dismissed EB-2 NIW Case: Physiotherapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 16, 2024 In Re: 32169181 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a physiotherapist, 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. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
appeared to meet the relevant criteria for EB-2 classification as an advanced degree professional, she 
did not establish eligibility for a national interest waiver. 
On appeal, the Petitioner reasserts eligibility for a national interest waiver as an advanced degree 
professional. 
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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal and enter a finding of willful misrepresentation of a material fact. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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 U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). To show that a noncitizen holds a qualifying advanced degree, the petition must be 
accompanied by an official academic record showing that the noncitizen has a U.S. advanced degree 
or a foreign equivalent degree. 8 C.F.R. § 204.5(k)(3)(i)(A). 1 
1 The Petitioner does not claim, and the record does not show that she has a United States advanced degree or foreign 
equivalent degree. 
Alternatively, to establish eligibility for EB-2 visa classification as an advanced degree professional, 
a noncitizen may present an official academic record showing that they have a U.S. baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters from current or former 
employer(s) showing that they have at least five years of progressive post-baccalaureate experience in 
the specialty. 8 C.F.R. § 204.5(k)(3)(i)(B). 
If the petitioner shows that they qualify for the underlying EB-2 classification, they must then 
demonstrate 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), sets forth 
the analytical framework for adjudicating national interest waiver petitions. Dhanasar provides that 
U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion, 2 grant a national 
interest waiver if the petitioner demonstrates that: (1) their proposed endeavor has both substantial 
merit and national importance; (2) they are well-positioned to advance their proposed endeavor; and 
(3) on balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
The issues on appeal are whether the Petitioner has established eligibility for the underlying EB-2 visa 
classification and, if so, whether she meets the criteria for a national interest waiver. 
We have reviewed the record, and for the reasons discussed below, we conclude that the Petitioner has 
not established eligibility for EB-2 visa classification and that she misrepresented facts material to her 
eligibility for such classification. Because the Petitioner does not qualify for a national interest waiver 
on that basis alone, we will not address whether she meets the waiver criteria under the Dhanasar 
analytical 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 alternate issues 
on appeal where an applicant is otherwise ineligible). 
A. The Petitioner's Representations and Evidence Concerning EB-2 Eligibility 
On the Form ETA-750 submitted with the petition, which she signed under penalty of perjury, the 
Petitioner represented that in August 1997 she obtained a bachelor's degree in physiotherapy and 
thereafter completed two years of specialized training in respiratory physiotherapy. Regarding her 
work history, the Petitioner represented, in relevant part, that: 
1. From March 2000 to April 2005, she was a "co-owner/director and physiotherapist" at 
F- clinic3 inl IBrazil (clinic), working 40 hours per week; 4 
2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
3 We use initials for privacy when possible. 
4 The Petitioner listed her duties during this period as follows: "Management of the administrative /financial department-
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2. From April 2005 to November 2013, she continued to work at the same clinic 40 hours per 
week as a "physiotherapist"; and 
3. From December 2012 to August 2014, she was a freelance physiotherapist working 40 hours 
per week. 
The Petitioner repeated these representations on the resume incorporated in her business plan, adding 
that between July 2005 and March 2014 she taught three different physiotherapy courses for pregnant 
women. 
As corroborating evidence, the Petitioner provided a Title of Physiotherapist diploma from Brazil 
(diploma), academic transcripts, an evaluation of her education and work experience, a business plan, 
and several letters confirming her past employment in various occupations, including two letters from 
the above-referenced clinic in Brazil. In the first letter, Dr. M-H-M-, who identified himself as a 
physiotherapist, declared that the Petitioner was his partner at the clinic "from March 2000 to April 
2005, exercising the role of Physiotherapist" and that she was responsible for: physical evaluation of 
patients and treatment preparation; care in cardiorespiratory, orthopedics, and neurological areas; care 
in the global postural reeducation (GPR) and temporomandibular joint (TMJ); and preparation and 
implementation of courses for pregnant women. In the second letter, C- M- S-, HR, declared that the 
Petitioner worked at the clinic "in the role of Physiotherapist in the period from April 2005 to 
November 2013," and that her responsibilities were the same as indicated in the first letter. In response 
to the Director's subsequent request for evidence, the Petitioner additionally provided a certificate of 
specialization and another letter from Dr. M-H-M-, now identified as the clinic's owner, who declared 
that the Petitioner was "a part of [the clinic's] staff from April 2005 to November 2013 holding the 
position of Chief Physiotherapist" and that she "worked full-time for 40 hours per week and received 
compensation for her services." The Petitioner also resubmitted the evaluation of her education and 
work experience. 
