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DismissedNational Interest Waiver · Appeal

Marketing specialist

Business & finance · decided 2023-10-12 · TSC · OCT122023_02B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not met
    Why
    CONCLUSION The Petitioner has not established that she satisfies the regulatory requirements for classification as a member of the professions holding an advanced degree. p. 4
    The Director's denial rested on this
    The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as a member of the professions holding an advanced degree, and that she had not had not established that a waiver ofthe required job offer, and thus ofthe labor certification, would be in the national interest. p. 1
  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as a member of the professions holding an advanced degree, and that she had not had not established that a waiver ofthe required job offer, and thus ofthe labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon de novo review, we will dismiss the appeal. See in text
  • The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. See in text
  • ORDER: The appeal is dismissed. See in text

Main reasons given

  • In order to qualify for a national interest waiver, the Petitioner must first show that she qualifies for EB-2 classification as either an advanced degree professional or an individual of exceptional ability. 7 Because the Petitioner has not established eligibility for the underlying immigrant classification and this issue is dispositive of her appeal, we decline to reach and hereby reserve the appellate arguments regarding her eligibility under the three prongs outlined in Dhanasar. See in text
  • Based on either her graduation date or the date she received her "Bachelor's Degree in Theology," the Petitioner has not demonstrated at least five years of progressive post-baccalaureate experience in her specialty at the time of filing. See in text
  • For the reasons set forth above, the Petitioner has not demonstrated that she qualifies as a member ofthe professions holding an advanced degree. See in text
Show 2 more
  • The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest. See in text
  • The Petitioner has not established that she satisfies the regulatory requirements for classification as a member of the professions holding an advanced degree. See in text
Read the full decision (4 pages)

Objections found (2)

Automated tags. Each shows the sentence that triggered it.

  • Step 0Degree not shown to be a U.S. advanced degree equivalent
    This credential evaluation does not indicate that the Petitioner has "a foreign equivalent degree" to either a U.S. advanced degree or a U.S. baccalaureate degree. See in text (p. 2)
  • Step 0Five years of progressive experience not documented
    Even if we were to conclude that the Petitioner's "Bachelor's Degree in Theology" was "a foreign equivalent degree" to a U.S. baccalaureate degree, which we do not, the evidence indicates that she did not receive her degree until August 2018, and we count only her progressive experience in the specialty after that date. 6 The Form 1-140, Immigrant Petition for Alien Workers, in this matter was filed on December 14, 2021. See in text (p. 3)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (3) AAO finding (5) Tagged objection (2)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: OCT. 12, 2023 · In Re: 28430298 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, a marketing specialist, seeks employment-based second preference (EB-2) immigrant classification as a member ofthe professions holding an advanced degree, 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 did not qualify for classification as a member of the professions holding an advanced degree, and that she had not had not established that a waiver ofthe required job offer, and thus ofthe labor certification, would be in the national interest. The matter is now before us on appeal.

The Petitioner bears the burden ofproof 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.

Law

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 ofprogressive experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). In addition, "profession" is defined as of the occupations listed in section 101(a)(32) ofthe 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. 1 8 C.F.R. § 204.5(k)(3).

If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. p. 2 framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2 , 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.

Analysis

A. Member of the Professions Holding an Advanced Degree

In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied by "[ a ]n official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a 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 ofletters from current or former employer(s) showing that the alien has at least five years ofprogressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B).

The Pettioner initally resented her "Bachelor of Social Communication" degree (July 2005) and official academic record from I(Brazil) showing three and one half years (seven semesters) of coursework. She also submitted an "Evaluation of Education and Work Experience" from GEO Credential Services stating: "Considering that an Associate's degree followed by more than five years of full-time work experience in the field of Marketing and Advertising is equivalent to a U.S. Bachelor's degree, it is my expert opinion that [the Petitioner] with an Associate's degree in Social Communication and 8 years of experience, has the equivalent of a U.S. Bachelor's degree in Social Communication." This credential evaluation does not indicate that the Petitioner has "a foreign equivalent degree" to either a U.S. advanced degree or a U.S. baccalaureate degree.Degree not shown to be a U.S. advanced degree equivalent In order to have education and experience equating to an advanced degree under section 203(b )(2) ofthe Act, the Petitioner must have a single degree that is the "foreign equivalent degree" to a U.S. baccalaureate degree (plus five years of progressive experience in the specialty). See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). 3 A United States baccalaureate degree is generally found to require four years of education. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). There is no provision in the statute or the regulations that would allow a petitioner to qualify under section 203(b )(2) of the Act as a member of the professions holding an advanced degree with anything less than a full baccalaureate degree (plus five years of progressive experience in the specialty).

In response to the Director's request for evidence (RFE), the Petitioner provided a certificate stating that she received a "Bachelor's Degree in Theology" (August 2018) from I I I ISchools (Brazil), but she did not present an official academic 2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest waiver to be discretionary in nature).

record showing her coursework as required by the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). 4 The Petitioner also submitted an "Evaluation ofAcademics" from Silvergate Evaluations asserting that her "Bachelor's Degree in Theology," in conjunction with her "Bachelor of Social Communication" degree, constitutes "the equivalent of a Bachelor's degree in Communications and Theology from an accredited institution of higher education in the United States."5 This credential evaluation, however, does not indicate that the Petitioner has a single degree that is the "foreign equivalent degree" to a U.S. baccalaureate degree. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). Nor does the evaluation offer a sufficient analysis of the coursework she completed at I I I ISchools.

Even if we were to conclude that the Petitioner's "Bachelor's Degree in Theology" was "a foreign equivalent degree" to a U.S. baccalaureate degree, which we do not, the evidence indicates that she did not receive her degree until August 2018, and we count only her progressive experience in the specialty after that date. 6 The Form 1-140, Immigrant Petition for Alien Workers, in this matter was filed on December 14, 2021.Five years of progressive experience not documented With respect to the Petitioner's five years of progressive postbaccalaureate experience in her specialty, she must demonstrate such experience at the time of filing the petition. See 8 C.F.R. § 103.2(b )(1 ). Based on either her graduation date or the date she received her "Bachelor's Degree in Theology," the Petitioner has not demonstrated at least five years of progressive post-baccalaureate experience in her specialty at the time of filing.

For the reasons set forth above, the Petitioner has not demonstrated that she qualifies as a member ofthe professions holding an advanced degree.

B. National Interest Waiver

The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest. In order to qualify for a national interest waiver, the Petitioner must first show that she qualifies for EB-2 classification as either an advanced degree professional or an individual of exceptional ability. 7 Because the Petitioner has not established eligibility for the underlying immigrant classification and this issue is dispositive of her appeal, we decline to reach and hereby reserve the appellate arguments regarding her eligibility under the three prongs outlined in Dhanasar. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 4 This degree was not listed on the Petitioner's Form ETA-750B, Statement of Qualifications of Alien, or the resume that she presented at the time of filing the petition.

Conclusion

The Petitioner has not established that she satisfies the regulatory requirements for classification as a member of the professions holding an advanced degree. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. ORDER: The appeal is dismissed.