dismissed EB-2 NIW Case: Physical Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 25, 2023 In Re: 28088105 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of physical education, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced 
degree, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified as an advanced degree professional, he had not established that a waiver of the required job 
offer, and thus of the labor certification, would be 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 a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&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. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate . 8 C.F.R. § 204.5(k)(2) . A U.S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
"Exceptional ability" in the sciences, arts, or business 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. See 8 
C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting at least three criteria, however, does not, in and of itself: 
establish eligibility for this classification. 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. 2 
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 I&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 discretion 3, 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. ANALYSIS 
A. EB-2 Visa Classification 
As indicated above, the 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. 
The Director determined that the Petitioner is a member of the professions holding an advanced degree. 
However, upon de novo review, we disagree. 
The Petitioner provided a copy of his Brazilian Titulo de Licenciado in physical education and 
transcript indicating that he began his studies in January 2006 and completed them in February 2009, 
a period of three years. According to the American Association of Collegiate Registrars and 
Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE) 4 entry for the 
Titulo de Licenciado, it is a teaching qualification awarded after two to four years of academic study 
and only the four-year program is the foreign equivalent of a U.S. bachelor's degree. 
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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generalzv 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 USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 We consider EDGE to be a reliable source of information about foreign credential equivalencies. See Confluence Intern., 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, 
No. 09-cv-10072, 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 
3325442 (E.D. Mich. Aug. 20, 2010). See also Viraj, LLC v. Holder, No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. 
Ga. May 18, 2013). For more information, visit https://www.aacrao.org/edge. 
2 
While we acknowledge the submission of an academic evaluation concluding the Petitioner's Titulo 
de Licenciado is the foreign equivalent of a U.S. bachelor's degree, based upon the information in 
EDGE and the length of the program as reflected in the transcript, we question its accuracy. 5 
Accordingly, the evaluation holds little probative value in this matter. 
Without a minimum of a U.S. bachelor's degree or foreign equivalent, the Petitioner cannot qualify as 
an advanced degree professional, regardless of whether he has at least five years of experience. 
Further, even if we determined his education is the equivalent of a U.S. bachelor's degree, the 
Petitioner has not sufficiently established that he has at least five years of post-baccalaureate 
experience in the specialty. The Petitioner provided three employment letters, none of which state 
whether he worked foll-time or part-time. Moreover, one of the letters was prepared by a co-worker 
and not the employer. As such, the letters do not meet the requirements of 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
For the above reasons, the Petitioner has not established eligibility for the EB-2 classification as an 
advanced degree professional and we withdraw the Director's determination on this issue. Moreover, 
since the evidence in the record does not establish by a preponderance of the evidence that the 
Petitioner is eligible for, or otherwise merits, a national interest waiver as a matter of discretion, we 
will reserve the issue of whether he qualifies for EB-2 classification as an individual of exceptional 
ability for future consideration should the need arise. 6 
B. National Interest Waiver 
According to his business 
plan, the Petitioner proposes to establish a martial arts academy in l...._____, 
Florida that will work with athletes with special needs and instructors. In addition, the Petitioner states 
that the academy will offer classes to children from low-income families, as well as war veterans. 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual proposes to undertake. Dhanasar, 26 I&N Dec. 
at 889. The endeavor's merit may be demonstrated in a range of areas, such as business, 
entrepreneurialism, science, technology, culture, health, or education. Id. For example, endeavors 
related to research, pure science, and the furtherance of human knowledge may qualify. Id. 
In her decision, the Director determined that the Petitioner did not provide sufficient detail regarding 
his proposed endeavor to show that it was of substantial merit. 7 We disagree and, therefore, withdraw 
the Director's conclusion. 
5 We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. Matter ofSea, Inc., 
19 T&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we may discount or give less weight to that evaluation. 
6 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 T&N Dec. 516. 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
7 On appeal, the Petitioner incorrectly contends that the Director concluded that the proposed endeavor is of substantial 
merit and therefore does not challenge the Director's conclusion on this issue. 
3 
Turning to the national importance of his endeavor, the Director concluded that the Petitioner did not 
establish that his proposed endeavor would prospectively impact the region or nation beyond its 
students. The Director reviewed and analyzed the Petitioner's claims including his business plan with 
employment creation assertions, recommendation letters, and industry reports and articles and 
discussed their deficiencies. On appeal, the Petitioner submits a brief which generally reiterates the 
benefits of his profession, his qualifications, and the claimed economic impacts of his proposed martial 
arts academy and contends that he has established the national importance of his proposed endeavor. 
He does not, however, provide any new evidence or arguments which overcome the Director's 
determination. 
Therefore, we adopt and affirm the Director's decision as it relates to this prong. See Matter of 
Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 
1997) (noting that the practice of adopting and affirming the decision below has been "universally 
accepted by every other circuit that has squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight U.S. Court of Appeals in holding the appellate adjudicators may adopt and 
affirm the decision below as long as they give "individualized consideration" to the case). 
Because the Petitioner has not established the national importance of his proposed endeavor as 
required by the first prong of the Dhanasar precedent decision, he has not demonstrated eligibility for 
a national interest waiver, as a matter of discretion. Since the identified basis for denial is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding the two remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). 
ORDER: The appeal is dismissed. 
4