dismissed EB-2 NIW Case: Waste Conversion For Energy Storage

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 29, 2024 In Re: 29229554 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a researcher in waste conversion for energy storage, 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 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). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree and they had not 
established 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 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 petition 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. The regulation at 8 C.F.R. § 204.5(k)(2) defines 
advanced degree to mean any United States academic or professional degree or a foreign equivalent 
degree above that of a 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 and so permit classification as an EB-2 permanent immigrant. 
Progressive experience can be demonstrated by the Petitioner by providing letters from current or 
former employers showing that they have at least five years of progressive post-baccalaureate 
experience in the specialty. The regulation at 8 C.F.R § 204.5(g)(l) requires letters from current or 
former employers include the name, address, and title of the writer, and a specific description of the 
duties performed. 
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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that users 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. users 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, 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 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 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. Well-Positioned To Advance The Proposed Endeavor 
Our authority over users 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 did not demonstrate that 
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they were well-positioned to advance their proposed endeavor. 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"); Gomez-Mejia v. INS, 56 F.3d 700, 702 
( 5th Cir. 1995). 
The Director gave individualized consideration to the evidence the Petitioner submitted with their 
initial petition and their RFE response. 1 We agree with the Director's well-reasoned decision that the 
Petitioner does not qualify for a national interest waiver. The second prong shifts the focus from the 
proposed endeavor to the foreign national. See Dhanasar, 26 I&M Dec. at 880. As the Director 
correctly concluded, the evidence in the record did not sufficiently demonstrate whether the 
Petitioner's progress towards achieving the goals of the proposed research, their record of success in 
similar efforts, or generation of interest among relevant parties supported their positioning to advance 
their proposed endeavor. 
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. 
The Petitioner discussed their publications. But, whilst these publications reflect the Petitioner has 
been engaged in research in the past, they do not sufficiently describe how the published articles 
demonstrated a record of success or how they evidenced a related or similar effort as the research they 
propose to undertake. Simply submitting proof of publications without sufficient evidence to describe 
how those publications show progress towards achieving the goals of the proposed research or a record 
of success in similar efforts are not sufficient to illuminate a Petitioner's position to advance their 
proposed endeavor. And whilst the Petitioner has submitted evidence of a total citation number that 
has grown since the initial filing, it is not evident from the evidence in the record that the citations 
reflect interest or support garnered by the Petitioner from potential customer, users, investors, or other 
relevant entities or persons. Nor, as the Director stated, is it clear that the citations are self-citations 
as opposed to independent citations. And the letters of support the Petitioner submitted from 
individuals who spoke of the Petitioner in effusive terms, simply described the Petitioner's past 
research. The letters did not illuminate the Petitioner's proposed endeavor, or as the Director correctly 
noted, how the Petitioner's past research provides a foundation for their future research in their 
proposed endeavor. 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
Moreover, we note that the Petitioner proposes to conduct their proposed endeavor under the auspices 
of their graduate teaching assistant position at~---------~ The Form I-140 petition 
submitted by the Petitioner indicates that the Petitioner's graduate teaching assistant position is part­
time 20 hours per week. The record does not adequately describe how the Petitioner's proposed 
endeavor's objectives can be realized through a part time conduit.2 
B. Employment Based Second Preference Category Eligibility 
We withdraw the Director's conclusion regarding the Petitioner's categorical eligibility for EB-2 
permanent immigrant classification. The Petitioner did not initially specify if they sought EB-2 
classification as an advanced degree professional or as an individual of exceptional ability. In support 
of their educational qualifications, the Petitioner initially submitted a copy of their master's degree 
certificate, their bachelor's degree certificate, and a U.S equivalency summary from World Education 
Services marked "Not-Official." The Petitioner earned a bachelor of technology in pure and applied 
physics from~ ______________ __,inl lNigeria. They also earned a 
master of science in fundamental and applied sciences from~------------' inC]
I I, Malaysia. The Director's RFE focused exclusively on seeking evidence of the Petitioner's 
exceptional ability and did not seek evidence to evaluate the Petitioner's eligibility for classification 
as an advanced degree professional. 
