dismissed EB-2 NIW Case: Tourism And Hospitality Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 10, 2023 In Re: 28448757 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a tourism and hospitality manager, seeks employment-based second preference (EB-
2) immigrant classification as a member of the professions holding an advanced degree and/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. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the EB-2 classification as a member of the professions holding 
an advanced degree or as an individual of exceptional ability. In addition, the Director concluded that 
the Petitioner does not merit, as a matter of discretion, a waiver of the classification's job offer 
requirement. 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 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 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States 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. 8 C.F.R. § 204.5(k)(2). 
Profession is defined as 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 into the occupation. 1 8 C.F.R. § 204.5(k)(3). 
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). 2 Meeting 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 3 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 a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 (USCIS) may, as matter of discretion4, 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. 
II. EB-2 CLASSIFICATION 
The Director concluded that the Petitioner was not eligible for the EB-2 classification, either as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. As 
will be discussed below, we agree with the Director's ultimate conclusion on both counts. 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner submitted evidence that he completed a two-year "Technological Higher Course in Hotel 
Business" program at thel lin Brazil in 2012, and a lato sensu course in "MBA 
in Business Management" at the Institute of Post-Graduation and Graduation in 2018. Academic 
credential evaluations submitted for these programs conclude that they are the equivalent of two years 
and one year, respectively, of undergraduate study. Thus, neither of these credentials are the foreign 
equivalent of a United States baccalaureate degree. 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
2 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). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 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 discretionmy in nature). 
2 
A third evaluation, submitted in response to the Director's request for evidence (RFE), considers these 
two credentials in combination with evidence of the Petitioner's work experience to conclude that the 
Petitioner holds the foreign equivalent of a United States bachelor's degree in hospitality management. 5 
The plain language of the regulations, however, indicates that an advanced degree equivalency must 
include a single bachelor's degree, with no provision for substituting experience for education or 
combining lesser educational credentials. The regulations require five years of progressive experience to 
follow "[a] United States baccalaureate degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(2). 
Also, when introducing the EB-2 regulations, the former Immigration and Naturalization Service (INS) 
explained that "the proposed rule does not provide a procedure to allow experience alone to substitute for 
either a baccalaureate degree or an advanced degree." Proposed Rule on Employment-Based Petitions, 
56 Fed. Reg. 30703, 30706 (July 15, 1991). After stakeholder comment, the INS reviewed the 
Immigration Act of 1990 Act and found the proposed regulations consistent with Congressional intent. 
The INS stated: 
[B]oth the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
INS Final Rule on Employment-Based Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
( emphasis added). Thus, a petitioner seeking classification as an advanced degree professional must 
have at least a U.S. bachelor's degree or a foreign equivalent degree. See generalZv 6 USCIS Policy 
Manual F.5(A)(2), www.uscis.gov/policy-manual. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
Matter ofCaron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. As the third evaluation relies upon a combination of two separate educational credentials and work 
experience to reach its conclusion, and therefore does not comport with the plain language of the 
relevant regulation, that conclusion will not be given consideration. 
On appeal, the Petitioner asserts that USCIS has previously considered a three-year undergraduate 
degree to be equivalent to a United States bachelor's degree when submitted in support of a petition 
seeking a national interest waiver. A U.S. bachelor's degree usually requires four years of university 
studies. Matter of Shah, 17 I&N Dec. 244, 245 (Comm'r 1977). While some foreign three-year 
undergraduate degrees may be equivalent to a U.S. bachelor's degree, since the length and admittance 
requirements for degree programs vary according to the country where they were issued, the Petitioner 
does not explain why this is relevant to his academic credentials and eligibility. In addition, we are 
not required to approve applications or petitions where eligibility has not been demonstrated merely 
because of prior approvals that may have been erroneous. See Matter ofChurch Scientology Int 'l, 19 
I&N Dec. 593, 597 (Comm'r 1988). Further, the Petitioner appears to refer to three of our non-
5 The evaluator bases his evaluation on a "3-for-1 rule" for evaluating the equivalency of work experience to education. 
but does not reference a statute, regulation, or other source. The regulations pe1iaining to the requested classification at 
8 C.F.R. § 204.S(k) do not include such a rule. 
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precedent decisions in support of his assertion, but not does not include citations or copies of these 
decisions. Even if these decisions are pertinent to the Petitioner's eligibility, which cannot be determined 
from the record, they were not published as precedents and therefore do not bind us in this adjudication. 
