dismissed EB-2 NIW Case: Emergency Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 9822244 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an emergency management specialist, seeks second preference immigrant 
classification as an individual of exceptional ability, 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 or as an 
individual of exceptional ability, and that he had not had not established that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits a brief asserting that he is eligible for exceptional ability 
classification and 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 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 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 ofjob offer-
(i) National interest waiver. ... [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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of 
exceptional ability. A petitioner 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). 
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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
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 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 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 States 
to waive the requirements of a job offer and thus of a labor certification. 3 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner maintains that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the official academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 4 
In the appeal brief: the Petitioner claims that he also meets the certification for a particular profession 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the 
membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), and the recognition 
for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). We have 
reviewed all of the evidence in the record and conclude that it does not support a finding that the 
Petitioner meets the requirements of at least three criteria. 
1. Evidentiary Criteria 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner presented certificates of completion for "Civilian Response to Active Shooter Events 
Train-the-Trainer," "Human Trafficking," "Incident Command System (ICS)/Emergency Operations 
Center (EOC) Interface," "Web EOC," "SANS Securing the Human," "Hurricane Awareness," 
"Defensive Driving for Light and Medium Duty Vehicles," "Fundamentals of Emergency Management," 
"National Response Framework" (introductory), "Emergency Planning," "Fundamentals of Risk 
Management," "National Incident Management System" (introductory), "An In-depth Guide to Citizen 
Preparedness," "Introduction to ICS," "National Incident Management System Intrastate Mutual Aid" 
(introductory), and "Weapons of Mass Destruction (WMD)/Terrorism Awareness for Emergency 
Responders." These certificates represent completion of individual training courses and not a license to 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner presented his Bachelor of Science degree in Homeland Security froml._ ____ __,I College (2017) as 
well as his academic transcript. 
3 
practice the profession or certification for a particular profession or occupation. Accordingly, the 
Petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a salmy, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner submitted a January 2018 letter informing him of his selection as "Program Assistant 
II for the I I Department of Safety, Division of Homeland Security and Emergency 
Management" at a biweekly salary of $994.15. He also provided his 2017 U.S. income tax return 
showing earnings of $21,556.00. In addition, the Petitioner offered employee pay statements showing 
biweekly earnings of $994.18 in March 2018, $1,009.52 in October 2018, and $128.33 in November 
2018. Furthermore, in response to the Director's Request for Evidence (RFE), he presented a June 2019 
"offer of employment for the position of full-time Probationary Dispatcher" with thd I Police 
Department at a salary of $37,264.00 per year and pay statements from July 2019 and August 2019. 
The Petitioner's 2019 job offer and pay statements from thel I Police Department, however, post­
date the filing of the petition. See 8 C.F .R. § 103 .2(b )(1 ). 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field. 5 Here, the Petitioner has not offered documentation showing that his earnings are indicative 
of exceptional ability relative to others in his field. Based on the foregoing, we agree with the Director 
that the Petitioner has not demonstrated that he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In response to the Director's RFE, the Petitioner provided membership certificates for the International 
Association of Emergency Managers (July 2019) and the Global Society of Homeland and National 
Security Professionals (August 2019). These membership certificates post-date the filing of the petition, 
and therefore the Petitioner has not shown that he was a member in the associations prior to or at the 
time of initial filing. See 8 C.F.R. § 103.2(b)(l). 
Additionally, the Petitioner submitted account information for his "Civilian Response to Active Shooter 
Events Train-the-Trainer" training course at'---------~-----,, , but he has not demonstrated 
that this information indicates he is a member of a professional association. While the record includes 
information about '----------------------------------' and its mission to provide "active shooter response training for first responders," this documentation 
identifiesl I ::ts a training institution rather than a professional association. The Petitioner 
therefore has not established that he meets this criterion. 
5 See USCIS Policy Memorandum PM-602-0005 .1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 21 (Dec. 22, 2010). 
https ://www.uscis.gov/legal-resources/policy-memoranda. 
4 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
As evidence for this criterion, the Petitioner provided recommendation letters from various individuals 
discussing his knowledge and work experience. The Director determined that these letters were not 
sufficient to demonstrate recognition for achievements and significant contributions to the industry or 
field. In his appeal brief: the Petitioner contends that he has contributed to the State ofl ts 
current active shooter protocols, but does not specifically identify any erroneous conclusion of law or 
statement of fact relating to the Director's findings for this criterion. Nor does the appeal brief even 
reference the Director's discussion regarding this criterion. Additionally, while the Petitioner asserts that 
he "has submitted documentation to satisfy this criterion," he does not identify the evidence. Without 
offering specific arguments to overcome the Director's findings, the Petitioner has not established that he 
fulfills this criterion. 
For the reasons set forth above, the Petitioner has not shown that he meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
2. Comparable evidence 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if 
the above standards "do not readily apply to the beneficiary's occupation." A petitioner should explain 
why he has not submitted evidence that would satisfy at least three of the criteria set forth in 8 C.F.R. 
204.5(k)(3)(ii) as well as why the evidence he has submitted is "comparable" to that required under 
8 C.F.R. 204.5(k)(3)(ii). 6 
On appeal, the Petitioner states that he has provided "other comparable evidence of eligibility," but he 
has not demonstrated that the standards at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his 
occupation. 7 He has not sufficiently explained why he has not submitted evidence that would satisfy 
at least three of the six regulatory criteria. As such, the Petitioner has not shown that he may rely on 
comparable evidence. 
