dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 24, 2023 In Re: 23102688 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an attorney who seeks to work in California as a registered foreign legal consultant, 
seeks classification as a member of the professions holding an advanced degree. 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 EB-2 immigrant classification. See 
section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services (USCIS) may grant this 
discretionary waiver of the required job offer, and thus ofa labor certification, when it is in the national 
interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the national interest waiver. The matter is now before us on 
appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish 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 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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. 
II. ANALYSIS 
The Director made no determination as to whether the Petitioner qualifies as a member of the 
professions holding an advanced degree or as an individual of exceptional ability. Instead, the decision 
only addressed the Petitioner's eligibility for a national interest waiver. Therefore, the issue for 
consideration on appeal is whether the Petitioner has established that a waiver of the requirement of a 
job offer, and thus a labor ce1iification, would be in the national interest. 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking a national interest waiver 
must submit, in duplicate, the uncertified employer-specific parts of a labor certification - either F01m 
ETA-750B, Statement of Qualifications of Alien, or the corresponding sections J, K, and L of its 
successor form, ETA Form 9089, Application for Permanent Employment Ce1iification. See generally 
6 USCIS Policy Manual F.5(D), https://www.uscis.gov/policy-manual. 
In a request for evidence (RFE), the Director observed that the Petitioner did not submit either form 
with the petition. In response, the Petitioner stated that she would not submit either f01m because she 
has no intending U.S. employer. 
The Petitioner seeks a waiver of the job offer requirement, and therefore need not submit a complete 
Form ETA-750 or ETA Form 9089 that has been certified by the Department of Labor. But the 
uncertified partial f01ms specified in the RFE do not relate to a specific U.S. job offer; rather, they list 
an individual's credentials and experience. The regulations require the submission of the specified 
partial f01ms as part of the process of applying for the national interest waiver. Because the Petitioner 
did not submit required documentation, she has not submitted a complete waiver application. 
Beyond the above procedural issue, the Director addressed the merits of the waiver application, which 
we will discuss here. 
The first Dhanasar prong, 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, 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 Petitioner earned a law degree i~ lEngland, in 1986, and is authorized to practice law in 
England and Wales. The Petitioner stated: "A Registered Foreign Legal Consultant may practice the 
law of his or her country in California but may not practice Californian law." Documents submitted 
with the petition show that the Petitioner had begun the process of registration in California, but they 
do not show that she had completed that process at the time she filed the petition in August 2021. The 
Petitioner stated her intention to "contribut[ e] to the work [ of the] Californian Legal Community," and 
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submitted two reference letters from 1996 regarding her prior employment as an attorney in England, 
but did not provide specific details about her proposed endeavor in the United States. 
The Director requested further information to describe the proposed endeavor, and evidence to 
establish that the proposed endeavor meets the various requirements outlined in Dhanasar. In 
response, the Petitioner stated: 
I would like to continue and extend my work in Private International Law/Conflicts of 
Law to the State of California .... 
A conflict of law can be substantive (the actual law) or procedural (the system that 
upholds or applies the law). A conflict of law often arise[s] during cross border 
transactions such as; 
• buying and selling prope1iy in a different jurisdiction 
• international marriage contracts 
• business immigration 
• cross border employment 
• trade agreements 
• choice of jurisdiction (which court and in which country should apply to a 
particular dispute). 
The Petitioner essentially described her area of intended practice, but she did not explain how her 
proposed endeavor has substantial merit and national importance. The rest ofthe Petitioner's response 
to the RFE concerned her past experience, her qualifications to practice law, and California's 
requirements for registration as a foreign legal consultant. 
The Director denied the petition, stating that, because the Petitioner had not submitted "a specific and 
well-detailed description of the proposed endeavor," she had not shown the substantial merit and 
national importance of the proposed endeavor. The Director stated that Dhanasar requires "broader 
implications" from an individual's work, such as significant employment creation or advances in a 
particular field. See Matter ofDhanasar, 26 I&N Dec. at 889-90. 
On appeal, the Petitioner asserts: 
My application is consistent with and not contrary to the United States Constitution and 
United States Federal law. The 'Foreign legal Consultant Programme' is a State Bar 
of California Programme and its practical working and success in part depends upon 
the support and application of Federal laws, rules and regulations. In my case this 
would mean a decision in my favour. 
The Petitioner seeks an EB-2 immigrant classification which, by law, typically requires a job offer and 
a labor certification. The burden is on the Petitioner to establish that it would be in the national interest 
to grant her an exception from that requirement. The assertion that her "application is consistent with 
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and not contrary to the United States Constitution and United States Federal law" is not sufficient to 
meet this burden. The Dhanasar requirements go beyond compliance with federal law. 
In a separate statement, the Petitioner states: 
I Appeal the decision of the USCIS on the grounds that; 
1. The case law is helpful in the decision making process and for the purpose of 
guidance. 
2. The case law does not negate the facts of my application which are supported 
by evidence. 
3. The case law does not negate the evidence that I have provided which satisfies 
the burden of proofrequired for a successful application. 
The Petitioner does not elaborate on the above points. It cannot suffice for the Petitioner to assert that 
her "evidence ... satisfies the burden of proof." She must show how it satisfies that burden. Here, 
she has not done so. The intention to seek registration as a foreign legal consultant is not, on its face, 
sufficient grounds for granting a national interest waiver, because foreign legal consultants are 
typically subject to the statutory job offer requirement. The Petitioner must explain how her proposed 
endeavor in that occupation meets the Dhanasar requirements. 
The Petitioner repeats her earlier statement that she intends "to provide regulated legal advice and 
assistance on the law of England and Wales to the Californian Legal Community. This advice would 
address cross border legal disputes," which "in turn will contribute to the United States community 
through the flow of interstate commerce." In this way, the Petitioner appears to assert that her work 
will have the "broader implications" contemplated by Dhanasar, but she does not specify how her 
legal advice will have implications beyond benefit to individual clients. Those clients may participate 
in interstate commerce, but the Petitioner has not met her burden of proof to show that those benefits 
will be significant at a broader level. 
After filing the appeal, the Petitioner has submitted new evidence indicating that she has been 
authorized to practice law in France. The Petitioner does not explain how this information is relevant 
to the appeal or the underlying petition. Furthermore, the French legal authority granted this 
authorization in December 2022, more than a year after the Petitioner filed the petition in August 2021 
and nine months after the Director denied the petition. A petitioner must establish eligibility at the 
time of filing. See 8 C.F.R. § 103.2(b)(l). The Petitioner does not explain how this December 2022 
authorization relates to her eligibility at the time she filed the petition. 
In light of the above conclusions, the Petitioner has not met her burden of proof to show that she 
satisfies the first prong of the Dhanasar national interest test. Detailed discussion of the remaining 
prongs cannot change the outcome of this appeal. Therefore, we reserve argument on the other 
2prongs. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-A-C-, 26 I&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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III. CONCLUSION 
The Petitioner has not established the substantial merit and national importance of the proposed 
endeavor. Therefore, the Petitioner has not shown eligibility for the national interest waiver, and we 
will dismiss the appeal as a matter of discretion. 
ORDER: The appeal is dismissed. 
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