remanded EB-2 NIW Case: Agronomy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 24, 2024 In Re: 30291268 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an agronomy researcher, seeks employment-based second preference (EB-2) 
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 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 qualified 
for EB-2 classification, but that he had not established that a waiver of the required job offer, and thus 
of the labor certification, would be in the national interest. In addition, the Director concluded the 
Petitioner's EB-2 petition is barred under section 204( c) of the Act. 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 of Chawathe, 25 l&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. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. Section 203(b )(2)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 ( a)(32) of the Act. 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016), provides the framework 
for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and 
Immigration Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if the 
petitioner demonstrates that: 
• 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. 
Id. at 889. 
II. ANALYSIS 
The Petitioner entered the United States as a student on an F-1 visa and completed a master's degree 
in plant and soil science at __________________ in December 2011, and 
a doctor of philosophy degree in agronomy at in Ma 2018. Since Ma 2023 
he has been a research specialist with the I Ia Texas 
Onl I2010, the Petitioner married a U.S. citizen (former wife or former spouse) who filed a 
family-based Form 1-130, Petition for Alien Relative, on his behalf on September 7, 2011. The couple 
attended an in-person interview at the Atlanta Field Office, and due to a lack of details in the former 
spouse's testimony, the case was referred to USCIS's fraud unit to investigate whether the marriage 
is bona fide. The investigation determined that the Petitioner had submitted a fraudulent residential 
lease agreement to prove he was living with his former spouse. The Director of the Atlanta Field 
Office denied the petition concluding the marriage was entered into for the sole purpose of obtaining 
an immigration benefit. In support of this conclusion, the Director noted: that the health insurance, 
joint bank account, and credit card evidence was obtained a year after the parties' married, and shortly 
before their interview; the Petitioner submitted a fraudulent residential lease to show he was living 
with his former spouse; and the parties' identification documents did not have the same addresses. 
A. Section 204( c) of the Act 
U.S. Citizenship and Immigration Services (USCIS) cannot approve a visa petition for a noncitizen 
who attempted or conspired to enter a marriage "for the purpose of evading the immigration laws." 
Section 204( c) of the Act. Even if legally valid where it occurred, a marriage "entered into for the 
primary purpose of circumventing the immigration laws" permanently bars approval of a visa petition. 
Matter ofP. Singh, 27 I&N Dec. 598, 601 (BIA 2019) ( citations omitted). To determine the existence 
of a fraudulent or sham marriage, adjudicators must consider whether the parties "intended to establish 
a life together at the time they were married." Id. Officers must examine the parties' conduct before 
2 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 is discretionary 
in nature). 
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and after the marriage to ascertain their intent, but "only to the extent that it bears upon their subjective 
state of mind at the time they were married." Id. 
To sustain a marriage fraud determination, USCIS must conclude there is "substantial and probative 
evidence" of fraud. 8 C.F.R. § 204.2( a)(l )(ii). The Board oflmmigration Appeals (Board) recently 
clarified this standard of proof as evidence that a marriage was "more than probably" fraudulent. 
Matter of P. Singh, 27 I&N Dec. at 607. This standard exceeds a preponderance of the evidence but 
does not rise to the level of clear and convincing evidence. Id. at 607 n.7. 
Citing Matter of Tawjik, 20 I&N Dec. 166, 167 (BIA 1990) and Matter ofP. Singh, 27 I&N Dec. 598 
(BIA 2019) the Director stated that "[their] independent review of the evidence in the record of 
proceeding presents substantial and probative evidence to support a reasonable inference that the 
[Petitioner] attempted to enter into a prior marriage for the purpose of evading immigration laws." 
However, this is an incorrect standard. 
In P. Singh, the Board stated "although "any relevant evidence" could be considered in assessing 
marriage fraud, "a reasonable inference" of fraud is not sufficient to meet the "substantial and 
probative evidence" standard." 3 Id. at 602. Instead, the Board held that "[i]n determining if the 
evidence of marriage fraud is substantial and probative, that is, whether it establishes that it is more 
than probably true that the marriage is fraudulent, the nature, quality, quantity, and credibility of the 
evidence in the record should be considered in its totality. This assessment may be based on either 
direct or circumstantial evidence." Id. at 610. On remand, this is the standard that must be applied to 
the facts of this case. 4 
Furthermore, the Director should consider the Petitioner's assertions that he submitted the lease in 
order to protect his wife from USCIS scrutiny, and also evaluate the countervailing evidence that their 
marriage was bona fide at the time of its inception, which includes: the parties attended their interview 
together; the parties obtained health insurance; and the Petitioner's former spouse wrote to him from 
jail numerous times. 5 
3 We note that the Petitioner's Form 1-130 was denied in September 2011, approximately eight years before Matter of P. 
Singh was decided. As such, the Field Office Director's dete1mination that the marriage was fraudulent was decided under 
a different legal standard, and thus should not be given deference. While the Director notes in their decision denying the 
Petitioner's Form 1-140 that she conducted an "independent review" of the evidence, their conclusion relies on the same 
evidence cited by the Field Office Director. Furthermore, and as noted above, an incorrect "reasonable inference" standard 
was used instead of the correct "substantial and probative evidence" standard to find that it is more than probably true that 
the marriage is fraudulent based on the nature, quality, quantity, and credibility of the evidence as considered in its totality. 
4 In P. Singh, the Board found sufficient proof marriage fraud when: 1. there was a site visit by USCIS officers to determine 
the validity of the marriage; 2. during a site visit, the wife admitted her marriage was a sham; 3. during the site visit, the 
wife gave multiple inconsistent statements about who lived in the house; 4. during the site visit, USCIS officers observed 
a photograph of the beneficiary with another individual (his wife's daughter) in an intimate pose; 5. during the site visit, 
evidence was found that the wife's daughter was living with the beneficiary instead of her, and no explanation could be 
provided to explain; 6. the home where they lived was jointly owned by the beneficiary and his wife's daughter; and 7. the 
petitioner was the beneficiary's children's maternal grandmother. The Board found these factors were substantial and 
probative evidence that the parties had entered a marriage for the purpose of obtaining an immigration benefit. 
