dismissed EB-2 NIW Case: Nonprofit Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 12210833 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , an executive specializing in the management of nonprofit organizations , seeks second 
preference immigrant classification as an individual of exceptional ability, 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. § l 153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner was a member of the professions holding an advanced degree or eligible 
for a national interest waiver. On appeal , the Petitioner asserted that he qualified for classification as 
an individual of exceptional ability, and that he was eligible for a national interest waiver. We agreed 
with the Director 's conclusion that the Petitioner did not qualify as a member of the professions 
holding an advanced degree , but remanded this matter to the Director for consideration of the 
Petitioner's qualification as an individual of exceptional ability. In addition, we withdrew the 
Director's decision that the Petitioner met the first prong of the national interest waiver analysis under 
Matter of Dhana sar, 26 I&N Dec . 884, and instructed the Director to review this issue and request 
further evidence of the nature of the Petitioner's proposed endeavor if deemed necessary. After 
considering the Petitioner's response, the Director found that he did not qualify as an individual of 
exceptional ability , and also concluded that while he met the first prong of the analysis under 
Dhanasar , he was not otherwise eligible for a national interest waiver. On appeal , the Petitioner 
submits asserts that he qualifies for the underlying EB-2 visa classification and is eligible for a national 
interest waiver. 
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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiary is recognized as 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. USCIS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14, PM-602-0005.l (Dec. 22, 
2010). 
2 
having a degree of expertise significantly above that ordinarily encountered in the field. 
8 C.F.R. § 204.5(i)(3)(i). 
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. 884.2 Dhanasar states that after EB-2 eligibility has been established, USCIS 
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. 
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, 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 
II. ANALYSIS 
The Petitioner has served in management positions for several companies, and has served on the board 
of non rofit or anizations includin the and the 
~----------------------~· Although much of his description of 
his proposed endeavor focuses on his past achievements, he indicates that he intends to continue 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
managing nonprofit organizations that promote Korean culture and diversity in the United States 
through programs and events. 
A. Individual of Exceptional Ability 
As noted, the Director concluded in his most recent decision that the Petitioner had not established his 
qualification for the underlying EB-2 classification. Specifically, while he found that the evidence 
met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B), regarding to a degree or diploma relating to 
the area of exceptionally ability and ten years of full-time experience in the occupation sought, he 
concluded that it did not show that the Petitioner had received recognition for achievements and 
significant contributions to the field of nonprofit management per the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner submits additional evidence in the form of certificates, some of which were 
previously submitted, from government entities and community organizations which acknowledge his 
contributions to the local community. Several of these were given to the Petitioner by various officials 
of the many for his contribution to specific events. For exam le a certificate 
date 2015 recognizes his "participation in the Radio Korea "' hile 
another dated .___ _ _,2014 salutes his "participation and support of the 2014 .__ ___ --;---,,Date 
Celebration." Others are less specific, such as a certificate of appreciation dated simply 2015 
and signed byl I Councilmemberl I which was given to the Petitioner "for 
exemplary efforts and accomplishments which have been of great value to the community ... " 
Although the certificates thank him for his participation and contributions to civic events in his 
community, they do not establish that he has been recognized for achievements and significant 
contributions to the field of nonprofit management. 
Other certificates in the record include a "Certificate of Congressional Recognition" dated .... I ___ _. 
D2012 thanking the Petitioner for his "contributions and donations to the Comfort Women 
Monument," and certificates from th_,__ _______________________ ___. 
andl I which thank him for his service to those organizations, which . These certificates recognize 
his contributions to those organizations, such as organizing fundraising and cultural events, but do not 
establish that the Petitioner has been recognized for significant contributions which have impacted the 
broader field of the management of nonprofit organizations. 
The Petitioner also submits on appeal a letter froml I of the University I I 
I 11 I summarizes the Petitioner's career in business and nonprofit organizations, 
and references several documents in the record. He concludes that the Petitioner "has played a critical 
role in the operations of numerous organizations dedicating to enriching the lives and promoting the 
culture of Korean American citizens." We have already considered the recognition given to the 
Petitioner as a result of his work for nonprofit organizations, as evidenced by the certificates described 
above. Also, as noted in the Director's most recent decision, letters such as these are less probative 
evidence of recognition than contemporaneous recognition honoring a specific achievement. In 
addition, we note that this criterion requires recognition by peers, government entities, or professional 
or business organizations, and I I falls into none of these categories. 
