dismissed EB-2 NIW Case: Tourism

U.S. Citizenship 
and Immigration 
Services 
In Re: 25672441 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 7, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a travel agent/tour guide, seeks employment-based second preference (EB-2) 
immigrant classification as 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). A petitioner must first establish eligibility for the EB-
2 classification. After a petitioner has established eligibility for EB-2 classification, U.S . Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 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 would be beneficial to the United States to waive the requirements 
of a job offer and thus of a labor certification. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for classification as a member of the professions holding an 
advanced degree or as an individual of exceptional ability. The Director further concluded that the 
Petitioner has not established 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. 
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 ofChristo's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that she meets the statutory criteria 
of the EB-2 immigrant classification. Because the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve any appellate arguments regarding 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. 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 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). 
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. Section 203(b )(2)(B)(i) of the Act. 
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. 1 
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). 2 
II. ANALYSIS 
The issue to be addressed in this decision is whether the Petitioner established that she qualifies as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 
1 Section101 (a)(32) of the Act, 8 USC § 1101 (a)(32), provides that "[t]he term 'profession' shall include but not be limited 
to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academics, or seminaries." 
2 Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, 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 T&N Dec. 884, 889 (AAO 2016), provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCTS) 
may, as matter of discretion,2 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. 
2 
A. Advanced Degree Professional 
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 [individual] has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the [individual] has a United States baccalaureate degree or a 
foreign equivalent degree, and evidence in the form ofletters from current or former employer(s) showing 
that the [individual] has at least five years of progressive post-baccalaureate experience in the specialty." 
8 C.F.R. § 204.5(k)(3)(i)(B). 
Although not the primary basis for the Petitioner's claim that she is eligible for the EB-2 visa 
classification, the Director nevertheless discussed whether the Petitioner meets the criteria of an 
advanced degree professional, noting that the Petitioner provided evidence showing that she earned a 
bachelor's degree in the "Undergraduate Program of Tourism" at the I university Center in 
December 2006. The Petitioner submitted documentation indicting that after earning the bachelor's 
degree, she pursued a post-graduate course of study ("lato sensu") in financial management, which she 
completed in October 2008. In addition, the Petitioner provided a certificate of completion for an "Agent 
of Dreams" course she completed inl I Florida in 2021, as well as certificates of participation in 
various events and lectures, such as a 35-hour "Tourism and Hospitality Week" event in 2003 and a 20-
hour "Tourism Week" event in 2004, as well as lectures in tourism and hospitality and entrepreneurship 
in 2003, among others. 
Having reviewed the information contained in the record and the AACRAO EDGE database, the 
Director determined that the Petitioner has not met her burden of establishing that her foreign education 
is equivalent to that of a professional holding an advanced degree pursuant to 8 C.F.R. § 
204.5(k)(3)(i)(A). The AACRAO EDGE database is a reliable resource concerning the U.S. 
equivalencies of foreign education. See generally American Association of Collegiate Registrars and 
Admissions Officers, Electronic Database for Global Education, https://www.aacrao.org/edge. The 
Director noted that the database does not indicate that the Petitioner's post-graduate "lato sensu" is the 
foreign equivalent of a U.S. master's degree. Rather, the database suggests that the Petitioner may 
have completed a graduate program in which she received graduate credits leading to a professional 
certificate, but not leading to a graduate degree. Id. The Petitioner does not contest this on appeal and 
has not provided any credential evaluation assessing her educational credentials, either with the initial 
petition filing or on appeal. Based on a review of the record, and in consideration of the information 
in EDGE, we concur with the Director on this issue that the Petitioner has not established that her 
education is equivalent to a U.S. master's degree. 
The evidence provided is also insufficient to conclude that the Petitioner has at least five years of 
progressive post-baccalaureate experience in the specialty. Although the Petitioner provided a resume 
listing employment in the tourism industry from August 2000 to January 2018, she submitted only two 
employment letters and only one of those letters addresses the relevant period of employment following 
December 2006, when the Petitioner earned her bachelor's degree. The letter in question was authored 
by who stated that she met the Petitioner while working atl I where 
she and the Petitioner both worked. I I stated that she became owner of a "CVC store" in 2009 
and the Petitioner came to work for her at that store. According to the Petitioner's resume, her period of 
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employment at CVC lasted from January to March 2009 and thus does not account for five years of post­
graduate work experience. I I also claimed that the Petitioner has been "at all times in the 
exercise of her profession" since the two became acquainted in 2004 and continued to be acquainted until 
2017:I !further stated that the Petitioner "is duly registered with her active functional license 
in the Ministry of Tourism," thus she indicates that the Petitioner has over five years of post-baccalaureate 
employment experience. However, I I listed no specific dates of employment in the letter nor 
provided any specific information about any of the Petitioner's employers or the positions the Petitioner 
held after having attained her bachelor's degree. As such,I I statements do not sufficiently 
document or lead us to conclude that the Petitioner worked in the tourism industry and that her experience 
was progressive in nature. 