The Director determined based on this evidence that the Petitioner held "a U.S. equivalent 
baccalaureate degree in Physical Therapy" and further found, referencing the letter from Dr. M-H-M­
confirming the Petitioner's 2005-2013 employment as a chief physiotherapist, that "it appear[ed]" she 
also possessed "at least five years of progressive, post-baccalaureate experience in the specialty." 
Thus, the Director concluded that the Petitioner qualified for the requested EB-2 classification as a 
member of the professions holding an advanced degree but ultimately denied the petition finding her 
ineligible for a national interest waiver. 
B. Notice oflntent to Dismiss (NOID) 
After a preliminary review of the record on appeal, we noted a number of inconsistencies and 
conflicting statements that raised questions about the Petitioner's level of education and claimed work 
experience. Accordingly, we notified the Petitioner of our intent to dismiss her appeal with a finding 
of willful misrepresentation of a material fact based in part on information outside of the record of 
proceeding. In issuing the NOID, we gave the Petitioner an opportunity to rebut the conflicting and 
cash flow, payment control, relationship with suppliers, management of the medical and administrative team. 
Physiotherapy assessment of patients and preparation of treatment. Care in cardiorespirat01y, 01thopedics and neurological 
physiotherapy. Care in the global postural reeducation - GPR." 
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inconsistent information, as required under the regulation at 8 C.F.R. § 103.2(b)(16)(i). We also 
advised the Petitioner that if she did not respond to the NOID we might dismiss her case and enter a 
finding of willful misrepresentation of a material fact. To date, we have not received a response or 
any other correspondence from the Petitioner. 
C. Possession of United States Baccalaureate Degree or a Foreign Equivalent Degree Not Established 
To show that she has a foreign equivalent of a U.S. baccalaureate degree, the Petitioner submitted a 
diploma from Brazil, academic transcripts, and an evaluation of her education and work experience. 
We advised the Petitioner in the NOID that the academic evaluation was not consistent with the 
information in her Brazilian diploma, and we could not therefore give it significant weight as evidence 
that she had a foreign equivalent of a U.S. baccalaureate degree. Specifically, we pointed out that 
although an evaluator for a credential evaluations service referred to the Petitioner's diploma as a 
"degree certificate" and confirmed that she was "awarded a Bachelor's Degree in Physiotherapy", 
neither the original document nor its two certified English translations include any references to the 
level of academic degree she may have obtained. Rather, the 2020 certified English translation of the 
diploma (by F- G- S. Corp.) reflects only that "in light of the completion of Physiotherapy Program 
on August 22, 1997," the principal of "confer[red] the 
title of Physiotherapist upon [the Petitioner]," and "grant[ed] [her] this Diploma so that [she] can make 
use of all legal rights and prerogatives awarded to this title by the Laws of the Federative Republic of 
Brazil." Similarly, the certified English translation dated in 2022 reflects that "upon completion of 
the physicaltherapy [course] on August 22, 1997," the dean of 
"confer[red] the title of physical therapist upon [the Petitioner]," and "award[ ed] [her] this 
Certificate with all the rights and prerogatives thereunto appertaining in the Federative Republic of 
Brazil." 
We also advised the Petitioner that the evaluator's opinion that she held "no less than the equivalent 
of a Master of Science in Physical Therapy" through obtaining "a Bachelor's Degree followed by more 
than five years of full-time work experience in Physical Therapy," did not have significant probative 
value because it was based, in part, on the assessment of her self-reported "progressive work 
experience in the specialty," which is beyond the scope of the evaluator's expertise, and not based 
solely on her academic record. We further noted inapplicability of the "3-for-1 Rule," on which the 
evaluator relied to conclude that "[the Petitioner] attained sufficient years of specialized training and 
work experience to equate to the college coursework in Physical Therapy." Specifically, we explained 
that although the regulation at 8 C.F.R. § 214.2(h)( 4)(iii)(D)( 5) provides for the application of a "three­
for-one" ratio analysis of work experience to education in nonimmigrant visa proceedings under 
section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), this regulation does not apply in immigrant visa 
petition proceedings under section 203(b )(2) of the Act. 
Thus, we informed the Petitioner in the NOID that the evaluator's statements were unreliable, and we 
could not afford them significant weight as evidence that she had a foreign degree equivalent of a U.S. 
bachelor's degree, as she claimed. Because the Petitioner has not responded to the NOID, we must 
conclude that the record remains insufficient to establish that she has a foreign equivalent of a U.S. 
baccalaureate degree. See 8 C.F.R. §§ 204.5(k)(2) and 204.5(k)(3)(i)(B). Accordingly, we withdraw 
the Director's determination to the contrary. 