When evaluating foreign educational credentials, the Director may consider a credentials evaluation 
performed by an independent credentials evaluation when that evaluation provides a credible, logical, 
and well-documented case for that equivalency determination based solely on the noncitizen's foreign 
degree. See generally 6 USCIS Policy Manual E.9, https://www.uscis.gov/policymanual. The 
Director's decision stated that the credential evaluation and authentication report from World 
Education Service did not specify if the Petitioner "completed the foreign equivalent of a U.S. high 
school degree," did not contain "a detailed explanation of the evaluated material," and did not "contain 
a brief stating the evaluator's qualifications and experience." The Director did not describe why the 
Petitioner's submitted documentation supporting their educational equivalency was incredible, 
illogical, or insufficiently documented. So we will withdraw the Director's conclusion that the 
Petitioner was ineligible for EB-2 classification. But, since the resolution of the issues pertaining to 
the Petitioner's eligibility for a waiver of the job offer requirement, and thus of a labor certification, 
under the Dhanasar analytical framework are dispositive of this appeal, farther investigation and 
analysis of the Petitioner's categorical eligibility for EB-2 classification by issuing a request for 
2 The Petitioner asserts that their foreign advanced degree credential consisting of a master of science degree in 
fundamental and applied science constitutes an especially positive factor to supp01i how well positioned they are to 
advance their proposed endeavor. "USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in 
a STEM field tied to the proposed endeavor and related to work fu1ihering a critical and emerging technology or other 
STEM area important to U.S. competitive or national security, an especially positive factor to be considered along with 
other evidence for purposes of the assessment under the second prong." See generally 6 USCIS Policy Manual, F.5(D)(2), 
https://www.uscis.gov/policy-manual. In the first instance, as we discuss herein, the evidence in the record does not 
convincingly demonstrate the Petitioner has earned an advanced degree. And even if the Petitioner's foreign degree 
credential were the single source equivalent of a master's and thus advanced degree, it is not a Ph.D., which is a credential 
of particular interest. Moreover, it is not clear how the "fundamental and applied science" focus of the Petitioner's master's 
degree related to the waste conversion to activated carbon materials research the Petitioner intended to perfom1 via their 
proposed endeavor. In any event, a degree in and of itself is not a basis to determine that a person is well positioned to 
advance a proposed endeavor. Id. 
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evidence would serve no legal purpose. The Petitioner should be prepared to address their categorical 
eligibility for EB-2 classification in any future proceedings requiring a petitioner to demonstrate 
eligibility as an advanced degree professional or individual of exceptional ability. Specifically, the 
Petitioner should be prepared to explain how a letter from World Education Services accompanying 
the credential evaluation and authentication report outlined World Education Services' qualifications 
and expertise to render their conclusions and established their qualifications and experience as an 
evaluator. And the Petitioner should clarify how the "West African Senior School Certificate" 
mentioned in the credential evaluation and authentication report's description of the minimum 
qualifications required for entry into the Petitioner's degree programs credibly and logically 
established a requirement of admission equivalent to a U.S. high school degree. Additionally, the 
Petitioner may wish to describe how the credential evaluation and authentication report contained 
"pertinent details" of the Petitioner's educational credentials in a well-documented manner. 
III. CONCLUSION 
Because the Petitioner has not established that the Petitioner is well-positioned to advance the 
proposed endeavor, as required by the second Dhanasar prong, they are not eligible for a national 
interest waiver. We reserve our opinion regarding whether the record demonstrates the Petitioner's 
categorial eligibility for EB-2 permanent immigrant classification or satisfies the first or third 
Dhanasar prong. 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 ofL-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 requisite second prong of the Dhanasar analytical framework, we 
conclude that the Petitioner does not merit a favorable exercise of discretion to waive the requirement 
of a job offer, and therefore a labor certification. 
ORDER: The appeal is dismissed. 
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