dismissed EB-2 NIW Case: Human Rights Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 31, 2024 In Re: 32484334 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a human rights attorney, seeks employment-based second preference (EB-2) immigrant 
classification as either a member of the professions holding an advanced degree or 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. 
§ 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualifies as an individual of exceptional ability, 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. The Director 
also explained that the Petitioner had not complied with the regulation at 8 C.F.R. § 204.5(k)( 4)(ii), 
requiring submission of the employee-specific sections of the labor certification. The matter is now 
before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). 
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). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner 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 the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 T&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. 
Id. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, that to apply for an 
exemption of the job offer, "the petitioner must submit Form ETA -750B, Statement of Qualifications 
of Alien, in duplicate." 
II. ANALYSIS 
As an initial matter, and as explained in the Director's request for evidence (RFE) and decision, the 
Petitioner did not submit the Form ETA-750B, as required by the regulation at 8 C.F.R. 
§ 204.5(k)(4)(ii). 4 Although the Petitioner did provide the required form on appeal, because he was 
put on notice and given a reasonable opportunity to provide this evidence, we will not consider it for 
the first time on appeal. See 8 C.F.R. § 103.2(b)(l l) (requiring all requested evidence be submitted 
together at one time); Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (declining to consider 
new evidence submitted on appeal because "the petitioner was put on notice of the required evidence 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
4 In the alternative, the Petitioner may provide Sections J, K, and L of the ETA Form 9089, Application for Pe1manent 
Employment Certification. 
2 
and given a reasonable opportunity to provide it for the record before the denial"). For this reason 
alone, the petition is not approvable. 
A. Proposed Endeavor 
The Petitioner has also presented insufficient evidence regarding the proposed endeavor he intends to 
pursue. The Petitioner submitted supporting 
documentation indicating he is currently employed as a 
human rights attorney and asserts his job duties at a non-governmental organization (NGO) currently 
include managing a team of attorneys assisting individuals "who cannot bear to afford the heavy legal 
fees pertinent to their cases." While the Form I-140, Immigrant Petition for Alien Workers, indicates 
that his current occupation is "advocate/human rights activist" with an annual income of ten thousand 
dollars, Part 6, "Basic Information About the Proposed Employment," is blank. As explained by the 
Director in the RFE, "continuing employment in one's position, field, or industry is not an endeavor 
sufficient to evaluate [it under the Dhanasar] framework." In other words, being employed in an 
occupation does not constitute an endeavor. See generally 6 USCIS Policy Manual F.5(D)(l), 
https://www.uscis.gov/policymanual ("The term 'endeavor' is more specific than the general 
occupation; a petitioner should offer details not only as to what the occupation normally involves, but 
what types of work the person proposes to undertake specifically within that occupation.") 
In response to the RFE, the Petitioner asserted he "possses[ es] multi-facet[ ed] achievements 
encapsulating covering artistic contribution to serving as attorney defending clients from civil to 
criminal, human rights and free dispensation efforts for less privileged segments of the society." The 
Petitioner also submitted his resume, containing the objective of "help[ing] less fortunate people of 
society by safeguarding their human and legal rights and turning their weakness in to [sic] their benefit 
and protection." On appeal, the Petitioner submits further evidence of the work he has performed, 
including for the NGO that employs him. The Petitioner asserts his participation in work with global 
partners on legal aid projects will allow him to support U.S. initiatives to combat the human 
immunodeficiency virus (HIV). The Petitioner also states that, as an attorney, he has developed and 
presented insights on different areas of the law. 
Overall, the Petitioner has demonstrated his prior experience as a human rights attorney, his current 
employment in that position, and his interest in human rights advocacy. However, the Petitioner has 
not addressed what role he plans to occupy in human rights advocacy in the future with sufficient 
specificity. For example, he has not indicated whether he endeavors to continue as a human rights 
attorney or in another role related to HIV initiatives. Similarly, if the Petitioner intends to work as a 
human rights attorney, he does not indicate whether he intends to open his own practice or practice 
under an employer. And though the Petitioner has provided a list of specific job duties for his current 
and past positions, he has not proffered such information for any future position. Without more, the 
Petitioner has not sufficiently articulated his proposed endeavor or detailed its nature. 
B. Dhanasar Analysis 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, 
3 
health, or education. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. 
The Director determined that although the Petitioner had established the national importance of the 
proposed endeavor, he had not demonstrated its substantial merit. However, without more information 
about his specific proposed endeavor and how he plans to apply his knowledge and experience in the 
United States, we cannot conclude the Petitioner has met his burden of establishing it has both 
substantial merit and national importance as required by the first prong of the Dhanasar analysis. As 
such, the Director's determination that the Petitioner's proposed endeavor is of national importance is 
withdrawn. 
Because the Petitioner has not established eligibility under the first prong of the Dhanasar analysis, 
we conclude the Petitioner has not demonstrated eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 5 We also reserve a determination of the Petitioner's eligibility for 
the underlying immigrant classification. 6 Id. 
III. CONCLUSION 
The appeal will be dismissed for the above reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
5 Because our findings here are dispositive of this appeal, we need not reach, and therefore reserve, his arguments on 
appeal regarding the remaining prongs. 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 ofl­
A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternate issues on appeal where an applicant is otherwise 
ineligible). 
6 Although we will not address this issue further, we note that the Director did not explain their conclusion that the 
Petitioner qualifies as an individual of exceptional ability. While we may agree that he has satisfied at least three of the 
initial evidentiary criteria, the Director did not explain, and our review indicates the Petitioner did not sufficiently establish, 
that he possesses a degree of expe1iise significantly above that ordinarily encountered in his field. 
4