See 8 C.F.R. § 103.3(c). And perhaps most importantly, none of the educational evaluations submitted 
by the Petitioner conclude that his educational credentials alone are equivalent to a United States 
baccalaureate degree. For all of these reasons, the Petitioner has not established on appeal that his 
educational credentials are equivalent to a U.S. bachelor's degree. Because he does not possess a U.S. 
bachelor's degree or foreign equivalent degree, he is not eligible as a member of the professions holding 
an advanced degree. 6 
B. Individual of Exceptional Ability 
The Director also determined in their decision that the Petitioner is not eligible for the EB-2 
classification as an individual of exceptional ability, as he meets only one of the evidentiary criteria 
under 8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner asserts that he meets four additional 
criteria. 
An official academic record showing that the individual 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) 
The Director concluded that, the Petitioner meets this criterion after listing several educational and 
training certificates submitted to the record. Based on the certificate and transcripts from I I 
I !described above, we agree. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
individual has at least ten years offull-time experience in the occupation for which he 
or she is being sought; 8 C.F.R. § 204.5(k)(3)(ii)(B) 
While the Director acknowledged nearly twenty recommendation letters and other evidence pertaining 
to this criterion, they concluded that these letters did not sufficiently demonstrate that the Petitioner 
has at least ten years of full-time work experience as a tourism and hospitality manager. 7 
6 The Director also found that the position which the Petitioner intends to engage in through his proposed endeavor, tourism 
and hospitality manager, does not require a bachelor's degree, it does not qualify as a professional position. While the 
Petitioner does not contest this aspect of the Director's decision on appeal, we note that because the Petitioner is seeking 
a national interest waiver, there is no job offer requirement relating to this petition. The correct focus is whether the 
Petitioner qualifies as an advanced degree professional as someone who proposes to engage and/or is engaged in a 
profession as defined at section 101 (a)(32) of the INA. However, since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve this issue. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision); see also Matter ofL-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). 
7 We note that the decision includes a statement suggesting that the Petitioner does meet this criterion. As this contradicts 
the Director's previous discussion and ultimate conclusion regarding this criterion, we will consider the statement to be 
erroneous. 
4 
On appeal, the Petitioner begins by misquoting the regulation as requmng five years of post­
baccalaureate experience or ten years of foll-time experience in the occupation sought. He then asserts 
that per 8 C.F.R. 204.S(g)(l ), which relates to evidence of qualifying experience or training, evidence 
submitted under this criterion may include "other documentation relating to the alien's experience," 
and refers to social security and labor documentation from Brazil. 
Our review of the record confirms that the Petitioner was employed as follows: 
• November 2008 through August 2011 (2 years, 9 months), General 
Manager - confirmed by letters from~--------------' and shown in the 
Petitioner's social security documentation 
• November 2013 through May 2016 (2 years, 6 months), General Manager for 
I ~ confirmed by letters froml ]ancf 
land shown in the Petitioner's social security documentation 
n 
• April 2017 through June 2020 (3 years, 2 months), Operational Manager,! 
- confirmed by letters from I Iand shown in the Petitioner's 
social security documentation 
I 
The total amount of work experience demonstrated by this evidence is 8 years and 5 months, less than 
the required 10 years. While other letters and documentation show the Petitioner's employment as a 
receptionist, head of reception, and consultant, this criterion requires experience to be in the position 
sought. The evidence regarding these positions is insufficient to show that they were in the position 
of tourism and hospitality manager. Accordingly, the Petitioner has not demonstrated that he meets 
this evidentiary 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 Director found that the Petitioner's statement that his profession does not require a certificate or 
license to be determinative that he does not meet this criterion. On appeal, the Petitioner asserts that 
he is a "Tourismologist" who is recognized by Brazilian law as a professional. While he references 
sections of foreign law, the Petitioner has not submitted evidence that he holds a license or certification 
for his occupation as required by the plain language of the regulation. He therefore does not meet this 
criterion. 