4 
Per the analysis above, we agree with the Director and conclude that the Petitioner has not established 
that he meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner has not submitted the required initial evidence of documents that meet at least three of 
the six criteria, and we therefore need not conduct a final merits analysis to determine whether the 
evidence in its totality shows that he is recognized as having a degree of expertise significantly above 
that ordinarily encountered in the field. 8 C.F.R. § 204.5(i)(3)(i). Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the recognition required for classification as an individual of exceptional 
ability. 
B. National Interest Waiver 
Although the Petitioner has not established his eligibility for the underlying EB-2 visa classification, 
and is therefore not eligible for a national interest waiver, we will briefly consider his claims under 
the first prong of the Dhanasar framework. 
In our previous decision remanding this matter to the Director, we concluded that the Petitioner's 
description of his proposed endeavor lacked detail, such that we were unable to determine that his 
work will have substantial merit and national importance. We also noted that the previous descriptions 
of the proposed endeavor focused on the Petitioner's previous work, rather than its potential 
prospective impact. In response to the Director's RFE seeking further detail, he submitted a personal 
statement which again focuses mainly on his past accomplishments, but also stated that he "manage[ s] 
several nonprofit organizations that promote the Korean culture and diversity in the U.S. through 
various programs and events." He indicated that in addition to serving as the Public Safety & 
Beautification Committee Chair for the I I he also holds executive positions with several other 
organizations, and submitted evidence including business registration documents and copies of 
business cards. These or anizations include the I I II and the.__ ___________ ___, Beyond his statement that I I 
t===J "publishes news and articles related to Korean American communities," he provides no 
information about how his proposed activities and roles with these organizations would advance his 
proposed endeavor of promoting Korean culture and diversity. 4 
In addition, while he refers to the website of the National Endowment for the Arts and its statement 
that one of the purposes of its grants is to "preserve and provide access to cultural and educational 
resources," the Petitioner does not provide a detailed description of how his activities with these 
organizations would potentially provide a prospective impact on those nationally important objectives 
at a broader level. Although we noted in Dhanasar that that impact is not evaluated in solely 
geographic terms, it is the Petitioner's burden to show that his proposed activities with thel I 
and other organizations will have broader implications in the field of the management of nonprofit 
organizations. 
4 The Petitioner also submitted limited evidence regarding his management of several businesses, including I I and 
.__ ___________ ___, Since his personal statement indicates that his petition rests on his management 
of nonprofit organizations related to Korean American culture, this evidence is not relevant to our analysis under the first 
prong of the Dhanasar framework. 
5 
The Director concluded in his most recent decision that the Petitioner met prong one of the Dhanasar 
framework, but did not provide an analysis of the evidence submitted in that regard in response to his 
RFE. We note that in evaluating whether the Petitioner is well positioned to advance his proposed 
endeavor, the decision states that "the personal statement submitted lacks, [sic] specific, detailed 
information regarding the beneficiary's proposed work in the United States." While we agree with 
that statement, that issue is properly considered under the first prong of the Dhanasar framework, 
given its focus on the future implications of the Petitioner's work, rather than the review of his past 
accomplishments and overall current positioning conducted in the second prong. We therefore 
withdraw that aspect of the Director's decision and conclude that the Petitioner has not submitted 
sufficient information to show that his proposed endeavor is of national importance. 
Because we conclude that the Petitioner has not established that he qualifies under the first prong of 
the Dhanasar framework, he is not eligible for a national interest waiver. Therefore, although he also 
asserts that he meets the requirements of the second and third prongs of the framework, we will reserve 
these issues. 5 
III. CONCLUSION 
The Petitioner has not established eligibility for the underlying EB2 immigrant visa classification as 
an individual of exceptional ability, nor has he demonstrated that he qualifies for a national interest 
waiver of that classification's job offer requirement. 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. 
5 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). 
6