dismissed EB-2 NIW Case: Physiotherapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 17, 2024 In Re: 31384880 
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 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 the Petitioner did not 
qualify for the requested EB-2 visa classification and she also did not establish eligibility for a national 
interest waiver under the analytical framework set forth in Matter of Dhanasar, 26 I&N Dec. 884 
(AAO 2016). The matter is now before us on appeal. 
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 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). 
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). 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. 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. 
Once 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 of Dhanasar, 26 I&N Dec.at 889, provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion, 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 
The issues on appeal are (1) whether the Petitioner has demonstrated eligibility for EB-2 visa 
classification and, if so, (2) whether she merits a discretionary waiver of the job offer requirement "in 
the national interest." Upon review, we conclude that the Petitioner has not met her burden of proof 
to establish that she is eligible for the underlying EB-2 visa classification. Because the Petitioner's 
ineligibility for the EB-2 classification is dispositive of her appeal, we need not address at this time 
whether she meets the national interest waiver criteria and reserve our opinion on that issue. 
The record reflects that the Petitioner, a native of Brazil, was awarded a title of physiotherapist by the 
School of Sciences of the ________________ 2 "in view of the completion 
of the Physiotherapy Course on December 20, 2006." In November 2022, she filed the instant petition, 
representing that she had a bachelor's degree in physiotherapy, and intended to work in the United 
States as a Pilates instructor and aesthetic masseuse. In support, the Petitioner provided a copy of the 
above referenced "title of physiotherapist" award document with a 2004 course syllabus, certificates 
of participation in or completion of several training sessions between 2006 and 2022, two employment 
verification letters, and evidence that she became a member of the American Management Association 
shortly before filing the instant petition. 
In response to the Director's subsequent request for evidence (RFE), the Petitioner submitted 
additional documents, including recommendation letters, beauty training certificates, a statement 
regarding past self-employment as physiotherapist and Pilates instructor, evidence of her 2021-2022 
business income and payment of taxes in Brazil, general information about minimum wages in Brazil 
during 1994-2023 period, and a business plan clarifying that she intended to "establish and direct the 
operations of her business, "P- E-3 inin the United States, "to provide a unique 
3 We use initials where possible for privacy. 
2 
approach to clients' well-being by combining proven physiotherapy techniques with Pilates method 
exercises as well as by providing aesthetic services." 
The Director determined that the Petitioner was ineligible for EB-2 visa classification as a member of 
the professions holding an advanced degree or as an individual of exceptional ability in the sciences, 
arts, or business. The Petitioner has not overcome this determination on appeal. 
A. Member of the Professions Holding an Advanced Degree 
To establish eligibility for the EB-2 classification as an advanced degree professional, a petitioner 
must demonstrate, in part, that they hold a qualifying advanced degree through submission of an 
official academic record showing that they have a United States advanced degree or a foreign 
equivalent degree. 8 C.F.R. § 204.5(k)(3)(i)(A). In the alternative, a petitioner may provide an official 
academic record showing that they have a United States baccalaureate degree or a foreign equivalent 
degree, and evidence in the form ofletters 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). 
The Director concluded that the Petitioner did not show she met either requirement because her RFE 
response did not include an educational evaluation to establish that the "title of physiotherapist" 
conferred upon her by lwas an advanced degree or its foreign U.S. equivalent. 
The Petitioner does not challenge the Director's determination that she is ineligible for the EB-2 
classification as a member of professions holding an advanced degree, and we consider this issue 
waived on appeal. See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a 
filing party fails to appeal an issue addressed in an adverse decision, that issue is waived). 
B. Individual of Exceptional Ability 
To establish eligibility for EB-2 visa classification as an individual of exceptional ability, a petitioner 
must submit documentation that satisfies at least three of the six categories of evidence listed at 
8 C.F.R. § 204.5(k)(3)(ii), summarized below: 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If an individual meets at least three of these regulatory criteria, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows a degree of 
expertise significantly above that ordinarily encountered in the individual's field. See Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the documentation is first 
counted and then, if sufficient to satisfy the required number of criteria, considered in the context of a 
final merits determination). See also generally 6 USCIS Policy Manual F.5(B)(2), 
3 
https://www.uscis.gov/policy-manual (providing guidance on conducting the final merits 
determination). 
The Director concluded that the Petitioner did not qualify for EB-2 visa classification as an individual 
of exceptional ability because she did not meet at least three of the above criteria. On appeal, the 
Petitioner indicates that the evidence she previously submitted is sufficient to establish that she 
satisfies all six, or at least three of the criteria and the Director's adverse decision was therefore in 
error. 
We have reviewed the entire record of proceedings, and for the reasons explained below conclude that 
the Petitioner has not shown she meets the required number of criteria. 
An official academic record showing that the [noncitizen] has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Director determined that the Petitioner did not meet this criterion because the beauty training 
certificates she provided did not appear to have been issued by a college, university, school, or other 
institution of learning. The Director further found that the Petitioner did not establish that this 
documentation constituted an official academic record, and no educational evaluation was submitted 
to show that she had an advanced degree or a foreign U.S. equivalent. 
