dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 17164151 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 05, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a finance executive, seeks second preference immigrant classification as a member of 
the 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 while she qualified as a 
member of the professions holding an advanced degree, the record did not establish that she was 
eligible for or otherwise merited a national interest waiver. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova 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 of job 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 definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
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. Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, 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. 1 
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. 
1 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expeitise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expe11ise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar, 26 l&N Dec. at 886 n.3. 
2 
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 
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. 2 
II. ANALYSIS 
The Petitioner is a finance executive in the oil and gas industry, and has been employed by companies 
in thel lin the United States and abroad for more than 15 years. She states that her 
proposed endeavor is to advance the US oil and gas industry through her expertise in finance 
management. 
The record shows that the Petitioner earned a degree in public accounting from the University of 
I I in 1998, and includes several reference letters from her former and current colleagues 
describing her experience with! I The Director determined that her degree was the foreign 
equivalent of a United States baccalaureate degree in accounting, and that the letters verified that she 
possesses at least five years of progressive, post-baccalaureate experience in her field. Therefore, 
because the Petitioner has established her eligibility for the underlying EB-2 immigrant visa 
classification, the sole issue on appeal is whether a waiver of the job offer requirement, and thus of a 
labor certification, would be in the national interest. 
In his decision, the Director concluded that while the Petitioner had established that her proposed 
endeavor had substantial merit, she had not shown that it was of national importance, as its impact 
would affect only her employer and not the broader oil and gas industry. On appeal, the Petitioner 
asserts that the impact of her work would not be limited to her employer, and that it would have 
significant potential to employ U.S. workers or have other substantial positive economic effects. She 
also asserts that she is well-positioned to advance her endeavor, and that her work benefits the U.S. 
even considering the availability of other qualified workers. After reviewing the record, we agree with 
the Director's conclusion that the Petitioner does not merit a national interest waiver. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated on Form I-140 that her proposed endeavor is to "deliver financial solutions in 
the oil and gas industry." In her personal statement, submitted in response to the Director's request 
for evidence, she elaborated on this, noting that in her current position withl I "personally 
shape[s] and drive[s] the completion of complex commercial transactions that help unlock additional 
value and continue to impact the energy landscape in [the] US ... " She also states that she expects to 
progress in her career in the near term as a chief financial officer, either with her current employer or 
another company of a wide range of sizes, including a start-up or new company. 
As noted above, in the first prong we focus on the specific endeavor proposed by a petitioner. Here, 
based upon our review of the record, we agree with the Director's conclusion that the Petitioner's work 
in financial management in the oil and gas industry is of substantial merit in the area of business. 
Turning to national importance, we note that the relevant question is not the importance of the 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. Here, the Petitioner 
must demonstrate the national importance of her continuing to serve as a finance manager for an 
employer in the oil and gas industry, rather than the national importance of the industry overall. In 
Dhanasar, we 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. 
Here, the Director concluded that the Petitioner's proposed endeavor would not broadly impact her 
field, but would primarily impact her employer. On appeal, the Petitioner asserts that the Director 
failed to address the totality of the evidence regarding the potential impact of her work, which includes 
several reference letters. For example,! I Vice President Finance! I for 
I !writes that the ~ner possesses "superior understanding of the Shales business," and that 
her work in improving_______J s business performance throu~h providing advice to the company's senior 
leaders "has a direct benefit to the nation, considering that mploys around I lpeo le in the 
U.S. alone." Similarly,! I Chief Financial Officer and Finance Director.----fo;:_r ......... -,--__ __. 
