remanded EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 13742860 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE21, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification, 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 denied the petition, concluding that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner asserts that she is eligible for a national interest waiver. 
In these 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. Upon de novo review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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. 
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 of job 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. 
Section I 01 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
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. 
Exceptional ability in the sciences, arts. or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10 l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, to demonstrate eligibility as an individual of exceptional ability, a petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
2 
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. 3 
II. ANALYSIS 
The Petitioner's proposed endeavor is to be the chief executive officer "primarily responsible for 
coordinating the operational, commercial, and financial strategies of'' a company which distributes 
I I products. Upon review of the record, we withdraw the Director's conclusions that the 
Petitioner established that she is an advanced degree professional and well positioned to advance the 
proposed endeavor. 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. In addition to the definition of "advance degree" provided at 
8 C.F.R. § 204.5(k)(2), the regulation at8 C.F.R. § 204.5(k)(3)(i)(B)provides that a petitioner present 
"[ a ]n official academic record showing that the alien has a United States baccalaureate degree or a 
foreign equivalent degree, and evidence in the form of letters from cunent or former employer(s) 
showing that the alien has at least five years of progressive post-baccalaureate experience in the 
specialty." 
First, the Petitioner has not established that she holds the equivalent of a U.S. bachelor's degree. 4 For 
example, the Petitioner has not demonstrated the length of her bachelor's degree program. In addition, 
although the Petitioner claimed to have submitted a copy of her transcript, the provided document 
appears to be a copy of course offerings. The Petitioner's name does not appear anywhere on the 
document, nor does it include dates of attendance or grades received. 
Second, the evaluator of the Petitioner's degree and experience states that the "evaluation relies upon 
the copies of the original documents of the diplomas, transcripts, and resume provided by" the 
Petitioner, with no mention that he reviewed any letters, as required by 8 C.F.R. § 204.5(k)(2). 5 It is 
also unclear whether the evaluator reviewed the Petitioner's actual transcripts or only the submitted 
list of course offerings. 
Third, the Petitioner has not established her field of study. Although the diploma accompanying the 
certified translation indicates that the Petitioner's degree is in "business administration,"the original 
document appears to indicate that the degree is in "administration," without any additional specialty. 
Neither the evaluator, nor the translator, provides any explanation for the discrepancy. 
The Petitioner must resolve these discrepancies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
3 See Dhanasar, 26I&NDec. at 888-91, for elaboration onthesethree,..p""r=o=n=gs..,_. ---------. 
4 Although we acknowledge the Petitioner's receiptofa diploma fro~ ~ the record contains 
no evidence that this diploma is a bachelor's level degree. 
5 The section regarding her professional experience is copied directly from herresume. 
3 
If the Director determines that the Petitioner has sufficiently established that she holds the foreign 
equivalent of a U.S. bachelor's degree, the Director must then consider whether the submitted letters 
from current or former employer(s) demonstrate, at a minimum, five years of progressive post­
baccalaureate experience in the specialty. 
In addition, while we agree with the Director that the Petitioner has not established that she merits a 
national interest waiver, we must also agree with the Petitioner that the Director's decision does not 
provide adequate analysis under the three prong Dhanasar framework. 6 The Director should review the 
evidence anew under each prong and, if he determines that the evidence is insufficient, provide a 
discussion of its deficiencies. 
III. CONCLUSION 
In light of the above, we are remanding the petition for the Director to first determine whether the 
Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver 
cases. If the Director concludes that the Petitioner is qualified for the requested classification, he 
should then address whether the Petitioner established that a waiver of the required job offer, and thus 
of the labor certification, would be in the national interest. 
ORDER: 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. 
6 The Director's decision simply states that "[t ]he [P]etitioner has provided education and experience that she is well 
positioned to advanceherproposedendeavor," without any additionalexplanationordiscussionof the evidence he relied 
on to make such a determination. 
4