dismissed EB-2 NIW Case: Radiology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 13, 2023 In Re : 26953957 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a radiology technician, seeks classification as an individual of exceptional ability. 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U .S.C. § 1153(b )(2) . The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer , and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is an individual of exceptional ability nor that a waiver of the job offer 
requirement is 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&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 immigrant 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability , the petitioner must then establish eligibility for a 
discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of 
the Act. While neither statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec . 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 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) . 
• 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 Director found that the Petitioner did not establish that he is an individual of exceptional ability, 
and as such did not establish that he qualifies for EB-2 classification. 2 The Director farther found that 
the Petitioner did not establish eligibility under any of the three required prongs of the Dhanasar 
analytical framework, and therefore did not establish that a waiver of the classification's job offer 
requirement is in the national interest. 
A. Qualification for EB-2 classification 
The Petitioner asserts that he qualifies for EB-2 classification as an individual of exceptional ability. 
"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). An individual 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). Meeting at least three criteria, however, does not, in and of itself, establish 
eligibility for this classification. 3 If a petitioner does demonstrate meeting at least three criteria, we 
will then conduct a final merits determination to decide whether the evidence in its totality shows that 
the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. The Director found that the Petitioner met one of the initial criteria. For the 
reasons provided below, we conclude that the Petitioner does not meet the initial evidentiary 
requirements for classification as an individual of exceptional ability. We evaluate each of the 
regulatory criteria in turn. 
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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
As evidence of meeting this criterion, the Petitioner submitted a copy of his diploma and transcripts 
for his "diploma de tecnico em radiologia medica," or technician in medical radiology degree, from 
the Centro de Educacao Tecnological !Brazil, which he received in 2005.4 
2 The Petitioner does not assert that he qualifies for EB-2 classification as an advanced degree professional. 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generalf-v 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
4 We reviewed the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic 
Database for Global Education (EDGE). According to EDGE, the diploma represents attainment of a level of education 
comparable to completion of a vocational or other specialized high school curriculum in the United States. We consider 
EDGE to be a reliable source ofinfonnation 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). See https://www.aacrao.org/edge/country/brazil for information regarding the education system in Brazil. 
2 
The Director accepted this as evidence to meet this criteria, as it relates to radiology, the Petitioner's 
stated area of exceptional ability. 
As such, the Petitioner has established eligibility under this criterion. 
Evidence in the form ofletter(s)from current orformer 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). 
As claimed evidence of meeting this criterion, the Petitioner submitted copies of pages from his 
Brazilian employment book and social security card (Brazilian workbook), a "length of service 
certificate" from a municipal government in Brazil, an employment statement from the I I I in Brazil, and what appears to be pages from a judgment in a labor lawsuit. 
The length of service certificate from the municipal government ofi Iin Brazil, dated January 
27, 2009, states that the Petitioner was employed as a technician in radiology from August 1, 2006 to 
January 30, 2009. The certificate is signed, although the name and title are illegible. However, the 
certificate does not state whether the Petitioner was employed foll-time. 
The em lo ment statement from the government of the~--------- signed by 
i------.-------;::::!...:::o.::n....::J~u::.:n:.::.e_:2::2:.z.,...:2:.::0:..:2:..:::0.z...,..:::.st=;ates that the Petitioner was employed at Hospital 
~-~ operated by the ~-------~ as a radiology technician from December 1, 2015 to 
September 29, 2018. This statement also does not state whether the Petitioner was employed foll-
time. 
B 
The Brazilian workbook contains entries stating that the Petitioner was employed as a radiology 
technician as follows: 
• From December 1, 2011 until May 6, 2014 at In;:..st::.:.it::..:::u:.::to~:::::;-------' 
• From June 17, 2013 until December 12, 2014 atl 
• From April 2, 2014 until September 5, 2018 atl---~-----~ 
The entries in the workbook do not state whether the Petitioner was employed foll-time, and do not 
reflect his employment with the municipal government from 2006 to 2009 claimed above, or his 
employment with the Hospital! IHis claimed experience with Hospital! lalso 
appears to conflict both in timeframe and employer with the listed experience atl
I I The Petitioner does not explain this discrepancy in the record. The Petitioner must resolve 
this inconsistency in the record with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Finally, the Petitioner submitted two pages from what appears to be a judgment in a labor lawsuit. 
