dismissed EB-2 NIW Case: Psychology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 29, 2024 In Re: 30188621 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a psychologist, seeks classification as a member of the professions holding an advanced 
degree or 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. 
§ 1153(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. 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Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or 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 to be discretionary in nature). 
The Director of the Texas Service Center denied the petition, concluding 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 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 novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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. 
Whilst 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 (AAO 2016). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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 the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. Substantial Merit and National Importance 
On appeal, the Petitioner presents a brief but does not add new evidence or assertions to address the 
reasoning the Director provided in the decision. In the request for evidence (RFE) and the decision, 
the Director addressed many of the Petitioner's assertions regarding the national importance of the 
proposed endeavor. The Director discussed multiple pieces of evidence individually and quoted 
material in several instances. For example, the Director discussed the Petitioner's proposed endeavor 
statement, updated and initial petition support letter, as well as White House fact sheets and 
proclamations the Petitioner submitted into the record. The Director identified the evidence and 
explained the specific reasons why the evidence did not establish the Petitioner's eligibility under the 
Dhanasar analytical framework. 
We adopt and affirm the Director's analysis and decision regarding the first Dhanasar prong. See 
Matter ofBurbano, 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 F3d. 5, 8 (1st 
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Cir. 1996) (joining eight U.S. Courts of Appeals in holding that appellate adjudicators may adopt and 
affirm the decision below as long as they give "individualized consideration" to the case). Below we 
provide individualized consideration to the petition and to many of the Petitioner's appellate claims. 
On appeal, the Petitioner discloses a misunderstanding of the Dhanasar analytical framework. To 
satisfy the Dhanasar analytical framework's first prong, the Petitioner must demonstrate that their 
proposed endeavor has both substantial merit and national importance. As the Director correctly 
concluded, the endeavor's merit may be demonstrated in a range of areas such as business, 
entrepreneurialism, science, technology, culture, health, or education. And the "governmental 
evidence" the Petitioner submitted can support that. But, when evaluating national importance, we 
shift the focus from the importance of the field or industry within which a petitioner will work to "the 
specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. The Director was correct that the "governmental evidence" the Petitioner submitted did not 
address their specific endeavor's national importance. Consequently, as the Director correctly 
observed, the evidence did not "address why the [Petitioner's] proposed endeavor ... is of national 
importance." 
The Petitioner asserts the Director abused their discretion in failing to address all evidence, citing 
Buletini v. INS, 850 F. Supp. 1222 (E.D. Mich. 1994) in support. The court in Buletini, however, did 
not reject the concept of examining the quality of the evidence presented to determine whether it 
establishes a petitioner's eligibility, nor does the Buletini decision suggest that USCIS abuses its 
discretion if it does not provide individualized analysis for each piece of evidence. And the Petitioner 
also cites Chursov v. Miller, l:18-CV-02886-PKS (S.D. NY 2019) that a "partial analysis shall lead 
to an unreasonable and, thus, arbitrary decision." But the Petitioner has not demonstrated the specific 
way the Director's analysis was incomplete other than a generalized assignment of error. 1 When 
USCIS provides a reasoned consideration to the petition, and has made adequate findings, it will not 
be required to specifically address each claim the Petitioner makes, nor it is necessary for it to address 
every piece of evidence the Petitioner presents. Guaman-Loja v. Holder, 707 F.3d 119, 123 (1st Cir. 
2013) (Citing Martinez v. INS, 970 F.2d 973, 976 (1st Cir.1992); see also Kazemzadeh v. US. Atty. 
Gen., 577 F.3d 1341, 1351 (11 th Cir. 2009); Casalena v. US. INS, 984 F.2d 105, 107 (4th Cir. 1993). 
We conclude the record reflects the Director's consideration of all evidence in the totality even though 
the Director did not address each piece of evidence individually. 
The Petitioner contends that their initial filing and RFE response contained ample "testimonial and 
objective documentary evidence to establish the national importance of the proposed endeavor from 
both an economic and social welfare standpoint." However, the Petitioner does not specifically 
identify any evidence the Director ignored regarding the economic and social welfare impact of the 
proposed endeavor. As stated above the objective evidence in the record, the Petitioner's self-styled 
"governmental evidence," does not reference the Petitioner's specific proposed endeavor. Instead the 
Petitioner improperly relies upon the importance of the industry and professions described within the 
"governmental evidence" as sufficient to establish the national importance of the proposed endeavor. 