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D. At Least Five Years of Progressive Experience in the Specialty Not Established 
As stated, the Petitioner represented that she was employed in Brazil as a physiotherapist on a full-
time basis from March 2000 through April 2005, from April 2005 through November 2013, and from 
December 2012 through August 2014. We informed the Petitioner in the NOID that the evidence she 
submitted to substantiate these representations is not only internally inconsistent, but also materially 
conflicts with the statements she made before the U.S. Department of State (DOS) in her 2008 and 
2013 nonimmigrant visa proceedings. 
Firstly, the Petitioner's claim of working 40 hours per week as a physiotherapist at the clinic from 
April 2005 through November 2013, is inconsistent with her claim that for approximately a year during 
this period (beginning in December 2012) she also worked 40 hours per week as a freelance 
physiotherapist. Moreover, the three employment verification letters confirming her employment at 
the clinic from March 2000 until November 2013 are not consistent with her own statements and with 
each other. Specifically, while the Petitioner represented that from March 2000 until April 2005 she 
was a co-owner, director and physiotherapist at the clinic, in his 2019 letter Dr. M-H-M- indicated that 
during this period she was employed there as a physiotherapist; he did not indicate that she was the 
clinic's co-owner and director or that she performed any managerial and administrative duties. In 
addition, while C-M-S-, HR, declared in her letter that the Petitioner worked at the clinic as a 
physiotherapist from April 2005 to November 2013, in his 2023 letter Dr. M- H-M- stated that during 
this period she was employed there as the chief physiotherapist. Neither writer mentions the 
Petitioner's freelance foll-time physiotherapy work which she claimed began in December 2012, while 
she was employed foll-time at the clinic. These inconsistencies undermine the reliability of the 
information in the letters and, thus, the veracity of the Petitioner's claim that she has "at least five 
years of progressive post-baccalaureate experience in the specialty," required under the regulations at 
8 C.F.R. §§ 204.5(k)(2) and 204.5(k)(3)(i)(B). We advised the Petitioner in the NOID that she must 
resolve these discrepancies in the record with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). As the Petitioner has not responded 
to the NOID, the inconsistencies concerning her claimed work experience remain unresolved. 
Furthermore, the Petitioner's representations of foll-time employment in Brazil as a physiotherapist 
from April 2005 to November 2013 conflict with the information she previously provided to DOS 
while applying for U.S. nonimmigrant visas. Specifically, the record reflects that the Petitioner 
appeared for an interview at the U.S. consulate in Brasilia, Brazil, in August 2008 seeking a 
nonimmigrant visitor (B 1/B2) visa to visit her sister in Texas. During that visa interview she indicated 
that she was a gas station owner and did not mention any other employment. The record further shows 
that in April 2013 the Petitioner submitted a nonimmigrant visa application to DOS seeking another 
Bl/B2 visa. The DOS regulation at 22 C.F.R. § 41.103 provides in pertinent parts: 
Every [ noncitizen] seeking a nonimmigrant visa must make an electronic application 
on Form DS-160 or as directed by a consular officer, an application on Form DS-156. 
The Form DS-160 must be signed electronically by clicking the box designated "Sign 
Application" in the certification section of the application .... This electronic signature 
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attests to the applicant's familiarity with and intent to be bound by all statements in the 
NIV application under penalty of perjury. 
On her Bl /B2 visa application, which she signed under penalty of perjury, the Petitioner represented 
that as of April 2013 she was a homemaker and that she previously had been employed in Brazil from 
November 1, 2009, to November 1, 2012, as a construction company owner responsible for the 
management of the company in general, financial transactions, and sales. These representations 
materially conflict with the Petitioner's claim in the instant proceeding and the letters she submitted 
as evidence that from April 2005 until November 2013 she was employed in Brazil as a physiotherapist 
on a full-time basis, as well as her claim of concurrent full-time self-employment in that occupation 
since December 2012. 
We explained in the NOID that we intended to dismiss the Petitioner's appeal, in part, because the 
inconsistent and conflicting statements and evidence she provided in support of the petition was not 
sufficient to establish that she has a foreign equivalent of a U.S. baccalaureate degree, followed by 
five years of progressive experience in the specialty, as she claimed. See 8 C.F.R. §§ 204.5(k)(2) and 
204.5(k)(3)(i)(B). We also advised the Petitioner that she had to resolve any inconsistencies in the 
record with independent objective evidence. The Petitioner has not done so, because she has not 
responded to the NOID. 
Given these substantial unresolved discrepancies concerning the Petitioner's work in Brazil as a 
physiotherapist, we withdraw the Director's determination that the Petitioner has at least five years of 
progressive, post-baccalaureate experience in the specialty. 
E. Willful Misrepresentation of a Material Fact 
For the 
reasons discussed above, we further conclude that the Petitioner has made claims and presented 
evidence that materially misrepresented the specific qualifications she relied upon to establish her 
eligibility for the immigration benefit she sought through this petition, including her claim that she 
qualifies for EB-2 visa classification as an advanced degree professional. 