Although the Petitioner provided an employment letter from _______ as correctly stated 
in the Director's decision, that letter discussed the Petitioner's employment from August 2000 until May 
2004, before she attained her bachelor's degree in 2006, and therefore it is not relevant to the issue of 
whether the Petitioner gained five years of "progressive post-baccalaureate experience" in her designated 
specialty. See 8 C.F.R. § 204.5(k)(3)(i)(B). 
In sum, the Petitioner has not provided sufficient evidence that she possesses an advanced degree or that 
the Petitioner's foreign equivalent of a U.S. bachelor's degree is followed by five years of progressive 
post-baccalaureate experience. 
B. Exceptional Ability 
Next, we will discuss the factors and evidence that pertain to the main focus of the Petitioner's claim that 
she qualifies for the EB-2 immigrant classification as an individual of exceptional ability. 3 
As noted above, 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). When a petitioner has satisfied at least three of the six criteria, a final merits 
determination concerning the petitioner's eligibility is still required per the two-part adjudication 
framework established in Kazarian v. USC IS, 596 F .3d 1115 (9th Cir. 2010). We consider the totality 
of the record to determine if a petitioner has demonstrated, by a preponderance of the evidence, that 
they have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. In the final merits analysis, the quality of the evidence must be evaluated. Matter of 
Chawathe, 25 I&N Dec. at 376. 
In the present matter, the Director determined that the Petitioner met the individual criteria outlined at 
8 C.F.R. § 204.5(k)(3)(ii)(A), which states the following: 
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. 
3 While we may not discuss each piece of evidence individually, we have reviewed and considered each one. 
4 
As noted earlier, the Petitioner provided a copy of her diploma showing that she earned a bachelor's 
degree in the "Undergraduate Program of Tourism" at the I I University Center in December 
2006. We agree with the Director's determination that the Petitioner met this criterion. We note, 
however, that section 203(b)(2)(C) of the Act provides that the possession of a degree, diploma, 
certificate or similar award from a college, university, school or other institution ofleaming shall not 
by itself be considered sufficient evidence of exceptional ability. 
On appeal, the Petitioner asserts that she also meets the two criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
and ( C) addressed below. 4 
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) 
Although the Director acknowledged the employment letter from discussing the 
Petitioner's employment as a licensed tour guide from August 2000 until May 2004, he found the letter 
to be insufficient because it did not demonstrate that the Beneficiary has at least ten years of full-time 
experience as a tour guide or travel agent. 
On appeal, the Petitioner argues that the Director "failed to analyze the letters of previous employers" and 
points to the employment letter from I I which had been previously submitted. Although we 
agree that the Director did not address this letter in the denial, a review of the letter indicates that its 
contents are insufficient as evidence of the Petitioner's "continuous work from 2004 to 2017." Although 
I I claims to have been professionally acquainted with the Petitioner for over a decade, the 
Petitioner's resume indicates thatl lonly employed the Petitioner from "1/2009 to 3/2009." As 
such, I I employment letter only accounts for two or three months of the Petitioner's period 
of employment in the travel industry. The Petitioner also provides government issued records showing 
her as a taxpayer during various periods of employment. However, the plain language of the regulation 
requires letter(s) which 1) are from current or former employers and 2) establish ten years of full-time 
experience in the occupation. Not only has the Petitioner not demonstrated that the records are the 
equivalent of a letter from a current or former employer, but they also do not establish at least ten years 
of full-time experience in the travel industry.5 
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). 
Although the Director determined that the Petitioner did not provide evidence to satisfy this criterion, 
the Petitioner points to a previously submitted copy of a certificate which was issued to the Petitioner 
4 As the Petitioner does not address the three remaining criteria, we consider them abandoned. See Matter of R-A-M-. 25 
T&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). See also Sepulveda v. U.S. Att 'y Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States 
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1. 
*9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to raise them on appeal to the AAO). 
5 We note, for example, that from June 2012 until May 2014, the Petitioner's employment is listed as ______ 
I I Further, the social security records do not indicate whether past employment was on a full or 
part-time basis, nor does it provide any job description or duties. 
5 
by the foreign Ministry of Tourism which shows a five-year period of validity, from August 12, 2021, 
to August 12, 2026. Accordingly, the Director's conclusion that the Petitioner did not satisfy this 
criterion was incorrect. However, despite the Director's error in assessing this criterion, the record 
only shows that the Petitioner satisfied two of the six criteria. 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfied at least 
three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. As the Petitioner has not met the threshold requirement for this 
classification, further analysis of her eligibility for a national interest waiver would serve no 
meaningful purpose. 
III. CONCLUSION 
Because the Petitioner has not established that she qualifies as a member of the professions holding 
an advanced degree or as an individual of exceptional ability, she has not established eligibility for 
EB-2 classification. 
ORDER: The appeal is dismissed. 
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