In summary, the evidence does not establish that the Petitioner satisfies at least three of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii) or meets the comparable evidence requirements at 8 C.F.R. § 204.5(k)(3)(iii), 
and has achieved the level of expertise required for exceptional ability classification. 
B. 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. For the reasons discussed below, the 
Petitioner has not sufficiently demonstrated eligibility for a national interest waiver under the Dhanasar 
analytical framework. 
6 See USCTS Policy Memorandum PM 602-0005.1, supra, at 22. 
7 "General asse11ions that any of the six objective criteria described in 8 CFR 204.5(k)(3)(ii) do not readily apply to the 
alien's occupation are not probative and should be discounted." See USCIS Policy Memorandum PM-602-0005.1, supra, 
at 22. 
5 
Regarding the Petitioner's claim of eligibility under Dhanasar's first prong, he indicated that he "intends 
to continue his work in the area of homeland security, with a particular emphasis on active shooter 
scenarios and with regard to houses of worship in particular." He asserted that his proposed endeavor 
involves "the rising problems surrounding active shooters in our houses of worship, schools, recreational 
facilities to name a few . . . . Unfortunately, the active shooter field is not getting any smaller and 
personnel like myself will continue to be in demand by providing the necessary tools and experience to 
keep millions of people safe." The Petitioner further explained that he seeks to work "for Federal 
Homeland Security, Federal Emergency Management Agency, or any other major organization" 
responsible for protecting the American people. 8 In addition, the Petitioner stated: "I would like to 
establish a specialized organization founded by myself that will solely focus on preventative consulting 
for houses of worship across the United States. The consulting organization will provide specific training; 
advice, classes, threat assessments and advice specifically adhered to the religious cornrnunities."9 
In denying the petition, the Director concluded that the Petitioner had not sufficiently identified his 
proposed endeavor, and therefore he did not satisfy Dhanasar's first prong. In his appeal brief, the 
Petitioner argues that he "submitted a detailed business plan with regard to his intended specific endeavor: 
To provide the United States with active shooter protocol consulting services to places of worship. The 
[Director's] denial does not even mention this important submission." The Petitioner also points to letters 
of support discussing his knowledge, skills, and work experience, but these letters do not explain the 
national importance of his proposed work under the Dhanasar's first prong. The Petitioner's knowledge, 
skills, and experience in his field relate to the second prong of the Dhanasar framework, which "shifts 
the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the 
specific endeavor that he proposes to undertake has national importance under Dhanasar' s first prong. 
In determining national importance, the relevant question is not the importance of the field, industry, 
or profession in which the individual will work; instead we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we 
further noted that "we look for broader implications" of the proposed endeavor and that "[a]n 
undertaking may have national importance for example, because it has national or even global 
implications within a particular field." Id. We also stated that "[a]n endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national importance." Id. 
at 890. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. Although the 
8 As mentioned previously, the Petitioner served as a Program Assistant II for thd !Department of Safety 
from February 2018 until November 2018. In June 2019, he began full-time employment as a Probationary Dispatcher 
with thd !Police Department. As the Petitioner is applying for a waiver of the job offer requirement , it is not 
necessary for him to have a job offer from a specific employer. However, we will consider information about these 
positions to illustrate the capacity in which he intends to work in order to determine whether his proposed endeavor meets 
the requirements of the Dhanasar analytical framework. 
9 The record includes a June 2019 business plan for his company which provides market analyses, information about the 
proposed company and its services, business development goals and objectives, a description of the Petitioner's work 
experience, a marketing plan, and staffing projections. Regarding future staffing, the Petitioner's business plan anticipates 
that his company will employ three or four personnel in addition to himself. 
6 
Petitioner's statements reflect his intention to provide valuable active shooter protocol consulting 
services to future clients, he has not offered sufficient infonnation and evidence to demonstrate that 
the prospective impact of his proposed endeavor rises to the level of national importance. In Dhanasar 
we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. Here, we conclude the 
record does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond his 
employer or future clientele to impact his field or U.S. security interests more broadly at a level 
commensurate with national importance. 
Furthermore , the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation . Specifically, he has not shown that his company 's future staffing levels and 
consulting activity stand to provide substantial economic benefits inl I or the United 
States. While the Petitioner asserts that his company will hire U.S. employees, he has not offered 
sufficient evidence that the area where he plans to operate his company is economically depressed, 
that he would employ a significant population of workers in that area, or that his endeavor would offer 
the region or its population a substantial economic benefit through employment levels or business 
activity. Without sufficient information or evidence regarding any projected U.S. economic impact 
attributable to his future work, the record does not show that benefits to the U.S. regional or national 
economy resulting from the Petitioner's consulting projects would reach the level of"substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner 's proposed work 
does not meet the fust prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
as an individual of exceptional ability. Furthermore, as the Petitioner has not met the requisite first prong 
of the Dhanasar analytical framework, we conclude that he has not established he is eligible for or 
otherwise merits a national interest waiver as a matter of discretion. 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. 
7