Evidence that the individual 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 evidence of his salary in the years from 2008 to 2020, with his highest 
earnings occurring in 2018 at approximately R$ 80,000. He also submitted a salary report from 
payscale.com which showed that the average base salary in the hotel industry inl I 
Brazil is R$ 44,000. However, there are several reasons why this report does not help to demonstrate 
that the Petitioner commanded a salary reflective of exceptional ability. First, the reported salary is 
for all hotel industry workers, and therefore does not reflect the salary for the Petitioner's occupation 
of hotel manager. Second, it is an average base salary, so it does not show the higher salaries expected 
of those having exceptional ability in the field. Third, the report shows salaries for a different city 
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then where the Petitioner was working in 2018, and does not indicate the time period from which these 
figures were drawn. It therefore does not constitute a basis for comparison of the Petitioner's earnings 
to other hotel managers in the same location and time period. Finally, we note that the report shows 
that spa managers, who are managers in the hotel and tourism industry, earn an average of R$ 120,000 
per year, much higher than the Petitioner's highest annual earnings. For all of these reasons, the 
evidence is insufficient to show that the Petitioner's salary demonstrates exceptional ability in his 
field. 
C. Final Merits Determination 
The Petitioner has not established that he meets at least three of the evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii). Although he claims that he also meets the criterion relating to recognition 
for achievements and significant contributions to his field, he cannot meet at least three of the criteria 
to satisfy the initial evidence requirement for this classification. Since the identified basis for denial 
is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's 
appellate arguments regarding that additional criterion. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); 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). 
The Petitioner has not met the initial evidence requirement, so we need not provide the type of final 
merits determination referenced in USCIS policy. Nevertheless, we have reviewed the entire record 
and conclude that it does not establish that the Petitioner is recognized as having a degree of expertise 
significantly above that ordinarily encountered in the field. Although he has successfully progressed 
in the field and earned the respect of his employers, the record does not show that he has set himself 
apart from his peers employed in similar positions. 
III. NATIONAL INTEREST W AIYER 
The Petitioner has not established his eligibility for the underlying EB-2 classification, either as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. He 
is therefore not eligible for a waiver of that classification's job offer requirement. Nevertheless, we 
will briefly address his claim under the first prong of the Dhanasar analytical framework. 
The first prong of that framework, substantial merit and national importance, focuses on the specific 
endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a 
range of areas such as business, entrepreneurialism, science, technology, culture, health, or 
education. In determining whether the proposed endeavor has national importance, we consider its 
potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
In their decision, the Director determined that the Petitioner's proposed endeavor of continuing his 
employment as a hotel and tourism manager in the United States is of substantial merit. We agree that 
the record sufficiently shows the proposed endeavor's merit in the area of business. 
Turning to the national importance of the proposed endeavor, the Director concluded that the evidence 
submitted by the Petitioner focused on the importance of the hospitality industry overall rather than 
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that of his specific endeavor, contrary to the guidelines outlined in Dhanasar. Specifically, the 
Director noted that the Petitioner's proposed endeavor of gaining employment as a general manager 
in the hospitality industry had not been show to have the potential to create jobs or have any other 
positive economic effects in the United States. They also concluded that the Petitioner had not shown 
that his employment in such a position would potentially have a broader impact on the hospitality 
industry which would extend beyond his employer and the clients or guests he would serve. 
On appeal, the Petitioner cites various statistics concerning the hospitality industry in the United 
States, concluding that it "has the potential to impact the United States positively in job creation, 
economic growth, international relations, and cultural preservation." He also asserts that his 
professional plan, and an expert opinion letter submitted with his initial petition, show how his 
proposed endeavor specifically will be of national importance. But the expert opinion letter referred 
to similar industry statistics as the Petitioner does on appeal, adding only that "it is important for an 
experienced and highly skilled professional, such as [Petitioner], to contribute to lodging management 
in order to sustain the degree of economic importance hotels have on the nation's economy." The 
letter writer does not explain how the Petitioner's experience and skills will allow him to have an 
economic impact beyond the scope of his employer, or broadly affect the hospitality industry. In 
addition, a petitioner's work experience, education and training are considered when evaluating 
whether they are well-positioned to advance their proposed endeavor under Dhanasar' s second prong. 
The Petitioner has not demonstrated that his proposed endeavor is of national importance, and he thus 
does not meet the first prong of the Dhanasar analytical framework. Since he is therefore not eligible 
for a national interest waiver, we need not discuss his arguments under the remaining prongs of the 
framework. 
ORDER: The appeal is dismissed. 
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