remanded EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 23373575 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 19, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a marketing manager, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree, and 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 record did not 
establish that the Petitioner's proposed endeavor is of national importance, or that a waiver of the job 
offerrequirementwould, on balance, benefitthe United States. 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, 
withdraw the Director's decision and remand the matter for entry of a new decision consistent with 
the following analysis. 
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). 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 I&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 discretion, 1 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. ADV AN CED DEGREE PROFESSIONAL 
The Petitioner initially claimed to qualify as both an individual of exceptional ability and a member 
of the professions with "the equivalent of an Advanced Degree." The Director concluded that the 
Petitioner did not establish exceptional ability, and the Petitioner does not dispute this conclusion on 
appeal. 
The Petitioner states, on appeal, that the Director "incorrectly denied the petitioner's qualification as 
an Advanced Degree professional." The Director, however, concluded that the Petitioner "has 
established he is a professional holding an advanced degree." Nevertheless, we disagree with the 
Director's conclusion. We will remand the matter to afford the Petitioner the opportunity to respond 
to the information below. 
When he filed the petition in November 2018, the Petitioner claimed the following timeline: 
• September 2009-July 2012: The Petitioner earned a three-year degree in business 
administration atl Business School in France. All subsequent claimed education and 
employment took place in Brazil. 
• September 2013-J anuary 2014: The Petitioner owned and operated 
• March 2014-May 2015: The Petitionerworkedforl l 
• April 2015-November 2016: The Petitioner earned a two-year master's degree in business 
administration at 
• June2015-April2018: The Petitioner worked for 
• August 2018: The Petitioner arrived in the United States as an 0-1 nonimmigrant. 
• November 2018: The Petitioner filed the immigrant petition on his own behalf. 
A credential evaluation by a professor at the City University of indicates that, "based 
exclusively on Academics," the Petitioner holds the equivalent of a United States baccalaureate 
degree, and thus the Petitioner's Brazilian degree does not qualify as an advanced degree. But the 
evaluation further indicates that the Petitioner also accumulated "[f]iveyears and seven months" of 
"Qualifying Experience and Training." A U.S. baccalaureate degree or foreign equivalent degree and 
five years of progressive post-baccalaureate experience in the specialty is equivalent to a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
1 Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in na ture). 
2 
The Director concluded that the Petitioner's degrees and post-baccalaureate experience are equivalent 
to an advanced degree. Further review of the record, however, casts doubt on this conclusion. 
For employment experience to count as being equivalent to a master's degree, the experience must 
follow, not precede, the baccalaureate degree. 8 C.F.R. § 204.5(k)(2). The Petitioner has not claimed 
that his 2012 French degree, by itself, is equivalent to a U.S. baccalaureate degree. The educational 
equivalency evaluation cited both the French degree and the later Brazilian degree as being collectively 
equivalent to a U.S. baccalaureate degree; the evaluation indicates that the three-year French degree, 
alone, is equivalent to three years of study toward a four-year U.S. baccalaureate degree. If so, then 
the Petitioner's post-baccalaureate experience did not begin until after he completed his Brazilian 
degree in November 2016,just two years before he filed the petition in November 2018. His claimed 
experience atl I and much of his claimed employment atl precedes November 2016. 
Even then, the record does not consistently establish five years of employment experience before the 
filing date. The claimed employment at andl ltotals about four years of employment 
experience. The Petitioner's resume, as originally submitted, indicates that he worked forl I 
I I for four to five months, from September 2013 to January2014. Business and tax filings confirm 
that the Petitioner formed I lin late August 2013, and the company began operating in 
early I 12013. These periods of employment add up to less than the required five years. 
The evaluator indicated that "[f]rom July 2012 to January 2014, [the Petitioner] was employed as 
Manager at I I" The evaluator cited no supporting evidence and the Petitioner did not 
submit a letter from that claimed employer. We may, in our discretion, use opinion statements 
submitted by the Petitioner as advisory. But we may give less weight to an advisory statement if it is 
not in accord withotherinformationorisin anyway questionable. MatterofCaronlnt'l. Inc., 19 I&N 
Dec. 791, 795 (Comm'r 1988). After the Director issued a request for evidence, the Petitioner 
submitted a revised resume, removing the reference tol land replacing it with the claim 
that he worked forl from July 2012 to January 2014. The Petitioner has not submitted 
a letter froml I to confirm and describe this claimed employment, as required by 
8 C.F.R. § 204.S(g)(l ). 
The credential evaluation relies on uncorroborated claims of employment in 2012 and early 2013, and 
the Petitioner has not shown that his claimed employment before 2016 was post-baccalaureate. 
Therefore, the Petitioner has not established that, when he filed the petition, he held either an advanced 
degree or five years of post-baccalaureate experience. 
III. DEROGATORY INFORMATION 
The above information casts doubt on the Petitioner's eligibility for classification as a member of the 
professions holding an advanced degree, but review of government records raises additional questions. 
The petition that granted him 0-1 nonimmigrant status was filed by !Company in 
November 2017, with receipt numberl I. The nonimmigrant petition indicated that 
he would be employed in the category of "athletes & related workers." An 0-1 petitioner must be the 
beneficiary's employer or agent. 8 C.F.R. § 214.2( o )(2)(i). The record, however, does not show that 
I !Company employed the Petitioner or acted as his agent. 
3 
After the approval of the 0-1 petition, the Petitioner applied for a nonimmigrant visa at the U.S. 
consulate in Sao Paulo, Brazil in Janua 2018. On his application, he indicated that he was then 
employed as a sales manager at But when asked for information about previous 
employment, the Petitioner did not mention orl I Instead, he 
indicated that he had been employed as a at Athletic Club from June 2012 to 
January 201 7. When asked "Have you attended any educational institutions at a secondary level or 
above?," the Petitioner responded "no." 
The employment proposed in the 0-1 petition and the Petitioner's statements from January 2018 
conflict with key claims in the present petition. The Petitioner must resolve these inconsistencies wi1h 
independent, objectiveevidencepointingtowherethetruth lies. MatterofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). Unresolved material inconsistencies may lead USCIS to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
The conflicting information is material to the present proceeding because the Petitioner seeks an 
immigrant classification based on education and employment experience. Past employment is also 
material to the determination that the Petitioner is well-positioned to advance his proposed endeavor. 
Misrepresentation of this material information in order to obtain immigration benefits can result in a 
finding of inadmissibility under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § l 182(a)(6)(C)(i). 
Because there is no indication that the Director was aware of the above information when adjudicating 
the immigrant petition, we will withdraw the Director's decision and remand the matter for a new 
decision taking th is in formation into account. 2 The Director may issue a request for evidence, a notice 
of intent to deny the petition, or both, in order to afford the Petitioner an opportunity to supplement 
the record and address any apparent discrepancies. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 Tn August 2022, while this appeal was pending, the Petitioner filed a second Form T-l 40petitiononhis own behalf, again 
seeking a national interest waiver. That petition, with receipt numberl I was approved in November 
2022. The record of proceeding for the approved petition is notpartofthe file before us, and therefore we cannot determine 
whether the approved petition relied on similar claims to the petition now on appeal. 
4