dismissed EB-2 NIW Case: Project Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 19806114 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a project manager, seeks second preference immigrant classification as a member of 
the professions holding an advanced degree and as an individual of exceptional ability, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 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 classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, and that he had not had not established that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits a brief asserting that he is eligible for EB-2 classification and a 
national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility 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). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 1, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
1 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 2 
II. ANALYSIS 
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 alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). The Pettioner presented a certificate (August 
2017) and academic transript from the I I (Brazil) stating that he received an 
"MBA in Project Management." The record also contains an "Evaluation of Training, Education, and 
Experience" from USA Evaluations which concludes that the Petitioner holds the equivalent of an 
MBA in Project Management "based upon a combination of Academics and a minimum 5 years 
Professional experience, as per USCIS." 3 This credentials evaluation does not indicate that the 
Petitioner has "a foreign equivalent degree" to a United States advanced degree. 4 Accordingly, the 
credentials evaluation does not establish that the Petitioner's education alone meets the requirements 
of the regulation at 8 C.F.R. § 204.5(k)(3)(i)(A). 
Alternatively, a petitioner may present "[a ]n official academic record showing that the alien 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 alien 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 that 
the Petitioner's diploma (January 31, 2014) and academic transcript from[ I University 
(Brazil) were sufficient to show that he received the foreign equivalent of a U.S. bacclaureate degree. 
Regarding the issue of whether he has accrued at least five years of progressive ost-baccalaureate 
experience in his specialty, the Petitioner presented letters and statements from Company, 
I I, Bank, and The 
record indicates that the Petitioner worked at Company as a product engineer from 
November 2013 until June 2018. However, because the Petitioner did not receive his diploma until 
January 31, 2014, we count only his work experience after that date. The Form 1-140, Immigrant 
Petition for Alien Worker, in this matter was filed on October 2, 2018. With respect to the Petitioner's 
five years of progressive post-baccalaureate experience in his specialty, he must demonstrate such 
experience at the time of filing the petition. See 8 C.F .R. § 103 .2(b )(1 ). Here, the Petitioner has not 
demonstrated at least five years of progressive post-baccalaureate experience in his specialty at the 
time of filing. 5 Accordingly, the record supports the Director's determination that the Petitoner has not 
established that he qualifies as a member of the professions holding an advanced degree. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Director indicated that the credentials evaluation did not provide sufficient information regarding the United States' 
equivalent of the Petitioner's MBA certificate. 
4 Nor does the evaluation offer a sufficient analysis of the coursework the Petitioner completed at the I I 
5 The Petitioner did not begin working forl I Rank until July 2019 and therefore his experience with that 
company does not establish his eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l ). In addition, the 
Petitioner's internships with __ Company (November 2011 until October 2012) and (July 
3 
B. Exceptional Ability 
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the membership 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). In the appeal brief, the Petitioner maintains that he also meets 
the license to practice criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the salary criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D), and the recognition for achievements and significant contributions criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we conclude that the record does not 
support a finding that the Petitioner satisfies the requirements of at least three criteria. 
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 supports the Director's determination that the Petitioner meets this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
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). 
The Petitoner presented letters and statements froml I Company,! 
I Bank, and but this documentation does not 
show that he had accrued at least ten years of full-time experience in his occupation at the time of filing 
the petition. 6 The Director concluded that "the Petitioner's work experience does not show that he 
has at least ten years of full-time experience as a Project Manager" and the Petitioner does not contest 
this determination on appeal. Accordingly, the Petitioner has not established that he meets the 
requirements of this regulatory criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
As evidence for this criterion, the Petitioner provided his membership certificate for the Project 
Management Institute, his identification card for the Federal Council of Engineering and Agronomy 
(Brazil), and his registration certificate for the I I Regional Council of Engineering and 
Agronomy. The Director concluded that the Petitioner had not established that his "profession or 
occupation requires the above documents. In this case, the Petitioner has not provided any 
2013 until November 2013 reflect re-baccalaureate ex erience and not post-baccalaureate experience. Likewise. the 
letter fro asserts that the Petitioner has worked for his father's company 
since August 2009. but it does not specify his dates of employment after earning his diploma from 
University in January 2014. We note that after earning his diploma, the Petitioner worked atl I Company until June 
2018. The Director also indicated that the Petitioner's work experience forl I 
is not listed on his Form ETA-750B, Statement of Qualifications of Alien, which accompanied the Form T-140 
petition. 
6 The Petitioner must demonstrate that he had at least ten years of full-time experience at the time of filing (October 2, 
2018). See 8 C.F.R. § 103.2(b)(l). 
