remanded EB-2 NIW Case: Sales And Business Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 15921855 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 12, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree and as an individual of exceptional ability, as well as a national interest 
waiver of the job off er 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 he qualifies as an individual of exceptional ability and 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 he is eligible as member of the professions holding an advanced 
degree and as an individual of exceptional ability, as well as 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 nova 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) N ationalinterestwaiver. ... [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 101 (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 1 0l(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 ofletters 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). 
2 
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 offer and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor ce1iification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job off er or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to wanant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate that on balance, it would be beneficial to the United States 
to waive the requirements of a job offer and thus of a labor certification. 3 
II. ANALYSIS 
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. At initial filing, the Petitioner indicated in his cover letter that he 
"is filing for EB2 classification based upon his advanced degree in Business Administration and 
exceptional abilities in the field of sales," andhis "endeavor in the U.S. is to work fora top IT company 
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. 
3 
as a Sales Manager/ Customer Experience Representative performing B2B sales and support services 
for his prospective employer." The Petitioner also discussed and submitted documentation relating to 
his claims of eligibility relating to an advanced degree professional and an individual of exceptional 
ability. The Director's decision, however, does not reflect that he made a determination whether the 
Petitioner qualified as an advanced degree professional. Instead, the Director only addressed his 
eligibility as it pe1iained to an individual of exceptional ability in the sciences, arts, or business. 
A. Member of the Professions Holding an Advanced Degree 
In order to qualify as a member of the professions, an individual must meet "one 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." 8 C.F.R. 204.5(k)(2). 4 Further, in order to show an individual holds an advanced degree, 
the petition must be accompanied by"[ a ]n official academic record showingthatthe alien has a United 
States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, 
the Petitioner may 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 fmmer employer(s) showing that the alien has at least five years of progressive post-baccalaureate 
experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director's decision does not determine whether the Petitioner's occupation, '·Sales Manager / 
Customer Experience Representative," qualifies as a member of the professions. In addition, the 
Director does not conclude whether the Petitioner's "Lato Sensu Graduate Course -MBA in Business 
Management" from the and the 
.__--~----~---------~------' is a foreign equivalent degree above that 
of baccalaureate degree. Further, the Director did not decide whether the Petitioner's "Higher Education 
Course of Technology in Data Processing" and title of '·Technologist in Data Processing" from 
I !University, School of Technology meets the foreign equivalent of a baccalaureate degree 
followed by at least five years of progressive experience in the specialty. 
We note that the Petitioner provided a "Credential Evaluation Report" from .... I__,,~..---------! ~-----~I who claimed that the Petitioner's "MBA in Business Management" is equivalent to a 
"Master in Business Administration in Business Management" in the United States. 5 According to 
the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic 
Database for Global Education (EDGE) 6, however, "[p ]rofessional development and specialization 
programs are considered lato sensus (wide sense graduate-level programs) and follow independent 
legislation. Such programs lead toward professional certificates, not graduate degrees." It also states 
4 Section I 01(a)(32) oftheAct states "[t]he term 'profession' shall include but not limited to architects, engineers, la\¾yers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
5 We may, in our discretion, useanevaluationofa person's foreign education as anadvisoryopinion. J1atterofSea, Inc., 
19 I&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 We consider EDGE to be a reliable source ofinformation about foreign credentialequivalencies. See Confluence Intem., 
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, 20 lOWL 3464314(E.D. Mich. Aug. 30, 20lO);SunshineRehabServices, Inc. No. 09-13605, 2010WL 
3325442(E.D. Mich.Aug. 20,2010).Sccalso Viraj, LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. 
Ga.May 18,2013). 
4 
that"[ c ]redits earned in lato sensu graduate programs may later be transferred into a master's degree 
program given that institutional requirements are met and institutional approval is granted." 7 
Although the evaluator claims to be a member of AACRAO, he fails to address the discrepancies 
between EDGE' s conclusions and his own in his evaluation. 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. 