Although the Petitioner may be the plaintiff in this matter, this is not clearly stated in the pages 
provided. The pages provided indicate that the plaintiff in the matter was hired by Hospital! 
on January 4, 2010 as a radiology technician and dismissed on December 12, 2014. The pages also 
state that the plaintiff's workbook was "registered only on date 06/l 7 /2013." The judgment does not 
state the number of hours per week that the plaintiff was employed. The Petitioner has not sufficiently 
explained the significance of this judgment nor provided the entire document for our review to 
I 
I 
I 
3 
conclude that it relates to him. Nevertheless, we surmise that the Petitioner submitted this document 
in an attempt to establish that the Petitioner's hire date atl Iwhich appears in his Brazilian 
workbook as June 17, 2013, is incorrect and should state January 4, 2010. The evidence provided, 
however, does not establish this, and we consider thel !experience from June 17, 2013 onward. 
As stated above, none of the evidence that the Petitioner has submitted states that he was employed 
full-time nor provides the average number of hours per week worked. Additionally, we note that some 
of the employment dates in the workbook overlap with each other and with the employment period in 
the Petitioner's employment statement from thel IThe Petitioner has not further 
clarified the number of hours per week worked in these positions. Finally, the Petitioner has provided 
only his Brazilian workbook as evidence of several of his claimed periods of employment. The 
Petitioner has not provided letters from current or former employers for these positions, as required by 
the plain language ofthe regulation, nor has the Petitioner provided an explanation as to why that evidence 
is unavailable to him. 
As such, we conclude that the Petitioner has not provided sufficient documentary evidence to establish 
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 Petitioner submitted an identification card from the "National Council of Technicians in 
Radiology" in Brazil. The ~tes "LICENSE: RADIOLOGY" and provides a "radiology 
technician CRTR number" ofl___J 
The Petitioner claims that this document evidences his license to practice the occupation because the 
National Council of Technicians in Radiology is the federal body that is responsible for the registration 
of radiology technicians in Brazil and that only those registered with this agency may enter the job 
market in the occupation. In support of this statement, the Petitioner provides the URL for a website 
that is in Portuguese. However, the Petitioner did not provide any documentary evidence related to 
this claim and did not provide a translation of the information contained on the website. 5 Although 
we acknowledge that the identification card appears to relate to his occupation as a radiology 
technician, the Petitioner has not provided documentary evidence with a certified English translation 
to establish that the National Council of Technicians in Radiology is an official body in Brazil that 
issues licenses. 
We conclude that the Petitioner's unsupported assertion is not sufficient to meet his burden of proof. 
See Matter ofChawathe, 25 I&N Dec. at 375-76. Although the Petitioner cites to a website in support 
of this claim, the Petitioner did not include in his filing documentation from a credible source, such as 
official information from this claimed foreign federal agency, with a certified English translation. This 
is insufficient, because Matter ofChawathe contemplates that a petitioner submit "relevant, probative, 
and credible evidence" to meet his burden of proof. Id. at 376. 
5 Any document containing foreign language submitted to USCIS must be accompanied by a full English translation which 
the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). 
4 
Therefore, we conclude that the Petitioner has not provided sufficient documentary evidence to 
establish this criterion. 
Evidence that the alien has commanded a salmy, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner submitted partial copies of his income tax statements from Brazil for 2013 to 2017 and a 
printout from the website salario.com which provides salary ranges for radiology technicians in Brazil. 
