The Petitioner, a physiotherapist, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
Service Center Operations (SCOPS) denied the petition, concluding that the Petitioner had not established eligibility for the underlying EB-2 immigrant classification. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de nova. Matter a/Christa 's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal.
Law
To qualify for the underlying EB-2 visa classification, petitioners must establish they are advanced degree professionals or individuals of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(A) of the Act.
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).1 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. See generally 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual. If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will substantially benefit 1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). The Petitioner has not submitted comparable evidence. p. 2 the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(A) of the Act.
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&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,2 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.
Matter of Dhanasar, 26 l&N Dec. at 889.
Analysis
The Petitioner is a physiotherapist from Brazil who, in 1983, com:leted three and a half years of an undergraduate program in physiotherapy at I Iin Brazil. The Petitioner's resume indicates that after completing the program she worked as a physical therapist for hospitals while in thel Iand from December 2013 to the present, has worked in her own private physical therapy practice. She intends to work as a physical therapist in hospitals in the United States.
SCOPS determined that the Petitioner was not an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. According to SCOPS, while the Petitioner satisfied three of the six regulatory criteria under 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), upon a final merits review, the evidence in its totality did not show that she is recognized as having the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. SCOPS concluded the Petitioner had not established her eligibility for the underlying classification, which is dispositive of the petition, and therefore did not analyze whether the Petitioner was eligible for a national interest waiver under the Dhanasar framework.
The Petitioner did not claim she was an advanced degree professional and does not contest SCOPS's determination that she is not an advanced degree professional on appeal. We therefore deem the issue waived. See Matter of O-R-E-, 28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012)) (providing any ground of ineligibility that is not raised on appeal is waived).
As discussed above, exceptional ability is analyzed under a two-step process. First a petitioner must submit documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Third, Ninth, Eleventh, and D.C. Circuit Courts of Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). p. 3 § 204.5(k)(3)(ii)(A)-(F). SCOPS determined that the Petitioner met the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), (E).
We agree that the Petitioner has an official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability, satisfying 8 C.F.R. § 204.5(k)(3)(ii)(A) and a license to practice the profession or certification for a particular profession or occupation, satisfying 8 C.F.R. § 204.5(k)(3)(ii)(C). However, we withdraw SCOPS' determination that the Petitioner satisfied 8 C.F.R. § 204.5(k)(3)(ii)(B) as the Petitioner has not submitted evidence in the form of letters from current or former employers showing she has at least ten years of full-time experience in physical therapy to meet the regulatory requirement. According to 8 C.F.R. § 204.5(g)(1), evidence relating to qualifying experience or training shall be in the form of letters from current or former employers and shall include the name, address, and title of the writer, and a specific description of the duties performed by the petitioner. The regulation further provides, '"if such evidence is unavailable, other documentation relating to the alien's experience or training will be considered." The Petitioner provided a letter from the navy ministry claiming she was employed from 1984 to 1986. However, the letter does not meet the requirements of 8 C.F.R. § 204.5(g)(1) as it does not contain, for example, a specific description of the duties performed by the Petitioner. While the Petitioner claims the record contains other documents demonstrating her full-time work in the physiotherapy field, the record does not contain other letters authored by former employers meeting the requirements of 8 C.F.R. § 204.5(g)(1). Further, the Petitioner did not assert in the record below or on appeal that evidence meeting the requirement of 8 C.F.R. § 204.5(g)(1) was unavailable.
We also withdraw SCOPS determination that the Petitioner satisfied 8 C.F.R. § 204.5(k)(3)(ii)(E) as the Petitioner has not provided sufficient evidence of her membership in professional associations to meet the regulatory requirement. The term "profession" is defined at 8 C.F.R. § 204.5(k)(2) as "any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occu ation." In su art of this criterion the Petitioner submitted a declaration from the "
I lthe same orga~n,....i z-at....,...i o_n_t....,...h-at_,,i,....ss_u_e_,,d....,.h_e_r=1 i-ce-n-se-to-pr-a-ct....,...i c_e_p....,.h_y_,,si,....o....,.th-e-ra_p_y_,-ac....,.k-n-ow----=-1 e_,,d,-g.,....i n-g_,,h-e~r membership and referring to the registration number on the Petitioner's license. However, the record does not contain documents describing the requirements for membership in the association. As a result, the Petitioner has not demonstrated that a U.S. bachelor's degree or foreign equivalent is a requirement for membership.
Further, we agree with SCOPS that the Petitioner has not satisfied 8 C.F.R. § 204.5(k)(3)(ii)(D) as she has not submitted sufficient evidence that she commanded asalary, or other remuneration for services demonstrating exceptional ability to meet the regulatory requirement. The Petitioner claims her monthly remuneration in Brazilian currency is R$ 23,127, which she asserts is six times higher than the national average for Brazil. However, the record does not contain evidence of her monthly salary. Rather the Petitioner provided her income statement from 2021. According to this document, the nature of her occupation is "retired, retired military and official pension pensioner with serious disease." The Petitioner's income appears to include additional sources of income, including her military pension and income from financial investments. The Petitioner does not identify where in the documentation or line item of her income statement her income earned from working as a p. 4 physiotherapist is located. For these reasons, the Petitioner has not established she satisfies this criterion.
