dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
InRe: 17183295 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a human resources specialist, 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 the record did not 
establish that a waiver of that classification's job offer requirement, and thus of a labor certification, 
would be in the national interest. 
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. 
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 r&N Dec. 884. Dhanasar states that after EB-2 eligibility has been established, users 
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. 
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, users 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 
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 expe1iise 
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. 
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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 previously worked as a human resources specialist, primarily with I I 
Din Brazil, until 2015. He proposes to offer his experience and expertise in human resources to 
work for a company in the United States, specifically in the areas of global mobility, hiring, 
recruitment, benefits, remuneration, and contract and personnel management. 3 The record includes 
diplomas and transcripts showing that he earned a bachelor degree in translation and interpretation in 
1994, and a licentiate degree in language arts in 1995, from the 
irl IBrazil. In addition, the Petitioner submitt~e_d_a_d_i_p-lo_m_a_a_n_d-tr_a_n_s_c-ri-p-ts_w_h_i-ch~ 
indicate that he received a master's degree of business administration froml I 
in 2014. Further, the record includes letters documenting the Petitioner's more than 30 years of 
experience as a human resources specialist with I I While the Director did not 
indicate in his decision whether the Petitioner was eligible for the EB-2 immigrant visa classification, 
on review we conclude that he qualifies as a member of the professions with an advanced degree. 
Therefore, the sole issue on appeal is whether he merits a waiver of the classification's job offer 
requirement under the framework laid out in Dhanasar. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
As stated above, the merit of a petitioner's proposed endeavor may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. The Petitioner 
submitted materials from the Society of Human Resources Management (SHRM) and The Manpower 
Group which show the substantial merit to U.S. businesses of his proposed endeavor in recruiting, 
hiring, and retaining qualified employees. Accordingly we agree with the Director that the Petitioner's 
proposed endeavor is of substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. In his decision, the Director concluded that the description of the 
Petitioner's proposed endeavor was not sufficiently specific, but instead related more generally to the 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 For the first time on appeal, the Petitioner unrides a statement indicating that his endeavor would include volunteering 
with nonprofit organizations in the I Florida area. This statement is not clear whether this is intended to replace 
his previously stated endeavor of employment in the field of human resources, or whether he would volunteer in addition 
to pursuing employment as a human resources specialist. Nevertheless, a petitioner may not make material changes to a 
petition in an effmi to make a deficient petition conform to USC IS requirements. See Matter of Izummi, 22 l&N Dec. 169, 
176 (Assoc. Comm'r 1998). He also submits new evidence with his brief However, where, as here, a Petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO 
will not accept evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). The Director's request for evidence specifically sought further information 
about the national importance of the Petitioner's proposed endeavor. We will therefore not consider this new addition (or 
change) to the Petitioner's proposed endeavor, or the new evidence submitted on appeal. 
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occupation of human resources specialist. On appeal, the Petitioner continues to list the benefits of 
human resources work in general and make broad statements such as "Qualified employees have 
higher productivity and lower turnover," "U.S. organizations growing at a rapid pace are more likely 
to operate in global markets," and "Companies growing on U.S. soil generate more jobs in the country 
and positively enhance the U.S. economy." But none of these potential widespread benefits are 
directly linked to the any specific activity proposed by him. 
Further, the Director stated that the Petitioner had not shown that his work for a single, unspecified 
employer would have national or even global implications in the human resources field, as the effects 
of his endeavor would be limited to that company and its employees. In his appeal brief, the Petitioner 
asserts that his endeavor is "capable of producing substantially positive effects, due to the ripple 
effects" of his activities. However, in addressing national importance in the first prong of the 
framework, the Dhanasar decision sets out that the focus is on the specific endeavor being 
proposed. As such, we do not consider the indirect consequences of a petitioner's activity when 
determining whether it is of national importance. The Petitioner has not provided evidence to support 
his assertion that his work as a human resources specialist for one or more employers would have 
substantially positive effects or would otherwise have broader implications beyond those employers. 
The Director also noted in his decision that to the extent that the Petitioner described his pursuit of 
further training and professional development, these activities would support his endeavor rather than 
contribute to its national importance. We agree, and note that the Petitioner does not explain how they 
would have broader implications in the human resources field beyond himself. 
For all of the reasons specified above, we agree with the Director's conclusion that the Petitioner has 
not established that his proposed endeavor is of national importance, and that he therefore does not 
meet the requirements of the first prong of the Dhanasar framework. 
B. Whether the Petitioner is Well Positioned to Advance his Proposed Endeavor 
The second prong of the Dhanasar framework shifts the focus from the proposed endeavor to the 
foreign national, and takes a variety of factors into account when considering whether they are well 
positioned to advance the proposed endeavor. Those factors include, but are 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. 
Here, the Petitioner has provided evidence of his educational qualifications to continue working as a 
human resources specialist, certificates showing his completion of training in this field, and reference 
letters from former colleagues which document his decades of experience in this occupation. These 
letters describe the completion of human resources projects for his employer, including those 
involving compensation and benefits processes, employee hiring, and the repatriation of international 
employees. The second reference letter from.__ _________ __, also states that a paper that 
the Petitioner presented at a conference on the latter subject "left a crncial and unprecedented legacy 
for the organization and scientific community," but the record does not include evidence to support 
the paper's influence in the broader field of human resources. 
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While the evidence mentioned above certainly supports the Petitioner's qualification to continue 
successfully working in the human resources field, that is only one of the factors mentioned in the 
Dhanasar decision, and in this case it is not determinative when considered with other factors. As 
noted by the Director in his decision, the Petitioner's plan for advancing his proposed endeavor 
consists only of his statements that he plans to work for an employer in the U.S. He does not identify 
a specific area, type or size of employer, or industry in which he would work, nor does he indicate 
how he would otherwise engage in human resources activities. While a petitioner seeking a national 
interest waiver is requesting a waiver of the underlying immigrant visa classification's job offer 
requirement, here the Petitioner's statement of intent is insufficient to show that he has a plan or model 
to advance his endeavor in the United States. In addition, when viewed in light of his lack of 
employment, or pursuit of any other activity, in his proposed endeavor for more than three years prior 
to the filing of his petition, and the lack of evidence of any action to implement his vague plan, the 
Petitioner's statement of intent is not only insufficient to show his commitment to his proposed 
endeavor, but is also of significantly reduced credibility. We therefore agree with the Director and 
conclude that the Petitioner has not established that he is well positioned to advance his proposed 
endeavor in the United States, and does not meet the second prong of the Dhanasar framework. 
III. CONCLUSION 
The Petitioner has not met the first or second prongs of the Dhanasar analytical framework. We 
therefore conclude that he has not established that 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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