dismissed EB-2 NIW Case: Tax Compliance

U.S. Citizenship 
and Immigration 
Services 
In Re: 23101866 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 1, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a tax compliance manager, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree, 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualifies 
as a member of the professions holding an advanced degree, but that the record did not establish that 
a waiver of that visa classification's job offer requirement would be in the national interest. On appeal, 
the Petitioner asserts that the Director abused his discretion by not issuing a request for evidence (RFE) 
before denying the petition, and that the record supports the grant of 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. 
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. Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, 1 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. 2 
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. 
1 See 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. 
2 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expe1iise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar, 26 l&N Dec. at 886 n.3. 
2 
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, users 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 is a tax compliance manager for a large I I services company who proposes to 
continue her employment with this company in the United States. The record includes a copy of her 
licentiate degree in public accounting from I I University in Venezuela, and a letter 
confirming her employment with her current employer in Venezuela from January 2009 to May 2014, 
and in the United States from May 2014 to December 2019. We agree with the Director that this 
evidence establishes that she is a member of the professions holding an advanced degree. 
A. The Director's Discretion to Deny Without First Issuing an RFE 
The Director determined that the Petitioner had not established that she met any of the prongs in the 
Dhanasar analytical framework. On appeal, the Petitioner asserts that the Director's denial of her 
petition without first issuing an RFE or notice of intent to deny (NOID) constituted an abuse of 
discretion, which should lead to her appeal being sustained. She bases this assertion on sections of 
the users Policy Manual which provide guidance to officers regarding the issuance of RFEs and 
NO IDs, 4 but also on users policy memoranda that have been incorporated into or superseded by the 
Policy Manual. 5 
The regulation at 8 e.F .R. § 103 .2(b )(8)(iii) sets out three options for an officer when a benefit request 
has been submitted with all required initial evidence but does not establish eligibility: 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 See 1 USCIS Policy Manual E.6(F) and E.9, https://www.uscis.gov/policy-manual. 
5 The website of the USCIS Policy Manual includes the following note under "Adjudicator's Field Manual Transition": 
'To the extent that a provision in the Policy Manual conflicts with remaining AFM content or Policy Memoranda, the 
updated information in the Policy Manual prevails." 
3 
Other evidence. If all required initial evidence has been submitted but the evidence 
submitted does not establish eligibility, users may: deny the benefit request for 
ineligibility; request more information or evidence from the applicant or petitioner, to 
be submitted within a specified period of time as determined by users; or notify the 
applicant or petitioner of its intent to deny the benefit request and the basis for the 
proposed denial, and require that the applicant or petitioner submit a response within a 
specified period oftime as determined by users. 
In this case, as the Director's decision indicated, the initial evidence established the Petitioner's 
eligibility for the underlying EB-2 immigrant visa classification as a member of the professions 
holding an advanced degree, but the Director determined that it did not show that she merited a national 
interest waiver. The regulation provides for three options in that instance, and the Director chose to 
deny the petition without issuing either an RFE or a NOID. 
As noted by the Petitioner, the users Policy Manual provides additional guidance to officers 
concerning the appropriate issuance of RFEs and NO IDs, stating that officers have the discretion in 
some instances to issue a denial without first issuing an RFE or NOID. 6 It further states that where 
evidence in the record does not establish eligibility, an RFE should be issued unless the officer 
determines that there is no legal basis for the benefit request and no possibility that additional 
information or explanation will establish a legal basis for approval. 7 The Petitioner asserts that the 
record demonstrated a legal basis for meeting each of the three prongs of the Dhanasar analytic 
framework, but she does not attempt to supplement the record with additional evidence in support of 
her eligibility for a national interest waiver or assert that the Director's decision regarding her 
eligibility was in error. More importantly regarding her argument on appeal, she does not identify the 
type or nature of additional evidence or explanation that might possibly have established her eligibility 
for a national interest waiver. She has therefore not shown by a preponderance of the evidence that 
the Director erred in not issuing an RFE prior to denying her petition. 
