dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-D-P 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY25,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree or as an individual of exceptional ability. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of 
the job offer requirement that is normally attached to this immigrant classification. See 
section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify as a member of the professions holding an advanced degree, and that he had not established 
that a waiver of a job offer requirement would be in the national interest. 
The matter is now before us on appeal. In his appeal, the Petitioner indicates that he is seeking 
classification as an individual of exceptional ability rather than a member of the professions holding an 
advanced degree. He maintains that he is eligible for a national interest waiver and submits a statement 
and additional evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences arts or business. Because this classification normally 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 states, in pertinent part: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
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(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 1 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. 
While neither the statute nor the pertinent regulations define the term "national interest," we recently 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar, 26 I&N 
Dec. 8842 Dhanasar clarifies that, after EB-2 eligibility as an advanced degree professional or 
individual of exceptional ability has been established, users may grant a national interest waiver if 
the petitioner demonstrates by a preponderance of the evidence: (I) that the foreign national's 
proposed endeavor has both substantial merit and national imp01tance; (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. If these 
three elements are satisfied, USCIS may approve the national interest waiver as a matter of 
discretion. 
The first prong, substantial merit and national impmiance, 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 eff01ts; a model or plan for future activities; any progress towards achieving the 
' Pursuant to section I 5 17 of the Homeland Security Act of 2002 ("l-ISA"), Pub. L. No. I 07-296. I 16 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (20 12)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
2 In announcing this new framework, we vacated our prior precedent decision, !vi alter Q[ New Vork State Depart men! of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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Matter Clf D-D-P-
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 certification, In 
perfom1ing this analysis, USC IS 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 offer 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 warrant 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 Stales to waive the requirements of a job otTer and thus of a labor certification 3 
IL ANALYSIS 
A. Visa Preference Category 
The Petitioner indicated on his Fmm I-140, Immigrant Petition for Alien Worker, Part 2, that he is 
seeking second preference classification as a "member of the professions holding an advanced degree 
or an alien of exceptional ability" along with a national interest waiver. Jn a letter accompanying the 
petition, Counsel stated that the Petitioner is "seeking EB-2 classification as an alien of 
extraordinary ability," that he has "demonstrated extraordinary ability and sustained acclaim in 
business," and that he "has achieved a level of expertise indicating that he is one of the small percent 
who has risen to the very top of his field'' 4 Counsel's discussion of the extraordinary ability 
standards, relating to Section 203(b)(l)(A), appears to be inconsistent with the Petitioner's indication 
on his Form 1-140 that he is seeking a national interest waiver as a member of the professions 
holding an advanced degree or an individual of exceptional ability. Based on the Petitioner's 
election on the Form I-140, we will adjudicate the petition in accordance with Section 203(b)(2) of 
the Act as either an advanced degree professional or an individual of exceptional ability in the 
sciences, arts, or business. 
In his appeal, the Petitioner states that he is seeking an immigrant visa "based upon his exceptional 
ability in the business world," and he maintains that he meets the elements of the national interest 
waiver described in Dhanasar. He does not, however, specifically address how he meets the 
eligibility requirements for the underlying visa classification. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 Section 203(b)(l)(A) of the Act makes visas available to foreign nationals with extraordinary ability in the sciences, 
arts, education, business, or athletics as demonstrated by sustained national or international acclaim and achievements 
that have been recognized in the field through extensive documentation. The term ''extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). 
Individuals who qualify for this classification are not required to have a job offer or to obtain a labor ce1tification. 
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Matter of D-D-P-
B. Advanced Degree Professional 
In the initial submission, counsel for the Petitioner stated that "[the Petitioner] has a Master's Degree 
in Business Administration from the in The Director issued a 
request for evidence (RFE) asking for a copy of the Petitioner's official academic record and degree 
as evidence that the Petitioner had earned an advanced degree as of the date of filing. Alternatively, 
the RFE informed the Petitioner that he could provide evidence that he has a U.S. baccalaureate 
degree or foreign equivalent degree along with evidence from current or former employers 
documenting five years of progressive post-baccalaureate experience in his Jield of specialty. The 
Petitioner did not provide the requested evidence. However, his response to the RFE included an 
ETA Form 9089, dated February 27, 2016, indicating that the highest level of education that he had 
achieved was high school. On appeal, the Petitioner confirms that he has not yet attained an 
advanced degree and states that he is currently enrolled in a Master's degree program in business 
administration at the As such, we find that the Petitioner has not 
established his eligibility as a member of the professions holding an advanced degree at the time of 
tiling. 
