dismissed EB-2 NIW Case: Tourism

U.S. Citizenship 
and Immigration 
Services 
In Re: 25937010 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 22, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a tourism entrepreneur, seeks second preference immigrant classification as a member 
of the professions with an advanced degree or as an individual of exceptional ability, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 classification. Immigration 
and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established eligibility as either an advanced degree professional or as 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. 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 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 establish eligibility for a national interest waiver, petitioners 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 definition: 
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. 
In addition to the definition of "advanced degree" indicated above, the regulation at 8 C .F.R. 
§ 204.5(k)(3)(i)(B), provides that petitioners 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." 
Furthermore, the regulation at 8 C.F.R. § 204.5(k)(2) states: "[e]xceptional ability in the sciences, 
arts, or business means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business." Moreover, 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. 
Petitioners 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). However, meeting the minimum requirements by providing at 
least three types of initial evidence does not, in itself, establish that the individual in fact meets the 
requirements for exceptional ability. See 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policymanual. In the second part of the analysis, officers should evaluate the 
evidence together when considering the petition in its entirety for the final merits determination. Id. 
The officer must determine whether or not the petitioner, by a preponderance of the evidence, has 
demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. Id. 
Next, petitioners must demonstrate they merit a discretionary waiver of the job offer requirement "in 
the national interest." Section 203(b )(2)(B)(i) of the Act. Matter of Dhanasar, 26 I&N Dec. 884, 889 
(AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion 1, grant a national interest waiver if the petitioners show: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance the proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
A. Advanced Degree 
The Director acknowledged the Petitioner's receipt of a bachelor's degree in 2008. However, the 
Director determined the Petitioner did not demonstrate her possession of at least five years of 
progressive post-baccalaureate experience in the specialty to qualify as an equivalent to a master's 
degree. Specifically, even though the Petitioner submitted employment letters, the Director found the 
letter from I I did not indicate whether the Petitioner was employed in a foll-time 
capacity thereby showing she had at least 60 months of foll-time progressive post-baccalaureate 
experience, either individually or in the aggregate. 
In addition, the Director pointed to discrepancies and inconsistencies in the education and experience 
evaluations; specifically, the evaluations listed different job titles and duties compared to the actual 
employment verification letter from I • , I The Petitioner must resolve 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead 
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). 
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to us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. Moreover, the Director noted that "both evaluators inaccurately 
evaluated the petitioner's education and work experience" by claiming three years of relevant work 
experience is equivalent to one year of education. Ultimately, the Director concluded the evaluation 
and employment letters "do not appear to be credible resources as evidence" and found the Petitioner 
did not demonstrate she possessed the equivalent of a master's degree. 
On appeal, the Petitioner asserts that "[a]s confirmed by [her] formal [sic] employer she has at least 
five years of full time progressive experience in tourism management." Although employment letters 
froml !indicate cumulative foll-time employment from January 
2008 to October 2012, they do not amount to five years of foll-time experience. Furthermore, as 
indicated above, the employment letter from I I does not indicate whether the 
Petitioner was employed in a foll-time capacity or specified the number of hours or type of 
employment arrangement. Furthermore, the Petitioner has not overcome, or even addresses, the 
Director's specific findings regarding the discrepancies and inconsistencies in the evaluation letters. 
Ho, 19 I&N Dec. at 591-92. 
As discussed above, the Petitioner did not provide documentation with sufficient, credible information 
establishing she at least five years of progressive post-baccalaureate experience reflecting the 
equivalent to a master's degree. Accordingly, we agree with the Director the Petitioner did not 
demonstrate her eligibility as a member of the professions with an advanced degree. 
B. Exceptional Ability 
At the outset, the record does not reflect the Petitioner's claim of eligibility as an individual of 
exceptional ability at either initial filing or in response to the Director's request for evidence. 
However, the Director evaluated the Petitioner's eligibility as an individual of exceptional ability 
based on the documentation contained in the record. As indicated above, the Petitioner must first meet 
at least three of the regulatory criteria for classification as an individual of exceptional ability. See 8 
C.F.R. § 204.5(k)(3)(ii)(A)-(F). The Director determined the Petitioner fulfilled only one criterion, 
official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A). In addition, the Director found the Petitioner 
did not satisfy the 10 years of foll-time experience under 8 C.F.R. § 204.5(k)(3)(ii)(B), and the 
Petitioner did not submit documentation for the remaining four criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii)(C)-(F). On appeal, the Petitioner argues she qualifies for two additional criteria. 
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 Petitioner asserts she "has more than 10 years of professional experience in her occupation" and 
references earlier discussed employment letters. The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires 
"[e]vidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least 
ten years of foll-time experience in the occupation for which he or she is being sought."2 Further, the 
regulation at 8 C.F.R. § 204.5(g)(l) provides evidence relating to qualifying experience or training 
2 See also 6 USC1S Policy Manual, supra, at F.5(B)(2). 
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shall be in the form of letters from current or former employers or trainers and shall include a specific 
description of the duties performed by the individual or of the training received. As previously 
discussed, her job letter froml I does not specify whether the Petitioner was 
employed in a full-time capacity or has at least ten years of full-time experience. 3 Moreover, the 
employment letters froml I account for less than five years of full­
time experience. Here, the Petitioner did not show her aggregate employment from the three 
businesses amount to at least ten years of full-time experience. Accordingly, the Petitioner did not 
establish she meets this criterion. 
Although the Petitioner claims eligibility for an additional criterion on appeal relating to recognition for 
achievements and significant contributions under 8 C.F.R. § 204.5(k)(3)(ii)(F), we need not reach this 
claim as she cannot fulfill the initial evidentiary requirement of at least three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). Moreover, we need not provide a final merits determination to evaluate whether the 
Petitioner has achieved the required level of expertise required for exceptional ability classification. 
As such, we reserve these issues. 4 
III. CONCLUSION 
The Petitioner did not establish immigrant classification as a member of the professions with an advanced 
degree or as an individual of exceptional ability. Therefore, we need not reach a decision on whether, 
as a matter of discretion, she is eligible for or otherwise merits a national interest waiver under the 
Dhanasar analytical framework. Accordingly, we reserve this issue. 5 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. 
3 The Petitioner also indicates her submission of an "Employment Record Book." Notwithstanding the regulation at 8 
C.F.R. § 204.5(k)(3)(ii)(B) requires "[e ]vidence in the form of letter(s) from cunent or former employer(s )," the document does 
not indicate full-time employment or experience. 
4 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 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
5 See Bagamasbad, 429 U.S. 24 at 25; L-A-C-, 26 at 526 n.7. 
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