We acknowledge that the Petitioner's reported income amounts from 2013 through 2017 are higher than 
the average salary amount stated in the salario.com printout. However, we note that the salario.com 
printout states that the salary information was collected in 2020 and 2021. Additionally, we note that the 
salary ranges are based on a 28-hour workweek, rather than a full-time 40-hour workweek. Finally, the 
salario.com printout states that the information is based only on the base pay stated in the Brazilian 
workbook, and does not include any additional bonuses, commissions, hazard pay, or overtime pay. 
The Petitioner has not established that salary information collected in 2020 and 2021 is a valid point of 
comparison for the wages he earned from 2013 to 2017, or whether there have been fluctuations in 
currency or inflation that would affect average wages during these time periods. The Petitioner also has 
not established the average number of hours that he worked per week to determine whether a 28-hour 
workweek is an accurate comparison.6 Moreover, he has not established whether his wages include 
additional pay for overtime, hazard pay, or other additional amounts that would increase his earnings but 
would be unrelated to whether he demonstrates exceptional ability. For these reasons, we conclude that 
the Petitioner has not established that the salario.com salary ranges represent an accurate salary 
comparison, nor has he established that the salary difference between the stated average salary and the 
Petitioner's salary is due to the Petitioner's exceptional ability. 
As such, we conclude that the Petitioner has not provided sufficient documentary evidence or 
information to establish this criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
This criterion requires evidence of membership in a professional association. The regulation at 
8 C.F.R. § 204.5(k)(2) defines "profession" as any occupation having a minimum requirement of a 
United States bachelor's degree or foreign equivalent for entry into the occupation. 
As claimed evidence that the Petitioner meets this criterion, he submitted a certificate from the 
"Regional Council of Radiology Technicians" in Brazil which states that the Petitioner is registered 
by the council under registration numbetj IThe Petitioner also submitted another copy of the 
6 As discussed above, we conclude that the Petitioner has not established that he was employed full-time in his prior 
positions, and therefore has not established that he possesses at least ten years of full-time experience in the occupation. 
However, if he were employed full-time during these years, this would appear to undercut his claim that his salary 
demonstrates his exceptional ability, as it may simply reflect working additional hours per week. On the other hand, ifhe 
were working only 28 hours per week on average, this would further undercut his claim that he has at least ten years of 
full-time experience in the occupation. 
5 
same identification card from the "National Council of Radiology Technicians" in Brazil that he 
submitted as evidence in support of his claimed eligibility for the license criterion at 8 C.F.R. § 
204.5(k)(3)(ii)(C). 
Again, the Petitioner asserts that the National Council of Radiology Technicians maintains the 
registrations of individuals qualified to work in the radiology technician field. The Petitioner also 
states that the Council helps those in the field seek professional improvement through courses, 
congresses, and other events. However, as noted above, the Petitioner has not provided documentary 
evidence in support of this claim with any required translation and provides only the URL for a website 
in Portuguese. 
Although we acknowledge that the Petitioner's certificate and identification card do appear to relate 
to his occupation as a radiology technician, the Petitioner has not established the requirements for an 
individual to be registered with either the Regional Council or the National Council of Radiology 
Technicians, and as such has not established that either of these councils qualify as "professional 
associations" within the meaning of the regulations. See 8 C.F.R. § 204.5(k)(2). Moreover, we note 
that the Petitioner has not claimed that a radiology technician in Brazil must possess the equivalent of 
a U.S. bachelor's degree, nor has he provided evidence that he himself possesses the equivalent of a 
U.S. bachelor's degree. Since the Petitioner has not provided evidence establishing that either council 
requires its members to be professionals as defined in the regulations, he did not meet his burden to 
establish that either qualifies as a professional association. 
Accordingly, we conclude that the Petitioner has not provided sufficient documentary evidence to 
establish this criterion. 
