude the record does not establish the Petitioner's experience is beyond that which is ordinarily 
encountered in the profession. 
5 
The Director determined the record did not establish the broader impact of the Petitioner's proposed 
endeavor to work as a nurse. In addition, the Director stated she had not established her "work has 
implications beyond her current employer (or any prospective employers), their business partners, 
al I iances, clients, patients, or her workplace at a level sufficient to demonstrate the national importance 
of her endeavor." On appeal, the Petitioner states the Director ignored her evidence and the 
implications her proposed endeavor has in the healthcare and education fields. While we do not 
discuss each piece of evidence individually, we have reviewed and considered each one. 
In support of the national importance of her endeavor, the Petitioner emphasized the importance of the 
nursing field and the overall impact of nurses. In particular, the Petitioner emphasized the national 
shortage of nurses, as well as the increased demand for them due to the aging "baby boomer" 
generation and the COVID-19 pandemic.7 She provided numerous articles and statistics about the 
industry to support her assertions. However, in determining national importance, the relevant question 
is not the importance of the industry or profession in which the individual will work; instead, we focus 
on "the specific endeavor that the foreign national proposes to undertake." Dhanasar, 26 l&N Dec. 
at 889. While we acknowledge the factors the Petitioner highlighted and agree the nursing field is 
important, this is not necessarily sufficient to establish that the Petitioner's specific proposed endeavor 
is nationally important. The Petitioner improperly relies upon the collective impact of all nurses as 
sufficient to establish the impact of her proposed endeavor. However, in Dhanasar, we determined 
the petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. Similarly, we conclude that the Petitioner's 
proposed endeavor activities of patient care and training other healthcare professionals do not rise to 
the level of national importance because she has not established how these activities would impact the 
field of nursing more broadly. 
On appeal, the Petitioner argues a single nurse can potentially impact millions in need of care and that 
"it would be unfair to state that the Petitioner's endeavor does not have national implications within 
the healthcare field based on the mere fact that she is just one healthcare professional." In support, 
she cites an article stating that 59.4% of nurse practitioners see three or more patients per hour. While 
we acknowledge the Petitioner's asse1tions, she has not offered sufficient evidence to establish that 
her proposed endeavor would place her among the 59.4% of nurses that serve three or more patients 
per hour. As such, it is not apparent how this statistic applies to her proposed endeavor.8 
7 The Petitioner should be aware that the Department of Labor (DOL) has already determined the United States lacks 
sufficient nurses and that employment of noncitizens in "Schedule A" positions will not harm the wages or working 
conditions of U.S. workers in similar positions. 20 C.F.R. § 656.5. This means that an employer who wishes to hire a 
person for a Schedule A occupation is not required to conduct a test of the labor market and apply for a permanent labor 
certification with DOL. Rather, such employer may apply for Schedule A designation by submitting an application for 
permanent labor certification to USCIS in conjunction with the petition. See generally, 6 USCIS Policy Manual E.7.C, 
https://www.uscis.gov/policymanual. Accordingly, while we acknowledge the national shortage of nurses in the United 
States is of such concern that DOL designated nursing as a Schedule A occupation, this does not necessarily support a 
finding that the Petitioner's specific proposed endeavor to work as a nurse has national importance in the context of a 
national interest waiver. 
8 While a more proper consideration under prong two of the Dhanasar analysis, we nevertheless conclude that the 
Petitioner has not offered sufficient evidence to establish she qualifies as a nurse practitioner. 
6 
Also on appeal, the Petitioner notes that she has healthcare "methods and strategies" and a "unique 
approach." However, the Petitioner has not explained what her methods, strategies, or approaches are. 
We cannot determine whether such practices are already known and used in the United States or how 
they might impact the field of nursing in the United States, if at all. Similarly, the Petitioner asserts 
she has an emergency and critical care specialization in nursing, which is "rare" because most nurses 
are generalists and "must be prepared to provide patient care for almost any situation they encounter." 
Here, the Petitioner has not offered a comparison of her training in emergency and critical care to that 
of other nurses in the United States. It is insufficient to claim her experience is rare without providing 
evidence that others do not generally have similar experience and abilities. 
The Petitioner states the Director did not sufficiently consider the advisory opinion letter from D 
of of the I I Institute. I !provided a summary of the Petitioner's 
proposed endeavor and then, without explaining how she will meaningfully address the national 
nursing shortage, declared that she will fill the gap of qualified nurses. He provided Brazilian and 
U.S. healthcare industry statistics and growth projections, as well as an explanation of the importance 
of nurses, but he did not sufficiently analyze the impact of the Petitioner's specific proposed endeavor 
such that his opinion supports a finding that the endeavor has national importance. As a matter of 
discretion, we may use opinion statements submitted by a petitioner as advisory. Matter of Caron 
Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or give it less 
weight if it is not in accord with other information in the record or if it is in any way questionable. Id. 
Here.I I primarily provides statistics on the healthcare industry but does not sufficiently 
analyze the impact of the Petitioner's specific proposed endeavor. Therefore, his advisory opinion is 
not probative in this matter. 
IV. CONCLUSION 
The Petitioner has not demonstrated that she qua I ifies as a member of the professions holding an advanced 
degree or as an individual of exceptional ability under section 203(b)(2)(A) of the Act. Furthermore, the 
record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision.9 Further analysis of eligibility under the second and third 
prongs outlined in Dhanasar would serve no meaningful purpose. Accordingly, the Petitioner has not 
established eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 l&N Dec. 127, 128 (BIA 2013). The appeal will be dismissed for the above 
stated reasons. 
ORDER: The appeal is dismissed. 
9 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) ("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). 
7