remanded EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 08, 2024 InRe: 33945119 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business administrator, seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, 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. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is well positioned to advance the proposed endeavor or that it would be 
beneficial to waive the requirements of a job offer. 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) 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. A U.S. bachelor's degree or foreign equivalent degree followed by five 
years of progressive experience in the specialty is the equivalent of a master's degree. 
8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 I&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,3 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. 
II. ANALYSIS 
As noted, the Director determined that the Petitioner, who claims eligibility for the EB-2 classification 
as both an advanced degree professional and as an individual of exceptional ability, qualifies for the 
requested visa classification. However, the Director determined that the record did not establish his 
eligibility under the second and third prongs of the Dhanasar framework, and therefore found him 
ineligible for a waiver of the job offer requirement. 
For the reasons discussed below, we will withdraw the Director's decision and remand the matter to 
the Director for entry of a new decision. 
A. Member of the Professions Holding an Advance Degree or Exceptional Ability 
We withdraw the Director's determination that the Petitioner qualifies for the requested visa 
classification. In the 
request for evidence (RFE), the Director stated that the Petitioner "is eligible for 
the requested classification" and provided no further analysis. The Director confirmed the finding in 
the decision without any additional explanation. 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 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). 
2 
As noted, an advanced degree is any U.S. academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. In order to demonstrate this, the petition must be 
accompanied by "[a]n official academic record" for the requisite degrees and any document in a 
foreign language must be accompanied by a full English language translation. 8 C.F.R. §§ 
204.5(k)(3)(i)(A); 103.2(b)(3). Thus, for each degree documented in a foreign language, there should 
be a corresponding academic record and a translated copy with a certificate of translation. 
We observe from our review of the record that the Petitioner did not comply with the evidentiary 
requirements regarding original documents and translations. Specifically, the Petitioner's did not 
submit a copy of his original transcripts for his Bachelor of Theology degree4 or his Technologist 
degree and did not submit a translated version of his Lato Sensu specialization in business management 
transcript. Consequently, we are unable to meaningfully determine whether the documents support 
the claim. 
Therefore, we withdraw the Director's determination and will remand the matter to the Director for 
further consideration. If the Director concludes that the Petitioner is not an advanced degree 
professional, they should then determine whether the Petitioner qualifies as an individual of 
exceptional ability. 
B. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
In the RFE the Director found that the "proposed endeavor has substantial merit and national 
importance" without any discussion. The decision confirmed that finding without further comment. 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[a ]n undertaking 
may have national importance for example, because it has national or even global implications within 
a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance, may well be understood to have national importance." Id. at 890. 
The Petitioner stated that for his proposed endeavor he intends to act as a business administrator in 
charge of human resources, "help[ing] organizations function efficiently, and recommend changes to 
policies or procedures to improve operations." The reach of such an endeavor appears limited to the 
companies and clients who would employ the Petitioner. 
4 We observe that the Petitioner contends that he completed part of his bachelor's degree at the ______ 
however, he did not include an academic record for these courses in the filing. 
3 
The Petitioner provided an expert opm10n letter from Dr. As a matter of 
discretion, we may use opinion statements submitted by a petitioner as advisory but will reject an 
opinion or give it less weight if it is not in accord with other information in the record or if it is in any 
way questionable. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). We are 
ultimately responsible for making the final determination regarding an individual's eligibility. Id. In 
the letter, Dr. I I asserts that the Petitioner's endeavor is of national importance but rests his 
assessment on a finding that business field is important and the Petitioner's skills would be beneficial 
for any company he would work for. In determining national importance, it is not the importance of 
the field that determines an endeavor's national importance, but rather how the specific endeavor will 
impact the field on a level commensurate with national importance. See Dhanasar, 26 I&N Dec. at 
889. 
The remaining evidence in the record, 5 namely copies his tax documents from Brazil, various training 
certificates, recommendation letters, a list of his past work achievements, a job offer letter, and 
evidence of his membership in different associations seems to point to the Petitioner's past 
accomplishments and experiences, not the specific endeavor's potential impact in his industry. 
Generally, this type of evidence is more appropriate for the second prong when determining if the 
petitioner is well-positioned to advance the proposed endeavor. Dhanasar, 26 I&N Dec. at 890. 
Here, the reach of the endeavor appears limited to the Petitioner's clients. Because the Director's 
decision did not identify any of the submitted evidence or provide any analysis, it is unclear why they 
concluded that the Petitioner met prong one. Therefore, we are withdrawing the Director's 
determination that the Petitioner met prong one and remand the decision for the Director to analyze 
the evidence to resolve if the proposed endeavor is one of substantial merit and national importance. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Matter of 
Dhanasar, 26 I&N Dec. at 890. 
The Director determined that the Petitioner did not establish he met this prong. In his evaluation of 
the evidence, the Director determined that the Petitioner's educational documents do not "show that 
the petitioner has made significant contributions which have led to the advancement of his industry or 
that he has a record of success substantially beyond others in the field." They also determined that he 
did not provide evidence that he has had "a major impact in his industry on a national or global scale." 
5 In the appeal brief, the Petitioner submitted a new proposed endeavor as a trucking company owner and provided 
corresponding evidence. A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Also, a petitioner 
must meet eligibility requirements for the requested benefit at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). The 
Petitioner's new proposed endeavor, submitted for the first time on appeal, cannot retroactively establish eligibility. On 
remand, the Director should only consider the proposed endeavor as described in the initial filing. 
4 
Further, the Director determined that the evidence failed to show that the Petitioner's "contributions 
impacted beyond his employers or its clients." These are not relevant considerations for analysis under 
prong two. 
On remand, the Director should analyze the evidence to determine whether the record sufficiently 
demonstrates the Petitioner is well positioned to advance the proposed endeavor. 
C. Whether on Balance a Waiver is Beneficial 
As the aforementioned reasons are dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve remaining arguments concerning eligibility under the third prong of the Dhanasar 
framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to 
make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also 
Matter of L-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). 
On remand, if the Director concludes that the Petitioner does not meet Dhanasar 's third prong, the 
decision should address the Petitioner's arguments and evidence, and explain the relative decisional 
weight given to each balancing factor. 
III. CONCLUSION 
The Director's decision is withdrawn. The matter is remanded for the entry of a new decision 
consistent with the foregoing analysis. The Director should issue a new decision regarding the 
Petitioner's eligibility for the underlying EB-2 visa classification and for a national interest waiver 
with an analysis of the evidence to support each conclusion. The Director may request any additional 
evidence considered pertinent to the new determination and any other issue. As such, we express no 
opinion regarding the ultimate resolution of this case on remand. 
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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