dismissed EB-2 NIW Case: Security And Counterintelligence

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 17, 2024 In Re: 31629265 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a former police officer, seeks employment-based second preference (EB-2) immigrant 
classification as either a member of the professions holding an advanced degree or an individual of 
exceptional ability, 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 the Petitioner did not 
establish that she was an advanced degree professional or an individual of exceptional ability and that 
a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 
The matter is now before us on appeal pursuant to 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) 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 . 8 C.F.R. § 204.5(k)(2). 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. Id. 
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 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 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 the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility 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. 
II. ANALYSIS 
In her autobiographical statement, the Petitioner described herself as a security and counterintelligence 
analyst and forensic science expert. In her business plan submitted in response to the Director's 
request for evidence (RFE), the Petitioner stated she would direct a securities company based in 
I IN ew York which would provide top-tier digital forensic and cybersecurity consulting services 
to businesses in the United States. 
A. Advanced Degree Professional 
The Petitioner submitted a co of her translated certificate and transcri t from the 
~------------------------------~showing she was 
awarded the title of Police Administrator in 2014 and completed five semesters of coursework. The 
Petitioner also submitted an evaluation report from the Foundation for International Services, 
Incorporated which determined her title was equivalent to a United States associate's degree in 
criminal justice. The Director determined the Petitioner's title was not equivalent to a U.S. advanced 
degree. 
On appeal, the Petitioner asserts she is an advanced degree professional and submits a new evaluation 
report from the Foundation for International Services, Incorporated. The new evaluation report 
determines the Petitioner's title is equivalent to a U.S. bachelor's degree in criminal justice 
administration. The new evaluation report lists the Petitioner's coursework but does not include an 
analysis of the Petitioner's academic record or an explanation of why the prior evaluation report of the 
same title determined it was equivalent to a U.S. associate's degree. 
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. Id. Here, the new evaluation is of little weight because it does not explain how the 
Petitioner's five semesters of education are equivalent to a U.S. bachelor's degree. A U.S. 
baccalaureate degree generally requires four years of education. Matter of Shah, 17 7 I&N Dec. 244 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
2 
(Reg'l Comm'r 1977). The new evaluation report does not explain how the Petitioner's two years of 
study are equivalent to the four years of education generally required for a U.S. bachelor's degree. 
Consequently, the Petitioner has not established that she holds the foreign equivalent of a U.S. 
bachelor's degree and is eligible for consideration as an advanced degree professional based upon such 
a degree and five years of progressive experience in the specialty, as specified in the regulation at 
8 C.F.R. § 204.5(k)(2). 
B. Individual of Exceptional Ability 
To establish 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). If an 
individual meets at least three of the 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 fulfilling the required number of criteria, considered in the context of a final merits 
determination). See also, generally, 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy­
manual. 
The Director determined the Petitioner did not meet at least three of the regulatory criteria to establish 
exceptional ability. On appeal, the Petitioner asserts that she meets the three following criteria. She 
does not claim to meet any other 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. 
The Petitioner meets this criterion throu h her title of olice administrator from the 
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. 
The Director determined the Petitioner did not meet this criterion because she submitted evidence 
showing she had less than ten years of experience in her occupation. On appeal, the Petitioner asserts 
she meets this criterion and submits an additional support letter. The Petitioner initially submitted a 
letter from a lieutenant-colonel of the 
_____________________ stating that the Petitioner "was employed 
during 8 years, 4 months, and 12 days by the Police Intelligence Direction, serving in the position of 
Intelligence Analyst." The letter does not state the dates of the Petitioner's employment. The 
Petitioner also submitted a letter from her former supervisor, Lieutenant-Colonel G-A-M-T-3 praising 
her work for the _________ but not stating the dates of her employment. In her 
autobiographical statement, the Petitioner lists her ranks and positions with the ______ 
I from January 2015 to January 2020 and states she resigned from service in April 2021. The 
3 Initials are used to protect the privacy of individuals referenced in this decision. 
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Petitioner did not reference any subsequent employment. In response to the RFE, the Petitioner 
submitted additional records from the I Iof her employment from 2014 to 
2020 and her receipt of an award in January 2021. The !records indicate the Petitioner 
was employed for between five and six years unlike the over eight years stated by the lieutenant­
colonel of the Data Protection Center. 
On appeal, the Petitioner does not address this inconsistency or clarify the dates of her employment 
with the __________ She states the evidence shows "the equivalence of more than 
five years of dedicated service in the specialized domain of security and counterintelligence analysis," 
but does not acknowledge that this criterion requires at least ten years of experience in the occupation. 
The Petitioner also submits a letter from G-M-S-N-, a former colleague, who praises the Petitioner's 
skills and work for the __________ G-M-S-N- references her "professional 
collaboration" with the Petitioner and does not indicate that she was the Petitioner's supervisor or 
employer. G-M-S-N- also does not state the dates of the Petitioner's employment with the I I 
The inconsistent evidence of the length of the Petitioner's employment shows that, at most, she was 
employed by the _________ for over eight years, but less than ten years. The 
Petitioner has not submitted letters from employer(s) showing that she has at least ten years of 
experience as a security and counterintelligence analyst and forensic science expert, and she 
consequently does not meet this criterion. 
Evidence of recognition for achievements and sign[ficant contributions to the industry or .field by 
peers, governmental entities, or professional or business organizations. 
The Petitioner has not met two of the criteria she claims to satisfy and will not meet the requisite 
minimum of three criteria regardless of whether she satisfies this criterion. Accordingly, we do not 
reach and reserve the issue of whether she provided evidence of recognition for achievements and 
significant contributions. 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 of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
Because the Petitioner has not met her burden of proof to satisfy at least three of the initial criteria at 
8 C.F.R. § 204.5(k)(3)(ii), we need not provide the type of final merits determination referenced in 
Kazarian, 596 F.3d at 1119-20. The Petitioner has not established that she is an individual of 
exceptional ability. 
C. National Interest Waiver 
Before a petitioner may demonstrate they merit a discretionary waiver of the job offer requirement in 
the national interest, they must first establish eligibility for the underlying EB-2 classification. The 
Petitioner has not established that she is a member of the professions holding an advanced degree or 
an individual of exceptional ability and she is consequently ineligible for EB-2 classification under 
section 203(b )(2)(A) of the Act. As this issue is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve determination of her eligibility for a waiver of the job offer requirement in 
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the national interest. See INS v. Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. 
at 526 n.7 (BIA 2015). 
III. CONCLUSION 
The Petitioner has not established her eligibility for EB-2 classification as an advanced degree 
professional or an individual of exceptional ability. 
ORDER: The appeal is dismissed. 
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