remanded EB-2 NIW Case: Biomedical Materials Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 25, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a biomedical materials developer, seeks second preference immigrant classification as 
a member of the professions holding an advanced degree or as an individual of exceptional ability, 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). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien Worker, 
and a subsequent motion, concluding that the Petitioner had not established he qualified for 
classification either as a member of the professions holding an advanced degree or as an individual of 
exceptional ability. 
The Petitioner appealed the matter to us, and we dismissed the appeal. 1 The matter is now before us 
on combined motions to reopen and reconsider. With the motions, the Petitioner submits additional 
documentation and a brief asserting that he is eligible for the EB-2 classification and for a national 
interest waiver. 
Upon de novo review, we will remand the matter to the Director for further action and consideration. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
1 See Matter of H-P-. ID# 1730648 (AAO Nov. 8, 2018). 
Matter of H-P-
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 ofjob 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 definition: 
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. 
Furthermore, 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. 2 Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, grant a national interest waiver when the below 
prongs are met. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
Matter of H-P-
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. 
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, USCIS 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 
A. Member of the Professions Holding an Advanced Degree 
The record includes the Petitioner's degree (August 1999) from I I University in South 
Korea and an academic credentials evaluation from I I indicating that the 
aforementioned degree is the foreign equivalent of bachelor's degree from an accredited institution of 
higher education in the United States. The Petitioner also previously submitted two August 2017 
"Certificate(s) of Career" from,__ _______ --,-__.. andl I. that list his 
work experience at those companies. 
In our previous decision, we concluded that the aforementioned career certificates did not offer 
sufficient information to demonstrate that the Petitioner has at least five years of progressive post­
baccalaureate experience in biomedical materials engineering and alloy development to constitute the 
equivalent to an advanced degree in that specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
With the motion, the Petitioner presents two new "Certificate(s) of Career" from~------~ 
I l and I I listing the specific duties he performed for those companies. In 
addition, these updated certificates indicate how the Petitioner divided his time among various job 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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Matter of H-P-
responsibilities and specify the amount of time he devoted to biomedical materials engineering and alloX 
development. We find that these certificates fro ml I andl J D Offer sufficient information to demonstrate that the Petitioner has at least five y._e_a_r_s _o_f_p_ro_g_r_e_s-si_v_.e 
post-baccalaureate experience in biomedical materials engineering and alloy development to 
constitute the equivalent to an advanced degree in that specialty. Accordingly, the Petitoner has 
established that he qualifies for classification as a member of the professions holding an advanced 
degree.4 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. Because the Director's decisions did not 
consider the Petitoner' s evidence and arguments relating to Dhanasar' s three-part analytical framework, 
we are remanding for the Director to analyze that documenation and make a determination as to whether 
the Petitioner has demonstrated eligibility for the benefit sought. 5 
III. CONCLUSION 
We are therefore remanding the petition for the Director to apply the Dhanasar analytical framework 
to make a determination as to whether the Petitioner has established that a waiver of the requirement of 
a job offer, and thus a labor certification, would be in the national interest. In visa petition proceedings, 
it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
ORDER: The motion is granted, and the matter is remanded for the entry of a new decision 
consistent with the foregoing analysis, which, if adverse, shall be certified to us for 
review. 
Cite as Matter of H-P-, ID# 3606957 (AAO June 25, 2019) 
4 Because the Petitioner qualifies for the underlying visa classification as a member of the professions holding an advanced 
degree, we need not consider whether the record establishes his eligibility as an individual of exceptional ability. 
5 We note that the Director's October 2017 decision stated: "Since [the Petitioner] does not qualify for the [EB-2] 
classification, it cannot be concluded that he is well positioned to advance the endeavor." However, as discussed earlier, 
the analysis of evidence under any of the prongs set forth in the Dhanasar analytical framework is a separate determination 
from whether the Petitioner qualifies for the underlying EB-2 visa classification. 
4