dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 263 79193 Date: May 11 , 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or 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. 
§ 1 l 53(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. The matter is now before 
us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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 of progressive 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 10l(a)(32) of the 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). 
Furthermore, "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) . Meeting at least three criteria, however, does not, in and of itself, establish 
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 10l(a)(32) of the Act. 
eligibility for this classification. 2 If a pet1t10ner 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 3, 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. 
On appeal, the Petitioner submits a brief addressing only his eligibility as an individual of exceptional 
ability. Specifically, the Petitioner contends that he meets at least three of the categories of evidence 
at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). However, the Petitioner does not dispute or contest the Director's 
determinations that he did not qualify for classification as a member of the professions holding an 
advanced degree, and that he had not established a waiver of the required job offer, and thus of the 
labor certification, would be in the national interest. Specifically, the Director concluded that the 
Petitioner did not present evidence he possesses an advanced degree and that his documentation did 
not satisfy any of the three prongs set forth in the Dhanasar precedent decision. 
Accordingly, we will not address these two uncontested grounds on appeal, and we deem them to be 
waived. If the affected party does not address issues 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). Moreover, since the Petitioner's inability to 
demonstrate eligibility for a national interest waiver by satisfying the three prongs set forth in 
Dhanasar is dispositive of his appeal4, we decline to reach and hereby reserve the Petitioner's 
appellate arguments regarding his eligibility as an individual of exceptional ability. 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 of L-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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 In addition, the regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national interest] 
exemption the petitioner must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate." Alternatively, 
U.S. Citizenship and Immigration Services will accept parts J, K, and L of Form ET A 9089, Application for Permanent 
Employment Certification. See 6 USCIS Policy Manual F.5(D), https://www.uscis.gov/policy-manual/volume-6-part-f­
chapter-5. The Petitioner did not submit either of these forms in response to the Director's request for evidence. Because 
the Petitioner has not submitted either form, he has not properly applied for a national interest waiver. 
2 
As the Petitioner has not overcome the Director's determination that he did not meet the requisite three 
prongs 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. 
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