C. Exceptional Ability 
In the initial filing, the Petitioner explained that he is a "chief executive/entrepreneur" and he intends to 
"use his broad experience as a successful entrepreneur to create business opportunities for himself and 
US workers. He will transfer his wealth of knowledge of developing business in the harshest of 
climates to the US environment." He further explained that he plans to "replicate his success in Nigeria 
to US markets with positive effect on employment and renewable energy systems." As noted above, 
the Petitioner states on appeal that he is seeking classification as an individual with exceptional ability 
in business. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six evidentiary criteria, of which 
an individual must meet at least three in order to qualify as an alien of exceptional ability in the 
sciences, the arts, or business: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, schooL or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation 
for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
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(E) Evidence of memb ership in professional associa tions; or 
(F) Evidence of reco gnition for achie vements and significant cont ribution s to the 
industry or field by pee rs, gove rnm ental entities , or profess ional or business 
organizations. 
Only those who demonstrate "a degr ee of exper tise significan tly above that ordinari ly encountered" 
are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
As discussed below, a review of the record indicates that the Petitioner does not meet at least three of 
the relevant evidentiary criteria at 8 C.F.R. § 204. 5(k)(3)(ii). 
An offic ial academi c record sho wing that the alien ha s a degree, diploma , cert[ficate. 
or similar award.fi'om a college. university , school . or other institution of learning 
relat ing to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner has not met this criterion . As discussed above, the Petitioner 's ETA Fom1 9089 indicates 
that high school was his highest level of education completed. While the Petitioner indica tes that he is 
currently enrolled in a Master 's degree program in business adm inistration at the 
the Petitioner has not stated whether he obtained an undergrad uate degree prior to 
enrolling in the Master's degree program. As he had not completed his degree at the time offiling, or 
provid ed evidence that he attained any other educational degree, diploma, cettificate, or similar award 
relating to his field, he is not eligible for this criterion. 
Evidence in !he form of le/fer(s) .fi'om current or former employer(.<;) showing that !he 
alien has at feast ten years o.ffitll-time experience in the occupation for -.,vhich he or she 
is being sought. 8 C.F.R. § 204.5 (k)(3)(ii)(B). 
The Petitioner did not s ubmit letters from prior employers. He did provide a December 2015 job offer 
letter for a sales consultant position with This letter does nol address the Petitioner's 
previous full-time experience in business. 
A license to practi ce the profession or cert(fication for a parNcufar profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner did not address this criterion or provide evidence ofhis eligibility. 
Evidence that the alien has commanded a salary. or other remuneration for services . 
..,vhich demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner did not address this criterion or provide evidence of his eligibility. 
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Matter of D-D-P-
Evidence a./membership in prc~fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner did not address this criterion or provide evidence of his eligibility. 
Evidence o.l recognition for achievements and significant contributions to the industry 
or .field by peers, governmental entities. or prr~fessional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner explains that he "has created five extremely successful businesses in information and 
communication technology, renewable energy systems, online travel and reservation systems, 
turnaround innovation and business counseling." While he states that through these companies, he has 
provided "nine billion" dollars of energy services to the "highest level of government and the private 
sector," the record does not support this statement. The Petitioner submitted corporate fom1ation 
documents and copies of Nigerian government contracts with 
and It is unclear 
how these companies relate to the Petitioner as his name does not appear on most of the documents. 
The memorandum of association for and the articles of association for 
do list the Petitioner as "director," however, the record does not contain 
evidence 
that the Petitioner's role in these companies led to recognition for achievement and contributions to the 
energy industry. 
Additionally, while the Petitioner submitted an ETA Form 9089 attesting that he was employed by 
as "head of finance and administration" from February 2012 
until February 2015, the record does not show that his employment garnered recognition for 
achievements and significant contributions to the industry. The Petitioner has not provided letters or 
testimony from interested parties attesting to his achievements or significant contributions. As the 
Petitioner has not provided evidence that he received recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations as of the petition's filing date, he has not established that he meets this regulatory 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In sum, the evidence does not establish that the Petitioner meets at least three of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). Further, a review of the record in the aggregate does not support a 
finding that he has achieved the level of expertise required for exceptional ability classification. 
D. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. While the Petitioner asserts on appeal that 
he meets the regulatory framework atticulated in Dhanasar, in order to qualify for a national interest 
waiver, the Petitioner must first show that he qualifies for classification under section 203(b )(2)(A) of 
the Act as either an advanced degree professional or an individual of exceptional ability. The record 
does not demonstrate that the Petitioner is an advanced degree professional and, as discussed above, 
he has not shown that he is eligible for classification as an individual of exceptional ability. As the 
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Petitioner has not established eligibility for the underlying immigrant classification, the issue of the 
national interest waiver is moot. 
IlL CONCLUSION 
The Petitioner has not demonstrated that he qualities for classification as an individual of exceptional 
ability under section 203(b)(2)(A) of the Act. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-D-P- ID# 457568 (AAO May 25, 20 17) 
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