The Petitioner does not contest that the beauty training certificates do not qualify as "academic 
records." She points out, however, that the previously provided evidence demonstrates she was 
awarded a title of physiotherapist by Ia medical school in Brazil, which offers healthcare 
related courses including nursing, physiotherapy, and social work. 
Upon review, we conclude that the "title of physiotherapist" award document from I I is 
sufficient to show that the Petitioner meets the first criterion and withdraw the Director's 
determination to the contrary. 
In the context of EB-2 exceptional ability petitions, an "'official academic record' is not limited to a 
formal diploma." Matter ofO-A-, Inc., Adopted Decision 2017-03 at 3 (AAO Apr. 17, 2017). Rather, 
for a noncitizen of exceptional ability, USCIS may more broadly accept "a degree, diploma, certificate, 
or similar award." Id. Furthermore, a noncitizen need not have "an advanced degree or a U.S. foreign 
equivalent" to meet the first criterion. Rather, under the plain language of the regulation "a degree, 
diploma, certificate, or similar award from a college, university, school, or other institution oflearning 
relating to the area of exceptional ability" will suffice. 8 C.F.R. § 204.5(k)(3)(ii)(A) ( emphasis added). 
Here, the "title of physiotherapist" awarded to the Petitioner by I !constitutes an "award" 
from "an institution of learning." In addition, this award relates to the Petitioner's claimed area of 
exceptional ability - physiotherapy. The "title of physiotherapist" award document is also an "official 
academic record" because it reflects that I !conferred this title upon the Petitioner "in view 
of the completion of the Physiotherapy Course on December 20, 2006." 
4 
Accordingly, the Petitioner's "title of physiotherapist" award document satisfies the evidentiary 
standard set forth in 8 C.F.R. § 204.5(k)(3)(ii)(A). The Petitioner therefore has met her burden of 
proof to show that she meets this criterion. 
Nevertheless, the preponderance of the evidence in the record is not sufficient to establish that she 
satisfies at least two more of the remaining regulatory criteria. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
[noncitizen] has at least ten years offitll-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Although the Director determined that the Petitioner established eligibility under this criterion, we 
withdraw that determination as the evidence is not adequate to show that the Petitioner has at least ten 
years of full-time experience in the occupation in which she intends to work in the United States. 
As an initial matter, the Petitioner provided inconsistent statements about her prior employment and 
work experience. In a November 2022 declaration initially submitted with the petition, she claimed: 
• Employment at ___________ from October 2008 to August 2009; 
• Self-employment as a physiotherapist from January 2010 to January 2013; 
• Work as a Pilates instructor atl Ifrom February 2013 to December 2014; 
• Performance of services "aimed at weight loss, rejuvenation, and Pilates" at 
_____ from July 2015 to December 2015; 
• Work as a physiotherapist and CEO at her own business from March 2021, until April 2022. 4 
In support, the Petitioner provided a letter confirming that she was employed at _______ 
I I as a "physiotherapist" for five months, from July through December 2015, and a letter 
from thel Iowner stating that she worked "for this physical rehabilitation clinic ... as a 
Pilates instructor and aesthetic masseuse from February 2013 to December 2014." We note, however, 
that the letter from ____________ confirming the Petitioner's employment as a 
"physiotherapist" is not consistent with the Petitioner's own description of her work during this period 
as services "aimed at weight loss, rejuvenation, and Pilates." 
In her response to the RFE the Petitioner submitted a statement indicating that she was additionally 
self-employed as a physiotherapist in Brazil from January 2007 through September 2008; from 
September 2009 through January 2013; and from January 2015 through June 2015. She did not explain 
why she did not initially include this information in the original declaration concerning her work 
experience, and she did not submit corroborating evidence of the claimed self-employment periods 
since January 2007 aside from a March 2022 Simplified Taxation System Statement (Extrato do 
Simples Nacional). 
The Petitioner must resolve the inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
4 We note that the Petitioner's originally claimed periods of work experience as a physiotherapist, Pilates instructor, 
masseuse, and CEO amount to approximately seven years in the aggregate. 
5 
1988). Because the Petitioner has neither addressed the discrepancies nor provided additional 
documentation to reconcile the inconsistent information about her employment history, we cannot give 
her largely unsupported statements concerning work experience significant probative weight. 
Furthermore, the employment confirmation letters the Petitioner submitted do not specify start and 
end dates of her employment, and they do not indicate whether she worked foll-time or part-time. The 
letters also do not include sufficient details about the Petitioner's duties, any job-related training she 
may have received, or the experience she gained in the course of her employment. As such, they do 
not meet the plain language of the regulation at 8 C.F.R. § 204.5(g)(l) 5 and have minimal evidentiary 
value. Absent other evidence of the Petitioner's requisite ten years of foll-time experience in the 
occupation for which she is being sought, we cannot conclude that she meets the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
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 determined that the Petitioner did not show she satisfied this criterion, and we agree. 