USCIS will deny a visa petition if the petitioner submits evidence which contains false information. 
In general, a few errors or minor discrepancies are not reason to question a noncitizen's credibility in 
a proceeding for obtaining an immigration benefit. See Spencer Enters. Inc. v. US., 345 F.3d 683, 
694 (9th Cir. 2003). However, if a petition includes serious errors and discrepancies, and the petitioner 
does not resolve them despite given the opportunity to do so, then the inconsistencies may lead to a 
conclusion that the claims stated in the petition are not credible. Matter ofHo, 19 I&N Dec. at 591-
92 (stating that doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition, and that 
attempts to explain or reconcile conflicting accounts, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice); Matter of O-M-0-, 28 I&N Dec. 191, 197 (BIA 2021) 
( stating that "by submitting fabricated evidence, [ the noncitizen] compromised the integrity of [their] 
entire claim.") (internal citation omitted). 
To find that a noncitizen made a willful misrepresentation, there must be at least some evidence that 
would permit a reasonable person to conclude that the noncitizen willfully misrepresented a material 
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fact in an attempt to obtain a visa, other documentation, admission into the United States, or any other 
immigration benefit to which they are not otherwise entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975); see also generally 8 USCIS Policy Manual J.3(A)(l), 
https://www.uscis.gov/policy-manual. A finding of willful misrepresentation in a visa petition may 
be considered in any future proceeding to determine that a noncitizen is inadmissible to the United 
States. Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
A misrepresentation is material when it tends to shut off a line of inquiry that is relevant to a 
noncitizen's admissibility and that would predictably have disclosed other facts relevant to their 
eligibility for a visa, other documentation, or admission to the United States. Matter ofD-R-, 27 I&N 
Dec. 105, 113 (BIA 2017). Here, the Petitioner's assertions and evidence concerning her foreign 
academic degree and work experience as a physiotherapist are material to her eligibility for the 
requested EB-2 visa classification. 
For a misrepresentation to be found willful, it must be determined that the noncitizen was fully aware 
of the nature of the information sought and knowingly, intentionally, and deliberately misrepresented 
material facts. Matter ofG-G-, 7 I&N Dec. 161 (BIA 1956). 
The "Penalties" section on page 10 ofUSCIS Form 1-140 Instructions 05/31/22, corresponding to the 
instant petition includes the following warning: "If you knowingly and willfully falsify or conceal a 
material fact or submit a false document with your Form 1-140, we will deny your Form 1-140 and 
may deny any other immigration benefit. In addition, you will face severe penalties provided by law 
and may be subject to criminal prosecution." 
The Petitioner signed the instant Form 1-140 petition certifying under penalty of perjury that she has 
reviewed the petition, that she understood all of the information contained in, and submitted with the 
petition, and that all of this information was complete, true, and correct. The Petitioner's signature on 
the petition creates a strong presumption that she knew the petition's contents and assented to it. 
Matter of Valdez, 27 I&N Dec. 496, 502 (BIA 2018). 
To summarize, the Petitioner filed the instant Form 1-140 asserting eligibility for EB-2 immigrant visa 
classification as an advanced degree professional. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
required her to provide evidence that she has a U.S. bachelor's degree or its foreign equivalent, along 
with at least five years of post-baccalaureate experience in the specialty. To establish that she met 
these criteria, the Petitioner submitted evidence of her education and work experience discussed above 
that is internally inconsistent and materially conflicts with the employment claims she previously made 
before DOS in nonimmigrant visa proceedings. The Petitioner's statements and documents 
concerning her academic degree and work experience are material to her eligibility for EB-2 
classification under section 203(b )(2) of the Act. The Petitioner was given an opportunity to rebut the 
conflicting statements and evidence, but she did not respond to the NOID and did not otherwise 
address our concerns about the discrepancies in the record. 
We therefore conclude that the Petitioner willfully provided false information regarding her academic 
credentials and work experience, both of which are material to her claim of eligibility for the EB-2 
visa classification as an advanced degree professional. 
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III. CONCLUSION 
The Petitioner has not met her burden of proof to establish that she qualifies for the EB-2 visa 
classification, which is a threshold requirement for a national interest waiver. Furthermore, by filing 
the instant petition and falsely claiming that she has a foreign equivalent of a U.S. bachelor's degree 
and at least five years of post-baccalaureate progressive work experience as a physiotherapist, the 
Petitioner sought to procure a visa, other documentation, or admission into the United States or other 
benefit provided under the Act through willful misrepresentation of a material fact, which may render 
her inadmissible under section 212(a)(6)(C)(i) of the Act in future proceedings. 
ORDER: The appeal is dismissed. 
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