B. Substantial Merit and National Importance of the Proposed Endeavor 
As stated above, in the first prong of the Dhanasar framework, we focus on the prospective potential 
impact of the specific endeavor that the individual proposes to advance. Here, the Petitioner indicated 
that she intends to continue her employment as a tax compliance manager with her current employer, 
and provided an experience letter from that employer which also includes a list of her responsibilities 
in this position. These included oversight of a team of 13 employees, the creation and analysis of 
financial reports, and the standardization of processes across various countries. 
In support of the substantial merit of her proposed endeavor, the Petitioner submitted information 
about her employer and the importance of accounting professionals in general. This evidence is 
sufficient to show that her continued employment in this field with this company would be of 
substantial merit. 
6 l USCIS Policy Manual E.6(F) 
7 l USCIS Policy Manual E.6(F)(3) 
4 
Turning to the national importance aspect of the first prong, the Petitioner submitted several 
documents relating to the U.S. government's actions to promote education in the science, technology, 
engineering and mathematics (STEM) fields. One of these was a single page from a website, 
stemdegreelist.com, which included the subtitle "DHS STEM Designated Degree Programs." While 
the term "STEM" is not defined in the regulations pertaining to national interest waivers, the 
regulations at 8 C.F.R. § 214.2(f)(lO)(ii)(C)(2)(i) define it for purposes of optional practical training 
for students, and refer to the STEM Designated Degree Program List on the website of the Student 
and Exchange Visitor Program (SEVIS) at www.ice.gov/sevis. At the time of this decision, that list 
does not include the Petitioner's field of accounting, nor does the record indicate that it included 
accounting at the time the petition was filed. Although changes to the USCIS Policy Manual since the 
filing of the petition highlight specific evidentiary considerations relating to STEM degrees and 
fields, 8 the record does not show that those considerations should be applied in evaluating the 
Petitioner and her proposed endeavor. 
The Petitioner also referred to the evidence about the importance of accounting and information about 
her employer in support of the national importance of her proposed endeavor. She asserts that the 
functions performed by accounting professionals as a group "are of national importance for a thriving 
economy." The Petitioner repeats this argument on appeal, quoting one of the submitted articles as 
stating that the "accounting profession is linked to economic development and better living standards." 
However, as noted at the outset, when performing the analysis under the first prong of the Dhanasar 
framework, we look to the specific endeavor proposed by considering its potential prospective impact. 
Generalizations about the impact of an entire industry or profession are therefore not relevant to this 
analysis. The evidence does not show that the Petitioner's work for her current employer would have 
national or global implications within the field of accountancy, would have significant potential to 
employ U.S. workers, or would have other substantial positive economic effects. 
The Petitioner also asserted that she plays an important role for her employer, a company which she 
claimed helps the U.S. to maintain energy independence, and cited Enron as an example of an energy 
company "plagued by criminal and negligent accounting." But neither of these assertions are 
supported by documentary evidence in the record. The Petitioner has not shown that her work with 
her employer would have a broader effect on either the field of accounting or, as she suggests, on 
national energy usage or policy. 
For the reasons discussed above, we conclude that the Petitioner has not established that her proposed 
endeavor is of national importance, and she does not therefore satisfy the first prong of the Dhanasar 
analytic framework. While she also asserted to meet the second and third prongs, we need not reach 
these additional grounds. As the Petitioner cannot meet all three prongs of the Dhanasar framework, 
she cannot establish eligibility for a national interest waiver, and we reserve the issues of whether she 
is well positioned to advance her endeavor and whether, on balance, it would benefit the United States 
to waive the job offer requirement of the EB-2 classification. 9 
8 6 USCIS Policy Manual F.5(D)(2) 
9 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). 
5 
III. CONCLUSION 
The Petitioner has demonstrated that she qualifies as a member of the professions holding an advanced 
degree, but has not established that a waiver of the job offer requirement would be in the national 
interest. Accordingly, her petition will remain denied. 
ORDER: The appeal is dismissed. 
6