remanded EB-2 NIW Case: Business Intelligence

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 08, 2025 In Re: 35489660 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a senior business intelligence analyst, 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 Nebraska Service Center approved the petition, but later issued a service motion 
to reopen and a request for evidence (RFE). The Director then issued a notice of intent to revoke 
(NOIR) and denied the petition, concluding the Petitioner did not demonstrate the Beneficiary's 
eligibility for a national interest waiver. 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 Christo 's, Inc., 26 l&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. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
of the beneficiary 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 establishes the beneficiary's 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." Id. Matter ofDhanasar, 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: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of 
Appeals in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary in nature). 
• 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. NATTONAL INTEREST W AIYER 
A. Facts and Procedural History 
The Petitioner stated that the Beneficiary's proposed endeavor was to "utilize advanced computing 
technologies to design and develop data analytics infrastructure to gather and track metrics on the 
performance of systems for [the Petitioner's] streaming platform." The Petitioner asserted that the 
innovative solutions developed by the Beneficiary would maintain its status as a leader in the global 
video game industry, generate significant revenue for the U.S. economy, and have national 
implications on technology of interest to the U.S. government, namely, the advancement and 
development of advanced computing capabilities and technologies. 
As discussed, the Director approved the petition on May 10, 2024, but later issued a service motion to 
reopen and RFE on May 31, 2024. Following the issuance of the RFE, the Director issued a NOIR on 
June 7, 2024. In the NOIR, the Director indicated that the Petitioner did not establish the Beneficiary's 
eligibility under any of the three prongs of Dhanasar and requested additional evidence to demonstrate 
each prong. 
The Director later issued a decision on August 20, 2024 "denying" the petition. In this decision, the 
Director determined the Petitioner demonstrated that the Beneficiary was a member of the professions 
holding an advanced degree. 8 C.F.R. § 204.5(k)(2). The Director also stated that "the petitioner has 
not met prongs 1 or 3 ... therefore, the petitioner is not eligible for, and does not merit, a national 
interest waiver as a matter of discretion." However, the Director further concluded that "the evidence 
submitted is sufficient to establish that the [Beneficiary's] proposed endeavor to work as an Operations 
Management [sic] has substantial merit and national importance." In addition, the Director determined 
that the Beneficiary was well positioned to advance the proposed endeavor, consistent with the second 
prong. Matter ofDhanasar, 26 I&N Dec. at 890 
However, the Director concluded the Petitioner did not establish that, on balance, it would be 
beneficial to the United States to waive the requirements of the job offer and thus of the labor 
certification. Id. at 890-91. In making this determination, the Director stated the following: 
The evidence submitted does not establish the beneficiary has a degree of influence in 
their field at a level that would warrant waiver of the job offer requirement, and thus 
the labor certification. Further, the petitioner has not established their contributions are 
sufficiently urgent or time-sensitive, or that their knowledge and skills could not be 
easily articulated on a labor certification. The petitioner has not shown that they have 
knowledge or skills above that of a successful senior business analyst. Additionally 
[sic], the petitioner has not submitted evidence of significant contributions to the 
2 
business industry, or evidence to establish that they have skills that are atypical of a 
qualified U.S. software developer 
The Director further acknowledged the Petitioner's contention that the Beneficiary's proposed 
endeavor met the third prong based on his contributions to critical and emerging technology in a STEM 
(Science, Technology, Engineering, or Mathematics) field. However, the Director determined the 
Petitioner did not sufficiently demonstrate the Beneficiary met the third prong on this basis, reasoning 
that "despite public and private investment, the U.S. is not developing an American STEM workforce 
to fill the jobs of the future." They further noted that the labor certification process existed to address 
shortages of workers. The Director reasoned that the Beneficiary's proposed endeavor contributed 
mostly to his immediate employer, not warranting that they forgo the labor certification process. The 
Director also stated that the Petitioner did not demonstrate how his work would "directly lead to a 
significant creation of jobs, or that the United States will benefit, on a national scale, from his 
contributions." 
On appeal, the Petitioner points to the USCTS Policy Manual and asserts it provides specific evidentiary 
considerations related to individuals with advanced degrees working on critical and emerging 
technologies in a STEM field. The Petitioner contends that the Director improperly ignored these stated 
factors in the USCTS policy manual, applying a stricter standard. The Petitioner emphasizes that this 
guidance does not require USCIS to determine that a "beneficiary have a degree of influence in their 
field" and asserts that this conclusion is in conflict with the Director's determinations with respect to 
prongs one and two of Dhanasar. The Petitioner asserts that the Beneficiary's endeavor related to 
advanced computing technologies, specifically "data storage architectures and data processing and 
analysis techniques," represents critical and emerging STEM technology meeting the guidance for 
eligibility under the third prong balancing test articulated in the USCTS policy manual. 