1 We are not bound to follow the unpublished decision of a United States district court in cases arising within the same 
district. See Matter ofK-S-, 20 I7N Dec. 715 (BIA 1993). 
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The testimonial evidence in the record, specifically the letters ofrecommendation and work experience 
the Petitioner submitted, do not analyze the proposed endeavor or offer evidence of its impact. The 
Petitioner's statements contain broad assertions like the Petitioner is a "qualified professional," but 
they provide little to no information on how their endeavor will operate and any detailed information 
about how their services by and through their endeavor would have global or even national 
implications, broader implications, or positive economic effects such that we could evaluate whether 
the endeavor ascends to a level of national importance. The Petitioner's assertions, without evidence 
to substantiate them, do not establish their eligibility. And any basic economic activity has the 
potential to positively impact the economy and social welfare; however, the Petitioner has not offered 
a sufficiently direct connection between their proposed endeavor activities and any demonstrable 
societal welfare. The record does not contain an evidentiary basis to conclude the effects of their 
specific proposed endeavor will rise to a level of national importance. 
As the Director correctly explained, the Petitioner has not established eligibility under the Dhanasar 
analytical framework. We adopt and affirm the Director's analysis and decision regarding the first 
Dhanasar prong and conclude the Petitioner has not establish they are eligible for or otherwise merit 
a national interest waiver. 
B. Well Positioned to Advance the Proposed Endeavor 
We disagree with the Director and hereby withdraw the Director's conclusion that the record 
established the Petitioner was well-positioned to advance the proposed endeavor under the second 
prong of the Dhanasar framework. In evaluating whether a petitioner is well positioned to advance 
their proposed endeavor, we review the following and any other relevant factors: 
• A petitioner's education, skill, knowledge, and record of success in related or similar efforts; 
• A petitioner's model or plan for future activities related to the proposed endeavor that the 
individual developed, or played a significant role in developing; 
• Any progress towards achieving the proposed endeavor; and 
• The interest or support garnered by the individual from potential customers, users, investor, or 
other relevant entities or persons. 
It is not clear how an individualized consideration of the multifactorial analysis under Dhanasar 's 
second prong would demonstrate how well positioned the Petitioner is to advance their proposed 
endeavor. We recognize the Petitioner has earned education and has skill and knowledge in their 
discipline. But simply having education, skills, and/or knowledge in isolation do not place a petitioner 
in a position to advance their proposed endeavor. This is only one factor amongst many factors which 
are evaluated together to determine how well positioned a petitioner is to advance a proposed 
endeavor. It is not clear from the totality of the evidence in the record how an individualized 
consideration of the multifactorial analysis under Dhanasar 's second prong would demonstrate how 
well positioned the Petitioner is to advance their proposed endeavor. For example, the record as 
currently constituted does not reflect how the Petitioner's prior performance of the duties described in 
the experience letters is either a similar effort as that of their proposed endeavor or how it constitutes 
a record of success. Whilst the Petitioner submitted their statements describing a plan or model for 
future activities, the record does not reflect any progress to achieving the proposed endeavor in a 
manner sufficient for us to evaluate how well positioned they are to advance it. Finally, the 
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recommendation and work experience letters the Petitioner submitted are not material, relevant, or 
probative evidence in the record of interest or support in the endeavor the Petitioner proposed in their 
petition because, as stated above, they only speak of the Petitioner's competent execution of past job 
duties. The competent execution of past job duties, even successfully, does not automatically render 
a petitioner well positioned to advance their proposed endeavor. As stated above, a petitioner's burden 
of proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. at 1142 n.3 (BIA 1998); also see the definition of burden of 
proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). So the evidence in the record does not 
sufficiently describe how well situated the Petitioner would be to advance their petition's proposed 
endeavor. 
III. CONCLUSION 
As the Petitioner has not established that they meet the first or second prong of the Dhanasar 
framework, they have not shown that they are eligible for and otherwise merit a national interest 
waiver, and we reserve this issue. 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 of L-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). As the Petitioner has not met 
the requirements of the Dhanasar analytical framework, we find that they have not established that 
they are eligible for or otherwise merit a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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