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 Petitioner submitted three letters of recommendation in support of this criterion. Each of the 
letters is from an orthopedic surgeon who claims to have supervised the Petitioner and each speaks 
highly of the Petitioner's professionalism and competence as a radiology technician. However, the 
letters do not describe achievements or significant contributions to the radiology field by the Petitioner, 
nor do they describe the Petitioner as receiving such recognition from governmental entities or 
professional organizations. The letters do mention a technique that the Petitioner may have assisted 
in developing that led to a less invasive treatment option for patients. However, this potential 
contribution to the field is not clearly explained in the letters, the Petitioner did not provide other 
evidence related to the development of this technique, and without further information we are unable 
to determine how significant this technique is nor how much the Petitioner contributed to its 
development. 
Moreover, we note that all three of the letters use very similar language and follow a nearly identical 
structure. For example, all three of the letters state of the Petitioner that they "satisfactorily certify his 
suitability, professionalism, competence, attendance and responsibility." All of the letters also contain 
a variation of the phrase "the solid knowledge of [the Petitioner] had a lot to contribute to the success 
of the institution where he may work." Even where the language is not identical, each of the letters 
6 
follows the same pattern of first discussing the Petitioner's general expertise as a radiology technician, 
then his experience assisting in the operating room, and then discussing the claimed technique that he 
helped develop. As a general concept, when a petitioner has provided affidavits from different persons 
that contribute to the eligibility claim, but the language and structure contained within the affidavits is 
notably similar, the trier of fact may treat those similarities as a basis for questioning a petitioner's claims. 7 
When affidavits contain such similarities, it is reasonable to infer that the petitioner who submitted the 
notably similar documents is the actual source from where the suspicious similarities derive. Cf Mei 
Chai Ye v. US. Dept. ofJustice, 489 F.3d 517, 519 (2d Cir. 2007); Wang v. Lynch, 824 F.3d at 592. As 
a result, the letters possess significantly diminished probative value. In evaluating the evidence, the truth 
is to be determined not by the quantity of evidence alone but by its quality. See Matter ofChawathe, 25 
I&N Dec. at 376 ( quoting Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
As such, we conclude that the Petitioner has not established this criterion. 
Therefore, the Petitioner has established that he satisfies only one of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). Because the Petitioner does not satisfy at least three of the criteria, we need not conduct 
a final merits determination to evaluate whether he has achieved the degree of expertise required for 
exceptional ability classification. 8 As such, the Petitioner does not qualify as an individual of 
exceptional ability. Having determined that the Petitioner does not qualify as an individual of 
exceptional ability, we conclude that the Petitioner has not demonstrated eligibility for the underlying 
EB-2 classification. 
B. Eligibility for a National Interest Waiver 
The next issue is whether the Petitioner has established that a waiver of the classifications' job offer 
requirement is in the national interest. Because the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address 
whether he is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. 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 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). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
individual of exceptional ability. 8 C.F.R. § 204.5(k)(3). Because the Petitioner has not established 
7 See Matter ofR-K-K-, 26 I&N Dec. 658, 665 (BIA 2015); Singh v. Garland, No. 19-60937, 2021 WL 5984797, at *2 (5th 
Cir. Dec. 17, 2021 ); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006); Wang v. Lynch, 
824 F.3d 587, 592 ( 6th Cir. 2016); Dehonzai v. Holder, 650 F .3d I, 8 (1st Cir. 201 1); Hamal v. U.S. Dep 't ofHomeland 
Security, No. 19-2534, WL 2338316, at *4, n.3 (D.D.C. June 8, 2021 ). 
8 However, even were we to conclude that the Petitioner submitted sufficient evidence to establish that he possesses at 
least ten years of full-time work experience, the license that he claims is necessary for employment in the occupation, and 
that he belongs to a professional association ofradiology technicians, this evidence would only establish that the Petitioner 
meets the qualifications to be employed as a radiology technician and that he has worked in the field. Were we to conduct 
a final merits determination, we would conclude that the evidence in its totality does not show that the Petitioner is 
recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 
7 
eligibility for the underlying EB-2 immigrant classification, we conclude that the Petitioner has not 
established eligibility for a national interest waiver. We reserve our opinion regarding whether the 
Petitioner has satisfied any of the three prongs of the Dhanasar analytical framework. 
ORDER: The appeal is dismissed. 
8