We further note that the record does not contain a credential evaluation regarding whether the 
Petitioner's "Technologist in Data Processing" meets the foreign equivalency of a baccalaureate 
degree. According to AACRAO, the title of technologist is "awarded following 2 to 3 years of 
university study, depending on entrance qualifications and the field of study" and "represents 
attainment of a level of education comparable to 2 to 3 years of university study in the United States," 
appearing to indicate that it is not a foreign equivalent of baccalaureate degree. 8 
In light of the above, the Director should first determine whether the Petitioner's occupation as a "Sales 
Manager / Customer Experience Representative" is a member of the professions. If so, the Director 
should consider whether the Petitioner's "Lato Sensu Graduate Course - MBA in Business 
Management" qualifies as the foreign equivalent above that of a baccalaureate degree. If not, the 
Director should then decide whether the Petitioner's "Technologist in Data Processing" meets the 
foreign equivalent of a baccalaureate degree followed by at least five years of progressive experience in 
the specialty. 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, 
discussed below. 
B. Exceptional Ability 
The Petitioner asserted eligibility and submitted documentation for five of the regulatory criteria under 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 9 Although the Director issued a request for evidence relating to the 
national interest portion, he did not request additional documentation or inform the Petitioner of any 
deficiencies in his claims of exceptional ability. In denying the petition, the Director determined that the 
Petitioner met only two of the categories, official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A) and 
ten-year employment at 8 C.F.R. § 204.5(k)(3)(ii)(B). On appeal, the Petitioner contends that he satisfies 
three additional criteria. 
On remand, the Director should review the Petitioner's arguments made on appeal and decide whether 
any additional criteria have been met. If so, the Director should then conduct a final merits determination 
to conclude whether the Petitioner has achieved the level of expertise significantly above that ordinarily 
encountered for exceptional ability classification. 
7 Seehttps://www.aactao.org/ edge/ country/brazil for information regarding the education system in Brazil and credential 
equivalencies (last accessed August 12, 2021 ). 
8 See https://www.aacmo.org/edge/country/credentials/credential/brazil/titulo-de-tecn6logo-(title-of-technologist) (last 
accessed August 12,2021). 
9 The Petitioner did not claim eligibility for the license criterion under 8 C.F .R. § 204 .5(k)(3)(ii)(C). 
5 
C. National Interest Waiver 
The Director did determine that, although the Petitioner did not meet the first and third prongs of 
Dhanasar, he had met the second prong. However, as the Director's determination appears to be 
based, at least in part, on the Petitioner's education, we must also withdraw the Director's conclusion 
that the Petitioner is well positioned to advance the proposed endeavor. In addition, the Director did 
not sufficiently conduct an analysis of the third prong. Instead, the Director stated that since the 
Petitioner had not met the first prong, "further discussion of the balancing factors under this prong 
will serve no meaningful purpose." 
The Director should conduct a proper Dhanasar analysis under all three prongs, including the 
arguments made on appeal. 
III. CONCLUSION 
To meet the requirements for a national interest waiver, an individual must first qualify for the 
underlying EB-2 visa classification. We are therefore remanding the petition for the Director to 
considerwhetherthe Petitioner has satisfied the eligibility requirements for classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability. In addition, 
the Director should properly apply all three prongs of the Dhanasar analytical framework to make a 
determination as to whether the Petitioner has established that a waiver of the requirement of a job 
off er, and thus a labor certification, would be in the national interest. As such, we will remand the 
matter for further consideration of the record, including claims on appeal, and entry of a new 
decision. 10 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision which, if 
adverse, shall be certified to us for review. 
10 We have the authority to withdraw a decision and remand the case for further action, with an order that it be certified 
back to us if the new decision is adverse to the affected party. 1 USCIS Policy Manual F, 
https://www.uscis.gov/policymanual. This order is not meantto compel approval of the remanded case, bu tis designed to 
preserve the affected party's ability to seek appellate review without payment of a second appeal fee. Id. 
6