remanded EB-2 NIW Case: Behavioral Research

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 12, 2024 In Re: 28962812 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a behavioral 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 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 revoked the approval of the petition, concluding that the 
Petitioner had "fabricated and exaggerated" his experience and that he willfully made a false 
representation that is material to his eligibility for the requested benefit. The Director therefore entered 
a finding of willful misrepresentation against the Petitioner, who then filed a motion to reopen and 
reconsider the revocation. The Director dismissed the motion, and 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we conclude that the Director did not offer a complete and accurate analysis of the submitted evidence. 
We will therefore withdraw the Director's decision and remand the matter for entry of a new decision 
consistent with the analysis below. 
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. If a 
petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that 
they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 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. 
In addition, a motion to reopen is based on factual grounds and must (1) state the new facts to be 
provided in the reopened proceeding; and (2) be supported by affidavits or other documentary 
evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must (1) state the reasons for reconsideration 
and establish that the decision was based on an incorrect application of law or U.S. Citizenship and 
Immigration Services (USCIS) policy, and (2) establish that the decision was incorrect based on the 
evidence in the record of proceedings at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
II. BASIS FOR REMAND 
As previously indicated, the Director's decision did not offer a complete analysis of the basis for 
dismissing the motion or explain the deficiencies in the evidence. See 8 C.F.R. § 103.3(a)(l)(i); see 
also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the 
reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the 
determination on appeal). 
A. Procedural and Factual Background 
As a preliminary matter, we will summarize the facts and circumstances which led to the filing of the 
appeal that is currently before us. 
The record shows that upon obtaining derogatory information after this petition's approval, the 
Director issued a notice of intent to revoke (NOIR) which focuses on the Petitioner's submission of a 
recommendation letter bearing the false signature of~ lthe letter's claimed 
author. The Director deemed the misrepresentation of Isignature to be material to the 
Petitioner's eligibility and determined that these facts, if not rebutted and overcome, warranted a 
finding of "willful misrepresentation." 
In response to the NOIR, the Petitioner provided two statements and three affidavits, including one 
bearing the signature ofl Ielaborating on the underlying circumstances of the 
recommendation letter's creation and false signature. Although the Director issued a revocation notice 
stating that "all of the evidence in the record" had been reviewed, the decision contained no discussion 
of the letters and affidavits that were submitted in rebuttal of the NOIR, and thus the Petitioner was 
not offered a meaningful explanation of how the NOIR response evidence was deficient in overcoming 
the intended revocation and finding of material misrepresentation. 
1 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
Following the revocation, the Petitioner filed a motion to reopen and reconsider claiming that the 
recommendation letter in question neither willfully misrepresented the facts nor provided a false 
representation of the facts, and that the letter therefore does not support the Director's finding of 
material misrepresentation. 2 The Petitioner also pointed to two other letters of recommendation that 
had been initially submitted in support of the petition, highlighting that the information in those letters 
is consistent with the letter that is the subject of the Director's finding of material misrepresentation. 
Based on the totality of these arguments, the Petitioner asserted that the Director erred when he made 
a finding of material misrepresentation. 
In dismissing the Petitioner's motion, the Director listed the evidence the Petitioner submitted in 
support of the motion and determined that the Petitioner restated information that was previously 
submitted. The Director therefore concluded that the Petitioner offered no new facts in support of the 
motion. The Director also noted that the Petitioner did not address the false signature issue when the 
petition was filed, concluding that the Petitioner did not establish that the revocation decision was 
incorrect based on the evidence in the record at the time the decision was issued. 
B. Analysis 
On appeal, the Petitioner reiterates the explanations contained in previously provided letters and 
affidavits and contends that the letter of recommendation in question did not contain false 
representations. Alternatively, the Petitioner states that "even if any representation may have been 
falsely made [it] was not willful." In sum, the Petitioner asserts that the facts do not support a finding 
of willful misrepresentation. 