I I in Iraq, states in his letter that since the Petitioner's work directly impacts financial 
health, it "also impacts the U.S. and global economy, given thatj Is al , J I company and 
em~I !people globally." I Read of Enterprise Performance Management 
foL__Jin the Netherlands, also links the Petitioner's endeavor to the United States economy, stating 
tha~ Is shales business spans,__ ________ __. and "involves a I I capital 
spend per annum," and that the shale oil and gas sector "is helping transform the U.S. economy." And 
a former colleague of the Petitioner 1-:-----=-----:---,-_. of the indicates 
that in her current position with the Petitioner "help[s] unlock additional value to,__ _ __, hich 
in tum strengthens the U.S. economy ... " 
However, as stressed by the Petitioner on appeal, her proposed endeavor is not tied to or dependent on 
a particular employer, as she has stated that she may pursue employment with a smaller or start-up 
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company. The record does not include evidence regarding the potential impact of her proposed work 
with such a company, whether in terms of job creation or other substantial economic impacts. More 
importantly, neither! I letter nor other evidence in the record demonstrates that through her 
work in contributing to complex commercial transactions for her employer, the Petitioner will create 
more jobs for the overall gas and oil industry in the United States. The conclusory statement in his 
letter is not supported by documentary evidence in the record, which relates to increased jobs in the 
energy sector in general, and does not take into account the potential negative effect of such 
transactions on other companies in the United States oil and gas industry. Although the Petitioner 
asserts on appeal that these reference letters show the impact of her proposed endeavor as a finance 
manager beyond her current or future employer, they instead show the broader economic impact of 
I I the shale oil and gas sector and the oil and gas industry as a whole. 
The Petitioner also asserts that her proposed endeavor will benefit the environment of the United 
States. I I states that the Petitioner's expertise in the shales business "positively impacts the 
U.S. environment" because "shale gas bums cleaner than other forms of energy," such as coal and oil. 
Although the record verifies that the Petitioner has expertise in the shales sector of the industry through 
her experience working fotj,__ _ _.~he record does not support the statement that her work as a financial 
manager has, or more importantly will prospectively, result in benefits to the environment on anything 
more than a remote level. In addition, even if her proposed endeavor could be closely tied to the 
impact of the "shale revolution" in the United States, the Petitioner has not shown that this would be 
a benefit to the environment. Notably, what appears to be the abstract of a paper in the record titled 
"The Shale Gas Revolution: Developments and Changes" notes that there are environmental concerns 
relating to the extraction process and "a growing fear that shale gas may substitute not for coal as 
many originally hoped, but for renewables." 
.______,...--,---...... I letter, as well as others, also touts the benefits of the Petitioner's proposed endeavor to the 
national security of the United States, noting that production of shale oil and gas has led to the 
independence from foreign energy sources. Another letter from I executive, I I, 
generally describes the Petitioner's role in overseein? merger and acquisition transactions. He states 
that these are "between! j dollars and involve complex negotiations," and 
that it is important in light of increasing energy demands that United States companies retain experts 
such as the Petitioner. While documentary evidence in the record supports the impact of shale oil and 
gas production on the United States' energy self-reliance, it does not support a close link between the 
Petitioner's proposed work on complex commercial transactions for her current or future employer 
and these benefits. 
The Petitioner also highlights the impact of her proposed endeavor through her work with the 
Association oflntemational Petroleum Negotiators (AIPN), and references a letter of support detailing 
her contributions to the oil and gas industry through this organization. However, a thorough search of 
the record did not uncover such a letter, and it is not specifically mentioned in any of the lists of 
evidence provided with the initial petition or the Petitioner's response to the Director's RFE. More 
importantly, we note that she does not mention this organization in her personal statement describing 
her proposed endeavor, nor is it mentioned in either of the resumes she submitted. Any of the 
Petitioner's past or proposed endeavors with AIPN are only mentioned in the briefs submitted by 
counsel, and the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
5 
Counsel's statements must be substantiated in the record with independent evidence, which may 
include affidavits and declarations. 
For all of the reasons discussed above, we conclude that the Petitioner has not shown that her proposed 
endeavor would be of national importance, and she therefore does not meet the first prong of the 
Dhanasar analysis. 
B. Whether the Petitioner is Well Positioned to Advance Her Proposed Endeavor 
We agree with the Director's conclusion that the Petitioner's education and experience in financial 
management, as well as her track record of success with her current employer, establish that she is 
well positioned to advance her proposed endeavor. She therefore meets the second prong of the 
Dhanasar framework. 
III. CONCLUSION 
The Petitioner has not met the first prong of the Dhanasar analytical framework. We therefore need 
not address whether she meets the third prone, as we conclude that she has not established that she 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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