dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 9, 2023 In Re: 28582860 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a nurse, seeks classification as an individual of exceptional ability. 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, 8 U.S.C. § 1 l 53(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 did not 
establish that she qualifies as an individual of exceptional ability and, therefore, the issue of qualifying 
for a national interest waiver was moot to the petition's decisional outcome. 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, which in this case, is claimed as an individual of 
exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 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). However, meeting the 
minimum requirements by providing at least three types of initial evidence does not, in itself, establish 
that the individual in fact meets the requirements for exceptional ability. See generally 6 USCIS Policy 
Manual F.5(B)(2), https://www.uscis.gov/policymanual. In the second part of the analysis, officers 
should evaluate the evidence together when considering the petition in its entirety for the final merits 
determination. Id. The officer must determine whether the petitioner, by a preponderance of the 
evidence, has demonstrated a degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business. Id. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884,889 (AAO 2016) provides 
that users may, as matter of discretion, 1 grant a national interest waiver if the petitioner shows: 
• 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. 
The Director determined that the Petitioner met at least three out of six criteria listed at 8 e.F.R. 
§ 204.5(k)(3)(ii) and conducted a final merits determination. The Director acknowledged the 
Petitioner's experience, including her educational credentials, professional license, and membership 
in a professional association, but determined the record lacked evidence that the Petitioner's 
professional achievements set her apart from other nurses in the industry to show a degree of expertise 
significantly above that ordinarily encountered in her field as required to establish exceptional ability. 
Because the Petitioner did not establish her eligibility for the underlying EB-2 classification, the 
Director deemed the issue of whether she qualifies for a national interest waiver moot and denied the 
petition, concluding that the Petitioner did not establish eligibility for the benefit sought. 
On appeal, the Petitioner asserts that the Director erred by stating in a request for evidence (RFE) that 
the Petitioner met at least three of the six initial categories of evidence but ultimately concluding in 
the denial that the Petitioner was not an individual of exceptional ability. The Petitioner asserts that 
pursuant to the users Policy Manual, a follow-up RFE should have been issued prior to the petition's 
denial and the Director's failure to do so constituted clear error. 
Upon review, we find the Petitioner's arguments misplaced. The users Policy Manual states that 
users has the discretion to deny a benefit request without issuing an RFE. See generally 1 USCIS 
Policy Manual E.6(F), https://www.uscis.gov/policymanual; see also 8 e.F.R. § 103.2(b)(8)(ii). The 
users Policy Manual farther states, "If the officer determines a benefit request does not have any 
legal basis for approval, the officer should issue a denial without prior issuance of an RFE or NOID." 
Id. at E.6(F). 
In this matter, the Director issued an RFE that specifically identified the legal and evidentiary 
requirements of the immigrant classification that the Petitioner seeks, and noted that the Petitioner had 
satisfied the initial evidence requirements for classification as an individual of exceptional ability. As 
noted above, and as clearly stated both in the Director's RFE and in the denial, meeting the minimum 
requirements by providing at least three types of initial evidence is not sufficient to establish that the 
Petitioner is an individual of exceptional ability, but instead is only the first step. See generally 6 
USCIS Policy Manual, supra, at F.5(8)(2). Here, the second step of the process is based on a 
comprehensive qualitative analysis of the evidence. The Director concluded in a final merits 
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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determination that the Petitioner did not establish by a preponderance of the evidence that she has 
achieved a degree of expertise that is significantly above that ordinarily encountered in the sciences, 
arts, or business. See id. 
On appeal, the Petitioner does not address the Director's final merits determination analysis and 
instead claims that she was not afforded the opportunity "to address eventual insufficiencies" in her 
application due to the Director's failure to issue a follow-up RFE. The regulation at 8 C.F.R. 
§ 103.2(b)(8), however, clearly states that "[i]fthe record evidence establishes ineligibility, the benefit 
request will be denied on that basis." Where evidence of record indicates that a basic element of 
eligibility has not been met, it is appropriate for the Director to deny the petition without an RFE. 
As noted, the Petitioner does not address the Director's final merits determination in her appellate 
submission. When dismissing an appeal, we generally do not address issues that were not raised with 
specificity on appeal. Issues or claims that are not raised on appeal are deemed to be ""waived." 2 
Since the Petitioner did not address this issue with specificity on appeal, we deem the issue waived 
and conclude the Petitioner has not established that she qualifies for classification as an individual of 
exceptional ability. 
Accordingly, we adopt and affirm the Director's decision regarding their discussion of exceptional 
ability and the final merits. See Matter o_fBurbano, 20 I&N Dec. 872,874 (BIA 1994); see also Giday 
v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the 
decision below has been "universally accepted by every other circuit that has squarely confronted the 
issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate 
adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). 
As the Petitioner has not established the threshold requirement of eligibility for the EB-2 classification, 
analyzing her eligibility for a national interest waiver under the Dhanasar framework is unnecessary. 
ORDER: The appeal is dismissed. 
2 See, e.g., Matter ofM-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies rrom circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 
F.3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal f01m is not waived, despite failure to address in the brief). 
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