B. Analysis 
Upon review, we will remand this matter for the entry of a new decision consistent with the following 
analysis. As a preliminary matter, the Director did not properly revoke the approval of the petition. 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he 
deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204. Such revocation shall be effective as of the date of approval of any such petition." 
Regarding revocation of an immigrant petition under section 205 of the Act, the Board oflmmigration 
Appeals stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of record 
at the time the notice is issued, if unexplained and unrebutted, would warrant a denial 
of the visa petition based upon the petitioner's failure to meet his burden of proof. The 
decision to revoke will be sustained where the evidence of record at the time the 
decision is rendered, including any evidence or explanation submitted by the petitioner 
in rebuttal to the notice of intention to revoke, would warrant such denial. 
3 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( quoting Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
Once a director decides to revoke the approval of a petition on any ground other than those specified 
in 8 C.F.R. § 205.1, the proper course of action is to revoke the approval following issuance of a NOIR 
and not reopen on service motion and deny. In such cases, the Petitioner must be given the opportunity 
to offer evidence in support of the petition and in opposition to the grounds alleged for revocation of 
the approval. See 8 C.F.R. § 205.2. 
Here, following the approval of the petition, the Director issued a service motion reopening the matter 
and issued a blanket RFE, and later issued a NOIR without addressing the previously issued service 
motion and RFE. Further, the NOIR did not articulate with specificity the good and sufficient cause 
for revocation of the approved petition, but instead broadly discussed all grounds of ineligibility 
without identifying which grounds for revocation applied in this matter. In addition, the Director 
further "denied" the petition in its latest decision, an apparent error in attempting to revoke the 
approval. 2 As such, the Director should properly issue a new NOIR specifically identifying the 
grounds for revocation of the approved petition. 
We also note that the Director made conflicting statements in the prior decision as to whether the 
Petitioner had established eligibility under the first prong of Dhanasar related to substantial merit and 
national importance. In any future proceedings, the Director should clearly articulate its conclusion 
as to the first prong of Dhanasar. 
In addition, 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. 
As discussed, the Petitioner asserts the Beneficiary is eligible under the third prong ofDhanasar since 
his proposed endeavor is focused on a critical and emerging technology in a STEM field. The USCIS 
policy manual outlines specific evidentiary considerations relating to STEM degrees and fields, 
including with respect to evaluating eligibility under the third prong. When evaluating the third prong 
and whether the United States may benefit from the person's entry, regardless of whether other U.S. 
workers are available, the USCIS policy manual instrncts us to consider the following combination of 
facts contained in a record as a strong positive factor: 
• 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. 
The benefit to the United States is considered especially weighty where the endeavor has the potential 
to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is 
supported by letters from interested U.S. government agencies. 3 
2 We also observe that the Director made conflicting statements in the decision as to the Beneficiary's stated profession 
referring to operations management, senior business analysts, and software developers. In any future proceedings, the 
Director should properly state the Beneficiary's proposed title, senior business intelligence analyst. 
3 See generally 6 USCIS Policy Manual F.5(D)(2). 
4 
In making their determination with respect to the third prong ofDhanasar, the Director focused on the 
degree of influence the Beneficiary had in his field; the urgency and time-sensitivity of his work; 
whether his knowledge and skills could be easily articulated on a labor certification; whether his 
knowledge or skills were above that of a successful senior business intelligence analyst; and whether 
he had made significant contributions to the business industry, among other considerations. However, 
the Director's analysis on the third prong did not sufficiently address the guidance specifically 
provided by the USCIS policy manual with respect to those asserting a beneficiary's eligibility with a 
proposed endeavor advancing a critical and emerging technology in a STEM field, namely, those 
factors we have discussed in bullet points above. In any future proceedings, the Director should consider 
this guidance in their determination on the third prong ofDhanasar. Id. 
In sum, the Director did not properly revoke the approved petition. We will therefore remand the 
matter to the Director for further action. We express no opinion regarding the ultimate resolution of 
this case on remand, however to the extent the Director determines the approval of the petition must 
be revoked, they must specifically set forth good and sufficient cause for doing so. 
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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