remanded EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 19976098 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 20, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification, as well as a national interest waiver 
of the job offer requirement attached to this EB-2 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 that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner asserts that she is eligible for a national interest waiver. 
In these proceedings , it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available . .. to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
In addition, 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. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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 off er and thus of a labor 
certification. 3 
II. ANALYSIS 
A. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. The Director concluded that the Petitioner qualifies for EB-2 
classification as a member of the professions holding an advanced degree. A review of the record, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
2 
however, does not support such a determination. For the reasons discussed below, we withdraw the 
Director's conclusion on this issue. 
In addition to the definition of "advance degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 
8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner 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 fonn of letters from cunent or fonner employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty." 
The Petitioner initially submitted a copy of her diploma and transcript from,__ _______ __. 
Din Brazil and an "Evaluation of Education" froml I which concludes that the Petitioner holds 
the equivalent of a four-year bachelor's degree in business administration. The Director issued a 
request for evidence indicating that, based upon the transcript, the Petitioner appeared to hold a three­
year bachelor's degree. In res onse the Petitioner submitted additional information documenting the 
Petitioner's transfer to and subse uent return td I 
I I While the evidence demonstrates the accepted transferred 
credits, the documentation does not sufficiently establish thatthel I accepted 
any transfened credits. For example, although the transcript's section entitled "subtitles" part 2 
indicates thatthe letter "T" stands for"TRANSFERRED CREDITS," the "T" notation does not appear 
on the transcript froml I It is also unclear whether the evaluator considered 
any information related to the transfer, or was even aware of it. In light of the above, the Director 
should first determine whether the Petitioner has established that she holds the foreign equivalent of a 
bachelor's degree. 
Further, as the Petitioner does not claim, and the record does not establish, that she holds the foreign 
equivalent of an advanced degree based upon her education alone, we must also look to letter(s) from 
the Petitioner's cunent or former employers to demonstrate that she has the required five years of 
progressive post-baccalaureate experience. 8 C.F.R. § 204.5(k)(3)(i)(B). While we have reviewed 
the two employment verification letters and "Brazilian Official Work Booklet" (work booklet) which 
include the name of her employers, job titles and dates of employment, they do not include any 
information regarding her job duties. Therefore, if the Director concludes that the Petitioner holds the 
foreign equivalent of a U.S. baccalaureate degree, the Director should then determine whether the 
Petitioner has established that her experience was progressive. 8 C.F.R. § .204.5(k)(3)(i)(B). 
We would also note inconsistencies between the information provided in the employment documents 
and Form ETA-750B, Application for Alien Employment Certification, which was signed under 
penalty of perjury. For example, although the Form ETA 750-B indicates that the Petitioner was 
employed b~ las a "financial analyst" from November 2013 until December 
2016, both the employment verification letter and work booklet list her dates of employment as 
January 19, 2015 through December 30, 2016. According to the work booklet, the Petitioner was 
employed byl las a "costs analyst" from November 4, 2013 until 
December 31, 2014. Similarly, although the petitioner indicated that she was employed as a "financial 
analyst" a~ I the work booklet lists her job title as a 
"documents analyst 3." 
3 
The Petitioner must resolve the above inconsistencies with independent , objective evidence pointing 
to where the truth lies. Matt er of Ho , 19 I&N Dec. 582 , 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
B. Dhanasar Analysis 
Regarding the Petitioner's remaining claims of eligibility under the Dhanasar analysis , we agree with 
the Director's ultimate conclusions. For example , regarding the national importance portion of the 
first prong, although the Petitioner' s statements reflect her intention to continue work ing in her field 
in the Unit ed States, she has not offere d sufficient information and evidence to demon strate that the 
pro specti ve impact of her propo sed endea vor rises to the level of national imp ortance. In Dhanasar , 
we determined that the petitioner 's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. Similarly, the record in 
this matter does not demonstrate that the Petitioner's proposed endeavor stands to suffi ciently extend 
beyond her future employer(s) and clients such that it would impact U.S. interests or the financial 
industry more broadly at a level commensurate with national importance. In addition , she has not 
demonstrated that her specific proposed endeavor has significant potential to employ U.S. workers or 
otherwise off er substantial positive economic effects for our nation. 
III. CONCLUSION 
For the reasons discussed above , we are remanding the petition for the Director to consider anew 
whether the Petitioner qualifies for EB-2 classification , the threshold determination in national interest 
waiver cases . The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
4