4 
documentary evidence to show that these documents authorize the Petitioner to practice his profession 
or occupation." On appeal, the Petitioner asserts that the Federal Council of Engineering and 
Agronomy "restricts or prohibits the practice of graduates that are not registered as their members and 
that only registered professionals can sign, or be responsible for any projects in Brazil," but he does 
not offer documentary evidence to support his claims. The Petitioner, therefore, has not established 
that he meets 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 submitted a letter from his accountant listing his yearly gross income for 2013 - 201 7, 
earnings statements froml !Company, bank statements, and income tax returns for 2015 -
201 7. He also presented information from the Salario BR website listing "Product Engineer" salaries 
for various levels of experience at small companies. 7 We note that the Salario BR information 
excludes salaries from medium and large companies. The Director's decision noted that "the 
information from the website provides the salary based upon experience (trainee to master)" and that 
this information was not an adequate basis for comparison in demonstrating that the Petitioner's salary 
is indicative of exceptional ability. 
On appeal, the Petitioner points to USCIS Policy Memorandum PM-602-0005.1, Evaluation of 
Evidence Submitted with Certain Form 1-140 Petitions; Revisions to the Adjudicator's Field Manual 
(AFM) Chapter 22.2, AFM Update ADI 1-14 21 (Dec. 22, 2010), https://www.uscis.gov/legal­
resources/policy-memoranda, which states: "Aliens working in different countries should be 
evaluated based on the wage statistics or comparable evidence in that country, rather than by simply 
converting the salary to U.S. dollars and then viewing whether the salary would be considered high in 
the United States." The Petitioner contends that he has commanded a high salary for services in 
relation to others working in the same field in Brazil. 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others in his 
occupation. Here, the Petitioner has not offered documentation showing that his earnings are indicative 
of exceptional ability relative to other Project Managers. 8 Instead, he presented information relating 
to "Product Engineer" salaries at small companies. 9 The Director concluded that the Petitioner's 
evidence was insufficient to demonstrate that he has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability. Based on the foregoing, we agree with the Director 
that the Petitioner has not demonstrated that he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner provided his membership certificate for the Project Management Institute, his 
identification card for the Federal Council of Engineering and Agronomy (Brazil), and his registration 
certificate for thel I Regional Council of Engineering and Agronomy. The record, 
7 This salary survey was based on a population of 5,492 wages with a sampling of 5,281 wages. 
8 In Parts 5 and 6 of the Form 1-140, the Petitioner identified both his "Occupation" and "Job Title" as "Project Manager." 
9 The Salario BR information excludes salary data from medium and large companies and therefore does not offer an 
appropriate basis for comparison. 
5 
however, does not include information about these organizations. The evidence is not sufficient to 
demonstrate that they have a membership body comprised of individuals who have earned a U.S. 
baccalaureate degree or its foreign equivalent, or that the organizations otherwise constitute 
professional associations. 10 Accordingly, we withdraw the Director's determination that the Petitioner 
meets this criterion. 
Evidence of recognition 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). 
As evidence for this criterion, the Petitioner submitted recommendation letters from colleagues 
discussing his business and engineering projects atl I Company, but these letters are not 
sufficient to demonstrate his recognition for achievements and significant contributions to the indust 
or field. For example,! I the Petitioner's Program Direct Manager at 
Company, mentioned the Petitioner's work on company projects involving the ______ 
South America andl I Russia. I I asserted that the Petitioner performed on both projects 
"with high level of expertise and commitment mindset, flexibility and proactivity." The record 
however, does not include supporting documentation indicating that the Petitioner's projects at 
I I Company have been recognized for significantly affecting the I I industry or 
production engineering field. The evidence does not show that the Petitioner's work has had an impact 
beyond his employers and their projects at a level indicative of achievements and significant 
contributions to the industry or field. The Director stated: 
The authors of the letters do not provide any specific details regarding why the 
Petitioner's work is representative of recognition for achievements and significant 
contributions to the industry or field . . . . Without independent objective evidence 
showing that the Petitioner has been recognized by peers, governmental entities, or 
professional or business organizations for achievements and significant contributions 
to the industry or field, USCIS cannot conclude that the Petitioner meets this criterion. 
On appeal, the Petitioner states that he "submitted evidence of the awards and recognitions he received 
during his career, in appreciation of his professional achievements and significant offerings in the 
field." 11 He contends that the recommendation letters "recognize his professional achievements and 
significant contributions" to his industry and field, but he does not specifically identify any erroneous 
conclusion of law or statement of fact relating to the Director's analysis for this criterion. Nor does 
the appeal brief even reference the Director's discussion regarding this criterion. Accordingly, we 
agree with the Director that the Petitioner has not demonstrated that he fulfills this regulatory criterion. 
10 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 101 (a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry in the occupation." 
11 The record includes Company South America Product Development (SAPD) Vision Award in recognition 
of the Petitioner's "commitment and efforts in supporting" the company's SAPD process, but this award reflects internal 
recognition for dedication to his employer and not recognition for achievements and significant contributions to the 
industry or field. 
6 
For the reasons set forth above, the Petitioner has not shown that he meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. The Petitioner has not shown that he is an advanced degree professional or that 
he has satisfied the regulatory criteria and achieved the level of expertise required for exceptional 
ability classification. As the Petitioner has not established eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. The 
appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
7