remanded EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 15365639 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE21,2021 
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 submits a brief asserting that he 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 abiHty ;n 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 "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 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 pe1iinent 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. 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 qualified for the 
underlying visa classification because he "submitted evidence of receiving the foreign equivalent of a 
U.S. master's degree in information technology management." We also note that the Director's 
request for evidence stated that because the submitted evidence established that the Petitioner "holds 
the foreign equivalent of a U.S. master's degree in information technology management ... USCIS 
does not need to evaluate whether the [Petitioner] also qualifies as an alien of exceptional ability." 
For the reasons discussed below, we withdraw the Director's conclusion that the Petitioner has 
established that he is an advanced degree professional. 
The submitted "Evaluation of Training, Education, and Experience" ( evaluation) claims that the 
Petitioner "obtained a Master of Business Administration and Master of Business Analytics from [the] 
University! I' However, the submitted documents clearly state that these two extension 
programs resulted only in a "certificate," with no indication that either of them is a graduate level 
program that would result in the claimed master's degrees. 4 Further, the evaluator concludes that: 
Considering that a four-year Bachelor's degree [] followed by more than five years of full-time 
work experience in the field of Infonnation Technology is equivalent to a MS in Information 
Technology Management, it is my expert opinion that [the Petitioner] with a four-year 
Bachelor degree, 2 two-year Master degrees and more than 12 years of experience, has no less 
than the equivalent of a Master of Science in Information Technology Management. 
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) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interestwa iverto be discretionary in nature). 
3 See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 We also note that the Petitioner's resume and the Form ETA-7 SOB, Application for Alien Employment Certrlication, 
claim that these certificates are "graduate degrees" and that the Petitioner attested that the form was "true and correct" 
when he signed it "under penalty of perjury." 
3 
Not only does the evaluator inaccurately describe the certificates as master's degrees, he also 
incorrectly lists the length of the two programs. 5 In addition, the evaluator does not claim to have 
reviewed any employment letters to establish the Petitioner's work history or experience. 6 
Furthermore, the record does not demonstrate that the Petitioner completed his bachelor's degree 
program. Although the Petitioner submitted a copy of his diploma from thel I 
University! I in Brazil which states that he received a bachelor's degree in information 
systems, the accompanying transcript appears to indicate that the Petitioner did not complete the 
program. For example, both the "credits to be obtained" section under the '"general requirements for 
course completion" heading and the "credits for completion" section under the "student's status in 1he 
course" heading state that 197 credits need to "be obtained" or"complet[ ed]." However, the transcript 
indicates in both sections that the Petitioner has only" obtained" or "accumulated" 181 credits. Neither 
the Petitioner, nor the evaluator, addresses this discrepancy. We may, in our discretion, use an 
evaluation of a person's foreign education as an advisory opinion. Matter of Sea, Inc., 19 I&N Dec. 
81 7, 820 ( Comm 'r 198 8). However, where an opinion is not in accord with other information or is in 
any way questionable, we may discount or give less weight to that evaluation. Id. 
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 first determine whether the Petitioner has sufficiently 
demonstrated that he holds the foreign equivalent of a U.S. bachelor's degree. If the Director 
concludes that the Petitioner has provided independent, objective evidence to establish receipt of such 
a degree, he should then determine whether the Petitioner has submitted employment letters which 
establish "at least five years of progressive post-baccalaureate experience in the specialty," as required 
by the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
If the Director concludes that the Petitioner is not an advanced degree professional, he should then 
determine whether the Petitioner qualifies as an individual of exceptional ability. 
B. Dhanasar Analysis 
Regarding the Petitioner's claims of eligibility under the Dhanasar analysis, we agree with the 
Director's ultimate conclusions that the Petitioner has not meet any of the three prongs. 
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 
5 According to the submitted transcript, the Petitioner began the programs on July 6, 2009 and completed them on June 
13, 20 I 0. Although we are unable to determine the exact length of each individual program from the infonnationprovided, 
it is clear that neither program lasted two years. 
6 The job duties listed in the "professional expeiience" section of the evaluation are taken directly from the Petitioner's 
resume. 
4 
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. 
5