We also agree with SCOPS that the Petitioner has not satisfied 8 CFR § 204.5(k)(3)(ii)(F) as she has not provided sufficient evidence of her recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations to meet the regulatory requirement. In support of this criterion, the Petitioner submitted recommendation letters from peers and patients. The letters describe her speaking at scientific meetings and international conferences and resentin research. One author ex lains that the Petitioner's paper, L...------,------------------,----------------' ' was included in the,_________________, The record also contains evidence that in 1993 the Petitioner co-authored and presented a case report on 'lL---------------------,.1 l" and coauthored two presentations, one entitled 'I
,------L----------------l i---------------,...._________J [' and '1 '-----.--------.--------' ,__________
I" all presented at scientific meetings of the I 1- However, the letters do not explain how this research is relevant to the field of physical therapy and whether the Petitioner was recognized for her research, presentations, or articles to demonstrate her contributions were considered significant to the industry.
In one of the recommendation letters, the author describes how the Petitioner created an assessment on understanding "revisit cases." However, the letter does not give context for the assessment or describe the significance of the assessment or how and whether it was used in the industry. A different letter describes her receipt of awards for service with the I IThe Petitioner submitted copies ofthe naval awards, given, for example, "in recognition ofthe good military services provided for more than twenty years." While commendable, her recognition by the I I does not support her significant contributions to her field of physiotherapy.
The Petitioner also submitted two articles published in 1995 and 1996, entitled '1 ....
~t' and',__________
~' However, the articles alone do not demonstrate her contributions to the field. For example, the articles are only a few paragraphs long, do not contain any citations to research, and do not discuss any personal research performed or novel findings by the Petitioner. The record also does not contain information on the publisher of the articles, such as its readership and recognition by the field. For these reasons, the Petitioner has not satisfied this criterion. Accordingly, the Petitioner has not established three out of the six evidentiary criteria of 8 C.F.R. § 204.5(k)(3)(ii) to satisfy step one of the analysis, and we therefore withdraw SCOPS' determination to the contrary. The Petitioner has therefore not established her eligibility for the underlying visa classification. However, because we are withdrawing SCOPS' determination on this step, we will conduct a final merits review of the evidence.
In a final merits review, we determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. See generally 6 USCIS Policy Manual, supra, at. F.5(8)(2), (explaining, as guidance, how to evaluate evidence in the exceptional ability context). In reviewing the totality of the evidence, we consider the quality of the evidence. Id. Further, "the p. 5 petitioner must demonstrate that the beneficiary is above others in the field; qualifications possessed by most members of a given field cannot demonstrate a degree of expertise significantly above that ordinarily encountered." Id.
SCOPS concluded the evidence in its totality did not show that the Petitioner possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. We agree that the relevant evidence, which includes the Petitioner's education, recommendation letters, published articles, training, and experience do not establish in totality that she is recognized as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. In the underlying record, the Petitioner indicated her intention to work in the United States as a physical therapist. The Petitioner submitted evidence of having completed three and a half years of an undergraduate program in physiotherapy in Brazil. The record also includes a certificate demonstrating she enrolled in a course in 2007 titled, "Postgraduate diploma in Naval Sciences lato sensu." The record does not contain information on the course duration. Information from the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE) provides:3
Professional 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. They require 1 to 2- or 1- to 3- years of study.4 The Petitioner further asserts she has a graduate degree in Hospital Administration obtained in 1993. However, the record does not contain evidence of this graduate degree and academic record to support she obtained the degree. The Petitioner also claims she obtained a graduate degree in the "Global Postural Reeducation Method." However, the record does not contain evidence of this degree, rather it demonstrates the Petitioner obtained a certificate in this methodology after attending 240 hours of course study. The Petitioner also submitted numerous certificates evidencing her on-going attendance of classes while in the navy and a license to practice physiotherapy, obtained in 1992.
We acknowledge the Petitioner's education and training. Educational requirements for physical therapy have evolved over the last decade. The Department of Labor's Occupational Outlook Handbook (Handbook) entry relating to physical therapists states the current typical entry-level education for this field is a doctoral or professional degree.5 The Handbook further states that Doctor of Physical Therapy programs typically last three years, and therapists may apply to clinical residency programs that last about a year. As a result, the Petitioner's documented academic record and documented experience do not demonstrate a degree of expertise significantly above that ordinarily 3 EDGE is a non-profit, voluntary association of more than 11,000 professionals in more than 40 countries. See AACRAO, Who We Are, https://www.aacrao.org/who-we-are. We consider EDGE to be a reliable source of information about foreign credential equivalencies. See Confluence Intern., 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-10072, 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 3325442 (E.D. Mich. Aug. 20, 2010). See also Viraj, LLC v. Holder, No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga. May 18, 2013).
encountered in her field. See generally 6 USCIS Policy Manual, supra, at. F.5(B)(2)(providing, as guidance, the petitioner must demonstrate that the beneficiary is above others in the field). The Petitioner also submitted letters of recommendation, certificates, articles of her published work, and her naval awards. While the letters discussed the Petitioner's talents, skills, and published work, as discussed above, they do not establish that her expertise is significantly above other physical therapists.
After reviewing the totality of the evidence, we conclude that the Petitioner has not established she has the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(A) of the Act.
Conclusion
The Petitioner has not established that she qualifies for the underlying EB-2 classification. Without such a showing, the Petitioner cannot qualify for the national interest waiver of the job offer attached to that classification.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of amotion will not postpone the effect of the decision. 8 C.F.R. § 103.5(a)(1)(iv). Aliens who are not lawfully present, or otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 of the Act through the issuance of a Form 1-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.