remanded EB-2 NIW Case: Education Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 205034 76 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 14, 2022 
Form 1-140, 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 Nebraska 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. 
Section I 01 (a)(32) of the Act 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." 
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 10 l(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. 
In addition to the definition of "advanced 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 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." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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). 
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 
2 
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. See Id. at 888-91, for elaboration on these three prongs. 
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. For the reasons discussed below, we withdraw the Director's 
conclusion that the Petitioner has established that she is an advanced degree professional. 
The record includes a copy of her "Licenciado em Letras" and transcript from 
_______ in Brazil, along with an "Evaluation of Training, Education, and Experience" 
(evaluation), which ultimately concluded that: 
Considering that a Bachelor's Degree, followed by more than five years of full-time work 
experience in the field of Education and Management is equivalent to a Master of Arts in 
Education-Major in Management it is my expe1iopinion that [the Petitioner], with a Bachelor's 
degree in Letters and 19 years of experience, has no less than the equivalent of a Master of 
Arts in Education - Major in Management. 
However, based upon the information in the transcript, the Petitioner's program began in 1998 and 
ended in 2000. In other words, it appears to have been a three-year program. According to the 
American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic 
Database for Global Education (EDGE), 3 "[t]he 2- to 3-year Titulo de Licenciado (Licenciatura) 
represents attainment of a level of education comparable to 2 to 3 years of university study in the 
United States. Credit may be awarded on a course-by-course basis." 4 Although the evaluator claims 
to be a member of AACRAO, he fails to address not only the length of the Petitioner's program, but 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDO1). 
2 See also Poursina v. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir.2019)(findingUSCTS' decision to grant or deny 
a na tionalinterest waiver to be discretionary in nature). 
3 We consider EDGE to be a reliable source of information about foreign credential equivalencies. See Con/I uence In fem., 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG),2009 WL 825793 (D.Minn.Mar. 27,2009); Tisco Group.Inc. v. Napolitano, 
No. 09-cv-l 0072, 2010WL3464314(E.D. Mich. Aug. 30, 20 l0);SunshineRehabServices, Inc. No. 09-13605, 2010WL 
3325442(£.D. Mich. Aug. 20, 2010).Seealso Viraj, LLC v. Holder, No. 2: 12-CV-00127-RWS, 2013 WL 1943431 (N.D. 
Ga.May 18,2013). 
4 See https: //www.aacrao.org/ edge/ country /credentials/ credential/brazil/ti tulo-de-licenciado-(licentiate) (la st accessed 
Mar.14,2022). 
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also the discrepancies between EDGE's stated equivalency and his own conclusion that the 
Petitioner's "licenciado" is the foreign equivalent of a U.S. bachelor's degree. 5 
In addition, although the evaluator provided a conclusionregardingthe combination of the Petitioner's 
education and professional experience, he does not claim to have reviewed any employment letters to 
establish the Petitioner's work history or experience, as required by 8 C.F.R. § 204.5 (k)(3 )(i)(B). 6 We 
would also note that the basis for his statement that the Petitioner "served in positions of increasing 
professional responsibility and sophistication, together with peers, under the supervision of managers, 
at a level of employment commensurate with Master's level training" has not been established. 
The Petitioner must resolve the above inconsistencies 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 us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
In light of the above, the Director should determine anew whether the Petitioner has sufficiently 
demonstrated that she holds the foreign equivalent of a U.S. bachelor's degree as required by the 
regulations at 8 C.F.R. § 204.5(k)(2) and (3)(i)(B). If the Director dete1mines that the Petitioner's 
three-year "licenciado" is the foreign equivalent of a U.S. bachelor's degree, they should then consider 
whether she has established that she has at least five years of post-baccalaureate experience as an 
education administrator. We note, for example, that not only has the Petitioner held the positions of 
administrative assistant and commercial manager for example, but the letters do not indicate the 
number of hours the Petitioner worked per week. 
B. Dhanasar Analysis 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." On the Form I-140, Immigrant Petition for Alien Worker, the Petitioner 
provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Education Administrator 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Education Administrator 
Section 2. SOC Code: 11-9032 7 
5 We may, in our discretion, useanevaluationofa person's foreign education as anadvisoryopinion. Matter of Sea, Inc., 
19 T&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other information oris in any 
way questionable, we may discount or give less weight to that evaluation. Id. 
6 The evaluator indicated that he reviewed the Petitioner's diplomas, transcripts, and resume. 
7 This standard occupationalclassification(SOC)code 11-9032corresponds to the occupation of education administrators, 
kindergarten through secondary. See https://www.onetonline.org/link/summaty/11-9032.00 (last accessed Mar. 14, 2022). 
4 
Section 3. Nontechnical Description of Job: Plan, direct, or coordinate the academic, 
administrative, or auxiliary activities of public or private elementary or secondary level 
schools. 
The Petitioner's "Professional Plan & Statement" submitted with the initial filing confirms that 
she intends to continue working as an education administrator. 
In response to the Director's request for evidence (RFE), the Petitioner indicated in an updated 
"Professional Plan & Statement" that, in addition to working as an education administrator, her "overall 
proposed endeavor in the U.S. is to work as an entrepreneur within the field of education" and "to open 
at least three businesses based in the education sector." As discussed by the Director, the Petitioner must 
establish eligibility at the time of filing. 8 C.F.R. § 103 .2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comm'r 1971). Fmiher, the purpose ofanRFEis to elicitinfomiation that clarifies whethereligibility 
for the benefit sought has beenestablished,as of the time the petition is filed. See 8 C.F.R §§ 103.2(b)(l), 
103.2(b)(8), 103.2(b)(12). A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 
176 (Assoc. Comm'r 1998). If significant, material changes are made to the initial request for 
approval, a petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 
The Director should determine whether the information provided by the Petitioner in the RFE response 
provided more specificity to the proposed endeavor as initially described or added an additional 
endeavor. In determining whether an individual qualifies for a national interest waiver, we must rely 
on the specific proposed endeavor to determine whether ( 1) it has both substantial merit and national 
importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. 
Accordingly, the Director should determine whether the RFE response presented a new set of facts 
regarding the proposed endeavor, which is material to eligibility for a national interest waiver. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N 
Dec. at 889-90. 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider whether the 
Petitioner 1) qualifies for EB-2 classification, the threshold determination in national interest waiver 
cases and 2) has provided sufficient and consistent information regarding her proposed endeavor such 
that he may determine whether a waiver of the required job off er, and thus of the labor certification, 
would be in the national interest. 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. 
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