remanded EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 12332236 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 24, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a business manager, seeks second preference immigrant classification as a member of 
the professions holding an advanced degree and 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). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he 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 he 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 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. 
Section 10l(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. 
In addition to the definition of "advance degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 
8 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 ofletters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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) 
1 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 
may, as matter of discretion 2, 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. 
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 he 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 
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. 
A. Member of the Professions Holding an Advanced Degree 
Although the Director's decision did not specifically address the Petitioner's qualifications for the 
requested classification, the request for evidence (RFE) stated that the Petitioner "submitted evidence 
with Form 1-140 which establishes the beneficiary holds advanced degree and thus qualifies as a 
member of the professions holding an advanced degree. Therefore, at this time, USCIS does not need 
2 See also Poursina v. USC1S, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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to evaluate whether the beneficiary also qualifies as an alien of exceptional ability." A review of the 
record, however, does not support such a determination. For the reasons discussed below, we withdraw 
the Director's conclusion on this issue. 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[a]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner 
may 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 current or former 
employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience 
in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner presented a copy of his diploma and transcript, with certified translations, 
demonstrating that he earned a bachelor's degree in administration in July 2008 froml I 
I 14 The record also contains an "Evaluation of Training, Education, and 
Experience" from USA Evaluations which concludes that the Petitioner holds the equivalent of a U.S. 
master of business administration in management "based upon a combination of Academics and a 
minimum 5 years Professional experience, as per USCIS." The evaluation, however, does not 
establish that the Petitioner's education alone meets the regulation at 8 C.F.R. § 204.5(k)(3)(i)(A). 
Moreover, while the evaluator states that the "evaluation relies upon the copies of the original 
documents of the diplomas, transcripts, and resume provided by" the Petitioner, there is no indication 
that he reviewed any employment letters to establish the Petitioner's work history or experience. 5 
Accordingly, we withdraw the Director's finding that the Petitioner qualifies as a member of the 
professions holding an advanced degree. 
B. Exceptional Ability 
The Petitioner's July 2018 letter accompanying the Form I-140 specifically states that he was 
alternatively seeking classification as an individual of exceptional ability in his field of expertise. The 
Director's decision did not address whether the Petitioner satisfies at least three of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional 
ability classification. 
C. National Interest Waiver 
Regarding the Petitioner's claims of eligibility under the Dhanasar analysis, we agree with the 
Director's ultimate conclusions that the Petitioner has not meet any of the three prongs. 
4 The Petitioner's diploma and transcripts, and accompanying certified translations, indicate that the Petitioner's foreign 
degree is in "administration," without any additional specialty. The evaluator, however, states that the Petitioner's foreign 
degree is a bachelor's degree in business administration with a major in management. The evaluator provides no 
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 l&N Dec. 582, 591-92 (BIA 1988). 
5 The job duties listed in the "professional experience" section of the evaluation are taken directly from the Petitioner's 
resume. 
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III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider anew 
whether the Petitioner qualifies for EB-2 classification as an advanced degree professional or an 
individual of exceptional ability, the threshold determination in national interest waiver cases. The 
Director may request any additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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