dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 24, 2023 In Re: 28087054 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a general manager and entrepreneur, seeks employment-based second preference 
(EB-2) immigrant classification , 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). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish ( 1) that the Petitioner is eligible for EB-2 classification as an individual of exceptional ability 
and (2) that a waiver of the required job offer, and thus of the labor certification , would be in the 
national interest. 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
To establish eligibility for a national interest waiver, a petit10ner must first demonstrate their 
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, under section 203(b )(2) of the 
Act. The implementing regulations define "advanced degree" as 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). 
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. 2 If 
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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability . 6 USCJS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
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 a degree of expertise significantly above that 
ordinarily encountered in the field. 
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 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 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. 
As noted, the Director denied the petition based on two independent and alternative grounds. First, 
the Director concluded the Petitioner did not establish eligibility for EB-2 classification as an 
individual of exceptional ability. 3 The Director analyzed the Petitioner's claims and evidence and 
determined she (1) did not satisfy any of the six evidentiary categories at 8 C.F.R. § 204.5(k)(3)(ii) 
(A)-(F) and (2) did not show that she possesses a degree of expertise significantly above that ordinary 
encountered in the sciences, arts, or business. Second, the Director concluded the Petitioner did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. Specifically, the Director determined that the Petitioner did not meet any of the three 
prongs of the Dhanasar analytical framework. 
On appeal, the Petitioner solely addresses the Director's determination that she did not establish her 
eligibility for a national interest waiver under the Dhanasar framework. She does not contest the 
Director's determination that the record does not establish her eligibility for EB-2 classification. The 
brief' sonly reference to the underlying EB-2 classification is a statement that she "sought to classify 
herself as a member of the professions holding an advanced degree." However, she does not allege 
any error on the part of the Director in evaluating her eligibility for EB-2 classification as either an 
advanced degree professional or an individual of exceptional ability. 
As the Petitioner does not contest the Director's determination that she did not establish her eligibility 
for EB-2 classification, we deem this issue to be waived. If the affected party does not address issues 
3 The record reflects that the Petitioner initially claimed eligibility as both a member of the professions possessing an 
advanced degree and as an individual of exceptional ability. In a request for evidence (RFE), the Director evaluated her 
initial evidence and informed the Petitioner that neither of her Brazilian "technologist" degrees is the foreign equivalent 
ofa U.S. bachelor's degree or advanced degree. The record supports this determination. Although the Petitioner submitted 
a credentials evaluation indicating that she possesses the equivalent of a bachelor's degree based on a combination of her 
education and professional experience, the Director appropriately advised her that USCTS will only consider experience in 
conjunction with a U.S. bachelor's degree or foreign equivalent degree when evaluating whether a petitioner possesses an 
advanced degree. The record reflects that the Petitioner re-submitted her academic records, work experience letters, and 
the same evaluation of her education and work experience in response to the RFE but did not specifically address the 
deficiencies noted by the Director. Therefore, her response did not overcome the Director's initial determination that she 
did not establish her eligibility as a member of the professions holding an advanced degree. 
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raised by the director, and those issues are dispositive of the case, the appeal will be dismissed based 
on those waived issues. See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
Accordingly, we will dismiss the appeal. 
Moreover, since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's appellate arguments regarding her eligibility for the requested 
national interest waiver. 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). As noted, to establish eligibility for a national 
interest waiver, a petitioner must first demonstrate their qualification for the underlying EB-2 visa 
classification. Here, the Petitioner has not done so, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
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