dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
In Re: 17571346 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 23, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a human resources (HR) manager, seeks classification as a member of the professions 
holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business . 
See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The 
Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this 
employment-based, "EB-2" immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that he had 
not established that a waiver of the required job offer, and thus of the 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 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. 
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). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as a matter of discretion, 1 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, regarding 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 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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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's resume lists a number of short-term jobs in various fields from 1993 to 2001, and 
indicates that he served as a senior manpower and recruitment officer for.........,. _______ ~ 
I I from May 2001 to December 2018. In March 2019, he began working as a human 
resources partner with I I described as a "network of . . . freelance recruitment 
professionals." He entered the United States as a B-2 nonimmigrant visitor in September 2019. 
A. Eligibility for the Underlying Immigrant Classification 
The Director denied the petition based the Dhanasar framework for national interest waiver petitions, 
but first we will address a threshold issue relating to the Petitioner's eligibility for the underlying 
immigrant classification. 
The Director determined that the Petitioner qualifies for classification as a member of the professions 
holding an advanced degree. We disagree, as explained below. 
1. Member of the Professions Holding an Advanced Degree 
In the initial filing, the Petitioner did not specify whether he seeks classification as an individual with 
exceptional ability in business or as a member of the professions holding an advanced degree. His 
initial submission consists primarily of his resume; a job description for his position at .... I--~ 
reference letters from employers; and copies of various diplomas and training certificates. 
In a request for evidence (RFE), the Director stated, without elaboration, that "the submitted evidence 
demonstrates the beneficiary qualifies for the requested classification (E21)." Elsewhere in the RFE, 
the Director stated that the Petitioner "is seeking immigrant classification as a member of the 
professions holding an advanced degree." In the denial notice, the Director stated: "The petitioner 
holds a Master of Business Administration [degree]. He meets the underlying classification by holding 
an advanced degree." 
The Director's analysis, however, was incomplete, for two reasons. First, the Petitioner must show 
that his foreign degree - in this case, a "master of business administration" degree from ._I--~ 
in Egypt - is equivalent to a United States advanced degree. See 8 C.F.R. ~------~ § 204.5(k)(3)(i)(A). The record does not contain a credential evaluation or other documentary 
evidence to establish the necessary equivalency. 
Second, the Petitioner must not only hold an advanced degree, but also be a member of the professions. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines a profession as one of the occupations listed in section 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
10l(a)(32) of the Act (architects, engineers, lawyers, physicians, surgeons, and teachers), 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. In this instance, the Petitioner's earliest claimed 
college degree is a bachelor's degree in financial and business studies that he received in 2006. 
Because! I hired the Petitioner as a senior manpower and recruitment officer in 2001, about five 
years before he earned that degree, we must conclude that a bachelor's degree is not the minimum 
requirement for entry into the occupation. 
With respect to the Petitioner's prospective employment in the United States, the Petitioner has 
provided only general and conflicting information about his intended occupation. He refers to himself 
as a "human resources manager," which is a specific job title. A particular position may have 
minimum educational requirements. But he also indicates that he may choose to work as a freelancer. 
(As discussed farther below, the Petitioner states, on appeal, that he seeks to run his own staffing 
agency.) It is not evident that any mechanism exists to prevent such freelance work by individuals 
without a baccalaureate degree. As such, the information is not sufficient to show that the Petitioner 
seeks employment in a profession. 
For the above reasons, we withdraw the Director's finding that the Petitioner qualifies as a member of 
the professions holding an advanced degree. 
2. Exceptional Ability 
On appeal, the Petitioner states that "USCIS accepted [his] proof that he is an 'alien of exceptional 
ability' and therefore, there is no need to address this point farther." The record does not support this 
assertion. As discussed above, the Petitioner initially did not specify which EB-2 classification he 
sought, and to the minimal extent that the Director discussed the issue, the Director referred to the 
Petitioner as a member of the professions holding an advanced degree. There has been no 
determination that the Petitioner qualifies as an individual of exceptional ability. 
Also, at no time in this proceeding has the Petitioner articulated a specific claim of exceptional ability 
in business and explained how the record supports such a claim. Because the burden of proof rests on 
the Petitioner to establish eligibility, and because we will dismiss the appeal for other reasons, we will 
not undertake an initial determination regarding exceptional ability at the appellate stage. 
Below, we will discuss the Petitioner's national interest claim under the Dhanasar framework. The 
Director concluded that the Petitioner did not sufficiently describe the proposed endeavor, and had not 
met any of the three Dhanasar prongs. 
B. Nature of the Proposed Endeavor 
On the petition, the Petitioner states that he seeks employment as a "human resources manager," who 
will "manage and implement various HR activities (organisation design, JA, recruitment, etc.) in order 
to efficiently meet short and long-term staffing requirements, manage the execution of organisational 
development in line withl ts strategy, objectives and standards." The reference tol I 
implies that the Petitioner seeks employment there, but the record does not show tha~ I seeks 
to employ him in the United States, or thatl I has U.S. operations at all. 
4 
In an RFE, the Director set forth the Dhanasar framework and asked the Petitioner to "submit a 
detailed description of [his] proposed endeavor," because the initial submission "does not indicate a 
specific endeavor that the beneficiary proposed to undertake." The Petitioner's response includes a 
five-page statement which discusses his past experience but provides few details about his proposed 
endeavor beyond stating that he seeks to continue working in human resources. In a section of the 
statement headed "Commitments and Future Plans," the Petitioner states that he has begun taking 
courses in order to familiarize himself with U.S. business practices, and that he is "financially very 
stable." 