On appeal, the Petitioner asserts that the Director's determination was in error because she previously 
submitted a copy of her license issued by the Regional Council of Physiotherapy - CREFITO 15, 
which she claims confirms she is licensed to perform her professional activities as a physiotherapist. 
We note, however, that the certification was issued in May 2023, approximately six months after the 
petition's November 2022 filing date. See 8 C.F.R. § 103.2(b)(l) (providing in pertinent part that a 
petitioner must establish eligibility for the requested benefit at the time of filing). 
Evidence that the [noncitizen] has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
Again, the Director found the evidence insufficient to demonstrate the Petitioner's eligibility under this 
criterion. 
On appeal, the Petitioner asserts that because "her tax statement from Simples Nacional shows that her 
"gross income in February 2022 was R$ 9,444 .... [i]t can be assumed that [her] annual earning[s] would 
equate to around R$ 113,328" and that she has therefore met this criterion. 
We acknowledge this assertion, as well as tax evidence indicating that the Petitioner's "total gross 
revenue" in February 2022 was significantly above the Brazil's minimum monthly wage for the same 
year. However, the general information about minimum wages in Brazil does not provide an adequate 
basis for determining how the Petitioner's salary compares to the salaries of other physiotherapists, 
Pilates instructors, or aesthetic masseuses. As the Petitioner does not offer any other evidence to show 
how her earnings point to her exceptional ability relative to others working in the field, we agree with 
the Director that she has not established she meets this criterion. 
5 This regulation provides in relevant part that "[e ]vidence relating to qualifying experience or training shall be in the form 
of letter(s) from current or former employer(s) or trainer(s) and shall include ... a specific description of the duties 
performed by the [noncitizen] or of the training received." 
6 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Director acknowledged the submission of letters from friends and colleagues complimenting the 
Petitioner's work and abilities as a physiotherapist, Pilates instructor, aesthetic masseuse, and 
entrepreneur, but determined that they were insufficient to establish her eligibility under this criterion 
because they did not address how the Petitioner's work alone constituted the requisite achievements or 
significant contributions to the field. The Director explained that absent documentation showing that the 
Petitioner has been recognized by peers, government entities, or professional or business organizations 
for achievements and significant contributions to the industry or field, USCIS was unable to find that she 
satisfied the evidentiary standard under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner does not offer any additional documentation and does not address the 
deficiencies identified by the Director. Instead, she references three of the previously provided letters 
and asserts generally that "the letters of support should have been found to be recognition by her peers 
for her achievements and contributions to the industry." The Petitioner adds that her "impeccable skills 
are a common denominator among all the support letters received," and the evidence therefore shows that 
she meets this criterion. 
The letters describe the Petitioner's personal achievements, professional skills, and the quality of the 
services she provided to her employers, clients, or patients. For example, the Petitioner's former employer 
writes that "[t]hrough her method in ... Pilates classes and massages [the Petitioner] evidenced a 
rehabilitation process in shorter time, qualifying patients for an above-average evolution, raising the 
clinic's services, and efficiently promoting the restoration of physical health of athletes and elderly 
patients ofthis clinic." Another employer states that while the Petitioner worked at her clinic, she "noticed 
a significant improvement in the evolution and discharge of elderly patients with pain complaints." Yet 
another former employer opines that"[ a] professional like [ the Petitioner] elevates the profession, leading 
patients to a quick rehabilitation and providing health and well-being." Although these statements 
indicate that the Petitioner is a skilled physiotherapist, Pilates instructor, and masseuse, the Petitioner has 
not explained how her past successful work performance in those positions establishes that she has been 
recognized for achievements and significant contributions to the industry or field of her proposed 
endeavor. 
For these reasons, we conclude that the Petitioner has not shown she meets this regulatory criterion. 
In sum, the Petitioner has not met her burden of proof to establish that she satisfies at least three of the 
six regulatory criteria described at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). She therefore does not meet the 
threshold requirement to qualify as an individual of exceptional ability under section 203(b )(2)(A) of 
the Act, and we will not conduct a final merits analysis to determine whether the evidence in its totality 
is sufficient to show that the Petitioner is recognized as having a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. 
Consequently, as the Petitioner has not demonstrated eligibility for the underlying EB-2 visa 
classification, we need not address at this time whether she merits a discretionary waiver of the job 
7 
offer requirement "in the national interest" and reserve the issue. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) (stating 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 ofL-A-C-, 26 I&N Dec. 516, 526 
n.7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant has not otherwise 
met their burden of proof). 
III. CONCLUSION 
The Petitioner has not demonstrated that she qualifies for the requested EB-2 visa classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. As 
such, she is ineligible for the immigration benefit sought, and her petition will remain denied. 
ORDER: The appeal is dismissed. 
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