dismissed EB-2 NIW Case: Human Resources

U.S. Citizenshipv 
and Immigration 
Services 
MATTER OF H-K-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a human resources manager, 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). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as 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. Matter of Dhanasar, 26 I&N 
Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the petition, concluding that the record _did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner asserts that the Director did not consider the evidence submitted, and that 
she is eligible for a waiver of the job offer requirement under the Dhanasar framework. 1 
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 
1 The Petitioner also indicated in Part 2 of Form 1-290B, Notice of Appeal or Motion, that she would submit additional 
evidence to the AAO within 30 calendar days of filing the appeal and, in her accompanying statement, she mentioned 
specific documentation that would be submitted. As of the date of this decision, more than five months later, we have 
not received additional evidence, and we will therefore base our determination on the record as of the date the appeal 
was submitted. 
Matter of H-K-
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. 
(8) 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 l&N Dec. 884.2 Dhanasar states that after EB-2 eligibility has been established, 
USCIS may, as a matter of discretion, grant a national interest waiver when the below prongs are 
met. 
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 
2 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) (NYSD07). 
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Matter of H-K-
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. 3 
IL ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
As noted above, before turning to the Petitioner's eligibility for a national interest waiver, we must 
first determine whether she qualifies for the underlying EB-2 visa classification. 4 The Petitioner 
initially submitted a screenprint from a website that, based only upon the website address 5, appears 
to be associated with While this document appears to indicate that the 
Petitioner earned a Master of Arts degree in Organizational Psychology on May 16, 2012, it also 
clearly states that it is not an official transcript. 8 C.F .R. § 204.5(k)(3 )(i) states as follows: 
(i) To show that the alien is a professional holding an advanced degree, the petition 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States 
advanced degree or a foreign equivalent ~egree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form 
of letters from current or former employer(s) showing that the alien has at 
least five years of progressive post-baccalaureate experience in the specialty. 
As the Petitioner has not submitted an official academic record which demonstrates that she holds a 
United States advanced degree or a foreign equivalent degree, or a baccalaureate degree or foreign 
3 See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
4 We note that, while the Director included eligibility for the EB-2 classification as a possible ground for denial in her 
December 2017 notice of intent to deny (NOID), this issue was not addressed in the denial decision. 
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Maller of H-K-
equivalent and five years of progressive post-baccalaureate experience, the record does not establish 
that she qualifies as a member of the professions holding an advanced degree. In addition, the 
Petitioner has not indicated that she qualifies as an alien of exceptional ability under 8 
C.F.R. § 204.5(k)(3)(ii), or submitted evidence to establish that she meets any of the six criteria 
listed and possesses a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). ' Accordingly, we do not find that she has 
adequately documented her qualification for the underlying EB-2 visa classification. 
B. National Interest Waiver 
As noted above, under the Dhanasar framework, the substantial merit of the proposed endeavor may 
be demonstrated in a wide range of areas. To satisfy the national importance requirement, the 
Petitioner must demonstrate the "potential prospective impact" of her work. In Part 6 of the Form 1-
140, the Petitioner lists her job title as "Human Resources Manager," and a brief statement submitted 
with her initial evidence states her intention to be employed by the 
She indicates in Part 15 of Form ETA 750 B that she is currently 
employed as an "M&A HR Specialist" with In responding 
to the Director's NOID, the Petitioner claims that has been unable to hire U.S. workers 
because of its unfamiliarity with U.S. labor and tax laws. She further describes her proposed 
endeavor in a brief statement submitted with her appeal, stating that she "seeks to assist in the 
correction of a well-recognized national condition, the inability of foreign corporations, especially 
those controlled by a foreign government to participate in the national economy." The Petitioner 
goes on to state that "the ability to develop a personnel department knowledgeable about US 
requirements as well as restrictions on those holding various nonimmigrant visas would result in 
increased employment of US workers, subsequent higher tax revenue and expanded investment in 
the US market." · 
While the Petitioner asserts that her employment with and possibly similar semi­
governmental organizations, would improve its ability to employ U.S workers and positively impact 
the national economy, she has not submitted evidence to support these assertions. The record does 
not contain evidence about or similar organizations, or their ability or intent to hire U.S. 
workers, nor does it contain documentation relating to the "well-recognized national condition" that 
the Petitioner refers to. Further, she has not sufficiently explained or documented how her proposed 
endeavor of developing a personnel department within such a company would create a significant 
economic impact or have broader implications for the U.S. economy. The Petitioner has not shown 
that the prospective implications of her work include "substantial positive economic effects" or 
otherwise rise to the level of significance required by Dhanasar. Id., at 890. As the Petitioner has 
not established the substantial merit or national importance of her proposed endeavor, we do not find 
that she has met the first prong of the Dhanasar framework. 
The second prong under the Dhanasar framework requires the Petitioner to establish that she is well­
positioned to advance her proposed endeavor. Further, the third prong requires her to demonstrate 
that, on balance, it would be beneficial to the United States to waive the requirements of a job offer 
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Matter of H-K-
and thus of a labor certification. However, because the Petitioner has not established the substantial 
merit or national importance of her proposed endeavor as required in the first prong of the 
framework, she is not eligible for a national interest waiver. Accordingly, discussion of the factors 
under the second and third prongs would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established her eligibility for the EB-2 visa classification, nor has she met the 
requisite three prongs set forth under the Dhanasar framework. Accordingly, we find that she has 
not established that she is eligible or otherwise merits a national interest waiver as a matter of 
discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-K-, ID# 1556890 (AAO Sept. 18, 2018) 
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