Elsewhere in his statement, the Petitioner states that his work "might include some or all" of several 
listed responsibilities, including "Manpower Planning," "Recruitment, Selection, and Onboarding," 
and "Training and Development." The Petitioner asserts that he "can serve organizations as ... one 
of their HR management staff or as an external consultant providing freelanc[e] services." This open­
ended assertion identifies potential options rather than a specific proposed endeavor. The Petitioner's 
statement in response to the RFE does not mention I I through which he had 
previously performed freelance HR work in Qatar, or any other named organization that performs a 
similar function. 
The above information shows that, before the appeal, the Petitioner had stated a general intention to 
work in the HR field in some capacity, but he had not identified a specific proposed endeavor. 
In the denial notice, the Director stated: 'The petitioner's initial evidence did not indicate a specific 
endeavor. In response to the RFE, the beneficiary indicated that he would work as a[ n] HR Certified 
Professional, but this is a description of an individual [sic] not an endeavor." 
On appeal, the Petitioner asserts that the Director erred by referring to the Petitioner as an "HR 
Certified Professional" instead of an "HR Manager." The Petitioner does not explain how this use of 
terminology might have prejudiced the outcome of the decision. Moreover, in his response to the 
RFE, the Petitioner repeatedly refers to himself as "an HR certified professional" and "a Certified 
Professional in Human Resources." 
The Petitioner states that he provided a detailed employment history, which "clearly described an 
endeavor of working as an HR Professional/Manager, which is the field where he has over 20 years 
of experience overseas." Prior to the appeal, the Petitioner identified his field, but not the "specific 
endeavor" required under Dhanasar. See id. at 889. 
On appeal, the Petitioner states that he will not "only be employed as an employee," and that he 
"registered his own company ... on November 21, 2020 in order to start operating his own staffing 
agency in the U.S." This registration took place six days before the denial of the petition, after the 
Petitioner had responded to the RFE. The Petitioner also submits a copy of the new company's 
business plan, dated three weeks after the filing of the appeal. Therefore, the record contained no 
information about the company for the Director to consider at the time of the denial. As noted above, 
the RFE response included only vague speculation that the Petitioner may choose to work as "an 
external consultant providing freelanc[e] services," while, in the same sentence, acknowledging that 
he may instead seek a position on the "HR management staff' of an unnamed employer. 
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The Petitioner cites chapter 3.8(b) of the AAO Practice Manual, which states that "[t]he AAO will 
accept new evidence on appeal." The Petitioner also asks for a degree of consideration because he 
claims to have initially relied on a third-party preparer who proved to be uncooperative after the 
Petitioner received the RFE. Nevertheless, the purpose of an appeal is to establish errors of fact or 
law in the underlying decision. See 8 C.F.R. § 103.3(a)(l)(v). New information about a newly 
established company does not establish any such error. 
We agree with the Director that, based on the information available to the Director at the time of the 
decision, the Petitioner had identified his intended field of employment, but not a specific proposed 
endeavor. The distinction is significant because Dhanasar did not create, either explicitly or 
implicitly, blanket waivers for entire fields, occupations, or specialties. If the proposed endeavor is 
simply a statement of an individual's intended occupation with a description of the duties inherent to 
that occupation, then that individual seeks, in effect, a waiver based on the nature of the occupation. 
C. Substantial Merit and National Importance of the Proposed Endeavor 
The Director concluded that, without "a detailed description of the proposed endeavor ... , USCIS is 
unable to determine that the beneficiary's endeavor has both substantial merit and national 
importance." We will focus here on the "national importance" element. 
In determining national importance, 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. We farther 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. 
In his RFE response, the Petitioner states: "HR Professionals are an important partner in the strategic 
decision-making process, and without a proper functioning human resource department, a company 
would fail to achieve a high level of efficiency and workforce management." This assertion relates to 
the collective importance of HR specialists, but does not explain how his work, in particular, would 
have national importance. 
The Petitioner, in his RFE response, also lists specific tasks he would undertake, such as "Manpower 
Planning" and "Recruitment budgeting." He explains how these tasks would benefit his employer or 
clients, but does not explain their broader implications. Importance to a specific company or 
organization does not necessarily translate into national importance. 
On appeal, the Petitioner states that "HR affects companies ... by attracting, hiring, and retaining the 
appropriate personnel." General assertions about the importance of HR management rely on the 
collective, aggregate impact of everyone working in the field, each one directly affecting one employer 
or a small number of clients. 
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The Petitioner also asserts that "many companies would be hard pressed to find a more qualified 
individual than" him, because "[ v ]ery few HR Professionals have as much experience recruiting for 
international organizations as" he does. The Petitioner does not explain how these assertions show 
the national importance of his prospective individual work as an HR manager. As we noted in 
Dhanasar: 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise 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, that 
individual cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his field of expertise. 
Id. at 886 n.3. 
For the above reasons, we conclude that the Petitioner has not established the national importance of 
his proposed endeavor. Because this issue, by itself: determines the outcome of the appeal, we reserve 
the remaining Dhanasar prongs. 3 
III. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that he has not established eligibility for a national interest waiver as a matter of discretion. 
We also conclude that the Petitioner has not met his burden of proof regarding the underlying 
immigrant classification. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
3 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 l&N Dec. 516. 526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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