To make a finding of willful misrepresentation of a material fact in visa petition proceedings, an 
immigration officer must determine: 1) that the petitioner or beneficiary made a false representation 
to an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and 3) that the fact misrepresented was material. See Matter ofM-, 6 I&N Dec. 149 (BIA 1954); 
Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter ofKai Hing Hui, 15 I&N Dec. 288 (BIA 197 5). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter ofKai Hing Hui, 15 I&N Dec. at 289-90. The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 
1998); Matter ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material, 
the misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to the 
alien's eligibility, and which might well have resulted in a proper determination that he be excluded." 
Matter ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
In the matter at hand, although the Director issued a revocation notice stating that "all of the evidence 
in the record" had been reviewed, the decision contained no discussion of the letters and affidavits that 
2 Despite referring to his filing as an appeal, the Petitioner checked the box l .f on the Form I-290B, Notice of Appeal or 
Motion, which corresponds with the filing of a motion to reopen and reconsider, rather than box I .a, 1.b, or 1.c, any of 
which correspond with the filing of an appeal. As such, the Director correctly treated the Petitioner's filing as a motion 
rather than as an appeal. 
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were submitted in response to the NOIR. Moreover, it is critical to note that neither the original 
revocation decision nor the dismissal of the subsequent motion addressed the evidence that the 
Petitioner submitted to rebut the preliminary misrepresentation finding stated in the NOIR. Thus, 
while the Director was technically correct that the Petitioner's restatement of previously offered 
information did not constitute new facts in support of a motion to reopen and reconsider, the record 
shows that the Director had not addressed the previously submitted evidence when it was originally 
submitted, thereby effectively offering the Petitioner no meaningful explanation to clarify how the 
NOIR response evidence was deficient in overcoming the intended revocation and finding of material 
misrepresentation. 
Furthermore, both the NOIR response and the legal brief submitted in support of the prior motion 
directly address elements of material misrepresentation. As discussed earlier, the Petitioner asserted 
that the recommendation letter in question did not contain false representations or, alternatively, that 
any representations that were false were inadvertent or accidental and were not willful. The Director 
did not, however, address these claims either in the revocation or in the decision dismissing the 
subsequent motion to reopen and reconsider. 
And although the Director determined that the Petitioner's experience "has been fabricated and 
exaggerated," he did not adequately explain how the letter in question is material to the Petitioner's 
eligibility for a national interest waiver. Nor did the Director explain why, if the issue of work 
experience is material, he did not further evaluate and discuss the contents of the two other 
recommendation letters from Professor I I at I I University and Professor 
I I at the University ofl Irespectively, given that both letters, like the 
letter containing the false signature, also discussed the Petitioner's prior research and education. 
If the Director determines that a finding of willful misrepresentation is warranted, a new NOIR must 
be issued in which the Director shall: (1) clearly address the elements of willful misrepresentation, 
and (2) include a detailed analysis highlighting the factors that may support that finding. 
C. National Interest Waiver 
Notwithstanding the deficiencies in the Director's decision and our withdrawal thereof: the evidence 
of record does not appear to demonstrate that the Petitioner met the requirements of the analytical 
framework set forth in Dhanasar, which requires the Petitioner to demonstrate that: (1) his endeavor 
has substantial merit and national importance, (2) he is well-positioned to advance the endeavor, and 
(3) on balance, waiving the job offer requirement would benefit the United States. 
Here, the Director's revocation focused on a single recommendation letter to the exclusion of all other 
supporting evidence. Likewise, the Director's most recent decision dismissing the Petitioner's motion 
to reopen and reconsider also included no discussion of the submitted evidence and whether the 
Petitioner has satisfied the requirements of the Dhanasar framework. We note that if a new NOIR is 
issued, it must state all grounds for the intended revocation, including issues concerning the 
Petitioner's eligibility for a national interest waiver, as discussed above. See 8 C.F.R. § 205.2(b) 
(requiring that a petitioner must be notified and given an opportunity to address any intended adverse 
findings that will serve as grounds for a revocation). 
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III. CONCLUSION 
In light of the deficiencies described above, we hereby withdraw the Director's decision and finding 
of willful misrepresentation and remand the matter for further consideration of the evidence. 
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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