5 We acknowledge the seriousness of the Petitioner's use of a fraudulent residential lease agreement in his attempt to prove 
he was living with his wife. On appeal, the Petitioner states he submitted the lease in order "to not disclose her criminal 
case to protect her from [USCIS] examination. It unfortunately is impossible for [ex-wife] and I to live in the same place 
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On remand, consistent with P. Singh, the Director should determine whether the record contains 
evidence that the Beneficiary's marriage was "more than probably" fraudulent. If so, the Director 
should then determine whether the Petitioner rebutted the derogatory information. Finally, the 
Director should enter a new decision. 
B. EB-2 Classification 
The record supports the Director's conclusion that the Petitioner established his eligibility for EB-2 
classification as an advanced degree professional under 8 C.F.R. § 204.5(k)(2). As such, we will 
determine whether the Petitioner's endeavor meets the Dhanasar framework for a discretionary 
national interest waiver. 
C. National Interest Waiver-Dhanasar's Three Prongs 
The Director determined that the Petitioner's evidence did not establish any of the three Dhanasar 
prongs. We disagree. The Director's decision did not engage with the Petitioner's assertions or 
evidence, and instead determined in a conclusory manner that while the Petitioner's endeavor had 
substantial merit, it was not of national importance. Furthermore, the Director determined that the 
"internet printouts do not demonstrate how the [P]etitioner's research has national or global 
implications in the field of agriculture .... " However, no further analysis was provided to support 
the Director's prong one conclusions. 
On remand, the Director should consider, in addition to the recommendation letters provided, the 
Petitioner's evidence of how his research could impact global food scarcity, crop growth amid climate 
change, and how his research might be of commercial interest to U.S. growers. To support his 
assertions, he highlights his research into how fabric covering affects the emergence and yield of 
container-grown Egyptian spinach. He asserts his research has the potential prospective impact on 
"sustainable agriculture, economic growth, and food security in the USA." He also asserts his research 
into indoor vegetable production could potentially lead to innovative approaches for increasing crop 
cultivation through techniques like hydroponics or vertical farming. He maintains that this research 
is of substantial merit and national importance because it might enable year-long supply, reduce 
transportation emissions, conserve resources, minimize chemical use, and enhance climate resilience 
in the face of a growing human population and food scarcity issues. 
As to Dhanasar' s second prong, the Director determined that the Petitioner was not well positioned 
to advance his endeavor. However, the Director's decision does not reflect that they considered 
current USCIS policy concerning individuals who hold an advanced degree in the fields of science, 
technology, engineering, and mathematics (STEM) tied to the proposed endeavor and related to work 
furthering a STEM area important to U.S. competitiveness or national security, which is an especially 
because of her pending criminal charges and we have to live in two states." He further explains that he created a lease 
with their names on it, because his studies prevented him from leaving Alabama and that due to her criminal problems, the 
marriage ended in divorce, onl 12015. We note that the Petitioner's admission to providing false documentation 
likely triggers his inadmissibility under section 212(a)(6)(c)(i) of the Act. This section makes any noncitizen who "by 
fraud or willfully misrepresenting a material fact, seeks to procure ( or has sought to procure or has procured) a visa, other 
documentation, or admission to the United States or other benefit," inadmissible. 
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positive factor to be considered along with other evidence. See generally 6 USCIS Policy Manual 
F.5(D)(2), https:///www.uscis.gov/policy-manual. Here, the Petitioner's degree in the field of 
agronomy and his research into food scarcity and climate change in the field of agriculture, would be 
a positive factor that the Director should consider. Furthermore, the Director's decision does not 
reflect that they considered the Petitioner's affiliation with I I as well as the grant I I 
received from the U.S. Department of Agriculture, with the goal of researching and enhancing the 
nutritional value in edible leafy green vegetables by using metallic-based nanoparticles. Finally, on 
remand, the Director should consider if the Petitioner's research citation history, his affiliation with 
I I his prior research and publications, as well as his ongoing research and participation in a 
U.S. government funded research program, is sufficient to meet prong two. 
As to the last prong of the Dhanasar analysis, whether on balance it would be beneficial to the United 
States to waive the requirement for a job offer and thus a labor certification, on remand, if the Director 
first determines that the Petitioner meets the first two prongs of the Dhanasar framework, then they 
should consider if he meets the third prong. However, once again, we highlight that because the 
Petitioner holds a doctorate degree in a STEM field, and his endeavor is to continue his research in 
the field of agronomy, the Director should analyze the evidence considering our STEM policy. Id. 
Current USCIS policy states that in evaluating the third prong we should consider the following 
combination of facts to be a strong positive factor in favor of granting the third prong: the person 
possesses an advanced STEM degree, particularly a Ph.D.; the person will be engaged in work 
furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; 
and the person is well positioned to advance the proposed STEM endeavor of national importance. Id. 
III. CONCLUSION 
On remand, consistent with Matter of P. Singh, the Director should determine whether the record 
contains substantial and probative evidence that the Petitioner's marriage was "more than probably" 
fraudulent. If so, the Director should then determine whether the Petitioner rebutted the derogatory 
information and enter a new decision. 
Furthermore, because the Director appears not to have considered the Petitioner's eligibility in light 
ofUSCIS's policy as it relates to professionals with advanced degree in a STEM field, we will remand 
for the Director to consider the evidence anew and enter a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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