dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 13, 2024 In Re: 30173300 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree or of 
exceptional ability, 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 employment based second preference (EB-2) 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(joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in 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 because the record did not establish that 
the Petitioner qualified for classification as an individual of exceptional ability and that they had not 
established 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 pursuant to 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 Christo 's, Inc., 26 l&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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
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 the sciences, arts, or business." In order to 
demonstrate exceptional ability, a petitioner must submit at least three of the types of evidence listed 
at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit 
comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself: establish eligibility for this classification. 1 
We will then conduct a final merits determination to decide whether the evidence in its totality shows 
that they are recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we move to 
evaluate the national interest in waiving the requirement of a job offer and thus a labor certification 
under the three prongs of the analytical framework we first discussed in Matter ofDhanasar, 26 I&N 
Dec. 884 (AAO 2016). 2 
1 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exemptional ability. See generally 5 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
2 See generally id. at 888-91, for elaboration on these three prongs. 
2 
II. ANALYSIS 
The Petitioner's appeal is essentially a reiteration of the documentation and argument they previously 
submitted with their RFE response. The Petitioner reasserts that they are of exceptional ability citing 
the same evidence, documentation, and arguments the Director evaluated in the initial petition and in 
the response to the RFE. They also re-emphasize their purported eligibility for a discretionary waiver 
of the job offer requirement, and thus a labor certification, under Dhanasar in the same manner that 
they did in the initial petition and in the response to the RFE. 
Our authority over the USCIS service centers, the office that adjudicated the immigrant petition, is 
comparable to the relationship between a court of appeals and a district court. So based on a de novo 
review we will adopt and affirm the Director's decision that the Petitioner's inconsistent 
representations obscured the nature of their proposed endeavor rendering it impossible to evaluate its 
substantial merit or national importance. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); 
see also Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996) (joining "every court of appeals 
that has considered this issue" holding that an appellate body may affirm the lower court's decision 
for the reasons set forth therein); Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting 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 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). The Director gave individualized 
consideration of the evidence the Petitioner submitted with their initial petition and their RFE 
response. 
A Petitioner must demonstrate that they meet any three of the six regulatory criteria contained at 
8 C.F.R. § 204.5(k)(3)(ii). The Director's decision clearly illustrates why the Petitioner here has not 
done so. The Director correctly concluded that the Petitioner did not establish categorical eligibility 
for EB-2 classification because they did not demonstrate that they were of exceptional ability as 
required by the regulations. So, there is no purpose to conduct a final merits determination to decide 
whether the evidence in its totality shows that the Petitioner is recognized as having a degree of 
expertise significantly above that ordinarily encountered in the field. And consideration of the 
Petitioner's eligibility for a discretionary waiver of the requirement of a job offer, and thus labor 
certification, is not indicated when as here a petitioner is categorically ineligible for the EB-2 
immigrant classification they seek. 
ORDER: The appeal is dismissed. 
3